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Subject: 89-453 & 89-700--OPINION, METRO BROADCASTING, INC. v. FCC




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


Nos. 89-453 and 89-700


METRO BROADCASTING, INC., PETITIONER
v.
89-453
FEDERAL COMMUNICATIONS COMMISSION et al.

ASTROLINE COMMUNICATIONS COMPANY
LIMITED PARTNERSHIP, PETITIONER
v.
89-700
SHURBERG BROADCASTING OF HARTFORD,
INC., et al.


on writs of certiorari to the united states court of appeals for the
district of columbia circuit

[June 27, 1990]



    Justice Brennan delivered the opinion of the Court.
    The issue in these cases, consolidated for decision today, is whether
certain minority preference policies of the Federal Communications
Commission violate the equal protection component of the Fifth Amendment.
The policies in question are (1) a program awarding an enhancement for
minority ownership in comparative proceedings for new licenses, and (2) the
minority "distress sale" program, which permits a limited category of
existing radio and television broadcast stations to be transferred only to
minority-controlled firms.  We hold that these policies do not violate
equal protection principles.

I


A


    The policies before us today can best be understood by reference to the
history of federal efforts to promote minority participation in the
broadcasting industry. {1}  In the Com munications Act of 1934, 48 Stat.
1064, as amended, Congress assigned to the Federal Communications
Commission (FCC or Commission) exclusive authority to grant licenses, based
on "public convenience, interest, or necessity," to persons wishing to
construct and operate radio and television broadcast stations in the United
States.  See 47 U. S. C. 15 151, 301, 303, 307, 309 (1982 ed.).  Although
for the past two decades minorities have constituted at least one-fifth of
the United States population, during this time relatively few members of
minority groups have held broadcast licenses.  In 1971, minorities owned
only 10 of the approximately 7,500 radio stations in the country and none
of the more than 1,000 television stations, see TV 9, Inc. v. FCC, 161 U.
S. App. D. C. 349, 357, n. 28, 495 F. 2d 929, 937, n. 28 (1973), cert.
denied, 419 U. S. 986 (1974); see also 1 U. S. Commission on Civil Rights,
Federal Civil Rights Enforcement Effort-- 1974, p. 49 (Nov. 1974); in 1978,
minorities owned less than 1 percent of the Nation's radio and television
stations, see FCC Minority Ownership Task Force, Report on Minority
Ownership in Broadcasting 1 (1978) (hereinafter Task Force Report); and in
1986, they owned just 2.1 percent of the more than 11,000 radio and
television stations in the United States.  See National Association of
Broadcasters, Minority Broadcasting Facts 6 (Sept. 1986).  Moreover, these
statistics fail to reflect the fact that, as late entrants who often have
been able to obtain only the less valuable stations, many minority
broadcasters serve geographically limited markets with relatively small
audiences. {2}
    The Commission has recognized that the viewing and listening public
suffers when minorities are underrepresented among owners of television and
radio stations:

"Acute underrepresentation of minorities among the owners of broadcast
properties is troublesome because it is the licensee who is ultimately
responsible for identifying and serving the needs and interests of his or
her audience.  Unless minorities are encouraged to enter the mainstream of
the commercial broadcasting business, a substantial portion of our
citizenry will remain under served and the larger, non-minority audience
will be deprived of the views of minorities."  Task Force Report, at 1.


The Commission has therefore worked to encourage minority participation in
the broadcast industry.  The FCC began by formulating rules to prohibit
licensees from discriminating against minorities in employment. {3}  The
FCC explained that "broadcasting is an important mass media form which,
because it makes use of the airwaves belonging to the public, must obtain a
Federal license under a public interest standard and must operate in the
public interest in order to obtain periodic renewals of that license."
Nondiscrimination Employment Practices of Broadcast Licensees, 13 F. C. C.
2d 766, 769 (1968).  Regulations dealing with employment practices were
justified as necessary to enable the FCC to satisfy its obligation under
the Communications Act to promote diversity of programming.  See NAACP v.
FPC, 425 U. S. 662, 670, n. 7 (1976).  The United States Department of
Justice, for example, contended that equal employment opportunity in the
broadcast industry could " `contribute significantly toward reducing and
ending discrimination in other industries' " because of the " `enormous
impact which television and radio have upon American life.' "
Nondiscrimination Employment Practices, 13 F. C. C. 2d, at 771 (citation
omitted).
    Initially, the FCC did not consider minority status as a factor in
licensing decisions, maintaining as a matter of Commission policy that no
preference to minority ownership was warranted where the record in a
particular case did not give assurances that the owner's race likely would
affect the content of the station's broadcast service to the public.  See
Mid-Florida Television Corp., 33 F. C. C. 2d 1, 17-18 (Rev. Bd.), review
denied, 37 F. C. C. 2d 559 (1972), rev'd, TV 9, Inc. v. FCC, supra.  The
Court of Appeals for the District of Columbia Circuit, however, rejected
the Commission's position that an "assurance of superior community service
attributable to . . . Black ownership and participation" was required
before a preference could be awarded.  TV 9, Inc., supra, at 358, 495 F.
2d, at 938.  "Reasonable expectation," the court held, "not advance
demonstration, is a basis for merit to be accorded relevant factors."
Ibid.  See also Garrett v. FCC, 168 U. S. App. D. C. 266, 273, 513 F. 2d
1056, 1063 (1975).
    In April 1977, the FCC conducted a conference on minority ownership
policies, at which participants testified that minority preferences were
justified as a means of increasing diversity of broadcast viewpoint.  See
Task Force Report, at 4-6.  Building on the results of the conference, the
recommendations of the Task Force, the decisions of the Court of Appeals
for the District of Columbia Circuit, and a petition proposing several
minority ownership policies filed with the Commission in January 1978 by
the Office of Telecommunications Policy (then part of the Executive Office
of the President) and the Department of Commerce, {4} the FCC adopted in
May 1978 its Statement of Policy on Minority Ownership of Broadcasting
Facilities, 68 F. C. C. 2d 979.  After recounting its past efforts to
expand broadcast diversity, the FCC concluded:


"[W]e are compelled to observe that the views of racial minorities continue
to be inadequately represented in the broadcast media.  This situation is
detrimental not only to the minority audience but to all of the viewing and
listening public.  Adequate representation of minority viewpoints in
programming serves not only the needs and interests of the minority
community but also enriches and educates the non-minority audience.  It
enhances the diversified programming which is a key objective not only of
the Communications Act of 1934 but also of the First Amendment."  Id., at
980-981 (footnotes omitted).


Describing its actions as only "first steps," id., at 984, the FCC outlined
two elements of a minority ownership policy.     First, the Commission
pledged to consider minority ownership as one factor in comparative
proceedings for new licenses.  When the Commission compares mutually
exclusive applications for new radio or television broadcast stations, {5}
it looks principally at six factors: diversification of control of mass
media communications, full-time participation in station operation by
owners (commonly referred to as the "integration" of ownership and
management), proposed program service, past broadcast record, efficient use
of the frequency, and the character of the applicants.  See Policy
Statement on Comparative Broadcast Hearings, 1 F. C. C. 2d 393, 394-399
(1965); West Michigan Broadcasting Co. v. FCC, 236 U. S. App. D. C. 335,
338-339, 735 F. 2d 601, 604-607 (1984), cert. denied, 470 U. S. 1027
(1985).  In the Policy Statement on Minority Ownership, the FCC announced
that minority ownership and participation in management would be considered
in a comparative hearing as a "plus" to be weighed together with all other
relevant factors.  See WPIX, Inc., 68 F. C. C. 2d 381, 411-412 (1978).  The
"plus" is awarded only to the extent that a minority owner actively
participates in the day-to-day management of the station.
    Second, the FCC outlined a plan to increase minority opportunities to
receive reassigned and transferred licenses through the so-called "distress
sale" policy.  See 68 F. C. C. 2d, at 983.  As a general rule, a licensee
whose qualifications to hold a broadcast license come into question may not
assign or transfer that license until the FCC has resolved its doubts in a
noncomparative hearing.  The distress sale policy is an exception to that
practice, allowing a broadcaster whose license has been designated for a
revocation hearing, or whose renewal application has been designated for
hearing, to assign the license to an FCC-approved minority enterprise.  See
ibid.; Commission Policy Regarding the Advancement of Minority Ownership in
Broadcasting, 92 F. C. C. 2d 849, 851 (1982).  The assignee must meet the
FCC's basic qualifications, and the minority ownership must exceed 50
percent or be controlling. {6}  The buyer must purchase the license before
the start of the revocation or renewal hearing, and the price must not
exceed 75 percent of fair market value.  These two Commission minority
ownership policies are at issue today. {7}

B


1


    In No. 89-453, petitioner Metro Broadcasting, Inc. (Metro) challenges
the Commission's policy awarding preferences to minority owners in
comparative licensing proceedings.  Several applicants, including Metro and
Rainbow Broadcasting (Rainbow), were involved in a comparative proceeding
to select among three mututally exclusive proposals to construct and
operate a new UHF television station in the Orlando, Florida, metropolitan
area.  After an evidentiary hearing, an Administrative Law Judge (ALJ)
granted Metro's application.  Metro Broadcasting, Inc., 96 F. C. C. 2d 1073
(1983).  The ALJ disqualified Rainbow from consideration because of
"misrepresentations" in its application.  Id., at 1087.  On review of the
ALJ's decision, however, the Commission's Review Board disagreed with the
ALJ's finding regarding Rainbow's candor and concluded that Rainbow was
qualified.  Metro Broadcasting, Inc., 99 F. C. C. 2d 688 (Rev. Bd. 1984).
The Board proceeded to consider Rainbow's comparative showing and found it
superior to Metro's.  In so doing, the Review Board awarded Rainbow a
substantial enhancement on the ground that it was 90 percent
Hispanic-owned, whereas Metro had only one minority partner who owned 19.8
percent of the enterprise.  The Review Board found that Rainbow's minority
credit outweighed Metro's local residence and civic participation
advantage.  Id., at 704.  The Commission denied review of the Board's
decision largely without discussion, stating merely that it "agree[d] with
the Board's resolution of this case."  No. 85-558 (Oct. 18, 1985), p. 2;
App. to Pet. for Cert. in No. 89-453, p. 61a.     Metro sought review of
the Commission's order in the United States Court of Appeals for the
District of Columbia Circuit, but the appeal's disposition was delayed; at
the Commission's request, the court granted a remand of the record for
further consideration in light of a separate ongoing inquiry at the
Commission regarding the validity of its minority and female ownership
policies, including the minority enhancement credit.  See Notice of Inquiry
on Racial, Ethnic or Gender Classifications, 1 F. C. C. Rcd 1315 (1986)
(Docket 86-484). {8}  The Commission determined that the outcome in the
licensing proceeding between Rainbow and Metro might depend on whatever the
Commission concluded in its general evaluation of minority ownership
policies, and accordingly it held the licensing proceeding in abeyance
pending further developments in the Docket 86-484 review.  See Metro
Broadcasting, Inc., 2 F. C. C. Rcd 1474, 1475 (1987).
    Prior to the Commission's completion of its Docket 86-484 inquiry,
however, Congress enacted and the President signed into law the FCC
appropriations legislation for fiscal year 1988.  The measure prohibited
the Commission from spending any appropriated funds to examine or change
its minority ownership policies. {9}  Complying with this directive, the
Commission closed its Docket 86-484 inquiry.  See Reexamination of Racial,
Ethnic or Gender Classifications, Order, 3 F. C. C. Rcd 766 (1988).  The
FCC also reaffirmed its grant of the license in this case to Rainbow
Broadcasting.  See Metro Broadcasting, Inc., 3 F. C. C. Rcd 866 (1988).
    The case returned to the Court of Appeals, and a divided panel affirmed
the Commission's order awarding the license to Rainbow.  The court
concluded that its decision was controlled by prior circuit precedent and
noted that the Commission's action was supported by " `highly relevant
congressional action that showed clear recognition of the extreme
underrepresentation of minorities and their perspectives in the broadcast
mass media.' "  Winter Park Communications, Inc. v. FCC, 277 U. S. App. D.
C. 134, 140, 873 F. 2d 347, 353 (1989), quoting West Michigan, 236 U. S.
App. D. C., at 347, 735 F. 2d, at 613.  After petitions for rehearing and
suggestions for rehearing en banc were denied, we granted certiorari.  493
U. S. ---- (1990).

