Content-Type: text/html
Justifying the FCC's Minority Preference
Justifying the FCC's Minority Preference Policies
Seung Kwan Ryu
Doctoral Student
School of Journalism
Southern Illinois University at Carbondale
Carbondale, Illinois
1941 W. Evergreen Dr. #8, Carbondale, IL 62901
E-mail: [log in to unmask]
Phone: 618-351-6291
A Paper Submitted to
Minorities and Communication Division
of the Association for Education in Journalism and Mass Communication
Abstract
This study investigates how courts have used empirical evidence in justifying the standard review they applied as their rationale in FCC's minority preference and equal protection policies. The study suggests that courts should adopt not only evidence of historical and societal discrimination but also empirical evidence as their rationale, since in previous studies empirical evidence has already shown a positive correlation between minority ownership and program diversity in broadcasting.
Also, this study argues that to enhance program diversity in U.S. broadcasting intermediate scrutiny is more appropriate than strict scrutiny, because the FCC's minority preference policies involve not only the constitutional guarantees of equal protection under the Fifth and Fourteenth Amendments, but also the free speech and press guarantees of the First Amendment.
Introduction
It is widely recognizable that the American media is becoming more concentrated and controlled by a handful of companies capable of affecting politics, culture, and economics.[1] These media cater to majoritarian views because of their profitability. As a result, the marketplace of ideas lacks diversity, even though providing the public with a variety of viewpoints is an important government interest. Minority owners report that since the passage of the Telecommunications Act of 1996[2] they have undergone increased competition in securing highly ranked syndicated programming, in attracting advertisers and earning advertising revenue, and in hiring and personnel retention.[3]
Empirical studies have shown that minority ownership leads to viewpoint diversity on the airwaves.[4]
Despite this evidence, however, some courts have held that ownership has little effect on programming content, and used that as a rationale to strike down diversity of ownership requirements. The United States Court of Appeals for the District of Columbia in 1998 found that the FCC's broadcast equal employment opportunity policies to be unconstitutional.[5] On September 15, the full court divided but ultimately denied rehearing. This affirmed the panel's decision and paved the way for resolution by the Supreme Court. This decision appears contradictory and misleading because in Metro,[6] the Supreme Court determined that the nexus between minority ownership and programming diversity is corroborated by a host of empirical evidence.
Part of the reason that courts have found the empirical evidence on ownership and content diversity unpersuasive had to do with the standard of review they have used in these cases. Courts that have been skeptical of the empirical evidence have employed strict scrutiny, which is a higher standard of review than intermediate scrutiny. If courts continue to use standard of review, much more rigorous empirical studies of the relationship between minority ownership and content diversity should be conducted.
The purpose of this article is two-fold. First, it investigates how courts have used empirical evidence as the rationale of their decisions in the cases regarding FCC's minority preference broadcasting and equal protection policies. Second, this study explores which standard of review would be more appropriate in deciding the FCC's minority preference and equal protection policies to enhance diversity in U.S. broadcasting.
FCC's Minority Ownership Policies
The FCC designed the 1978 broadcast policy statement[7] to promote minority ownership of broadcast services. It authorized the use of comparative hearing preferences favoring minority applicants, the distress sale policy, and the award of tax certificates to owners of broadcast or cable systems who sold to minority-controlled businesses.
In 1978, the Commission instituted its minority tax certificate and distress sale
policies, both of which provide incentives to owners of broadcast and cable television properties to sell their stations to minorities. The tax certificate policy enables the seller of a broadcast station or cable television system to defer the gain realized on that sale if the
property is sold to a minority purchaser. The distress sale policy permits a broadcast licensee whose license has been designated for a revocation hearing to sell its station, after designation for hearing but prior to commencement of the hearing, to a minority-controlled entity at 75 percent or less of the station's fair market value.[8]
When the Broadcast Policy Statement was first adopted in 1978, minorities owned approximately .05 percent of the approximately 8,500 broadcast licenses issued by the FCC.[9] Since then, minority ownership in the broadcast industry has grown from less than one percent to a modest three percent of all stations in the U.S. Merely examining the percentages of minority ownership over time does not provide a clear picture of the growth in minority broadcast ownership, because the number of broadcast stations has more than doubled since 1978. In fiscal year 1978, there were approximately 9,565 broadcast stations in operation.[10] Four tax certificates were issued.[11] In calendar year 1995, approximately 22,685 broadcast stations were in operation including low power television.[12] Three hundred twenty six tax certificates had been issued from 1978 to May 1995 when the FCC discontinued the tax certificate program.[13] Therefore, it is viewed that the FCC's minority ownership policies clearly succeeded in promoting minority ownership, because minority ownership in the broadcast sector between 1978 and 1995 tripled on a percentage basis while the total number of stations more than doubled.
