metro broadcasting fcc argued march decided june together astroline communications company limited partnership shurberg broadcasting hartford et also certiorari cases consider constitutionality two minority preference policies adopted federal communications commission fcc first fcc awards enhancement minority ownership participation management weighed together relevant factors comparing mutually exclusive applications licenses new radio television broadcast stations second fcc distress sale policy allows radio television broadcaster whose qualifications hold license come question transfer license fcc resolves matter noncomparative hearing transferee minority enterprise meets certain requirements fcc adopted policies attempt satisfy obligation communications act promote diversification programming taking position past efforts encourage minority participation broadcast industry resulted sufficient broadcast diversity situation detrimental minority audience viewing listening public metro broadcasting petitioner sought review appeals fcc order awarding new television license rainbow broadcasting comparative proceeding action based ruling substantial enhancement granted rainbow minority ownership outweighed factors favoring metro remanded appeal consideration light fcc separate ongoing docket inquiry validity minority ownership policies prior completion inquiry however congress enacted fcc appropriations legislation fiscal year prohibited fcc spending appropriated funds examine change minority policies thus fcc closed docket inquiry reaffirmed grant license rainbow appeals affirmed shurberg broadcasting hartford one respondents sought review appeals fcc order approving faith center distress sale television license astroline communications company limited partnership minority enterprise disposition appeal delayed pending resolution docket inquiry fcc upon closing inquiry discussed supra reaffirmed order allowing distress sale astroline invalidated distress sale policy ruling deprived shurberg nonminority applicant license relevant market right equal protection fifth amendment held fcc policies violate equal protection since bear imprimatur longstanding congressional support direction substantially related achievement important governmental objective broadcast diversity pp overriding significance cases minority ownership programs specifically approved indeed mandated congress light fact owes appropriate deference congress judgment see fullilove klutznick opinion burger powell concurring marshall concurring judgment need apply strict scrutiny analysis see opinion burger marshall concurring judgment benign measures mandated congress even measures remedial sense designed compensate victims past governmental societal discrimination constitutionally permissible extent serve important governmental objectives within power congress substantially related achievement objectives richmond croson distinguished reconciled pp minority ownership policies serve important governmental objective congress fcc justify policies strictly remedies victims demonstrable discrimination communications media rather selected primarily promote broadcast diversity long recognized axiomatic broadcasting may regulated light rights viewing listening audience widest possible dissemination information diverse antagonistic sources essential public welfare associated press safeguarding public right receive diversity views information airwaves therefore integral component fcc mission serves important first amendment values least important governmental objective sufficient basis policies question pp minority ownership policies substantially related achievement government interest broadcast diversity first fcc conclusion empirical nexus minority ownership greater diversity consistent longstanding view ownership prime determinant range programming available product expertise entitled deference second means recent appropriations legislation virtue long history support minority participation broadcasting industry congress also made clear view minority ownership policies advance goal diverse programming great weight must given joint determination fcc congress pp judgment link expanded minority ownership broadcast diversity rest impermissible stereotyping neither congress fcc assumes every case minority ownership management lead programming expression discrete minority viewpoint airwaves pretend programming appeals minorities labeled minority programming might described appeal nonminorities rather maintain simply expanded minority ownership broadcast outlets aggregate result greater broadcast diversity judgment corroborated host empirical evidence suggesting owner minority status influences selection topics news coverage presentation editorial viewpoint especially matters particular concern minorities special impact way images minorities presented addition studies show minority owner likely employ minorities managerial important roles impact station policies fcc policies thus product analysis rather stereotyped reaction based habit cf fullilove supra type reasoning employed fcc congress novel utilized many areas law including selection jury venires basis fair cross section reapportionment electoral districts preserve minority voting strength pp minority ownership policies relevant respects substantially related goal promoting broadcast diversity fcc adopted congress endorsed minority ownership preferences long study painstaking consideration available alternatives emergence evidence demonstrating means produced adequate broadcasting diversity moreover fcc act precipitately devising policies undertaken thorough evaluations adopting furthermore considered nature fcc judgment selecting particular policies illustrated fact rejected expansive types minority preferences certain frequencies minority broadcasters addition minority ownership policies aimed directly barriers minorities face entering broadcasting industry thus fcc assigned preference minority status comparative licensing proceeding order compensate dearth minority broadcasting experience similarly distress sale policy addresses problem inadequate access capital effectively lowering sale price existing stations problem lack information regarding license availability providing existing licensees incentive seek minority buyers policies also appropriately limited extent duration subject reassessment reevaluation renewal since congress manifested support series appropriations acts finite duration continued hold hearings subject minority ownership provisions administrative judicial review also guarantee policies applied correctly individual