2


    The dispute in No. 89-700 emerged from a series of attempts by Faith
Center, Inc., the licensee of a Hartford, Connecticut television station,
to execute a minority distress sale.  In December 1980, the FCC designated
for a hearing Faith Center's application for renewal of its license.  See
Faith Center, Inc., FCC 80-680 (Dec. 21, 1980).  In February 1981, Faith
Center filed with the FCC a petition for special relief seeking permission
to transfer its license under the distress sale policy.  The Commission
granted the request, see Faith Center, Inc., 88 F. C. C. 2d 788 (1981), but
the proposed sale was not completed, apparently due to the purchaser's
inability to obtain adequate financing.  In September 1983, the Commission
granted a second request by Faith Center to pursue a distress sale to
another minority- controlled buyer.  The FCC rejected objections to the
distress sale raised by Alan Shurberg, who at that time was acting in his
individual capacity. {10}  See Faith Center, Inc., 54 Radio Reg. 2d (P&F)
1286, 1287-1288 (1983); Faith Center, Inc., 55 Radio Reg. 2d (P&F) 41,
44-46 (Mass Media Bur. 1984).  This second distress sale also was not
consummated, apparently because of similar financial difficulties on the
buyer's part.
    In December 1983, respondent Shurberg Broadcasting of Hartford, Inc.
(Shurberg) applied to the Commission for a permit to build a television
station in Hartford.  The application was mutually exclusive with Faith
Center's renewal application, then still pending.  In June 1984, Faith
Center again sought the FCC's approval for a distress sale, requesting
permission to sell the station to Astroline Communications Company, Limited
Partnership (Astroline), a minority applicant.  Shurberg opposed the sale
to Astroline on a number of grounds, including that the FCC's distress sale
program violated Shurberg's right to equal protection.  Shurberg therefore
urged the Commission to deny the distress sale request and to schedule a
comparative hearing to examine the application Shurberg had tendered
alongside Faith Center's renewal request.  In December 1984, the FCC
approved Faith Center's petition for permission to assign its broadcast
license to Astroline pursuant to the distress sale policy.  See Faith
Center, Inc., 99 F. C. C. 2d 1164 (1984).  The FCC rejected Shurberg's
equal protection challenge to the policy as "without merit."  Id., at
1171.
    Shurberg appealed the Commission's order to the United States Court of
Appeals for the District of Columbia Circuit, but disposition of the appeal
was delayed pending completion of the Commission's Docket 86-484 inquiry
into the minority ownership policies.  See supra, at 8.  After Congress
enacted and the President signed into law the appropriations legislation
prohibiting the FCC from continuing the Docket 86-484 proceeding, see
supra, at 9, the Commission reaffirmed its order granting Faith Center's
request to assign its Hartford license to Astroline pursuant to the
minority distress sale policy.  See Faith Center, Inc., 3 F. C. C. Rcd 868
(1988).
    A divided Court of Appeals invalidated the Commission's minority
distress sale policy.  Shurberg Broadcasting of Hartford, Inc. v. FCC, 278
U. S. App. D. C. 24, 876 F. 2d 902 (1989).  In a per curiam opinion, the
panel majority held that the policy "unconstitutionally deprives Alan
Shurberg and Shurberg Broadcasting of their equal protection rights under
the Fifth Amendment because the program is not narrowly tailored to remedy
past discrimination or to promote programming diversity" and that "the
program unduly burdens Shurberg, an innocent nonminority, and is not
reasonably related to the interests it seeks to vindicate."  Id., at 24-25,
876 F. 2d, at 902-903.  Petitions for rehearing and suggestions for
rehearing en banc were denied, and we granted certiorari.  493 U. S. ----
(1990).

II
    It is of overriding significance in these cases that the FCC's minority
ownership programs have been specifically approved--indeed, mandated--by
Congress.  In Fullilove v. Klutznick, 448 U. S. 448 (1980), Chief Justice
Burger, writing for himself and two other Justices, observed that although
"[a] program that employs racial or ethnic criteria . . . calls for close
examination," when a program employing a benign racial classification is
adopted by an administrative agency at the explicit direction of Congress,
we are "bound to approach our task with appropriate deference to the
Congress, a co-equal branch charged by the Constitution with the power to
`provide for the . . . general Welfare of the United States' and `to
enforce, by appropriate legislation,' the equal protection guarantees of
the Fourteenth Amendment."  Id., at 472; see also id., at 491; id., at 510,
and 515-516, n. 14 (Powell, J., concurring); id., at 517-520 (Marshall, J.,
concurring in judgment).  We explained that deference was appropriate in
light of Congress' institutional competence as the national legislature,
see id., at 490 (opinion of Burger, C. J.); id., at 498 (Powell, J.,
concurring), as well as Congress' powers under the Commerce Clause, see
id., at 475-476 (opinion of Burger, C. J.); id., at 499 (Powell, J.,
concurring), the Spending Clause, see id., at 473-475, 478 (opinion of
Burger, C. J.), and the Civil War Amendments, see id., at 476-478 (opinion
of Burger, C. J.); id., at 500, 508-509 (Powell, J., concurring). {11}
    A majority of the Court in Fullilove did not apply strict scrutiny to
the race-based classification at issue.  Three Members inquired "whether
the objectives of th[e] legislation are within the power of Congress" and
"whether the limited use of racial and ethnic criteria . . . is a
constitutionally permissible means for achieving the congressional
objectives."  Id., at 473 (opinion of Burger, C. J.) (emphasis in
original).  Three other Members would have upheld benign racial
classifications that "serve important governmental objectives and are
substantially related to achievement of those objectives."  Id., at 519
(Marshall, J., concurring in judgment).  We apply that standard today.  We
hold that benign race-conscious measures mandated by Congress {12}--even if
those measures are not "remedial" in the sense of being designed to
compensate victims of past governmental or societal discrimination--are
constitutionally permissible to the extent that they serve important
governmental objectives within the power of Congress and are substantially
related to achievement of those objectives.
    Our decision last Term in Richmond v. J. A. Croson Co., 488 U. S. 469
(1989), concerning a minority set-aside program adopted by a municipality,
does not prescribe the level of scrutiny to be applied to a benign racial
classification employed by Congress.  As Justice Kennedy noted, the
question of congressional action was not before the Court, id., at 518
(opinion concurring in part and concurring in judgment), and so Croson
cannot be read to undermine our decision in Fullilove.   In fact, much of
the language and reasoning in Croson reaffirmed the lesson of Fullilove
that race- conscious classifications adopted by Congress to address racial
and ethnic discrimination are subject to a different standard than such
classifications prescribed by state and local governments.  For example,
Justice O'Connor, joined by two other Members of this Court, noted that
"Congress may identify and redress the effects of society-wide
discrimination," 488 U. S., at 490, and that Congress "need not make
specific findings of discrimination to engage in race-conscious relief."
Id., at 489. {13}  Echoing Fullilove's emphasis on Congress as a national
legislature that stands above factional politics, Justice Scalia argued
that as a matter of "social reality and governmental theory," the Federal
Government is unlikely to be captured by minority racial or ethnic groups
and used as an instrument of discrimination.  488 U. S., at 522 (opinion
concurring in judgment).  Justice Scalia explained that "[t]he struggle for
racial justice has historically been a struggle by the national society
against oppression in the individual States," because of the "heightened
danger of oppression from political factions in small, rather than large,
political units."  Id., at 522, 523. {14}
    We hold that the FCC minority ownership policies pass muster under the
test we announce today.  First, we find that they serve the important
governmental objective of broadcast diversity.  Second, we conclude that
they are substantially related to the achievement of that objective.

A
    Congress found that "the effects of past inequities stemming from
racial and ethnic discrimination have resulted in a severe
underrepresentation of minorities in the media of mass communications."  H.
R. Conf. Rep. No. 97-765, p. 43 (1982).  Congress and the Commission do not
justify the minority ownership policies strictly as remedies for victims of
this discrimination, however.  Rather, Congress and the FCC have selected
the minority ownership policies primarily to promote programming diversity,
and they urge that such diversity is an important governmental objective
that can serve as a constitutional basis for the preference policies.  We
agree.
    We have long recognized that "[b]ecause of the scarcity of
[electromagnetic] frequencies, the Government is permitted to put
restraints on licensees in favor of others whose views should be expressed
on this unique medium."  Red Lion Broadcasting Co. v. FCC, 395 U. S. 367,
390 (1969).  The Government's role in distributing the limited number of
broadcast licenses is not merely that of a "traffic officer," National
Broadcasting Co. v. United States, 319 U. S. 190, 215 (1943); rather, it is
axiomatic that broadcasting may be regulated in light of the rights of the
viewing and listening audience and that "the widest possible dissemination
of information from diverse and antagonistic sources is essential to the
welfare of the public."  Associated Press v. United States, 326 U. S. 1, 20
(1945).  Safeguarding the public's right to receive a diversity of views
and information over the airwaves is therefore an integral component of the
FCC's mission.  We have observed that " `the "public interest" standard
necessarily invites reference to First Amendment principles,' " FCC v.
National Citizens Committee for Broadcasting, 436 U. S. 775, 795 (1978),
quoting Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U. S. 94, 122 (1973), and that the Communications Act has
designated broadcasters as "fiduciaries for the public."  FCC v. League of
Women Voters of California, 468 U. S. 364, 377 (1984).  "[T]he people as a
whole retain their interest in free speech by radio [and other forms of
broadcast] and their collective right to have the medium function
consistently with the ends and purposes of the First Amendment," and "[i]t
is the right of the viewers and listeners, not the right of broadcasters,
which is paramount."  Red Lion, supra, at 390.  "Congress may . . . seek to
assure that the public receives through this medium a balanced presentation
of information on issues of public importance that otherwise might not be
addressed if control of the medium were left entirely in the hands of those
who own and operate broadcasting stations."  League of Women Voters, supra,
at 377.
    Against this background, we conclude that the interest in enhancing
broadcast diversity is, at the very least, an important governmental
objective and is therefore a sufficient basis for the Commission's minority
ownership policies.  Just as a "diverse student body" contributing to a "
`robust exchange of ideas' " is a "constitutionally permissible goal" on
which a race-conscious university admissions program may be predicated,
University of California Regents v. Bakke, 438 U. S. 265, 311-313 (1978)
(opinion of Powell, J.), the diversity of views and information on the
airwaves serves important First Amendment values.  Cf. Wygant v. Jackson
Board of Education, 476 U. S. 267, 314-315 (1986) (Stevens, J.,
dissenting). {15}  The benefits of such diversity are not limited to the
members of minority groups who gain access to the broadcasting industry by
virtue of the ownership policies; rather, the benefits redound to all
members of the viewing and listening audience.  As Congress found, "the
American public will benefit by having access to a wider diversity of
information sources."  H. R. Conf. Rep. No. 97-765, p. 45 (1982); see also
Minority Ownership of Broadcast Stations: Hearing before the Subcommittee
on Communications of the Senate Committee on Commerce, Science, and
Transportation, 101st Cong., 1st Sess., 66 (1989) (testimony of Roderick
Porter, Deputy Chief, Mass Media Bureau of the FCC) ("[T]he FCC's minority
policies are based on our conclusion that the entire broadcast audience,
regardless of its racial composition, will benefit").

B
    We also find that the minority ownership policies are substantially
related to the achievement of the Government's interest.  One component of
this inquiry concerns the relationship between expanded minority ownership
and greater broadcast diversity; both the FCC and Congress have determined
that such a relationship exists.  Although we do not " `defer' to the
judgment of the Congress and the Commission on a constitutional question,"
and would not "hesitate to invoke the Constitution should we determine that
the Commission has not fulfilled its task with appropriate sensitivity" to
equal protection principles, Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U. S., at 103, we must pay close
attention to the expertise of the Commission and the factfinding of
Congress when analyzing the nexus between minority ownership and
programming diversity.  With respect to this "complex" empirical question,
ibid., we are required to give "great weight to the decisions of Congress
and the experience of the Commission."  Id., at 102.