Judicial Review of FCC's Minority Preference Policies
Metro Broadcasting, Inc. v. FCC
In 1990, the United States Supreme Court decided Metro Broadcasting, Inc. v. FCC.[14] The Court affirmed two of the FCC's three policies encouraging minority ownership of broadcast media. The Court found the enhancement for minority ownership and management in comparative license cases and the distress sale transfer to a minority enterprise to be consistent with the constitutional guarantee of equal protection of the laws. The Court determined the policies are substantially related to the achievement of government's important interest in broadcast diversity.[15]
Under the diversity doctrine, increasing the number of minority viewpoints by increasing minority ownership of the media is important to achieving the critical first amendment goal of diversifying control of the means of communication. This goal is appropriate because the right to speak is vested in the owner. Under an expansive interpretation of the equal protection doctrine, increasing minority ownership of the mass media is important to the critical fourteenth amendment goal of removing the results of historical societal discrimination.[16]
At issue in the Metro Broadcasting case were two of the FCC's minority ownership policies-the minority enhancement policy and the distress sale policy. In Metro Broadcasting, the majority held that the minority ownership policies, although not intended to be remedial, do not violate equal protection. Justice Brennan, writing for the majority, found the policies, which were specifically approved and mandated by Congress,[17] serve the important government interest of broadcast diversity and are substantially related to that interest.[18] The finding of a substantial relationship between the policies and the government's interest in broadcast diversity was deemed to be supported by the government's conclusion that there is an empirical nexus between minority ownership and greater diversity.[19] The FCC's conclusion was found to be consistent with its long held view that ownership is a primary determinant of program diversity.[20] Further, the majority determined that the ascertained link between minority ownership and greater diversity was not a function of impermissible stereotyping, but the product of educated expectation corroborated by empirical evidence.[21]
In contrast, the dissent argued that the minority ownership policies violated the constitutional guarantee of equal protection because the government did not treat all citizens as "individuals" but as components of a racial or ethnic class.[22] It argued that the government's interest in diversity of broadcast viewpoints is not sufficiently compelling to justify use of racial classifications. According to Justice O'Connor, the government has no ability to define or measure a particular "race related" viewpoint[23] or assess the diversity of broadcast viewpoints. Consequently, the interest could support arbitrary measures that could amount to "outright racial balancing."[24] The dissent maintained that the FCC's statutory authority to promote constitutional measures to enhance diversity of viewpoints does not establish its interest as important for equal protection purposes. Following on the same track, the dissent found that the use of the government's interest in diversity as justification for the minority ownership policies was an "unsettled First Amendment Issue."[25]
The dissent was particularly critical of the evidentiary basis for the majority's finding of a nexus between minority ownership and program content. It questioned the FCC's assertion of a strong correlation of race and behavior based on the low percentage of minority-owned stations.[26] The dissent would not allow the FCC to rely on minority under-representation as a justification for its policies unless it could establish minority owned stations provide minority views while majority owned stations cannot or do not. It further suggested, without elaboration, that the marketplace would mediate a minority owner's exercise of editorial control such that there is a reduced assurance that the owners' viewpoint will emerge unrestrained.[27]
In Metro Broadcasting, while the majority relied substantially on empirical evidence such as the Congressional Research Service Report,[28] the dissent almost completely ignored that. The Court acknowledged that there are instances in which evidence of such a nexus have been found.[29]
Also, the majority assessed the government's minority ownership policies in the context of the historic and current evidence of minority under-representation in broadcast ownership and misrepresentation in programming provided by the majority owned broadcast media.[30] Based on the evidence and given the policies' relationship to more than a half century of judicially approved congressional and administrative policy and statutory law valuing diversity, the majority concluded that the government's interest in diversity is important and the remedy appropriate.[31]
Congress, the FCC and Metro Broadcasting Court found that a minority owner's status tends to influence the selection of news and editorial viewpoint and the presentation of minority images in local news programming.[32] Meanwhile, despite this evidence and the historical lack of diversity provided by major portions of the majority-owned media, Justice O'Connor, in dissent, found no ascertainable nexus between minority ownership and diversity. Justice O'Connor asserted that the government's reliance on such evidence is merely reliance on stereotypes, aggregate tendencies, and probabilities which inevitably do not apply to certain individuals.[33]
The majority held that enhancing broadcast diversity constitutes an important governmental objective.[34] In doing so, the Court deferred to the FCC's conclusion that an empirical nexus exists between minority ownership and the inclusion of minority views in programming.[35] Justice Brennan's conclusion that providing the public with a wide variety of viewpoints over the airwaves is an important government interest followed a sketchy analysis, which patched together the Court's four major cases on broadcast media and the First Amendment.[36] Furthermore, statistical disparity between minority owners and minority viewers is not the issue in a broadcast context.[37] The deficiency addressed by the FCC policies is the inadequate exposure of both African-American and white viewers to people of color under conditions that could foster the development of diverse role models.[38]
Lamprecht v. FCC [39]
In Lamprecht, FCC's minority preference policy based on gender preference was struck down. The Court of Appeals held that preference for female owners violated equal protection principles. The court said that the need for diversity and sensitivity reflected in the structure of a broadcast station is not so pressing with respect to women as it is with respect to blacks because women have not been excluded from the mainstream of society as have black people.[40] In Metro Broadcasting, the court expressly refused to pass judgment on the Commission's policy of preferring applicants on the basis of gender.
On the other hand, in Lamprecht, the Court noted that "having considered the evidence offered to demonstrate a link between ownership by women and any type of underrepresented programming, we are left unconvinced."[41] The Court argued that the Commissions brief cites nothing that might support its predictive judgment that women owners will broadcast women's or minority or any other underrepresented type of programming at any different rate than will men.[42] The Court noted whatever the methodological flaws of the Congressional Research Service Report,[43] this report did answer its own question, at least with respect to women and the answer was "no." The Court summarized the report as follows: Of stations owned primarily by women, slightly more than a third, or 35%, broadcast what the study calls "women's programming." Of stations owned entirely by "non-women," a slightly lower portion, or 28%, broadcast women's programming. For others given preferences in comparative licensing, the difference is dramatic. For instance, of stations owned primarily by Blacks, 79% broadcast Black programming, while of stations owned entirely by people who are not Black, 20% broadcast Black programming; of stations owned primarily by Hispanics, 74% broadcast Hispanic programming, while of stations owned entirely by people who are not Hispanic, 10% broadcast Hispanic programming, and so forth. In contrast, stations owned primarily by women are just one and one quarter times as likely to broadcast women's programming as are stations owned entirely by men.[44]
Judge Clarence Thomas reviewed the evidence contained in the CRS report and concluded that female ownership had little effect on programming content.[45] Judge Thomas created ten tables from the material contained in the CRS report and used them to show that female ownership of broadcasting stations is insufficiently effective at producing diverse programming.[46] Judge Thomas noted that intermediate scrutiny requires judges to draw lines between policies with moderately strong and moderately weak support, and the female preference policy fell on the weak side of the line, thereby was struck down as unconstitutional.[47]
In this context, the court noted that the data in Minority Programming[48] failed to establish any statistically meaningful link between ownership by women and programming of any particular kind. The Court, therefore, concluded the government failed to show that its gender-preference policy is substantially related to achieving diversity on the airwaves.[49]
Meanwhile, Mikva, Chief Judge, filed a dissenting opinion. Judge Mikva pointed out that the cover page of the CRS study concluded, "there is a strong indication that minority and women station ownership result in a greater degree of minority programming,"[50] and that the study showed "while stations with women owners lag slightly behind those with minority owners in programming for minorities generally, a substantial percentage of women-owned stations programs for blacks and Hispanic audiences."[51] In this sense, Judge Mikva argued that while the Metro Court took the study's conclusion at face value, the majority of Metro ignored the central conclusion printed on the face of the study.[52] Judge Mikva continued that the data also reveal a statistical correlation between female ownership and minority programming. Twenty-six percent of stations with female owners broadcast programming targeted to Blacks, while 20% of stations owned by "non-Blacks" do.[53]
Judge Mikva asserted that the right question is whether a correlation exists, on the whole, between female owner-managers and diverse programming.[54] The report, however, understated that correlation because, according to statistics, only 18% of the female owners in the survey were also managers.[55] Judge Mikva also argued that the report also understated the correlation because it asked only about programming specifically targeted at women, minorities, children and senior citizens, and not at general audiences.[56]
Judge Mikva continued to argue that the majority failed to mention that data from the same cities suggested a significant link between female ownership and minority programming.[57] Furthermore, Judge Mikva pointed out that the majority's relying on the report's finding that radio stations with at least one women owner use broadcasting formats in nearly the same order as stations owned by "non-minorities" (which includes men and women) was inappropriate. That means the majority cannot possibly expect stations owned by women to program soft, "feminine," music, or to replace a "Country Western" format with "Adult Contemporary." In other words, more female owner-managers will likely enhance the diversity of programming within the existing formats, and the study certainly does not disprove it.[58]
Lutheran Church-Missouri Synod v. FCC [59]
Lutheran Church-Missouri Synod appealed the FCC's finding that it transgressed equal employment opportunity regulations through the use of religious hiring preferences and inadequate minority recruiting. The United States Court of Appeals for the District of Columbia struck down the FCC's broadcast equal employment opportunity policies.
