FCC Record, Volume 1, No. 7, Pages 1267 to 1368, December 22, 1986 - January 2, 1987 Page: 1,318
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Federal Communications Commission Record
17. Equal protection concerns generally require that
there be no reasonable way to achieve the state's goals by
means of imposing a lesser limitation on the rights of the
group disadvantaged by the classification.
a. Are there effective means of achieving increased
program diversity that do not require the use of
race/gender classifications? For example, to what
extent do market forces independently produce a
mix of programming serving the varied needs and
interests of broadcast audiences?
b. Should the Commission continue to grant preferences
to minorities and women in comparative
licensing proceedings, but permit nonminorities and
men to overcome such preferences by making a
showing that they will make an equal or superior
contribution to diversity? Would this affect the constitutionality
of the policy? How could such
showings be made? Should the tax certificate and
distress sale policies be similarly altered?
c. Should the Commission. for example, return to
its original position in the TV 9 case, under which
all applicants seeking a diversity preference make
individual showings to demonstrate a specific contribution
to program diversity? Should this showing
be open to any individual or limited to minorities
and women? Should an analogous approach for
distress sales and tax certificates be adopted? Is there
a way for the Commission to evaluate such individual
showings without having to directly analyze
program content. for example, by linking any preference
to demonstration of past involvement with
minority/female issues which may be a more reliable
indicator than race or gender per se ?
d. If race and gender classifications are used in the
Commission's ownership policies, how long should
they be employed? What monitoring mechanisms
should be used? What are the First Amendment
ramifications of any such monitoring? If a demonstrable
nexus is found. is the comparative process
constitutional as presently administered? Distress
sales? Tax certificates?
e. Please comment upon the Commission's present
.practice of granting integrated female owners an
enhancement of lesser weight than that granted integrated
minority owners in the comparative process.
Is there an adequate constitutional basis for
these gradations of enhancement? Is there a factual
basis for these gradations of enhancement relevant
to the Commission's public interest mandate?
Significance of Legislative History of Lottery Statute
18. In enacting the lottery licensing provisions of Section
309(i) of the Communications Act in 1982, Congress
explicity incorporated a mandatory minority preference
scheme. In connection with that enactment and in other
proceedings, Congress has made various statements that
relate ownership diversity to diversity of programming
and that find a substantial underrepresentation of minorities
and women among owners of mass media. Parties are
invited to comment on the referenced Congressional
record as a basis, in constitutional terms, for Commission
action in continuing to apply the subject ownership policies.
We solicit comment on whether the Commission is
bound by, or may rely upon. Congressional findings of
constitutionality, until directed otherwise by a court, or
whether the Commission must independently assess the
II. EFFECTIVENESS OF CURRENT POLICIES AND
19. In re-evaluating the existing policies, it is necessary
to ascertain the extent to which they have been effective.
For this purpose, interested parties are asked to address
the following questions.
a. To what extent have the subject policies resulted
in minority and female ownership? Is there anything
in the comparative process that acts as a
barrier to the entry of minorities and women into
broadcasting? In practice, have integration proposals
been carried out? How long have owners benefiting
from the policies continued their ownership roles?
Has the number of minority and female-owned stations
increased, and by how much, since the adoption
of each policy? What percentage of stations
have been acquired by utilizing these policies?
b. What are the major impediments to increasing
minority ownership of the broadcast media? Does
financing continue to be substantial problem? To
what extent is lack of information on ownership
opportunities a problem? What part might the
Commission play in eliminating these and other
c. What social or other costs might result from
continuing these policies? Are these costs outweighed
by the benefits to be derived from continuing
20. Commenters are invited to respond to the above
questions and to address any other matters raised herein
or that the parties deem relevant to a careful reexamination
of the subject policies. We encourage parties to
submit empirical evidence and hard data wherever possible
to support their positions. Where such evidence or
data is filed, parties should describe fully the methodolQgy
utilized in its compilation and analysis. Parties submitting
comments on the constitutional issues presented in the
Commission's brief in Steele or in this Notice are requested
to include citations to relevant statutes and case
law. Finally, we request that parties identify the question
to which they are responding in their comments.
21. Authority for this Notice of Inquiry is contained in
Sections 4(i) and 303(r) of the Communications Act of
1934, as amended. Pursuant to applicable provisions set
forth in Sections 1.415 and 1.419 of the Commission's
Rules, interested parties may file comments on or before
May 7. 1987, and reply comments on or before July 6,
1987. All submissions by parties to this proceeding or
persons acting on behalf of such parties must be made in
written comments, reply comments, or other appropriate
pleadings. Reply comments shall be served on the person(s)
who filed comments to which the reply is directed.
22. It is our intention at the conclusion of this inquiry
proceeding to adopt a final policy statement. Therefore,
for purposes of this nonrestricted notice of inquiry pro
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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/m1/57/: accessed August 20, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.