1
    The FCC has determined that increased minority participation in
broadcasting promotes programming diversity.  As the Commission observed in
its 1978 Statement of Policy on Minority Ownership of Broadcasting
Facilities, "ownership of broadcasting facilities by minorities is [a]
significant way of fostering the inclusion of minority views in the area of
programming" and "[f]ull minority participation in the ownership and
management of broadcast facilities results in a more diverse selection of
programming."  68 F. C. C. 2d, at 981.  Four years later, the FCC explained
that it had taken "steps to enhance the ownership and participation of
minorities in the media" in order to "increas[e] the diversity in the
control of the media and thus diversity in the selection of available
programming, benefitting the public and serving the principle of the First
Amendment."  Minority Ownership in Broadcasting, 92 F. C. C. 2d, at
849-850.  See also Radio Jonesboro, Inc., 100 F. C. C. 2d 941, 945, n. 9
(1985) (" `[T]here is a critical underrepresentation of minorities in
broadcast ownership, and full minority participation in the ownership and
management of broadcast facilities is essential to realize the fundamental
goals of programming diversity and diversification of ownership' ")
(citation omitted).  The FCC's conclusion that there is an empirical nexus
between minority ownership and broadcasting diversity is a product of its
expertise, and we accord its judgment deference.
    Furthermore, the FCC's reasoning with respect to the minority ownership
policies is consistent with longstanding practice under the Communications
Act.  From its inception, public regulation of broadcasting has been
premised on the assumption that diversification of ownership will broaden
the range of programming available to the broadcast audience. {16}  Thus,
"it is upon ownership that public policy places primary reliance with
respect to diversification of content, and that historically has proved to
be significantly influential with respect to editorial comment and the
presentation of news."  TV 9, Inc., 161 U. S. App. D. C., at 358, 495 F.
2d, at 938.  The Commission has never relied on the market alone to ensure
that the needs of the audience are met.  Indeed, one of the FCC's
elementary regulatory assumptions is that broadcast content is not purely
market-driven; if it were, there would be little need for consideration in
licensing decisions of such factors as integration of ownership and
management, local residence, and civic participation.  In this vein, the
FCC has compared minority preferences to local residence and other
integration credits:


"[B]oth local residence and minority ownership are fundamental
considerations in our licensing scheme.  Both policies complement our
concern with diversification of control of broadcast ownership.  Moreover,
similar assumptions underlie both policies.  We award enhancement credit
for local residence because . . . [i]t is expected that [an] increased
knowledge of the community of license will be reflected in a station's
programming.  Likewise, credit for minority ownership and participation is
awarded in a comparative proceeding [because] `minority ownership is likely
to increase diversity of content, especially of opinion and viewpoint.' "
Radio Jonesboro, Inc., supra, at 945 (footnotes omitted).

2


    Congress also has made clear its view that the minority ownership
policies advance the goal of diverse programming.  In recent years,
Congress has specifically required the Commission, through appropriations
legislation, to maintain the minority ownership policies without
alteration.  See n. 9, supra.  We would be remiss, however, if we ignored
the long history of congressional support for those policies prior to the
passage of the appropriations acts because, for the past two decades,
Congress has consistently recognized the barriers encountered by minorities
in entering the broadcast industry and has expressed emphatic support for
the Commission's attempts to promote programming diversity by increasing
minority ownership.  Limiting our analysis to the immediate legislative
history of the appropriations acts in question "would erect an artificial
barrier to [a] full understanding of the legislative process."  Fullilove
v. Klutznick, 448 U. S., at 502 (Powell, J., concurring).  The "special
attribute [of Congress] as a legislative body lies in its broader mission
to investigate and consider all facts and opinions that may be relevant to
the resolution of an issue.  One appropriate source is the information and
expertise that Congress acquires in the consideration and enactment of
earlier legislation.  After Congress has legislated repeatedly in an area
of national concern, its Members gain experience that may reduce the need
for fresh hearings or prolonged debate when Congress again considers action
in that area."  Id., at 502-503; see also id., at 478 (opinion of Burger,
C. J.) ("Congress, of course, may legislate without compiling the kind of
`record' appropriate with respect to judicial or administrative
proceedings").
    Congress's experience began in 1969, when it considered a bill that
would have eliminated the comparative hearing in license renewal
proceedings, in order to avoid "the filing of a multiplicity of competing
applications, often from groups unknown" and to restore order and
predictability to the renewal process to "give the current license holder
the benefit of the doubt warranted by his previous investment and
experience."  115 Cong. Rec. 14813 (1969) (letter of Sen. Scott).  Congress
heard testimony that, because the most valuable broadcast licenses were
assigned many years ago, comparative hearings at the renewal stage afford
an important opportunity for excluded groups, particularly minorities, to
gain entry into the industry. {17}  Opponents warned that the bill would
"exclude minority groups from station ownership in important markets" by
"fr[eezing]" the distribution of existing licenses. {18}  Congress rejected
the bill.
    Congress confronted the issue again in 1973 and 1974, when
congressional committees held extensive hearings on proposals to extend the
broadcast license period from three to five years and to modify the
comparative hearing process for license renewals.  Witnesses reiterated
that renewals provided a valuable opportunity for minorities to obtain a
foothold in the industry. {19}  The proposals were never enacted, and the
renewal process was left intact.
    During 1978, both the FCC and the Office of Telecommunications Policy
presented their views to Congress as it considered a bill to deregulate the
broadcast industry.  The proposed Communications Act of 1978 would have,
among other things, replaced comparative hearings with a lottery and
created a fund for minorities who sought to purchase stations.  As
described by Representative Markey, the measure was intended to increase
"the opportunities for blacks and women and other minorities in this
country to get into the communications systems in this country so that
their point of view and their interests can be represented."  The
Communications Act of 1978: Hearings on H. R. 13015 before the Subcommittee
on Communications of the House Committee on Interstate and Foreign
Commerce, 95th Cong., 2d Sess., vol. 5, pt. 1, p. 59 (1978).  The bill's
sponsor, Representative Van Deerlin, stated, "It was the hope, and with
some reason the expectation of the framers of the bill, that the most
effective way to reach the inadequacies of the broadcast industry in
employment and programming would be by doing something at the top, that is,
increasing minority ownership and management and control in broadcast
stations."  Id., vol. 3, at 698.
    The Executive Branch objected to the lottery proposal on the ground
that it would harm minorities by eliminating the credit granted under the
comparative hearing scheme as developed by the FCC.  See id., at 50.
Although it acknowledged that a lottery could be structured to alleviate
that concern by attributing a weight to minority ownership, see id., at 85,
the Executive Branch explained that it preferred to grant credit for
minority ownership during comparative hearings as a more finely tuned way
of achieving the Communication Act's goal of broadcast diversity.  See
ibid. (contending that a lottery would not take into account the individual
needs of particular communities).
    Although no lottery legislation was enacted that year, Congress
continued to explore the idea, {20} and when in 1981 it ultimately
authorized a lottery procedure, Congress established a concomitant system
of minority preferences.  See Omnibus Budget Reconciliation Act of 1981,
Pub. L. 97-35, 95 Stat. 357, 736-737.  The Act provided that where more
than one application for an initial license or construction permit was
received, the Commission could grant the license or permit to a qualified
applicant "through the use of a system of random selection," 47 U. S. C.
MDRV 309(i)(1) (1982 ed.), so long as the FCC adopted rules to ensure
"significant preferences" in the lottery process to groups underrepresented
in the ownership of telecommunications facilities.  MDRV 309(i)3)(A).  The
accompanying Conference Report announced Congress's "firm intention" to
award a lottery preference to minorities and other historically
underrepresented groups, so that "the objective of increasing the number of
media outlets owned by such persons or groups [would] be met."  H. R. Conf.
Rep. No. 97-208, 897 (1981).  After the FCC complained of the difficulty of
defining "underrepresented" groups and raised other problems concerning the
statute, {21} Congress enacted a second lottery statute reaffirming its
intention in unmistakable terms.  Section 115 of the Communications
Amendments Act of 1982, Pub. L. 97-259, 96 Stat. 1094 (amending 47 U. S. C.
MDRV 309(i) (1982 ed.)), directs that in any random selection lottery
conducted by the FCC, a preference is to be granted to every applicant
whose receipt of a license would increase the diversification of mass media
ownership and that, "[t]o further diversify the ownership of the media of
mass communications, an additional significant preference [is to be given]
to any applicant controlled by a member or members of a minority group."
47 U. S. C. MDRV 309(i)(3)(A) (1982 ed.).  Observing that the nexus between
ownership and programming "has been repeatedly recognized by both the
Commission and the courts," Congress explained that it sought "to promote
the diversification of media ownership and consequent diversification of
programming content," a principle that "is grounded in the First
Amendment."  H. R. Conf. Rep. No. 97-765, p. 40 (1982).  With this new
mandate from Congress, the Commission adopted rules to govern the use of a
lottery system to award licenses for low power television stations. {22}
    The minority ownership issue returned to the Congress in October 1986,
{23} when a House subcommittee held a hearing to examine the Commission's
inquiry into the validity of its minority ownership policies.  See supra,
at 8.  The subcommittee chair expressed his view that "[t]he most important
message of this hearing today, is that the Commission must not dismantle
these longstanding diversity policies, which Congress has repeatedly
endorsed, until such time as Congress or the courts direct otherwise."
Minority-Owned Broadcast Stations: Hearing on H. R. 5373 before the
Subcommittee on Telecommunications, Consumer Protection, and Finance of the
House Committee on Energy and Commerce, 99th Cong., 2d Sess., 13 (1986)
(Rep. Wirth).  After the Commission issued an order holding in abeyance,
pending completion of the inquiry, actions on licenses and distress sales
in which a minority preference would be dispositive, {24} a number of bills
proposing codification of the minority ownership policies were introduced
in Congress. {25}  Members of Congress questioned representatives of the
FCC during hearings over a span of six months in 1987 with respect to the
FCC appropriation for fiscal year 1988, {26} legislation to reauthorize the
Commission for fiscal years 1988 and 1989, {27} and legislation to codify
the Commission's minority ownership policies. {28}
    Ultimately, Congress chose to employ its appropriations power to keep
the FCC's minority ownership policies in place for fiscal year 1988. {29}
See supra, at 9.  The report of the originating Committee on Appropriations
explained: "The Congress has expressed its support for such policies in the
past and has found that promoting diversity of ownership of broadcast
properties satisfies important public policy goals.  Diversity of ownership
results in diversity of programming and improved service to minority and
women audiences."  S. Rep. No. 100-182, p. 76 (1987).  The Committee
recognized the continuity of congressional action in the field of minority
ownership policies, noting that "[i]n approving a lottery system for the
selection of certain broadcast licensees, Congress explicitly approved the
use of preferences to promote minority and women ownership."  Id., at
76-77.
    Congress has twice extended the prohibition on the use of appropriated
funds to modify or repeal minority ownership policies  {30} and has
continued to focus upon the issue.  For example, in the debate on the
fiscal year 1989 legislation, Senator Hollings, chair of both the
authorizing committee and the appropriations subcommittee for the FCC,
presented to the Senate a summary of a June 1988 report prepared by the
Congressional Research Service, entitled, Minority Broadcast Station
Ownership and Broadcast Programming: Is There a Nexus?  The study, Senator
Hollings reported, "clearly demonstrates that minority ownership of
broadcast stations does increase the diversity of viewpoints presented over
the airwaves."  134 Cong. Rec. S10021 (July 27, 1988).
    As revealed by the historical evolution of current federal policy, both
Congress and the Commission have concluded that the minority ownership
programs are critical means of promoting broadcast diversity.  We must give
great weight to their joint determination.