The United States Court of Appeals for the District of Columbia Circuit analyzed the Commission's Equal Employment Opportunity (EEO) policies under the 1995 Supreme Court Adarand[60] case, which held that racial classifications can only be justified to advance compelling governmental interests. The Court found the Commission's policies to be a scheme of racial preference, since the Commission's EEO regulations and renewal processing guidelines encourage stations to select their hirees to reflect the racial composition of their area workforces. For this reason, the Court attacked the Commission's sole attempt to relate its EEO requirements to its statutory mandate of safeguarding the public interest --ensuring diversity of broadcast programming.
The Court questioned the assumption of linking race and viewpoint. It then went on to note that the Commission's apparent goal of making each station "all things to all people" through a racially balanced staff clashes with the reality of the radio market where each station typically targets a particular population segment.[61] Finally, the Court noted that, even were the Commission's rationale true, it still would not explain why EEO should extend to engineers, secretaries, business managers and others who presumably have little influence over the diversity of a station's broadcast programming.[62]
Meanwhile, the Justice Department noted that even if strict scrutiny applied, the Commission's EEO employment guidelines met the compelling interest tests and narrow tailoring that strict scrutiny requires. The Court, however, asserted that even in Title VII[63] disparate impact cases, quite different sorts of statistics were employed for the limited purpose of determining whether a particular sort of job requirement disadvantages minorities. Thus, the Court noted that, comparing the proportionality of minorities in the employer's workforce to the proportionality of minorities in the overall population (the Metropolitan Statistical Area or MSA) would never be the relevant comparison under such cases; rather, the racial composition of those holding at-issue jobs is compared with the racial composition of qualified applicants or qualified persons in the labor market.[64] The Court continued that the relevant statistical gauge was not the proportionality of minorities in the overall population was clear from the anti-discrimination rationale of Title VII--the purpose of statistical evidence was to expose possible discriminatory intent, not to establish a workforce that mirrors the racial breakdown of the MSA.[65] The Court argued that if discrimination under Title VII were defined as non-proportionality, much of the Supreme Court's recent equal protection cases would make little sense. The Court cited the dissenting opinion of Metro that "at the heart of the Constitution's guarantee of equal protection lies the simple command that the Government treat citizens as individuals, not as simply components of a racial, religious, sexual or national class."[66]
The Court also noted the danger that relying solely on statistical disparities as proof of discrimination under Title VII could result in the imposition of de facto quotas. For this reason, the Court concluded that statistical evidence could be relevant in determining whether an employer's past practice was discriminatory was not equivalent to concluding that the absence of proportionality made out discrimination.[67]
In its Lutheran Church opinion, a unanimous circuit court expressed skepticism about a nexus between minority employment and viewpoint diversity. The Court stated that the commission never defined exactly what it means by "diverse programming" and the government's formulation of the interest seems too abstract to be meaningful. Based on this reasoning, the Court articulated that diversity did not elevate to the "compelling" level. [68]
Applying Intermediate or Strict Scrutiny
Among several issues addressed in the above-mentioned three cases, the crucial point was to justify the application of an intermediate or strict scrutiny standard. In this process, two different views of the degree of relevance and validity of empirical evidence, mostly from the CRS[69] report of the FCC, finding nexus between diversity of minority ownership and program diversity, functioned as an important catalyst in justifying a very deferential form of intermediate scrutiny or a very skeptical perspective of strict scrutiny.
The other point that should be noted is the appropriateness of strict scrutiny in outreach program in Lutheran Church. In Adarand Constructors, Inc. v. Pena,[70] the Supreme Court's most recent decision, the Court determined that strict scrutiny must be applied to all federal, state, and local government programs that employ racial classifications.[71] In Lutheran Church, the Court of Appeals for the District of Columbia expanded Adarand's scope to include not only remedial[72] preference programs,[73] but also nonremedial outreach programs, when it considered a challenge to the constitutionality of the FCC's equal opportunity regulations. Applying strict scrutiny, the court determined that part of the EEO regulations worked as racial classifications and, as such, unconstitutionally pressured employers to consider race in their hiring decisions.