cases frequent opportunities revisit merits finally policies impose slight burdens nonminorities award preference contravenes legitimate firmly rooted expectation competing applicants since limited number frequencies available means one first amendment right license granting licenses requires consideration public interest factors distress sale policy impose undue burden nonminorities since may invoked respect small fraction broadcast licenses licensee chooses sell low price rather risk hearing competing application filed quota fixed quantity nonminorities free compete vast remainder available license opportunities pp brennan delivered opinion white marshall blackmun stevens joined stevens filed concurring opinion post filed dissenting opinion rehnquist scalia kennedy joined post kennedy filed dissenting opinion scalia joined post gregory guillot argued cause petitioner briefs john midlen roger wollengerg argued cause petitioner briefs lee simowitz linda bocchi daniel armstrong argued cause federal respondent brief robert pettit grey pash margot polivy argued cause respondent rainbow broadcasting brief katrina renouf harry cole argued cause respondents filed brief respondent shurberg broadcasting hartford robert pettit daniel armstrong grey pash filed brief federal communications commission respondent rule support fn briefs amici curiae urging reversal filed acting solicitor general roberts acting assistant attorney general turner deputy solicitor general merrill deputy assistant attorney general clegg michael lazerwitz associated general contractors america charles cooper michael carvin michael kennedy galaxy communications ronald maines mountain legal foundation et al william perry pendley pacific legal foundation ronald zumbrun anthony caso sharon browne washington legal foundation glen nager patricia dunn daniel popeo paul kamenar john scully vincent pepper louis stephens filed brief committee promote diversity amicus curiae urging reversal brief amici curiae urging affirmance reversal filed american civil liberties union burt neuborne steven shapiro john powell sarah burns congressional black caucus david honig squire padgett george jones national association black owned broadcasters walter diercks james winston lois wright national bar association clay smith briefs amici curiae urging affirmance filed senate michael davidson ken benjamin morgan frankel american jewish committee et al angela campbell andrew jay schwartzman elliot mincberg capital roger wollenberg carl willner stephen weiswasser cook inlet region et al vernon jordan daniel joseph giles television douglas mcfadden donald evans lawyers committee civil rights law john payton mark hersh robert mullen david tatel norman redlich naacp legal defense educational fund julius chambers charles stephen ralston ronald ellis eric schnapper clyde murphy nolan bowie national league cities et al benna ruth solomon richard simpson briefs amici curiae urging affirmance filed acting solicitor general roberts acting assistant attorney general turner deputy solicitor general merrill deputy assistant attorney general clegg michael lazerwitz pacific legal foundation ronald zumbrun anthony caso sharon browne southeastern legal foundation robert barr stephen parker briefs amici curiae filed american women radio television richard holme jerome thomas lamprecht michael mcdonald justice brennan delivered opinion issue cases consolidated decision today whether certain minority preference policies federal communications commission violate equal protection component fifth amendment policies question program awarding enhancement minority ownership comparative proceedings new licenses minority distress sale program permits limited category existing radio television broadcast stations transferred firms hold policies violate equal protection principles policies us today best understood reference history federal efforts promote minority participation broadcasting industry communications act stat amended congress assigned federal communications commission fcc commission exclusive authority grant licenses based public convenience interest necessity persons wishing construct operate radio television broadcast stations see although past two decades minorities constituted least population time relatively members minority groups held broadcast licenses minorities owned approximately radio stations country none television stations see tv fcc app cert denied see also commission civil rights federal civil rights enforcement effort minorities owned less percent nation radio television stations see fcc minority ownership task force report minority ownership broadcasting hereinafter task force report owned percent radio television stations see national association broadcasters minority broadcasting facts moreover statistics fail reflect fact late entrants often able obtain less valuable stations many minority broadcasters serve geographically limited markets relatively small audiences commission recognized viewing listening public suffers minorities underrepresented among owners television radio stations acute underrepresentation minorities among owners broadcast properties troublesome licensee ultimately responsible identifying serving needs interests audience unless minorities encouraged enter mainstream commercial broadcasting business substantial portion citizenry remain underserved larger audience deprived views minorities task force report initially fcc consider minority status factor licensing decisions maintaining matter commission policy preference minority ownership warranted record particular case give assurances owner race likely affect content station broadcast service public see television review denied rev tv fcc supra appeals district columbia circuit however rejected commission position assurance superior community service attributable black ownership participation required preference awarded tv supra reasonable expectation held advance demonstration basis merit accorded relevant factors ibid see also garrett fcc app april fcc conducted conference minority ownership policies participants testified minority preferences justified means increasing diversity broadcast viewpoint see task force report building results conference recommendations task force decisions appeals district columbia circuit petition proposing several minority ownership policies filed commission january office telecommunications policy part executive office president department commerce fcc adopted may statement policy minority ownership broadcasting facilities recounting past efforts expand broadcast diversity fcc concluded compelled