C
    The judgment that there is a link between expanded minority ownership
and broadcast diversity does not rest on impermissible stereotyping.
Congressional policy does not assume that in every case minority ownership
and management will lead to more minority-oriented programming or to the
expression of a discrete "minority viewpoint" on the airwaves.  Neither
does it pretend that all programming that appeals to minority audiences can
be labeled "minority programming" or that programming that might be
described as "minority" does not appeal to nonminorities.  Rather, both
Congress and the FCC maintain simply that expanded minority ownership of
broadcast outlets will, in the aggregate, result in greater broadcast
diversity.  A broadcasting industry with representative minority
participation will produce more variation and diversity than will one whose
ownership is drawn from a single racially and ethnically homogeneous group.
The predictive judgment about the overall result of minority entry into
broadcasting is not a rigid assumption about how minority owners will
behave in every case but rather is akin to Justice Powell's conclusion in
Bakke that greater admission of minorities would contribute, on average,
"to the `robust exchange of ideas.' "  438 U. S., at 313.  To be sure,
there is no ironclad guarantee that each minority owner will contribute to
diversity.  But neither was there an assurance in Bakke that minority
students would interact with nonminority students or that the particular
minority students admitted would have typical or distinct "minority"
viewpoints.  See id., at 312 (opinion of Powell, J.) (noting only that
educational excellence is "widely believed to be promoted by a diverse
student body") (emphasis added); id., at 313, n. 48 (" `In the nature of
things, it is hard to know how, and when, and even if, this informal
"learning through diversity" actually occurs' ") (citation omitted).
    Although all station owners are guided to some extent by market demand
in their programming decisions, Congress and the Commission have determined
that there may be important differences between the broadcasting practices
of minority owners and those of their nonminority counterparts.  This
judgment--and the conclusion that there is a nexus between minority
ownership and broadcasting diversity--is corroborated by a host of
empirical evidence. {31}   Evidence suggests that an owner's minority
status influences the selection of topics for news coverage and the
presentation of editorial viewpoint, especially on matters of particular
concern to minorities.  "[M]inority ownership does appear to have specific
impact on the presentation of minority images in local news,"  {32}
inasmuch as minority-owned stations tend to devote more news time to topics
of minority interest and to avoid racial and ethnic stereotypes in
portraying minorities. {33}  In addition, studies show that a minority
owner is more likely to employ minorities in managerial and other important
roles where they can have an impact on station policies. {34}  If the FCC's
equal employment policies "ensure that . . . licensees' programming fairly
reflects the tastes and viewpoints of minority groups," NAACP v. FPC, 425
U. S., at 670, n. 7, it is difficult to deny that minority-owned stations
that follow such employment policies on their own will also contribute to
diversity.  While we are under no illusion that members of a particular
minority group share some cohesive, collective viewpoint, we believe it a
legitimate inference for Congress and the Commission to draw that as more
minorities gain ownership and policymaking roles in the media, varying
perspectives will be more fairly represented on the airwaves.  The policies
are thus a product of " `analysis' " rather than a " `stereotyped reaction'
" based on " `[h]abit.' "  Fullilove, 448 U. S., at 534, n. 4 (Stevens, J.,
dissenting) (citation omitted).
    Our cases demonstrate that the reasoning employed by the Commission and
Congress is permissible.  We have recognized, for example, that the fair
cross-section requirement of the Sixth Amendment forbids the exclusion of
groups on the basis of such characteristics as race and gender from a jury
venire because "[w]ithout that requirement, the State could draw up jury
lists in such manner as to produce a pool of prospective jurors
disproportionately ill disposed towards one or all classes of defendants,
and thus more likely to yield petit juries with similar disposition."
Holland v. Illinois, 493 U. S. ----, ---- (1990) (slip op., at 6).  It is a
small step from this logic to the conclusion that including minorities in
the electromagnetic spectrum will be more likely to produce a "fair cross
section" of diverse content.  Cf. Duren v. Missouri, 439 U. S. 357,
358-359, 363-364 (1979); Taylor v. Lousiana, 419 U. S. 522, 531-533 (1975).
{35}  In addition, many of our voting rights cases operate on the
assumption that minorities have particular viewpoints and interests worthy
of protection.  We have held, for example, that in safeguarding the "
`effective exercise of the electoral franchise' " by racial minorities,
United Jewish Organizations v. Carey, 430 U. S. 144, 159 (1977) (plurality
opinion), quoting Beer v. United States, 425 U. S. 130, 141 (1976), "[t]he
permissible use of racial criteria is not confined to eliminating the
effects of past discriminatory districting or apportionment."  430 U. S.,
at 161.  Rather, a State subject to MDRV 5 of the Voting Rights Act of
1965, 79 Stat. 439, as amended, 42 U. S. C. MDRV 1973c, may "deliberately
creat[e] or preserv[e] black majorities in particular districts in order to
ensure that its reapportionment plan complies with MDRV 5"; "neither the
Fourteenth nor the Fifteenth Amendment mandates any per se rule against
using racial factors in districting and apportionment."  430 U. S., at
161.

D
    We find that the minority ownership policies are in other relevant
respects substantially related to the goal of promoting broadcast
diversity.  First, the Commission adopted and Congress endorsed minority
ownership preferences only after long study and painstaking consideration
of all available alternatives.  See Fullilove, 448 U. S., at 463-467
(opinion of Burger, C. J.); id., at 511 (Powell, J., concurring).  For many
years, the FCC attempted to encourage diversity of programming content
without consideration of the race of station owners. {36}  When it first
addressed the issue, in a 1946 report entitled Public Service
Responsibility of Broadcast Licensees (Blue Book), the Commission stated
that although licensees bore primary responsibility for program service,
"[i]n issuing and in renewing the licenses of broadcast stations, the
Commission [would] give particular consideration to four program service
factors relevant to the public interest."  Id., at 55. {37}  In 1960, the
Commission altered course somewhat, announcing that "the principal
ingredient of the licensee's obligation to operate his station in the
public interest is the diligent, positive and continuing effort . . . to
discover and fulfill the tastes, needs, and desires of his community or
service area, for broadcast service."  Network Programming Inquiry, Report
and Statement of Policy, 25 Fed. Reg. 7295 (1960). Licensees were advised
that they could meet this obligation in two ways: by canvassing members of
the listening public who could receive the station's signal, and by meeting
with "leaders in community life . . . and others who bespeak the interests
which make up the community."  Id., at 7296.
    By the late 1960's, it had become obvious that these efforts had failed
to produce sufficient diversity in programming.  The Kerner Commission, for
example, warned that the various elements of the media "have not
communicated to whites a feeling for the difficulties and frustrations of
being a Negro in the United States.  They have not shown understanding or
appreciation of--and thus have not communicated--a sense of Negro culture,
thought, or history. . . . The world that television and newspapers offer
to their black audience is almost totally white . . . ."  Report of the
National Advisory Commission on Civil Disorders 210 (1968).  In response,
the Commission promulgated equal employment opportunity regulations, see
supra, at 3-4, and formal "ascertainment" rules requiring a broadcaster as
a condition of license "to ascertain the problems, needs and interests of
the residents of his community of license and other areas he undertakes to
serve," and to specify "what broadcast matter he proposes to meet those
problems, needs and interests."  Primer on Ascertainment of Community
Problems by Broadcast Applicants, 27 F. C. C. 2d 650, 682 (1971). {38}  The
Commission explained that although it recognized there was "no single
answer for all stations," it expected each licensee to devote a "
`significant proportion' " of a station's programming to community
concerns.  Id., at 686 (citation omitted). {39}  The Commission expressly
included "minority and ethnic groups" as segments of the community that
licensees were expected to consult.  See, e. g., Ascertainment of Community
Problems by Broadcast Applicants, 57 F. C. C. 2d 418, 419, 442 (1976);
Ascertainment of Community Problems by Noncommercial Educational Broadcast
Applicants, 54 F. C. C. 2d 766, 767, 775, 776 (1975).  The FCC held that a
broadcaster's failure to ascertain and serve the needs of sizable minority
groups in its service area was, in itself, a failure of licensee
responsibility regardless of any intent to discriminate and was a
sufficient ground for the nonrenewal of a license.  See, e. g., Chapman
Radio and Television, Co., 24 F. C. C. 2d 282, 286 (1970).  The Commission
observed that "[t]he problems of minorities must be taken into
consideration by broadcasters in planning their program schedules to meet
the needs and interests of the communities they are licensed to serve."
Time-Life Broadcast, Inc., 33 F. C. C. 2d 1081, 1093 (1972); see also
Mahoning Valley Broadcasting Corp., 39 F. C. C. 2d 52, 58 (1972); WKBN
Broadcasting Corp., 30 F. C. C. 2d 958, 970 (1971).  Pursuant to this
policy, for example, the Commission refused to renew licenses for eight
educational stations in Alabama and denied an application for a
construction permit for a ninth, all on the ground that the licensee "did
not take the trouble to inform itself of the needs and interests of a
minority group consisting of 30 percent of the population of the State of
Alabama" and that such a failure was "fundamentally irreconcilable with the
obligations which the Communications Act places upon those who receive
author- izations to use the airwaves."  Alabama Educational Television
Comm'n, 50 F. C. C. 2d 461, 472, 473 (1975), citing Red Lion Broadcasting
Co. v. FCC, 395 U. S. 367 (1969).  The Commission's ascertainment policy
was not static; in order to facilitate application of the ascertainment
requirement, the Commission devised a community leader checklist consisting
of 19 groups and institutions commonly found in local communities, see 57
F. C. C. 2d, at 418-419, and it continued to consider improvements to the
ascertainment system.  See, e. g., Amendment of Primers on Ascertainment of
Community Problems by Commercial Broadcast Renewal Applicants and
Noncommercial Educational Broadcast Applicants, Permittees and Licensees,
47 Radio Reg. 2d (P&F) 189 (1980).
    By 1978, however, the Commission had determined that even these efforts
at influencing broadcast content were not effective means of generating
adequate programming diversity.  The FCC noted that "[w]hile the
broadcasting industry has on the whole responded positively to its
ascertainment obligations and has made significant strides in its
employment practices, we are compelled to observe that the views of racial
minorities continue to be inadequately represented in the broadcast media."
Minority Ownership Statement, 68 F. C. C. 2d, at 980 (footnotes omitted).
As support, the Commission cited a report by the United States Commission
on Civil Rights, which found that minorities "are underrepresented on
network dramatic television programs and on the network news.  When they do
appear they are frequently seen in token or stereotyped roles."  Window
Dressing on the Set 3 (Aug. 1977).  The Commission concluded that "despite
the importance of our equal employment opportunity rules and ascertainment
policies in assuring diversity of programming it appears that additional
measures are necessary and appropriate.  In this regard, the Commission
believes that ownership of broadcast facilities by minorities is another
significant way of fostering the inclusion of minority views in the area of
programming."  68 F. C. C. 2d, at 981; see also Commission Policy Regarding
Advancement of Minority Ownership in Broadcasting, 92 F. C. C. 2d 849, 850
(1982) ("[I]t became apparent that in order to broaden minority voices and
spheres of influence over the airwaves, additional measures were necessary"
beyond the equal employment and ascertainment rules). {40}
    In short, the Commission established minority ownership preferences
only after long experience demonstrated that race-neutral means could not
produce adequate broadcasting diversity. {41}  The FCC did not act
precipitately in devising the programs we uphold today; to the contrary,
the Commission undertook thorough evaluations of its policies three
times--in 1960, 1971, and 1978--before adopting the minority ownership
programs. {42}  In endorsing the minority ownership preferences, Congress
agreed with the Commission's assessment that race-neutral alternatives had
failed to achieve the necessary programming diversity. {43}
    Moreover, the considered nature of the Commission's judgment in
selecting the particular minority ownership policies at issue today is
illustrated by the fact that the Commission has rejected other types of
minority preferences.  For example, the Commission has studied but refused
to implement the more expansive alternative of setting aside certain
frequencies for minority broadcasters.  See Nighttime Operations on Clear
Channels, 3 F. C. C. Rcd 3597, 3599-3600 (1988); Deletion of AM Acceptance
Criteria, 102 F. C. C. 2d 548, 555-558 (1985); Clear Channel Broadcasting,
78 F. C. C. 2d 1345, reconsideration denied, 83 F. C. C. 2d 216, 218-219
(1980), aff'd sub nom. Loyola University v. FCC, 216 U. S. App. D. C. 403,
670 F. 2d 1222 (1982).  In addition, in a ruling released the day after it
adopted the comparative hearing credit and the distress sale preference,
the FCC declined to adopt a plan to require 45-day advance public notice
before a station could be sold, which had been advocated on the ground that
it would ensure minorities a chance to bid on stations that might otherwise
be sold to industry insiders without ever coming on the market.  See 43
Fed. Reg. 24560 (1978). {44}  Soon afterward, the Commission rejected other
minority ownership proposals advanced by the Office of Telecommunications
Policy and the Department of Commerce that sought to revise the FCC's time
brokerage, multiple ownership, and other policies. {45}
    The minority ownership policies, furthermore, are aimed directly at the
barriers that minorities face in entering the broadcasting industry.  The
Commission's Task Force identified as key factors hampering the growth of
minority ownership a lack of adequate financing, paucity of information
regarding license availability, and broadcast inexperience.  See Task Force
Report, at 8-29; Advisory Committee on Alternative Financing for Minority
Opportunities in Tele communications, Final Report, Strategies for
Advancing Minority Ownership Opportunities 25-30 (May 1982).  The
Commission assigned a preference to minority status in the comparative
licensing proceeding, reasoning that such an enhancement might help to
compensate for a dearth of broadcasting experience.  Most license
acquisitions, however, are by necessity purchases of existing stations,
because only a limited number of new stations are available, and those are
often in less desirable markets or on less profitable portions of spectrum,
such as the UHF band. {46}  Congress and the FCC therefore found a need for
the minority distress sale policy, which helps to overcome the problem of
inadequate access to capital by lowering the sale price and the problem of
lack of information by providing existing licensees with an incentive to
seek out minority buyers.  The Commission's choice of minority ownership
policies thus addressed the very factors it had isolated as being
responsible for minority underrepresentation in the broadcast industry.
    The minority ownership policies are "appropriately limited in extent
and duration, and subject to reassessment and reevaluation by the Congress
prior to any extension or re-enactment."  Fullilove, 448 U. S., at 489
(opinion of Burger, C. J.) (footnote omitted).  Although it has underscored
emphatically its support for the minority ownership policies, Congress has
manifested that support through a series of appropriations acts of finite
duration, thereby ensuring future reevaluations of the need for the
minority ownership program as the number of minority broadcasters
increases.  In addition, Congress has continued to hold hearings on the
subject of minority ownership. {47}  The FCC has noted with respect to the
minority preferences contained in the lottery statute, 47 U. S. C. MDRV
309(i)(3)(A) (1982 ed.), that Congress instructed the Commission to "report
annually on the effect of the preference system and whether it is serving
the purposes intended.  Congress will be able to further tailor the program
based on that information, and may eliminate the preferences when
appropriate."  Amendment of Commission's Rules to Allow Selection from
Among Certain Competing Applications Using Random Selection or Lotteries
Instead of Comparative Hearings, 93 F. C. C. 2d 952, 974 (1983).
Furthermore, there is provision for administrative and judicial review of
all Commission decisions, which guarantees both that the minority ownership
policies are applied correctly in individual cases, {48} and that there
will be frequent opportunities to revisit the merits of those policies.
Congress and the Commission have adopted a policy of minority ownership not
as an end in itself, but rather as a means of achieving greater programming
diversity.  Such a goal carries its own natural limit, for there will be no
need for further minority preferences once sufficient diversity has been
achieved.  The FCC's plan, like the Harvard admissions program discussed in
Bakke, contains the seed of its own termination.  Cf. Johnson v.
Transportation Agency, Santa Clara County, Cal., 480 U. S. 616, 640 (1987)
(agency's "express commitment to `attain' a balanced work force" ensures
that plan will be of limited duration).
    Finally, we do not believe that the minority ownership policies at
issue impose impermissible burdens on nonminorities. {49}  Although the
nonminority challengers in these cases concede that they have not suffered
the loss of an already-awarded broadcast license, they claim that they have
been handicapped in their ability to obtain one in the first instance.  But
just as we have determined that "[a]s part of this Nation's dedication to
eradicating racial discrimination, innocent persons may be called upon to
bear some of the burden of the remedy," Wygant, 476 U. S., at 280-281
(opinion of Powell, J.), we similarly find that a congressionally mandated
benign race-conscious program that is substantially related to the
achievement of an important governmental interest is consistent with equal
protection principles so long as it does not impose undue burdens on
nonminorities.  Cf. Fullilove, 448 U. S., at 484 (opinion of Burger, C. J.)
("It is not a constitutional defect in this program that it may disappoint
the expectations of nonminority firms.  When effectuating a limited and
properly tailored remedy to cure the effects of prior discrimination, such
`a sharing of the burden' by innocent parties is not impermissible")
(citation omitted); id., at 521 (Marshall, J., concurring in judgment).
    In the context of broadcasting licenses, the burden on nonminorities is
slight.  The FCC's responsibility is to grant licenses in the "public
interest, convenience, or necessity," 47 U. S. C. 15 307, 309 (1982 ed.),
and the limited number of frequencies on the electromagnetic spectrum means
that "[n]o one has a First Amendment right to a license."  Red Lion, 395 U.
S., at 389.  Applicants have no settled expectation that their applications
will be granted without consideration of public interest factors such as
minority ownership.  Award of a preference in a comparative hearing or
transfer of a station in a distress sale thus contravenes "no legitimate
firmly rooted expectation[s]" of competing applicants.  Johnson, supra, at
638.
    Respondent Shurberg insists that because the minority distress sale
policy operates to exclude nonminority firms completely from consideration
in the transfer of certain stations, it is a greater burden than the
comparative hearing preference for minorities, which is simply a "plus"
factor considered together with other characteristics of the applicants.
{50}  Cf. Bakke, 438 U. S., at 317-318; Johnson, supra, at 638.  We
disagree that the distress sale policy imposes an undue burden on
nonminorities.  By its terms, the policy may be invoked at the Commission's
discretion only with respect to a small fraction of broadcast
licenses--those designated for revocation or renewal hearings to examine
basic qualification issues--and only when the licensee chooses to sell out
at a distress price rather than to go through with the hearing.  The
distress sale policy is not a quota or fixed quantity set-aside.  Indeed,
the nonminority firm exercises control over whether a distress sale will
ever occur at all, because the policy operates only where the
qualifications of an existing licensee to continue broadcasting have been
designated for hearing and no other applications for the station in
question have been filed with the Commission at the time of the
designation.  See Clarification of Distress Sale Policy, 44 Radio Reg. 2d
(P&F) 479 (1978).  Thus, a nonminority can prevent the distress sale
procedures from ever being invoked by filing a competing application in a
timely manner. {51}
    In practice, distress sales have represented a tiny fraction--less than
four tenths of one percent--of all broadcast sales since 1979.  See Brief
for Federal Communications Commission in No. 89-700, p. 44.  There have
been only 38 distress sales since the policy was commenced in 1978.  See A.
Barrett, Federal Communications Commission, Minority Employment and
Ownership in the Communications Market: What's Ahead in the 90's?, p. 7
(Address to the Bay Area Black Media Conference, San Francisco, April 21,
1990).  This means that, on average, only about .20 percent of renewal
applications filed each year have resulted in distress sales since the
policy was commenced in 1978.  See 54 FCC Ann. Rep. 33 (1988). {52}
Nonminority firms are free to compete for the vast remainder of license
opportunities available in a market that contains over 11,000 broadcast
properties.  Nonminorities can apply for a new station, buy an existing
station, file a competing application against a renewal application of an
existing station, or seek financial participation in enterprises that
qualify for distress sale treatment.  See Task Force Report, at 9-10.  The
burden on nonminority firms is at least as "relatively light" as that
created by the program at issue in Fullilove, which set aside for
minorities 10 percent of federal funds granted for local public works
projects.  448 U. S., at 484 (opinion of Burger, C. J.); see also id., at
485, n. 72.