That is, the court first determined that the EEO regulations served as "racial classifications," hence Adarand's strict scrutiny should be applied.[74] It should be noted, however, that the Lutheran Church court failed to make a distinction between preference program and outreach program even though there exists a significant difference between the potential indirect pressure for race based hiring exerted by outreach programs and the pressure directly imposed by preference programs.[75] Outreach programs typically involve minority recruitment efforts, self-studies to examine how a business makes employment decisions, and data collection to evaluate the effects of the outreach program.[76] Because outreach programs do not necessarily make race or ethnicity a factor in hiring decisions, they do not directly pressure employers to make race based hiring decisions. Therefore, in order to justify applying Adarand to an outreach program, the D.C. Circuit should have engaged in empirical analysis of the threshold degree of pressure that a government regulation might exert upon an employer before the regulation becomes a racial classification requiring strict scrutiny.[77]
The O'Brien test and the strict scrutiny test are intended to balance the First Amendment rights of speakers against whatever competing interests governments has in regulating the speech.[78] The O'Brien test arose out of a 1968 Supreme Court decision, United States v. O'Brien.[79] The O'Brien test states:
A government regulation is sufficiently justified if its is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms in no greater than is essential to the furtherance of that interest.[80]
On the other hand, strict scrutiny places a heavier burden on the government to justify the regulation of speech than that of the O'Brien test. Strict scrutiny is known as the "compelling interest" test.[81] Under the strict scrutiny, First Amendment interests are upheld unless the governmental interest in regulation is compelling and that interest is achieved in the least restrictive manner.[82]
The Metro Broadcasting Court's intermediate scrutiny test required the government to show a substantial relationship between minority ownership and programming diversity.[83] In contrast, strict scrutiny would have demanded the government to establish that minority ownership policies were narrowly tailored to achieve the specified state interest.[84] It is viewed that because minority ownership policies can be perceived as a content-neutral means to regulate the broadcast industry,[85] intermediate test is appropriate.[86]
Justice Brennan's conclusion that a sufficient nexus exists between minority ownership and programming diversity was the product of the majority's appropriate deference to the "expertise of the Commission and the factfinding of Congress."[87] The majority relied on the FCC's conclusion that "ownership of broadcast facilities by minorities is a significant way of fostering the inclusion of minority views in the area of programming."[88] Judges considering the FCC affirmative action policies have searched long and hard for a "nexus" between minority control of broadcast stations and diverse programming. Courts did find that proof of the nexus was readily available.[89]
As discussed above, the courts which dealt with the aforementioned three cases have applied the empirical evidence differently. The primary reason was attributable to the different perspective of validity and interpretations of the data. In this sense, it is recognized that the majority of Metro Broadcasting credited empirical evidence which demonstrates the nexus between minority ownership and program content diversity, whereas the dissent in Metro and the court of Lutheran Church along with Lamprecht tended to make light of them in deciding the constitutionality of FCC's minority preference policies and equal employment opportunity rules.
Empirical Evidence
Diversity is not only a fuzzy concept to define, but also it is much more difficult to find causality or nexus between minority ownership and diversity programming, which was the core issues for courts to decide. In this sense, it is desirable to review how several researchers defined diversity in a communications context. Diversity is a slippery concept to define, but communication scholars have tried to elucidate this term on a theoretical level.[90] Wolfgang Hoffmann-Riem, in particular, stressing the qualitative diversity of the media content provided rather than the variety of channels or broadcasting stations, identified four main dimensions of diversity: format and issues, contents, person or group, and geography.[91] Entman and Wildman created three distinct definitions, which have been employed in media policy analysis: product diversity, idea diversity, and access diversity.[92] Although media diversity has various aspects, the heart of the term refers to divergent points of view or frames of reference. In an empirical dimension, media researchers have developed a wide variety of diversity measures and determined the actual degree of diversity, beginning with Peter O. Steiner's study on radio broadcast programming patterns in 1952.[93] However, quantitative studies on diversity have been discussed in a slightly different way, just focusing on channel diversity and program diversity. One of the reasons is due to the difficulties of measuring viewpoint diversity, as two researchers asked a question, "what difference in content is significant enough to be considered diverse?"[94]
Several empirical studies, however, have been conducted in an effort to find the nexus between the viewpoint (program) diversity and minority ownership. According to Fife, the minority-owned station devoted more time to issues of racial importance of racial importance, presented more black newsmakers, and reflected an overall different perspective on news than its white-owned counterpart. [95]
Dubin and Spitzer tested a relationship between the number of minority-owned broadcasting stations and content diversity of broadcast programs. They concluded that increasing the number of minority-owned broadcasting stations increased the amount of minority-oriented programming.[96] To provide the first systematic, statistical test of seven main hypotheses about the relationship among broadcasting stations, market characteristics, and stations owners' characteristics, Dubin and Spitzer added demographic data about broadcasting markets to the data in the FCC survey, and conducted regressions and tests of statistical significance.