observe views racial minorities continue inadequately represented broadcast media situation detrimental minority audience viewing listening public adequate representation minority viewpoints programming serves needs interests minority community also enriches educates audience enhances diversified programming key objective communications act also first amendment footnotes omitted first commission pledged consider minority ownership one factor comparative proceedings new licenses commission compares mutually exclusive applications new radio television broadcast stations looks principally six factors diversification control mass media communications participation station operation owners commonly referred integration ownership management proposed program service past broadcast record efficient use frequency character applicants see policy statement comparative broadcast hearings west michigan broadcasting fcc app cert denied policy statement minority ownership fcc announced minority ownership participation management considered comparative hearing plus weighed together relevant factors see wpix plus awarded extent minority owner actively participates management station second fcc outlined plan increase minority opportunities receive reassigned transferred licenses distress sale policy see general rule licensee whose qualifications hold broadcast license come question may assign transfer license fcc resolved doubts noncomparative hearing distress sale policy exception practice allowing broadcaster whose license designated revocation hearing whose renewal application designated hearing assign license minority enterprise see ibid commission policy regarding advancement minority ownership broadcasting assignee must meet fcc basic qualifications minority ownership must exceed percent controlling buyer must purchase license start revocation renewal hearing price must exceed percent fair market value two commission minority ownership policies issue today petitioner metro broadcasting metro challenges commission policy awarding preferences minority owners comparative licensing proceedings several applicants including metro rainbow broadcasting rainbow involved comparative proceeding select among three mutually exclusive proposals construct operate new uhf television station orlando florida metropolitan area evidentiary hearing administrative law judge alj granted metro application metro broadcasting alj disqualified rainbow consideration misrepresentations application review alj decision however commission review board disagreed alj finding regarding rainbow candor concluded rainbow qualified metro broadcasting board proceeded consider rainbow comparative showing found superior metro review board awarded rainbow substantial enhancement ground percent whereas metro one minority partner owned percent enterprise review board found rainbow minority credit outweighed metro local residence civic participation advantage commission denied review board decision largely without discussion stating merely agree board resolution case app pet cert metro sought review commission order appeals district columbia circuit appeal disposition delayed commission request granted remand record consideration light separate ongoing inquiry commission regarding validity minority female ownership policies including minority enhancement credit see notice inquiry racial ethnic gender classifications docket commission determined outcome licensing proceeding rainbow metro might depend whatever commission concluded general evaluation minority ownership policies accordingly held licensing proceeding abeyance pending developments docket review see metro broadcasting prior commission completion docket inquiry however congress enacted president signed law fcc appropriations legislation fiscal year measure prohibited commission spending appropriated funds examine change minority ownership policies complying directive commission closed docket inquiry see reexamination racial ethnic gender classifications order fcc also reaffirmed grant license case rainbow broadcasting see metro broadcasting case returned appeals divided panel affirmed commission order awarding license rainbow concluded decision controlled prior circuit precedent noted commission action supported highly relevant congressional action showed clear recognition extreme underrepresentation minorities perspectives broadcast mass media winter park communications fcc app quoting west michigan app petitions rehearing suggestions rehearing en banc denied granted certiorari dispute emerged series attempts faith center licensee hartford connecticut television station execute minority distress sale december fcc designated hearing faith center application renewal license see faith center fcc february faith center filed fcc petition special relief seeking permission transfer license distress sale policy commission granted request see faith center proposed sale completed apparently due purchaser inability obtain adequate financing september commission granted second request faith center pursue distress sale another buyer fcc rejected objections distress sale raised alan shurberg time acting individual capacity see faith center radio faith center radio mass media bur second distress sale also consummated apparently similar financial difficulties buyer part december respondent shurberg broadcasting hartford shurberg applied commission permit build television station hartford application mutually exclusive faith center renewal application still pending june faith center sought fcc approval distress sale requesting permission sell station astroline communications company limited partnership astroline minority applicant shurberg opposed sale astroline number grounds including fcc distress sale program violated shurberg right equal protection shurberg therefore urged commission deny distress sale request schedule comparative hearing examine application shurberg tendered alongside faith center renewal request december fcc approved faith center petition permission assign broadcast license astroline pursuant distress sale policy see faith center fcc rejected shurberg equal protection challenge policy without merit shurberg appealed commission order appeals district columbia circuit disposition appeal delayed pending completion commission docket inquiry minority ownership policies see supra congress enacted president signed law appropriations legislation prohibiting fcc continuing docket proceeding see supra commission reaffirmed order granting faith center request assign hartford license astroline pursuant minority distress sale policy see faith