III


    The Commission's minority ownership policies bear the imprimatur of
longstanding congressional support and direction and are substantially
related to the achievement of the important governmental objective of
broadcast diversity.  The judgment in No. 89-453 is affirmed, the judgment
in No. 89-700 is reversed, and the cases are remanded for proceedings
consistent with this opinion.

It is so ordered.








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1
    The FCC has defined the term "minority" to include "those of Black,
Hispanic Surnamed, American Eskimo, Aleut, American Indian and Asiatic
American extraction."  Statement of Policy on Minority Ownership of
Broadcasting Facilities, 68 F. C. C. 2d 979, 980, n. 8 (1978).  See also
Commission Policy Regarding Advancement of Minority Ownership in
Broadcasting, 92 F. C. C. 2d 849, 849, n. 1 (1982), citing 47 U. S. C. MDRV
309(i)(3)(C) (1982 ed.).

2
    See Task Force Report, at 1; Wimmer, Deregulation and Market Failure in
Minority Programming: The Socioeconomic Dimensions of Broadcast Reform, 8
Comm/Ent L. J. 329, 426, n. 516 (1986).  See also n. 46, infra.
3
    See, e. g., Nondiscrimination Employment Practices of Broadcast
Licensees, 18 F. C. C. 2d 240 (1969); Nondiscrimination Employment
Practices of Broadcast Licensees, 23 F. C. C. 2d 430 (1970);
Nondiscrimination in Employment Policies and Practices of Broadcast
Licensees, 54 F. C. C. 2d 354 (1975); Nondiscrimination in Employment
Policies and Practices of Broadcast Licensees, 60 F. C. C. 2d 226 (1976).
The FCC's current equal employment opportunity policy is outlined at 47 CFR
MDRV 73.2080 (1989).

4
    See Telecommunications Minority Assistance Program, Public Papers of
the Presidents, Jimmy Carter, vol. 1, Jan. 31, 1978, pp. 252, 253 (1979).
The petition observed that "[m]inority ownership markedly serves the public
interest, for it ensures the sustained and increased sensitivity to
minority audiences."  Id., at 252.  See also n. 45, infra.

5
    In Ashbacker Radio Corp. v. FCC, 326 U. S. 327 (1945), we held that
when the Commission was faced with two "mutually exclusive" bona fide
applications for license--that is, two proposed stations that would be
incompatible technologically--it was obligated to set the applications for
a comparative hearing.  See id., at 333.

6
    In 1982, the FCC determined that a limited partnership could qualify as
a minority enterprise if the general partner is a minority who holds at
least a 20 percent interest and who will exercise "complete control over a
station's affairs."  92 F. C. C. 2d, at 855.

7
    The FCC also announced in its 1978 statement a tax certificate policy
and other minority preferences, see 68 F. C. C. 2d, at 983 and n. 19; 92 F.
C. C. 2d, at 850-851, which are not at issue today.  Similarly, the
Commission's gender preference policy, see Gainesville Media, Inc., 70 F.
C. C. 2d 143, 149 (Rev. Bd. 1978); Mid-Florida Television Corp., 69 F. C.
C. 2d 607, 651-652 (Rev. Bd. 1978), set aside on other grounds, 87 F. C. C.
2d 203 (1981), is not before us today.  See Winter Park Communications,
Inc. v. FCC, 277 U. S. App. D. C. 134, 139-140, n. 5, 873 F. 2d 347,
352-353, n. 5 (1989); Metro Broadcasting, Inc., 3 F. C. C. Rcd 866, 867, n.
1 (1988).

8
    That inquiry grew out of the Court of Appeals' decision in Steele v.
FCC, 248 U. S. App. D. C. 279, 770 F. 2d 1192 (1985), in which a panel of
the Court of Appeals held that the FCC lacks statutory authority to grant
enhancement credits in comparative license proceedings to women owners.
Although the panel expressly stated that "[u]nder our decisions, the
Commission's authority to adopt minority preferences . . . is clear," id.,
at 283, 770 F. 2d, at 1196, the Commission believed that the court's
opinion nevertheless raised questions concerning its minority ownership
policies.  After the en banc court vacated the panel opinion and set the
case for rehearing, the FCC requested that the Court of Appeals remand the
case without considering the merits to allow the FCC to reconsider the
basis of its preference policy.  The request was granted.  The Commission,
"despite its prior misgivings, has now indicated clearly that it supports
the distress sale" and other minority ownership policies, Shurberg
Broadcasting of Hartford, Inc. v. FCC, 278 U. S. App. D. C. 24, 81, 876 F.
2d 902, 959 (1989) (Wald, C. J., dissenting from denial of rehearing en
banc), and has defended them before this Court.

9
    The appropriations legislation provided:

" That none of the funds appropriated by this Act shall be used to repeal,
to retroactively apply changes in, or to continue a reexamination of, the
policies of the Federal Communications Commission with respect to
comparative licensing, distress sales and tax certificates granted under 26
U. S. C. MDRV 1071, to expand minority and women ownership of broadcasting
licenses, including those established in Statement of Policy on Minority
Ownership of Broadcast Facilities, 68 F. C. C. 2d 979 and 69 F. C. C. 2d
1591, as amended, 52 R. R. 2d [1301] (1982) and Mid-Florida Television
Corp., [69] F. C. C. 2d 607 Rev. Bd. (1978) which were effective prior to
September 12, 1986, other than to close MM Docket No. 86-484 with a
reinstatement of prior policy and a lifting of suspension of any sales,
licenses, applications, or proceedings, which were suspended pending the
conclusion of the inquiry."  Continuing Appropriations Act for Fiscal Year
1988, Pub. L. 100- 202, 101 Stat. 1329-1331.

10
    Mr. Shurberg is the sole owner of Shurberg Broadcasting of Hartford,
Inc., respondent in No. 89-700.

11
    Justice O'Connor's suggestion that the deference to Congress described
in Fullilove rested entirely on Congress' powers under MDRV 5 of the
Fourteenth Amendment, post, at 5-6, is simply incorrect.  The Chief Justice
expressly noted that in enacting the provision at issue, "Congress employed
an amalgam of its specifically delegated powers."  448 U. S., at 473.

12
    We fail to understand how Justice Kennedy can pretend that examples of
"benign" race-conscious measures include South African apartheid, the
"separate-but-equal" law at issue in Plessy v. Ferguson, 163 U. S. 537
(1896), and the internment of American citizens of Japanese ancestry upheld
in Korematsu v. United States, 323 U. S. 214 (1944).  We are confident that
an "examination of the legislative scheme and its history," Weinberger v.
Wiesenfeld, 420 U. S. 636, 648, n. 16 (1975), will separate benign measures
from other types of racial classifications.  See, e. g., Mississippi
University for Women v. Hogan, 458 U. S. 718, 728-730 (1982).  Of course,
"the mere recitation of a benign, compensatory purpose is not an automatic
shield which protects against any inquiry into the actual purposes
underlying a statutory scheme."  Weinberger, 420 U. S., at 648; see also
Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 Harv.
L. Rev. 1, 21-22 (1976); Strauss, The Myth of Colorblindness, 1986 Sup. Ct.
Rev. 99, 128-129.  The concept of benign race-conscious measures--even
those with at least some non-remedial purposes--is as old as the Fourteenth
Amendment.  For example, the Freedman's Bureau Acts authorized the
provision of land, education, medical care, and other assistance to
Afro-Americans.  See, e. g., Cong. Globe, 39th Cong., 1st Sess., 630 (1866)
(statement of Rep. Hubbard) ("I think that the nation will be a great
gainer by encouraging the policy of the Freedman's Bureau, in the
cultivation of its wild lands, in the increased wealth which industry
brings and in the restoration of law and order in the insurgent States").
See generally Sandalow, Racial Preferences in Higher Education: Political
Responsibility and the Judicial Role, 42 U. Chi. L. Rev. 653, 664-666
(1975); Schnapper, Affirmative Action and the Legislative History of the
Fourteenth Amendment, 71 Va. L. Rev. 753, 754-783 (1985).