The study found that minority ownership has a distinct and significant impact on minority programming, even after controlling for the composition of minorities in the marketplace. Programming also responded to composition of minorities in the marketplace. The magnitude of the coefficients for black ownership on black programming and Hispanic ownership on Spanish programming are significantly larger than the coefficient for female ownership on female programming. [97] They also found, however, that a greater degree of female ownership led to increase in programming targeted to several other minority groups. Stations with female ownership are more likely to program primarily for females, but are also more likely to increase programming for blacks, Hispanics, Asians, and American Indians. The combined effects are similar in magnitude to those for the minority group owners taken separately. Thus, their study shows that an increase in female ownership will have an overall impact on minority programming of a magnitude similar to what one would expect to get from, for instance, a larger degree of black ownership on black programming.[98]
The Congressional Research Service ("CRS") report presented many charts and tables relating owner's racial, ethnic, and gender characteristics, as well as the programming content of the owned broadcasting stations. Based on simple cross tabulations of ownership percentage and the percentage of programming for various target groups, the CRS reached several conclusions, for instance, station ownership, in part or in whole, by a particular type of minority, tended to increase the amount of programming targeted at that minority,[99] and station ownership by women produced a relatively small increase in programming for women when compared to the increase in programming that minority owners provide to minorities.[100]
Compelling or Substantial Interests
The court of Lutheran Church recognized that the FCC derived its authority from the public interest, and that the public's interest in creating program diversity is not a compelling government interest. Meanwhile, in Metro Broadcasting, the majority held that government may use race specific remedies to combat extremely recalcitrant societal discrimination, while the dissent espouses that belief that there are no appropriate circumstances in which government may use race specific remedies to address current societal discrimination no matter how egregious or debilitating.[101]
Hence, to sustain minority ownership policies under strict scrutiny, the FCC would have had to show its affirmative action efforts were narrowly tailored to achieve a compelling state interest.[102] By following Fullilove[103] rather than Richmond[104], the Metro Broadcasting Court was not required to address whether broadcast diversity reached the level of a compelling state interest.[105] The Court, however, avoided classification of the FCC policies as a remedy for past discrimination but instead justified them on the grounds of their future benefits.[106]
It is necessary here to look over the rationale which the majority of Metro Broadcasting applied. First, the majority found that the FCC minority policies served an important governmental objective--the promotion of broadcast program diversity. Justice Brennan asserted that diverse content would serve the needs and interests not only of minority groups, but all the viewing and listening audience. Second, the majority noted that as early as 1953, the Commission, in promulgating the first of its multiple ownership rules, had held that ownership and program diversity were inextricably linked. Third, the Metro Broadcasting court concluded that "strict scrutiny" standard applied in other race classification cases (City of Richmond v. J.A. Croson)[107] was not applicable to the FCC's policies. Instead, race-conscious measures were permissible as long as they fostered important government objectives and were substantially linked to the achievement of those objectives. In other words, strict scrutiny should have required that a race classification can be determined to be necessary and narrowly tailored to achieve a compelling state interest.[108]
It is important to note that the FCC's minority and gender preference policies represent a unique form of affirmative action because they implicate not only the constitutional guarantees of equal protection under the Fifth and Fourteenth Amendments, but also the free speech and press guarantees of the First Amendment. In other words, the FCC's minority and gender preference policies, unlike most affirmative action plans, have never been designed to ameliorate the effects of past discriminatory behavior against minorities or women. Instead, the policies have been predicated on a rationale of achieving broadcast content diversity, an objective that implicates the First Amendment issues not only for those directly affected by the policies, but also for the entire viewing and listening audience.[109]
It is apparent that recent deregulation trend of the overall telecommunications industry and the resulting trend media consolidation has led to a decline in the number of broadcast owners, threatening minority employment opportunities and diversity in the broadcast industry.[110] The National Telecommunications and Information Administration's (NTIA) 1997-1998 survey of minority ownership of full power commercial radio and television stations found that 165 minority broadcasters own 337 of 11,524 commercial radio and television stations in the U.S. Minority commercial broadcast ownership showed a negligible increase of .1%, from 2.8 in 1997 to 2.9% in 1998, a net gain of 15 stations. This minority ownership numbers offer although minority ownership of stations increased by 15 last year, they has not kept pace with the developments with the industry as a whole. Minority ownership of commercial broadcast stations is at a lower level today than in 1994 and 1995. Minority broadcasters are finding it increasingly difficult to compete in the rapidly consolidating broadcast industry.
In this context, it is acknowledged that there is a compelling interest in remedying the past discrimination to increase diversity in broadcasting in the United States, given the portion of minority stations and persistent ingrained problems in portraying and representing viewpoints of minorities in the historical as well as societal contexts.
Conclusion
Gauger expressed a fundamental criticism of overreliance on market forces:
A marketplace approach, which would cater more majoritarian views because of their profitability, would not operate to provide the sort of subtle and complicated diversity of the first amendment requires because less popular or controversial viewpoints might be excluded from programming by their sheer unprofitability. [111]
There is a current, as well as an historical nexus between majority culture, majority ownership, and negative portrayals of minorities. Therefore, these also indicate a nexus between majority-owned media and a discernible, palpable lack of diversity with respect to the portrayal of minority viewpoints and interests.[112] It is believed that the dissent of Metro Broadcasting, and the court of Lutheran Church made light of the empirical evidence, supporting the nexus between ownership and diversity as well as historic and current evidence of minority under-representation in broadcast ownership and misrepresentation in programming in broadcasting.
It is widely recognizable that the American media is becoming more concentrated and controlled by a handful of companies capable of affecting politics, culture, and economics. If courts continue to rely on the marketplace theory of regulation as in Lutheran Church and the dissent in Metro Broadcasting did, diversity, which can realize the Miltonian ideal of the marketplace of ideas, will be in more serious jeopardy, given the already consolidated media in the telecommunications area.
Minority preference policies containing racial preferences require subtle and complex normative, political, historical and psychological arguments. These are beyond the reach of the purpose and scope of this study. As discussed above, however, that the FCC's minority preference policies represent a unique form of affirmative action because they embrace not only the constitutional guarantees of equal protection under the Fifth and Fourteenth Amendments, but also the free speech and press guarantees of the First Amendment. In this vein, even if the rules may violate the equal protection, they do advance the First Amendment interests. Hence, the intermediate scrutiny will be a more appropriate test rather than strict scrutiny in deciding the constitutionality of the FCC's minority preference policies. Furthermore, courts should adopt not only historical and societal discrimination but also should not ignore empirical evidence as their rationale, which has already shown a positive correlation between minority ownership and program diversity in broadcasting.
As Justice Brennan in Metro Broadcasting asserted, providing the public with a wide variety of viewpoints over the airwaves is an important government interest, and the FCC's minority preference policy is a content-neutral regulation which requires less rigorous standard than strict scrutiny. If courts continue to apply strict scrutiny, however, more empirical studies providing corroborative evidence in a more rigorous setting, will also be needed so that courts will be able to rely on them without further questioning of the relevance and validity problem.
Bibliography
Cases
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
CBS v. Democratic Nat'l Comm., 412 U.S. 94, 122 (1973).
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
Consolidated Edison Co. v. Public Serv, Comm'n, 447 U.S. 530 (1980).
FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984).
First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
Fullilove v. Klutznick, 488 U.S. 448 (1980).
King's Garden, Inc. v. FCC, 498 F.2d 51 (D.C. Cir. 1974).
Lamar Life Broadcasting Co., 38 F.C.C. 1143 (1965).
Lamprecht v. FCC, 958 F. 2d 382 (D.C. Cir. 1992).
Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998).
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1989).
Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997 (1990).
