FCC Record, Volume 1, No. 7, Pages 1267 to 1368, December 22, 1986 - January 2, 1987 Page: 1,317
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Federal Communications Commission Record
12. The Commission adopted its policies fostering minority
ownership and applied racial and gender
preferences in comparative hearings to respond to the
court's mandates in TV 9 and Garrett, supra, that the FCC
should assume that minority ownership affects content
diversity. Thus, in compliance with the court's holdings,
the Commission has applied its comparative policy solely
on the basis of the amount of minority or female ownership
reflected in management. Likewise, the Commission,
in its Policy on Minority Ownership of Broadcasting Facilities,
supra, based its distress sale and tax certificate decisions
on the nature of the minority interests, i.e.,
whether they were controlling.
13. As indicated previously, the Surpreme Court decided
several cases involving affirmative action programs
that may implicate the Commission's comparative preference,
minority distress sale and minority tax certificate
programs. See, e.g., Wygant v. Jackson Board of Education,
90 L. Ed. 2d 260 (1986); Fullilove v. Klutznik, 448 U.S.
448 (1980); Regents of University of California v. Bakke.
438 U.S. 265 (1978). See also Mississippi University for
Women v. Hogan, 458 U.S. 718 (1982) ("heightened scrutiny"
applied to gender-based classifications). Although
these cases are primarily concerned with quota or setaside
affirmative action remedies for past discrimination,7
collectively these cases at a minimum establish the proposition
that classifications based on race or sex are inherently
suspect, presumptively invalid, and subject to strict
or heightened scrutiny. Because there is no factual predicate
against which to apply such cases, the Commission
has initiated this proceeding to reexamine its policies
based on racial or gender classifications and preferences.
14. As stated previously, the purpose behind each of
these policies has been to expand program diversity. We
find program diversity compelling governmental interest
within the Commission's authority. Although we do not
interpret the Supreme Court opinions to preclude consideration
of race or gender in the licensing process under
all circumstances, we do read these cases to mean that the
use of minority/gender status must include a determination
of whether their use is necessary and narrowly tailored
to achieve their goals. The Commission's brief
concluded, in response to the Steele court's questions, that
racial or gender classifications may not be based on the
assumption alone that integrated minority/female owners
will result in increased content diversity. The Commission
concluded, therefore, that an inquiry should be conducted
to reexamine the legal and factual predicates of our
policies. To this end, we seek to determine whether there
is a nexus between minority/female ownership and
viewpoint diversity, and whether such ownership is necessary
to achieve this goal. The questions that follow are
designed to elicit evidence on these points. They are also
designed to focus attention on the effectiveness of these
policies in achieving their intended goals and on other
alternatives the Commission might or should consider.
We also seek to determine whether, as a matter of policy,
these preference schemes should be retained.
SPECIFIC QUESTIONS AND REQUEST FOR
I. THE CONSTITUTIONALITY OF THE POLICIES
15. The overarching question that must be addressed is,
of course, whether the preference, distress sale, and tax
certificate policies as presently constituted and administered
are constitutional. In addressing this question,
commenters should submit analyses of relevant case law
in support of their reasoning and specific data to support
their factual conclusions. In the course of this analysis,
particular consideration of the questions outlined below
also will be helpful.
16. The "strict scrutiny" test applied in cases involving
race classifications and the heightened scrutiny test applied
in gender classifications require that government
actions be premised on a clearly established factual
record. Furthermore, in assessing the constitutionality of
race or gender-conscious remedies, courts have required
that the remedy chosen be "narrowly tailored" to achieve
the government's legitimate, articulated purpose. In assessing
these issues, commenters should focus on the
a. Is a demonstrated relationship between
minority/female ownership and
minority/female-oriented programming necessarily
required as a matter of law to support the constitutionality
of the Commission's comparative preference,
distress sale, and tax certificate policies? If not,
please cite relevant case law in support of this
position. Are there any circumstances under which
such a relationship can be presumed? On what
basis? May the Commission rely upon reasonable
expectation or its own expert judgment on these
matters, even in part? Is increased minority or
female ownership in and of itself a sufficient governmental
interest and does it pass constitutional
b. To what extent is the relationship between integrated
minority/female ownership and increased
availability of minority/female perspectives and programming
empirically demonstrable? Is there, for
example, a demonstrable difference in the amount
or nature of minority-oriented programming broadcast
by minority-owned stations and that broadcast
by nonminority-owned stations under similar market
conditions, such as where there is a significant
minority population? How should minority or
female-oriented programming be defined for purposes
of this analysis? Do these definitions apply to
c. Is the evidence relating to the nexus between
ownership and programming any different when
minority and female ownership are combined with
significant management roles, as is required under
the comparative preference policy, as contrasted
with ownership that is not integrated into management,
as is permitted under the tax certificate and
distress sale policies?
d. The Supreme Court precedent suggests that a
higher level of scrutiny may apply to race-based
classifications than to gender-based classifications. If
that is true, what is the effect of this difference on
the constitutionality of our policies?
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United States. Federal Communications Commission. FCC Record, Volume 1, No. 7, Pages 1267 to 1368, December 22, 1986 - January 2, 1987, book, January 1987; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1579/m1/56/: accessed December 15, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.