13
    Justice O'Connor, in a passage joined by The Chief Justice and Justice
White, observed that the decision in Fullilove had been influenced by the
fact that the set-aside program at issue was " `congressionally mandated.'
"  488 U. S., at 491 (citation omitted, emphasis in original).  Justice
O'Connor's opinion acknowledged that our decision in Fullilove regarding a
congressionally approved preference "did not employ `strict scrutiny.' "
488 U. S., at 487.

14
    See also id., at 495-496 (opinion of O'Connor, J.); Ely, The
Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723,
728-735 (1974), cited with approval in Croson, 488 U. S. at 496.

15
    In Wygant v. Jackson Board of Education, Justice O'Connor noted that,
"although its precise contours are uncertain, a state interest in the
promotion of racial diversity has been found sufficiently `compelling,' at
least in the context of higher education, to support the use of racial
considerations in furthering that interest."  476 U. S., at 286 (opinion
concurring in part and concurring in judgment).  She further stated that
"nothing the Court has said today necessarily forecloses the possibility
that the Court will find other governmental interests which have been
relied upon in the lower courts but which have not been passed on here to
be sufficiently `important' or `compelling' to sustain the use of
affirmative action policies."  Ibid.  Compare post, at 11 (O'Connor, J.,
dissenting).

16
    For example, in 1953, the Commission promulgated the first of its
multiple ownership rules, the "fundamental purpose" of which is "to promote
diversification of ownership in order to maximize diversification of
program and service viewpoints."  Amendment of Sections 3.35, 3.240, and
3.636 of Rules and Regulations Relating to Multiple Ownership of AM, FM,
and Television Broadcast Stations, Report and Order, 18 F. C. C. 288, 291.
Initially, the multiple ownership rules limited only the common control of
broadcast stations.  The Commission's current rules include limitations on
broadcast/newspaper cross-ownership, cable/television cross-ownership,
broadcast service cross-ownership, and common control of broadcast
stations.  See 47 CFR 15 73.3555, 76.501 (1989).  The Commission has always
focused on ownership, on the theory that "ownership carries with it the
power to select, to edit, and to choose the methods, manner and emphasis of
presentation, all of which are a critical aspect of the Commission's
concern with the public interest."  Amendment of Sections 73.34, 73.240,
and 73.636 of Commission's Rules Relating to Multiple Ownership of
Standard, FM, and Television Broadcast Stations, Second Report and Order,
50 F. C. C. 2d 1046, 1050 (1975); see also Amendment of Sections 73.35,
73.240, and 73.636 of Commission Rules Relating to Multiple Ownership of
Standard, FM, and Television Broadcast Stations, First Report and Order, 22
F. C. C. 2d 306, 307 (1970) (multiple ownership rules "promot[e]
diversification of programming sources and viewpoints"); Amendment of
Sections 73.35, 73.240, and 73.636 of Commission's Rules Relating to
Multiple Ownership of Standard, FM and Television Broadcast Stations,
Report and Order, 45 F. C. C. 1476, 1477, 1482 (1964) ("the greater the
diversity of ownership in a particular area, the less chance there is that
a single person or group can have `an inordinate effect in a . . .
programming sense, on public opinion at the regional level' ");
Editorializing by Broadcast Licensees, 13 F. C. C. 1246, 1252 (1949)
(ownership enables licensee "to insure that his personal viewpoint on any
particular issue is presented in his station's broadcasts").

17
    See Amend the Communications Act of 1934: Hearings on S. 2004 before
the Subcommittee on Communications of the Senate Committee on Commerce,
91st Cong., 1st Sess., pt. 1, p. 128 (1969) (testimony of Earle Moore,
National Citizens Committee for Broadcasting); id., pt. 2, at 520- 521
(testimony of John Pamberton, American Civil Liberties Union); id., at
566-567 (testimony of David Batzka, United Christian Missionary Society);
id., at 626-627 (testimony of William Hudgins, Freedom National Bank).

18
    Id., at 642 (testimony of John McLaughlin, then associate editor of
America magazine).

19
    See Broadcast License Renewal: Hearings on H. R. 5546 et al. before the
Subcommittee on Communications and Power of the House Committee on
Interstate and Foreign Commerce, 93d Cong., 1st Sess., pt. 1, pp. 495-497
(1973) (testimony of William E. Hanks, Pittsburgh Community Coalition for
Media Change); id., at 552-559 (testimony of Rev. George Brewer, Greater
Dallas-Fort Worth Coalition for the Free Flow of Information); id., at
572-594 (testimony of James McCuller, Action for a Better Community, Inc.);
id., pt. 2, at 686-689 (testimony of Morton Hamburg, adjunct assistant
professor of communications law, New York University); Broadcast License
Renewal Act: Hearings on S. 16 et al. before the Subcommittee on
Communications of the Senate Committee on Commerce, 93d Cong., 2d Sess.,
pt. 1, pp. 325-329 (1974) (testimony of Ronald H. Brown, National Urban
League); id., at 376-381 (testimony of Gladys T. Lindsay, Citizens
Committee on Media); id., at 408-411 (testimony of Joseph L. Rauh, Jr.,
Leadership Conference on Civil Rights and Americans for Democratic Action);
id., pt. 2, at 785-800 (testimony of Manuel Fierro, Raza Association of
Spanish Surnamed Americans).

20
    For example, the proposed Communications Act of 1979 would have
provided that any minority applicant for a previously unassigned license
would be counted twice in the lottery pool.  See Staff of the Subcommittee
on Communications of the House Committee on Interstate and Foreign
Commerce, H. R. 3333, "The Communications Act of 1979" Section-by- Section
Analysis, 96th Cong., 1st Sess., 39-41 (Comm. Print 1979).

21
    See Amendment of Part 1 of Commission's Rules to Allow Selection from
Among Mutually Exclusive Competing Applications Using Random Selection or
Lotteries Instead of Comparative Hearings, 89 F. C. C. 2d 257, 277-284
(1982).

22
    See Amendment of the Commission's Rules to Allow the Selection from
Among Certain Competing Applications Using Random Selection or Lotteries
Instead of Comparative Hearings, 93 F. C. C. 2d 952 (1983).

23
    The issue had surfaced briefly in the 98th Congress, where proposals to
codify and expand the FCC's minority ownership policies were the subject of
extensive hearings in the House.  See Minority Participation in the Media:
Hearings before the Subcommittee on Telecommunications, Consumer
Protection, and Finance of the House Committee on Energy and Commerce, 98th
Cong., 1st Sess. (1983); Parity for Minorities in the Media: Hearing on H.
R. 1155 before the Subcommittee on Telecommunications, Consumer Protection,
and Finance of the House Committee on Energy and Commerce, 98th Cong., 1st
Sess. (1983); Broadcast Regulation and Station Ownership: Hearings on H. R.
6122 and H. R. 6134 before the Subcommittee on Telecommunications, Consumer
Protection, and Finance of the House Committee on Energy and Commerce, 98th
Cong., 2nd Sess. (1984).  No legislation was passed.

24
    See Notice of Inquiry on Racial Ethnic or Gender Classifications, 1 F.
C. C. Rcd 1315, 1319 (1986), as amended, 2 F. C. C. Rcd 2377 (1987).

25
    These bills recognized the link between minority ownership and
diversity.  In introducing S. 1095, for example, Senator Lautenberg
explained that "[d]iversity of ownership does promote diversity of views.
Minority . . . broadcasters serve a need that is not as well served as
others.  They address issues that others do not."  133 Cong. Rec. 9745
(1987); see also id., at 860 (H. R. 293); id., at 3300 (H. R. 1090); id.,
at 13742-13745 (S. 1277).

26
    See Commerce, Justice, State, the Judiciary, and Related Agencies
Appropriations for Fiscal Year 1988: Hearings on H. R. 2763 before a
Subcommittee of the Senate Committee on Appropriations, 100th Cong., 1st
Sess. (1987).

27
    See FCC Authorization: Hearing before the Subcommittee on
Communications of the Senate Committee on Commerce, Science, and
Transportation, 100th Cong., 1st Sess., 55 (1987); FCC and NTIA
Authorizations: Hearings on H. R. 2472 before the Subcommittee on
Telecommunications and Finance of the House Committee on Energy and
Commerce, 100th Cong., 1st Sess., 130-131, 211-212 (1987).

28
    See Broadcasting Improvements Act of 1987: Hearings on S. 1277 before
the Subcommittee on Communications of the Senate Committee on Commerce,
Science, and Transportation, 100th Cong., 1st Sess., 51 (1987).

29
    Congress did not simply direct a "kind of mental standstill," Winter
Park, 277 U. S. App. D. C., at 151, 873 F. 2d, at 364 (Williams, J.,
concurring in part dissenting in part), but rather in the appropriations
legislation expressed its unqualified support for the minority ownership
policies and instructed the Commission in no uncertain terms that in
Congress's view there was no need to study the topic further.
Appropriations acts, like any other laws, are binding because they are
"passe[d] [by] both Houses and . . . signed by the President."  United
States v. Munoz-Flores, 495 U. S. ----, ---- (1990) (slip op., at 10); id.,
at ---- (Stevens, J., concurring in judgment) (slip op., at 1).  See also
United States v. Will, 449 U. S. 200, 222 (1980); United States v.
Dickerson, 310 U. S. 554, 555 (1940).

30
    See Departments of Commerce, Justice, and State, the Judiciary and
Related Agencies Appropriations Act, 1989, Pub. L. 100-459, 102 Stat. 2216;
Departments of Commerce, Justice, and State, the Judiciary and Related
Agencies Appropriations Act, 1990, Pub. L. 101-162, 103 Stat. 1020.

31
    For example, the Congressional Research Service (CRS) analyzed data
from some 8,720 FCC-licensed radio and TV stations and found a strong
correlation between minority ownership and diversity of programming.  See
CRS, Minority Broadcast Station Ownership and Broadcast Programming: Is
There a Nexus? (June 29, 1988).  While only 20 percent of stations with no
Afro-American ownership responded that they attempted to direct programming
at Afro-American audiences, 65 percent of stations with Afro-American
ownership reported that they did so.  See id., at 13.  Only 10 percent of
stations without Hispanic ownership stated that they targeted programming
at Hispanic audiences, while 59 percent of stations with Hispanic owners
said they did.  See id., at 13, 15.  The CRS concluded:

"[A]n argument can be made that FCC policies that enhanced minority . . .
station ownership may have resulted in more minority and other audience
targeted programming.  To the degree that increasing minority programming
across audience markets is considered adding to programming diversity,
then, based on the FCC survey data, an argument can be made that the FCC
preference policies contributed, in turn, to programming diversity."  Id.,
at cover page.
    Other surveys support the FCC's determination that there is a nexus
between ownership and programming.  A University of Wisconsin study found
that Afro-American-owned, Afro-American-oriented radio stations have more
diverse playlists than white-owned, Afro-American-oriented stations.  See
J. Jeter, A Comparative Analysis of the Programming Practices of
Black-Owned Black-Oriented Radio Stations and White-Owned Black-Oriented
Radio Stations 130, 139 (1981) (University of Wisconsin- Madison).  See
also M. Spitzer, Justifying Minority Preferences in Broadcasting,
California Institute of Technology Working Paper No. 718, pp. 19-29 (March
1990) (explaining why minority status of owner might affect programming
behavior).

32
    Fife, "The Impact of Minority Ownership on Minority Images in Local TV
News," in Communications: A Key to Economic and Political Change, Selected
Proceedings from the 15th Annual Howard University Communications
Conference 113 (1986) (survey of four Standard Metropolitan Statistical
Areas); see also M. Fife, The Impact of Minority Ownership on Broadcast
News Content: A Multi-Market Study 52 (June 1986) (report submitted to
National Association of Broadcasters).