Monterey Mechanical Co. v. Wilson, 125 F. 3d 702 (9th Cir. 1997).
NAACP v. FCC, 425 U.S. 662, 670 n.7 (1976).
NBC v. United States, 319 U.S. 190, 226 (1943).
Office of the United Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir. 1966).
Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974).
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,390 (1969).
Regents of Univ. of Cal. V. Bakke, 438 U.S. 265, 311-313 (1978).
Shurberg Broadcasting, Inc. v. FCC, 876 F.2d 902 (D.C. Cir. 1989).
Steele v. FCC, No. 84-1176 (D.C. Cir. 1986).
TV 9, Inc. v. FCC, 495 F. 2d 929, 938 (1978).
United States v. O'Brien, 391 U.S. 367 (1968).
US Constitution, Amendment 14, Section 1
Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988).
West Mich. Broadcasting Co. v. FCC, 735 F.2d 601609 (D.C. Cir. 1984).
Winter Park Communications, Inc. v. FCC, 277 US App. D.C. 134, 873 F. 2d 347 (1989).
Primary Sources
H.R. Conf. Rep. No. 765, 97th Cong., 2nd Sess. 40 (1982)
FCC, 1978 Statement of Policy on Minority Ownership of Broadcasting Facilities, 68
Federal Communications Commission. Task Force Report 1.
Federal Communications Commission. 1978 Statement of Policy on Minority Ownership of Broadcasting Facilities, 68
F.C.C. 2d 979, 1978.
42 U.S.C. 2000e-2j (1994).
FCC, 44th Annual Report/Fiscal Year 24 (1978).
FCC, Minority Ownership Lists (1994).
FCC News, Broadcast Station Totals as of December 31, 1995, Jan. 19, (1996).
FCC, MM, Tax Certificates Issued Through May 1995 (1995).
Nondiscrimination Employment Practices of Broadcast Licensees, 13 FCC 2nd 766, (1968)
NTIA, 1998 Minority Commercial Broadcast Ownership in the U.S.
Secondary Sources
Bunker, M. Levels of First Amendment Scrutiny and Cable Access Channels Requirements, COMM. & the LAW. Sep. 5, 1993.
Congressional Research Service Report 21, Minority Broadcast Station Ownership and Broadcast Programming: Is There a Nexus? (June 29, 1988).
Constitutional law-Equal protection-D.C. Circuit finds FCC's Equal Employment Opportunity Regulations Unconstitutional.-Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir), reh'g en banc denied, 154 F. 3d 487 (D.C. Cir.1998). 112 HARV. L.REV. 988 n.4. 1999.
De Jong, A. & Bates, B. Channel Diversity in Cable Television, 35 J. BROADCASTING & ELECTRONIC MEDIA. pp.159, 160. 1991.
Dubin, J & Spitzer, M. Testing Minority Preferences in Broadcasting, 68 S. CAL. L. REV. p.841-884. May 1995.
Entman, R. & Wildman, S. Reconciling Economic and Non-Economic Perspectives on Media Policy: Transcending the "Marketplace of Ideas," 42 J. OF COMM. p. 5. 1992.
Ferral, Jr. V. The Impact of Television Deregulation on Private and Public Interests, 39 J.OF COMM. p.8. 1989.
Fife, M. The Impact of Minority Ownership on Broadcast Program Content: A Case Stud of WGPR's Local News Content. Washington, D.C.: National Association of Broadcasters. 1979.
Gauger, T.G, The Constitutionality of the FCC's Use of Race and Sex In the Granting of Broadcast Licenses. 83 Northwestern L. REV. 665-728. 1989.
Gutmann, P. Full Court Upholds Finding That Broadcast EEO Policies Are Unconstitutional. Sep. 17, 1998. .
Hammond, IV, A. Diversity and Equal Protection in the Marketplace: The Metro Broadcasting Case in Context, 44 ARK. L.J. 1065 n.4. 1991.
Hammond, IV, A. Now You See It Now You Don't: Minority Ownership in an "Unregulated" Video Marketplace, 32 CATH. U.L. REV. 633, 651. 1983.
Hammond, IV, A. Measuring the Nexus: The Relationship Between Minority Ownership and Broadcast Diversity After Metro Broadcasting. 51 FED. COMM L.J. n.3 pp.627-637. 1999.
Hoffmann-Riem, W. National Identity and Cultural Values: Broadcasting Safeguards, 31 J. BROADCASTING & ELECTRONIC MEDIA. p.57. 1987.
Kleiman, H. Content Diversity and the FCC's Minority and Gender Licensing Policies. 35 J. BROADCASTING & ELECTRONIC MEDIA. n.4. pp.411-429. 1991
Spitzer, M. Justifying Minority Preferences in Broadcasting. 64 S. Cal. L.REV. p. 293-361. January 1991.
Steiner, P. Programming Patterns and Preferences, and the Workability of Competition in Radio Broadcasting, 66 Q. J. OF ECON. p.194. 1952.
Tabor, M. Encouraging "those who would speak out with fresh voice" Through the Federal Communications Commission's Minority Ownership Policies, 76 IOWA L.REV. 631 n3. 1991.
Wilkinson. The Supreme Court, The Equal Protection Clause, and the Three Faces of Constitutionality, 61 Virginia. L. R. 945. 1975.
Williams, P. Regrouping in Singular Times, 104 HARV. L.REV. 1990.
Wimmer, K. The Future of Minority Advocacy Before the FCC: Using Marketplace Rhetoric to Urge Policy Change, 41 FED. COMM. L.J. 133, 139 n.21. 1989.
[1] Recent mergers such as AOL with Time Warner, Inc. and AT&T with TCI.
[2] Andrea Adelson, Minority Voice Fading for Broadcast Owners, N.Y. TIMES. May 19, 1997, at D9. "The Telecommunications Act of 1996 set off a flood of mergers in the radio industry by relaxing the limits on radio ownership to as many as eight stations in a single market. Radio giants quickly emerged, such as Westinghouse's combination of CBS Radio with Infinity Broadcasting. Also, two of the largest minority-owned radio groups. U.S. Radio Inc. of Philadelphia and Lombard/Nogales Partners of San Francisco, which together had 35 stations, were sold. Those two deals reduced to 300 the number of broadcast properties controlled by minority owners. That number represents only 3 percent of the nation's 11,400 stations."
[3] See Minority Commercial Broadcast Ownership in the United, NTIA Report,
[4] See e.g., Congressional Research Service Report 21, Minority Broadcast Station Ownership and Broadcast Programming: Is There a Nexus? (June 29, 1988); Jeff Dubin & Matthew L. Spitzer, Testing Minority Preferences in Broadcasting, 68 S. CAL. L.REV. 841-74 (1995); Peter O. Steiner, Programming Patterns and Preferences, and the Workability of Competition in Radio Broadcasting, 66 Q. J. OF ECON. 194 (1952); Allard Sicco De Jong & Benjamin J. Bates, Channel Diversity in Cable Television, 35 J. BROADCASTING & ELECTRONIC MEDIA 159, 160 (1991); Fife, M. The Impact of Minority Ownership on Broadcast Program Content: A Case Study of WGPR's Local News Content. Washington, D.C.: National Association of Broadcasters.
[5] Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998).
[6] Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, reh'g denied, 111 S. Ct. 15 (1990).
[7] Statement of Policy on Minority Ownership of Broadcast Facilities., Public Notice, 68 FCC 2d 979 (1978).
[8] Policies and Rules Regarding Minority and Female Ownership of Mass Media Facilities. MM Docket Nos. 94-149 and 91-140.
[9] FCC Administration of Internal Revenue Code 1071, 9-10: Hearings before the Subcomm. On Oversight of the House Comm. On Ways and Means, 103d Cong., lst Sess. (1995).
[10] FCC, 44th Annual Report/Fiscal Year 24 (1978).
[11] FCC, Minority Ownership Lists (1994).
[12] Broadcast Station Totals as of December 31, 1995, FCC News, Jan. 19, 1996, at 1.
[13] FCC, MM, Tax Certificates Issued Through May 1995 (1995).
[14] 110 S. Ct. 2997, reh'g denied, 111 S. Ct. 15 (1990).
[15] Id. at 3010-11.
[16] See Allen S. Hammond, IV, Diversity and Equal Protection in the Marketplace: The Metro Broadcasting Case in Context, 44 ARK. L.J. 1065 n.4 (1991).
[17] Supra note 6.
[18] Metro Broadcasting, supra note 8, at 3010-16.
[19] Id. at 3011.
[20] Id. at 3010.
[21] Id. at 3016.
[22] Id. at 3028-29 (O'Connor, J., dissenting).
[23] State action involving fundamental rights, such as freedom of speech, or "suspect" classifications, such as race, are subject to "strict scrutiny" by the courts: the legislation will be upheld only if there is a "compelling interest" at stake. Virtually all legislation fails this test. See Wilkinson, The Supreme Court, The Equal Protection Clause, and the Three Faces of Constitutionality, 61 Virginia. L. R. 945 (1975).
[24] Supra note 8, at 3035 (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469. 1989, at 507).
[25] Id. at 3036.
[26] Id. at 3039-41.
[27] Id.
[28] Congressional Research Service Report 21, Minority Broadcast Station Ownership and Broadcast Programming: Is There a Nexus? (June 29, 1988).
[29] See Office of the United Church of Christ v. FCC, 359 F. 2d 994 (D.C. Cir. 1966); In re Fairness Doctrine Requirements, 40 F.C.C. 641 (1965); Lamar Life Broadcasting Co., 38 F.C.C. 1143 (1965).
[30] Supra note 8. at 3021.
[31] Hammond, supra note 10, at 1078.
[32] Metro Broadcasting, 110 S. Ct. at 3016-19 & nn.31-35 (citing various studies supporting the finding of a nexus between minority ownership and diversity).
[33] Id. at 3038-43 (O'Connor dissenting).
[34] Metro Broadcasting, 110 S.Ct. at 3010-11 (pointing out that benefits of broadcast diversity not limited to minority groups, but rather "redound to all members of the viewing and listening audience").
[35] Id. at 3011.
[36] Metro Broadcasting, 110 S.Ct. at 3010. The majority relied on the following four cases: FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984), CBS v. Democratic Nat'l Comm., 412 U.S. 94, 122 (1973), Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969), NBC v. United States, 319 U.S. 190, 226 (1943).
[37] See West Mich. Broadcasting Co. v. FCC, 735 F.2d 601609 (D.C. Cir. 1984) (FCC advocates desirability of providing "the listening audience as a whole with programming choices that reflect a diversity of viewpoints and perspectives").
[38] See Kurt E. Wimmer, The Future of Minority Advocacy Before the FCC: Using Marketplace Rhetoric to Urge Policy Change, 41 Fed. Comm. L.J. 133, 139 n.21 (1989) (minority children's determination of self-worth may be harmed by media portrayal of minority role models).
[39] 958 F.2d 382 (D.C.Cir. 1992).
[40] Id. at 384.
[41] Id. at 395.
[42] Id.
[43] See supra note 22. Unfortunately, Minority Programming does not define terms such as "women's programming" or ("minority programming," for that matter), but rather, relied on the reporting stations to characterize themselves.
[44] Id, at 35.
[45] Supra note 33.
[46] Id, at 399-402.
[47] Id, at 398.
[48] See supra note 22.
[49] See supra note 33, at 398.
[50] See supra note 22.
[51] Id, at 44.
[52] See supra note 33, at 413.
[53] See supra note 22, at 14.
[54] See supra note 33, at 413.
[55] See supra note 22, at 40.
[56] Id. at 54.
[57] See supra note 33, at 413.
[58] Id. at 414.
[59] See supra note 1.
[60] Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
[61] Peter Gutmann, Full Court Upholds Finding That Broadcast EEO Policies Are Unconstitutional, .
[62] Id.
[63] 42 U.S.C. 2000e-2j (1994). ("Nothing contained in Title VII shall be interpreted to require any employer _ to grant preferential treatment to any individual or to any group because of race_").
[64] Lutheran Church-Missouri Synod v. FCC, No. 97-1116 (D.C. Cir., filed Sep.15, 1998).
[65] Id.
[66] Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602 (1990) (O'Connor, J., dissenting).