33
    For example, a University of Massachusetts at Boston survey of 3,000
local Boston news stories found a statistically significant difference in
the treatment of events, depending on the race of ownership.  See K.
Johnson, Media Images of Boston's Black Community 16-29 (Jan. 28, 1987)
(William Monroe Trotter Institute, University of Massachusetts at Boston).
A comparison between an Afro-American-owned television station and a
white-owned station in Detroit concluded that "the overall mix of topic and
location coverage between the two stations is statistically different, and
with its higher use of blacks in newsmaker roles and its higher coverage of
issues of racial significance, [the Afro-American-owned station's] content
does represent a different perspective on news than [that of the
white-owned station]."  M. Fife, The Impact of Minority Ownership On
Broadcast Program Content: A Case Study of WGPR-TV's Local News Content,
Report to the National Association of Broadcasters, Office of Research and
Planning 45 (Sept. 1979).  See also R. Wolseley, The Black Press, U. S. A.
3-4, 11 (2d ed. 1990) (documenting importance of minority ownership).

34
    Afro-American-owned radio stations, for example, have hired Afro-
Americans in top management and other important job categories at far
higher rates than have white-owned stations, even those with Afro-
American-oriented formats.  The same has been true of Hispanic hiring at
Hispanic-owned stations, compared to Anglo-owned stations with Spanish-
language formats.  See Honig, Relationships Among EEO, Program Service, and
Minority Ownership in Broadcast Regulation, in Proceedings from the Tenth
Annual Telecommunications Policy Research Conference 88-89 (O. Gandy, P.
Espinoza, & J. Ordover eds. 1983).  As of September 1986, half of the 14
Afro-American or Hispanic general managers at TV stations in the United
States worked at minority-owned or controlled stations.  See National
Association of Broadcasters, Minority Broadcasting Facts 9-10, 55-57 (Sept.
1986).  In 1981, 13 of the 15 Spanish-language radio stations in the United
States owned by Hispanics also had a majority of Hispanics in management
positions, while only a third of Anglo-owned Spanish-language stations had
a majority of Hispanic managers, and 42 percent of the Anglo-owned
Spanish-language stations had no Hispanic managers at all.  See Schement &
Singleton, The Onus of Minority Ownership: FCC Policy and Spanish-Language
Radio, 31 J. Communication 78, 80-81 (1981).  See generally Johnson, supra,
at 5 ("Many observers agree that the single largest reason for the
networks' poor coverage of racial news is related to the racial makeup of
the networks' own staffs"); Wimmer, supra n. 2, at 426-427
("[M]inority-owned broadcast outlets tend to hire more minority employees.
. . .  A policy of minority ownership could, over time, lead to a growth in
minority employment, which has been shown to produce minority-responsive
programming") (footnotes omitted).

35
    See also Peters v. Kiff, 407 U. S. 493, 503-504 (1972) (opinion of
Marshall, J.) ("[W]e are unwilling to make the assumption that the
exclusion of Negroes has relevance only for issues involving race.  When
any large and identifiable segment of the community is excluded from jury
service, the effect is to remove from the jury room qualities of human
nature and varieties of human experience, the range of which is unknown and
perhaps unknowable.  It is not necessary to assume that the excluded group
will consistently vote as a class in order to conclude, as we do, that its
exclusion deprives the jury of a perspective on human events that may have
unsuspected importance in any case that may be presented").

36
    The Commission has eschewed direct federal control over discrete
programming decisions by radio and television stations.  See, e. g.,
Network Programming Inquiry, Report and Statement of Policy, 25 Fed. Reg.
7293 (1960) ("[W]hile the Commission may inquire of licensees what they
have done to determine the needs of the community they propose to serve,
the Commission may not impose upon them its private notions of what the
public ought to hear").  In order to ensure diversity by means of
administrative decree, the Commission would have been required to
familiarize itself with the needs of every community and to monitor the
broadcast content of every station.  Such a scheme likely would have
presented insurmountable practical difficulties, in light of the thousands
of broadcast outlets in the United States and the myriad local variations
in audience tastes and interests.  Even were such an ambitious policy of
central planning feasible, it would have raised "serious First Amendment
issues" if it denied a broadcaster the ability to "carry a particular
program or to publish his own views," if it risked "government censorship
of a particular program," or if it led to "the official government view
dominating public broadcasting."  Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367, 396 (1969) cf. FCC v. Sanders Brothers Radio Station, 309 U. S.
470, 475 (1940).  The Commission, with the approval of this Court, has
therefore "avoid[ed] unnecessary restrictions on licensee discretion" and
has interpreted the Communications Act as "seek[ing] to preserve
journalistic discretion while promoting the interests of the listening
public."  FCC v. WNCN Listeners Guild, 450 U. S. 582, 596 (1981).

37
    One factor was the extent to which a station carried programs un
sponsored by commercial advertisers during hours "when the public is awake
and listening."  Blue Book 55-56.  The Commission believed that this would
expand diversity by permitting the broadcast of less popular programs that
would appeal to particular tastes and interests in the listening audience
that might otherwise go unserved.  See id., at 12.  Second, the Commission
called for local live programs to encourage local self- expression.  See
id., at 56.  Third, the Commission expected "progam[ming] devoted to the
discussion of public issues."  Ibid.  The final factor was the amount of
advertising aired by the licensee.  Ibid.

38
    The Commission also devised policies to guard against discrimination in
programming.  For example, it determined that "arbitrar[y] refus[al] to
present members of an ethnic group, or their views" in programming, or
refusal to present members of such groups "in integrated situations with
members of other groups," would constitute a ground for license nonrenewal.
Citizens Communications Center, 25 F. C. C. 2d 705, 707 (1970).

39
    In addition, the Commission developed non-entertainment guidelines,
which called for broadcasters to devote a certain percentage of their
programming to non-entertainment subjects such as news, public affairs,
public service announcements, and other topics.  See WNCN Listeners Guild,
supra, at 598-599, n. 41; Revision of Programming and Commercialization
Policies, Ascertainment Requirements, and Program Log Requirements for
Commercial Television Stations, 98 F. C. C. 2d 1076, 1078 (1984)
(hereinafter Deregulation of Television); Deregulation of Radio, 84 F. C.
C. 2d 968, 975 (1981).  Applicants proposing less than the guideline
amounts of nonentertainment programming could not have their applications
routinely processed by the Commission staff; rather, such applications were
brought to the attention of the Commission itself.

40
    The Commission recently eliminated its ascertainment policies for
commercial radio and television stations, together with its non
entertainment programming guidelines.  See Deregulation of Radio, supra, at
975-999, reconsideration denied, 87 F. C. C. 2d 797 (1981), rev'd on other
grounds sub nom. Office of Communication of the United Church of Christ v.
FCC, 228 U. S. App. D. C. 8, 707 F. 2d 1413 (1983); Deregulation of
Television, supra, at 1096-1101, reconsideration denied, 104 F. C. C. 2d
358 (1986), remanded on other grounds sub nom. Action for Children's
Television v. FCC, 261 U. S. App. D. C. 253, 821 F. 2d 741 (1987).  The
Commission found that the ascertainment rules imposed significant burdens
on licensees without producing corresponding benefits in terms of
responsiveness to community issues.  See 98 F. C. C. 2d, at 1098
("Ascertainment procedures . . . were intended as a means of ensuring that
licensees actively discovered the problems, needs and issues facing their
communities . . . .  Yet we have no evidence that these procedures have had
such an effect") (footnote omitted).

41
    Although the Commission has concluded that "the growth of traditional
broadcast facilities" and "the development of new electronic information
technologies" have rendered "the fairness doctrine unnecessary," Report
Concerning the General Fairness Doctrine Obligations of Broadcast
Licensees, 102 F. C. C. 2d 143, 197 (1985); see post, at 16 (O'Connor, J.,
dissenting), the Commission has not made such a finding with respect to its
minority ownership policies.  To the contrary, the Commission has expressly
noted that its decision to abrogate the fairness doctrine does not in its
view call into question its "regulations designed to promote diversity."
Syracuse Peace Council (Reconsideration), 3 F. C. C. Rcd 2035, 2041, n. 56
(1988).

42
    Justice O'Connor offers few race-neutral alternatives to the policies
that the FCC has already employed and found wanting.  She insists that
"[t]he FCC could directly advance its interest by requiring licensees to
provide programming that the FCC believes would add to diversity."  Post,
at 21.  But the Commission's efforts to use the ascertainment program to
determine the programming needs of each community and the comparative
licensing procedure to provide licensees incentives to address their
programming to these needs met with failure.  A system of FCC-mandated
"diverse" programming would have suffered the same fate, while introducing
new problems as well.  See n. 36, supra.
    Justice O'Connor's proposal that "[t]he FCC . . . evaluate applicants
upon their ability to provide and commitment to offer whatever programming
the FCC believes would reflect underrepresented viewpoints," post, at 21,
similarly ignores the practical difficulties in determining the
"underrepresented viewpoints" of each community.  In addition, Justice
O'Connor's proposal is in tension with her own view of equal protection.
On the one hand, she criticizes the Commission for failing to develop
specific definitions of "minority viewpoints" so that it might implement
her suggestion.  Ibid.; see also id., at 27 (noting that the FCC has
declined to identify "any particular deficiency in the viewpoints contained
in the broadcast spectrum") (emphasis added).  On the other hand, she
implies that any such effort would violate equal protection principles,
which she interprets as prohibiting the FCC from "identifying what
constitutes a `Black viewpoint,' an `Asian viewpoint,' an `Arab viewpoint,'
and so on [and] determining which viewpoints are underrepresented."  Post,
at 14.  In this light, Justice O'Connor should perceive as a virtue rather
than a vice the FCC's decision to enhance broadcast diversity by means of
the minority ownership policies rather than by defining a specific "Black"
or "Asian" viewpoint.
    Justice O'Connor maintains that the FCC should have experimented with
"[r]ace-neutral financial and informational measures," post, at 22, in
order to promote minority ownership.  This suggestion is so vague that it
is difficult to evaluate.  In any case, both Congress, see supra, at 23
(describing minority financing fund that would have accompanied lottery
system), and the Commission considered steps to address directly financial
and informational barriers to minority ownership.  After the Minority
Ownership Task Force identified the requirement that licensees demonstrate
the availability of sufficient funds to construct and operate a station for
one year, see Ultravision Broadcasting, 1 F. C. C. 2d 544, 547 (1965), as
an obstacle to minority ownership, see Task Force Report, at 11-12, that
requirement was subsequently reduced to three months.  See Financial
Qualifications Standards, 72 F. C. C. 2d 784, 784 (1979) (television
applicants); Financial Qualifications for Aural Applicants, 69 F. C. C. 2d
407, 407-408 (1978) (radio applicants).  In addition, the Commission noted
that minority broadcasters are eligible for assistance from the Small
Business Administration and other federal agencies.  See Task Force Report,
at 17-22.  The Commission also disseminated information about potential
minority buyers of broadcast properties.  See, e. g., FCC EEO-Minority
Enterprise Division, Minority Ownership of Broadcast Facilities: A Report
8-9 (Dec. 1979).  Despite these race-neutral initiatives, the Commission
concluded in 1982 that the " `dearth of minority ownership' in the
telecommunications industry" remained a matter of "serious concern."
Commission Policy Regarding Advancement of Minority Ownership in
Broadcasting, 92 F.C.C. 2d 849, 852 (1982).
    The Commission has continued to employ race-neutral means of promoting
broadcast diversity.  For example, it has worked to expand the number of
broadcast outlets within workable technological limits, see, e. g.,
Implementation of BC Docket No. 80-90 To Increase Availability of FM
Broadcast Assignments, 100 F. C. C. 2d 1332 (1985), to develop strict
cross-ownership rules, see n. 16, supra, and to encourage issue-oriented
programming by recognizing a licensee's obligation to present programming
responsive to issues facing the community of license.  See, e. g.,
Deregulation of Television, 104 F. C. C. 2d, at 359; Deregulation of Radio,
84 F. C. C. 2d, at 982-983.  The Commission has nonetheless concluded that
these efforts cannot substitute for its minority ownership policies.  See,
e. g., id., at 977.