[67] Id.
[68] Lutheran, 141 F. 3d at 355-356.
[69] Supra note 22.
[70] 515 U.S. 200 (1995).
[71] Constitutional law-Equal protection-D.C. Circuit finds FCC's Equal Employment Opportunity Regulations Unconstitutional.-Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir), reh'g en banc denied, 154 F. 3d 487 (D.C. Cir.1998). 112 HARV. L.REV. 988 n.4 (1999).
[72] Remedial programs employ race based measures to rectify past discrimination by the federal government, or by a system of racial exclusion in which the federal government has been "passive participant." Croson, 488 U.S. at 492.
[73] To overcome strict scrutiny, a challenged racial classification, which compels disparate treatment based on race, must serve a compelling governmental interest and be narrowly tailored to advance that interest. See Adarand, 515 U.S. at 227, 235.
[74] See supra note 1. at 351.
[75] Supra note 65, at 988-993.
[76] See John Richard Carrigan & John J. Coleman, III, The Cloudy Future of Affirmative Action, 57 ALA. LAW. 24, 24 (1996).
[77] Supra note 69.
[78] Matthew D. Bunker, Levels of First Amendment Scrutiny and Cable Access Channels Requirements, COMM. & the LAW. Sep. 5 (1993).
[79] United States v. O'Brien, 391 U.S. 367 (1968).
[80] Id. at 377.
[81] Matthew D. Bunker, supra note 68, at 7.
[82] See e.g., Consolidated Edison Co. v. Public Serv, Comm'n, 447 U.S. 530 (1980); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
[83] Metro Broadcasting, 110 S.Ct. at 3008-09.
[84] Id, at 3032.
[85] See Hammond, Now You See It Now You Don't: Minority Ownership in an "Unregulated" Video Marketplace, 32 CATH. U. L. REV. 633, 651 (1983) ("The minority ownership policy is designed to increase diversity of program selection and ownership control within the video industry in a structural, content-neutral manner.").
[86] Mary Tabor, Encouraging "those who would speak out with fresh voice" Through the Federal Communications Commission's Minority Ownership Policies, 76 Iowa L.REV. 631 n3 (1991).
[87] Metro Broadcasting, 110 S.Ct. at 3016. Congress commissioned a study showing that "minority ownership _ does the diversity of viewpoints presented over the airwaves." (citing Congressional Research Service, Minority Broadcast Station Ownership and Broadcast Programming: Is There a Nexus? (June 29, 1988)).
[88] Id, at 3011 (citing Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C. 2d 979, 981 (1978)).
[89] See Shurberg, 876 F. 2d at 944 ("entirely foreseeable _ minority broadcasters _ will have distinct perspectives to convey"); H.R. Conf. Rep. No. 765, 97th Cong., 2nd Sess. 40 (1982) (recognizing nexus). Moreover, the Supreme Court has recognized a correlation between increasing licensee's minority employees and a corresponding fair reflection of "the tastes and viewpoints of minority groups." NAACP v. FCC, 425 U.S. 662, 670 n.7 (1976).
[90] See, e.g., Robert M. Entman & Steven S. Wildman, Reconciling Economic and Non-Economic Perspectives on Media Policy: Transcending the "Marketplace of Ideas," 42 J. OF COMM.5 (1992); Victor E. Ferral, Jr., The Impact of Television Deregulation on Private and Public Interests, 39 J.OF COMM. 8 (1989); Wolfgang Hoffmann-Riem, National Indentity and Cultural Values: Broadcasting Safeguards, 31 J. BROADCASTING & ELECTRONIC MEDIA 57 (1987).
[91] Hoffmann-Riem, supra note 80, at 60-62.
[92] Entman & Wildman, supra note 80, at 6-9.
[93] See Peter O. Steiner, Programming Patterns and Preferences, and the Workability of Competition in Radio Broadcasting, 66 Q. J. OF ECON. 194 (1952).
[94] Allard Sicco De Jong & Benjamin J. Bates, Channel Diversity in Cable Television, 35 J. BROADCASTING & ELECTRONIC MEDIA 159, 160 (1991).
[95] See Fife, M. The Impact of Minority Ownership on Broadcast Program Content: A Case Study of WGPR's Local News Content. Washington, D.C.: national Association of Broadcasters.
[96] Jeff Dubin & Matthew L. Spitzer, Testing Minority Preferences in Broadcasting, 68 S. CAL. L.REV. 841-74 (1995).
[97] Id, at 869-70.
[98] Id.
[99] Congressional Research Service Report 21, supra note 22, at 42.
[100] Id, at 44.
[101] See Hammond supra note 10, at 1077.
[102] See City of Richmond v. J.A. Croson, Co., 488 U.S. at 507 (narrow tailing depended on whether government tried race-neutral alternatives and whether remedial goal was realistic); Fullilove v. Klutznick, 448 U.S. 448, 480 (1980) (congressional use of federal grant conditioned on racial criteria must be narrowly tailored to achieve constitutional objective).
[103] Fullilove v. Klutznick, 488 U.S. 448 (1980).
[104] City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
[105] The Supreme Court acknowledged that only two compelling state interests sufficient to support benign racial classification: a remedy for identified past discrimination, City of Richmond v. J.A. Croson, Co., 488 U.S. 469 (1989), and diversity in educational settings, Regents of Univ. of Cal. V. Bakke, 438 U.S. 265, 311-313 (1978).
[106] See Tabor, supra note 76, at 628.
[107] 488 U.S. 469 (1989).
[108] See Howard Kleiman, Content Diversity and the FCC's Minority and Gender Licensing Policies. 35 J. BROADCASTING & ELECTRONIC MEDIA. 418, 419, n. 4 (1991).
[109] Id, at 421.
[110] See Commerce Dept. Report Finds Minority Broadcast Ownership Remains At Record Low Levels,
[111] Gauger, T.G, The Constitutionality of the FCC's Use of Race and Sex In the Granting of Broadcast Licenses. 83 Northwestern L. REV. 665-728 (1989).
[112] Williams, Metro Broadcasting, Inc. v. FCC: Regrouping in Singular Times, 104 HARV. L. REV, at 535 (1990).