43
    Congress followed closely the Commission's efforts to increase
programming diversity, see supra, at 21-28, including the development of
the ascertainment policy.  See, e. g., S. Rep. No. 93-1190, pp. 6-7 (1974);
Broadcast License Renewal Act: Hearings on S. 16 et al. before the
Subcommittee on Communications of the Senate Committee on Commerce, 93d
Cong., 2d Sess., pt. 1, p. 63 (1974) (testimony of Sen. Scott); id., at 65
(testimony of Rep. Brown).  Congress heard testimony from the chief of the
Commission's Mass Media Bureau that the ascertainment rules were "seriously
flawed" because they "became highly ritualistic and created unproductive
unseemly squabbling over administrative trivia."  Broadcast Regulation and
Station Ownership: Hearings on H. R. 6122 and H. R. 6134 before the
Subcommittee on Telecommunications, Consumer Protection, and Finance of the
House Committee on Energy and Commerce, 98th Cong., 2d Sess., 165 (1984).
Other witnesses testified that the minority ownership policies were adopted
"only after specific findings by the Commission that ascertainment
policies, and equal opportunity rules fell far short of increasing minority
participation in programming and ownership."  Minority Ownership of
Broadcast Stations: Hearing before the Subcommittee on Communications of
the Senate Committee on Commerce, Science, and Transportation, 101st Cong.,
1st Sess., p. 157 (1989) (testimony of J. Clay Smith, Jr., National Bar
Association).  In enacting the lottery statute, Congress explained the
"current comparative hearing process" had failed to produce adequate
programming diversity and that "[t]he policy of encouraging diversity of
information sources is best served . . . by assuring that minority and
ethnic groups that have been unable to acquire any significant degree of
media ownership are provided an increased opportunity to do so."  H. R.
Conf. Rep. No. 97-765, pp. 43-44 (1982).  Only in this way would "the
American public [gain] access to a wider diversity of information sources."
Id., at 45.

44
    The proposal was withdrawn after vociferous opposition from
broadcasters, who maintained that a notice requirement "would create a
burden on stations by causing a significant delay in the time it presently
takes to sell a station" and that it might require the disclosure of
confidential financial information.  43 Fed. Reg. 24561 (1978).

45
    See Public Papers of the Presidents, supra n. 4, at 253; Petition for
Issuance of Policy Statement or Notice of Inquiry by National
Telecommunications and Information Administration, 69 F. C. C. 2d 1591,
1593 (1978).  The petition advanced such proposals as a blanket exemption
for minorities from certain then-existing Commission policies, such as a
rule restricting assignments of stations by owners who had held their
stations for less than three years, see 47 CFR MDRV 1.597 (1978); multiple
ownership regulations that precluded an owner from holding more than one
broadcast facility in a given service that overlapped with another's
signal, see id., 15 73.35, 73.240, and 73.636; and the "Top 50" policy,
which required a showing of compelling public interest before the same
owner was allowed to acquire a third VHF or fourth (either VHF or UHF)
television station in the 50 largest television markets.  The Commission
rejected these proposals, on the ground that while minorities might qualify
for waivers on a case- by-case basis, a blanket exception for minorities
"would be inappropriate."  69 F. C. C. 2d, at 1597.

46
    As of mid-1973, licenses for 66.6 percent of the commercial television
stations--and 91.4 percent of the VHF stations--that existed in mid-1989
had already been awarded.  68.5 percent of the AM and FM radio station
licenses authorized by the FCC as of mid-1989 had already been issued by
mid-1973, including 85 percent of the AM stations.  See Brief for Capital
Cities/ABC, Inc., as Amicus Curiae in No. 89-453, p. 11, n. 19.  See also
n. 2, supra; Honig, The FCC and Its Fluctuating Commitment to Minority
Ownership of Broadcast Facilities, 27 How. L. J. 859, 875, n. 87 (1984)
(reporting 1980 statistics that Afro-Americans "tended to own the least
desirable AM properties"--those with the lowest power and highest
frequencies, and hence those with the smallest areas of coverage).

47
    See, e. g., Minority Ownership of Broadcast Stations: Hearing Before
the Subcommittee on Communications of the Senate Committee on Commerce,
Science, and Transportation, 101st Cong., 1st Sess. (1989).  See also
supra, at 27-28.

48
    As in Fullilove v. Klutznick, 448 U. S. 448 (1980), the FCC minority
preferences are subject to "administrative scrutiny to identify and
eliminate from participation" those applicants who are not bona fide.  Id.,
at 487-488.  See Formulation of Policies and Rules Relating to Broadcast
Renewal Applicants, Competing Applicants and Other Participants to
Comparative Renewal Process and to Prevention of Abuses of the Renewal
Process, 3 F. C. C. Rcd 5179 (1988).  The FCC's Review Board, in
supervising the comparative hearing process, seeks to detect sham
integration credits claimed by all applicants, including minorities.  See,
e. g., Silver Springs Communications, 5 F. C. C. Rcd 469, 479 (1990);
Metroplex Communications, Inc., 4 F. C. C. Rcd 8149, 8149-8150, 8159-8160
(1989); Northampton Media Associates, 3 F. C. C. Rcd 5164, 5170-5171 (Rev.
Bd. 1988); Washoe Shoshone Broadcasting, 3 F. C. C. Rcd 3948, 3955 (Rev.
Bd. 1988); Mulkey, 3 F. C. C. Rcd 590, 590-593 (Rev. Bd. 1988), modified, 4
F. C. C. Rcd 5520, 5520-5521 (1989); Newton Television Limited, 3 F. C. C.
Rcd 553, 558-559, n. 2 (Rev. Bd. 1988); Magdelene Gunden Partnership, 3 F.
C. C. Rcd 488, 488-489 (Rev. Bd. 1988); Tulsa Broadcasting Group, 2 F. C.
C. Rcd 6124, 6129-6130 (Rev. Bd. 1987); Pacific Television, Ltd., 2 F. C.
C. Rcd 1101, 1102-1104 (Rev. Bd. 1987), review denied, 3 F. C. C. Rcd 1700
(1988); Payne Communications, Inc., 1 F. C. C. Rcd 1052, 1054-1057 (Rev.
Bd. 1986); N. E. O. Broadcasting Co., 103 F. C. C. 2d 1031, 1033 (Rev. Bd.
1986); Hispanic Owners, Inc., 99 F. C. C. 2d 1180, 1190-1191 (Rev. Bd.
1985); KIST Corp., 99 F. C. C. 2d 173, 186-190 (Rev. Bd. 1984), aff'd as
modified, 102 F. C. C. 2d 288, 292-293, and n. 11 (1985), aff'd sub nom.
United American Telecasters, Inc. v. FCC, 255 U. S. App. D. C. 379, 801 F.
2d 1436 (1986).
    As evidenced by respondent Shurberg's own unsuccessful attack on the
credentials of Astroline, see 278 U. S. App. D. C., at 31, 876 F. 2d, at
906, the FCC also entertains challenges to the bona fide nature of distress
sale participants.  See 1982 Policy Statement, 92 F. C. C. 2d, at 855.

49
    Minority broadcasters, both those who obtain their licenses by means of
the minority ownership policies and those who do not, are not stigmatized
as inferior by the Commission's programs.  Audiences do not know a
broadcaster's race and have no reason to speculate about how he or she
obtained a license; each broadcaster is judged on the merits of his or her
programming.  Furthermore, minority licensees must satisfy otherwise
applicable FCC qualifications requirements.  Cf. Fullilove, 448 U. S., at
521 (Marshall, J., concurring in judgment).

50
    Petitioner Metro contends that, in practice, the minority enhancement
credit is not part of a multifactor comparison of applicants but rather
amounts to a per se preference for a minority applicant in a comparative
licensing proceeding.  But experience has shown that minority ownership
does not guarantee that an applicant will prevail.  See, e. g., Radio
Jonesboro, Inc., 100 F. C. C. 2d 941, 945-946 (1985); Lamprecht, 99 F. C.
C. 2d 1219, 1223 (Rev. Bd. 1985), review denied, 3 F. C. C. Rcd 2527
(1988), appeal pending, Lamprecht v. FCC, No. 88-1395 (CADC); Horne
Industries, Inc., 98 F. C. C. 2d 601, 603 (1984); Vacationland Broadcasting
Co., 97 F. C. C. 2d 485, 514-517 (Rev. Bd. 1984), modified, 58 Radio Reg.
2d (P&F) 439 (1985); Las Misiones de Bejar Television Co., 93 F. C. C. 2d
191, 195 (Rev. Bd. 1983), review denied, FCC 84-97 (May 16, 1984); Waters
Broadcasting Corp., 88 F. C. C. 2d 1204, 1211-1212 (Rev. Bd. 1981).
    In many cases cited by Metro, even when the minority applicant
prevailed, the enhancement for minority status was not the dispositive
factor in the Commission's decision to award the license.  See, e. g.,
Silver Springs Communications, Inc., 5 F. C. C. Rcd 469, 479 (ALJ 1990);
Richardson Broadcasting Group, 4 F. C. C. Rcd 7989, 7999 (ALJ 1989); Pueblo
Radio Broadcasting Service, 4 F. C. C. Rcd 7802, 7812 (ALJ 1989);
Poughkeepsie Broadcasting Limited Partnership, 4 F. C. C. Rcd 6543, 6551,
and n. 4 (ALJ 1989); Barden, 4 F. C. C. Rcd 7043, 7045 (ALJ 1989); Perry
Television, Inc., 4 F. C. C. Rcd 4603, 4618, 4620 (ALJ 1989); Corydon
Broadcasting, Ltd., 4 F. C. C. Rcd 1537, 1539 (ALJ 1989), remanded, Order
of Dec. 6, 1989 (Rev. Bd.); Breaux Bridge Broadcasters Limited Partnership,
4 F. C. C. Rcd 581, 585 (ALJ 1989); Key Broadcasting Corp., 3 F. C. C. Rcd
6587, 6600 (ALJ 1988); 62 Broadcasting, Inc., 3 F. C. C. Rcd 4429, 4450
(ALJ 1988), aff'd, 4 F. C. C. Rcd 1768, 1774 (Rev. Bd. 1989), review
denied, FCC 90-48 (Feb. 13, 1990); Gali Communications, Inc., 2 F. C. C.
Rcd 6967, 6994 (ALJ 1987); Bogner Newton Corp., 2 F. C. C. Rcd 4792, 4805
(ALJ 1987); Garcia, 2 F. C. C. Rcd 4166, 4168, n. 1 (ALJ 1987), aff'd, 3 F.
C. C. Rcd 1065 (Rev. Bd.), review denied, 3 F. C. C. Rcd 4767 (1988);
Magdalene Gunden Partnership, 2 F. C. C. Rcd 1223, 1238 (ALJ 1987), aff'd,
2 F. C. C. Rcd 5513 (Rev. Bd. 1987), reconsideration denied, 3 F. C. C. Rcd
488 (Rev. Bd.), review denied, 3 F. C. C. Rcd 7186 (1988); Tulsa
Broadcasting Group, 2 F. C. C. Rcd 1149, 1162 (ALJ), aff'd, 2 F. C. C. Rcd
6124 (Rev. Bd. 1987), review denied, 3 F. C. C. Rcd 4541 (1988); Tomko, 2
F. C. C. Rcd 206, 209, n. 3 (ALJ 1987).

51
    Faith Center also held broadcast licenses for three California
stations, and in 1978, the FCC designated for a hearing Faith Center's
renewal application for its San Bernadino station because of allegations of
fraud in connection with over-the-air solicitation for funds and for
failure to cooperate with an FCC investigation.  Although respondent
Shurberg did not file a competing application prior to the Commission's
decision to designate for hearing Faith Center's renewal application for
its Hartford station, timely filed competing applications against two of
Faith Center's California stations prevented their transfer under the
distress sale policy.  See Faith Center, Inc., 89 F. C. C. 2d 1054 (1982),
and Faith Center, Inc., 90 F. C. C. 2d 519 (1982).
    Of course, a competitor may be unable to foresee that the FCC might
designate a license for a revocation or renewal hearing, and so might
neglect to file a competing application in timely fashion.  But it is
precisely in such circumstances that the minority distress sale policy
would least disrupt any of the competitor's settled expectations.  From the
competitor's perspective, it has been denied an opportunity only at a
windfall; it expected the current licensee to continue broadcasting
indefinitely and did not anticipate that the license would become
available.

52
    Even for troubled licensees, distress sales are relatively rare
phenomena; most stations presented with the possibility of license
revocation opt not to utilize the distress sale policy.  Many seek and are
granted special relief from the FCC enabling them to transfer the license
to another concern as part of a negotiated settlement with the Commission,
see Coalition for the Preservation of Hispanic Broadcasting v. FCC, ---- U.
S. App. D. C. ----, ---- - ----, 893 F. 2d 1349, 1352-1353 (1990); bankrupt
licensees can effect a sale for the benefit of innocent creditors under the
"Second Thursday" doctrine, see Second Thursday Corp., 22 F. C. C. 2d 515,
520-521 (1970), reconsideration granted, 25 F. C. C. 2d 112, 113-115
(1970); Northwestern Indiana Broadcasting Corp. (WLTH), 65 F. C. C. 2d 66,
70-71 (1977); and still others elect to defend their practices at hearing.