center divided appeals invalidated commission minority distress sale policy shurberg broadcasting hartford fcc app per curiam opinion panel majority held policy unconstitutionally deprives alan shurberg shurberg broadcasting equal protection rights fifth amendment program narrowly taylored remedy past discrimination promote programming diversity program unduly burdens shurberg innocent nonminority reasonably related interests seeks vindicate petitions rehearing suggestions rehearing en banc denied granted certiorari ii overriding significance cases fcc minority ownership programs specifically approved indeed mandated congress fullilove klutznick chief justice burger writing two justices observed although program employs racial ethnic criteria calls close examination program employing benign racial classification adopted administrative agency explicit direction congress bound approach task appropriate deference congress branch charged constitution power provide general welfare enforce appropriate legislation equal protection guarantees fourteenth amendment see also powell concurring marshall concurring judgment explained deference appropriate light congress institutional competence national legislature see opinion burger powell concurring well congress powers commerce clause see opinion burger powell concurring spending clause see opinion burger civil war amendments see opinion burger powell concurring majority fullilove apply strict scrutiny classification issue three members inquired whether objectives th legislation within power congress whether limited use racial ethnic criteria constitutionally permissible means achieving congressional objectives opinion burger emphasis original three members upheld benign racial classifications serve important governmental objectives substantially related achievement objectives marshall concurring judgment apply standard today hold benign measures mandated congress even measures remedial sense designed compensate victims past governmental societal discrimination constitutionally permissible extent serve important governmental objectives within power congress substantially related achievement objectives decision last term richmond croson concerning minority program adopted municipality prescribe level scrutiny applied benign racial classification employed congress justice kennedy noted question congressional action opinion concurring part concurring judgment croson read undermine decision fullilove fact much language reasoning croson reaffirmed lesson fullilove classifications adopted congress address racial ethnic discrimination subject different standard classifications prescribed state local governments example justice joined two members noted congress may identify redress effects discrimination congress need make specific findings discrimination engage relief echoing fullilove emphasis congress national legislature stands factional politics justice scalia argued matter social reality governmental theory federal government unlikely captured minority racial ethnic groups used instrument discrimination opinion concurring judgment justice scalia explained struggle racial justice historically struggle national society oppression individual heightened danger oppression political factions small rather large political units hold fcc minority ownership policies pass muster test announce today first find serve important governmental objective broadcast diversity second conclude substantially related achievement objective congress found effects past inequities stemming racial ethnic discrimination resulted severe underrepresentation minorities media mass communications congress commission justify minority ownership policies strictly remedies victims discrimination however rather congress fcc selected minority ownership policies primarily promote programming diversity urge diversity important governmental objective serve constitutional basis preference policies agree background conclude interest enhancing broadcast diversity least important governmental objective therefore sufficient basis commission minority ownership policies diverse student body contributing robust exchange ideas constitutionally permissible goal university admissions program may predicated regents university california bakke opinion powell diversity views information airwaves serves important first amendment values cf wygant jackson board education stevens dissenting benefits diversity limited members minority groups gain access broadcasting industry virtue ownership policies rather benefits redound members viewing listening audience congress found american public benefit access wider diversity information sources conf supra see also minority ownership broadcast stations hearing subcommittee communications senate committee commerce science transportation testimony roderick porter deputy chief mass media bureau fcc fcc minority policies based conclusion entire broadcast audience regardless racial composition benefit also find minority ownership policies substantially related achievement government interest one component inquiry concerns relationship expanded minority ownership greater broadcast diversity fcc congress determined relationship exists although defer judgment congress commission constitutional question hesitate invoke constitution determine commission fulfilled task appropriate sensitivity equal protection principles columbia broadcasting system democratic national committee must pay close attention expertise commission factfinding congress analyzing nexus minority ownership programming diversity respect complex empirical question required give great weight decisions congress experience commission fcc determined increased minority participation broadcasting promotes programming diversity commission observed statement policy minority ownership broadcasting facilities ownership broadcasting facilities minorities significant way fostering inclusion minority views area programming ull minority participation ownership management broadcast facilities results diverse selection programming four years later fcc explained taken steps enhance ownership participation minorities media order increas diversity control media thus diversity selection available programming benefitting public serving principle first amendment minority ownership broadcasting see also radio jonesboro critical underrepresentation minorities broadcast ownership full minority participation ownership management broadcast facilities essential realize fundamental goals programming diversity diversification ownership citation omitted fcc conclusion empirical nexus minority ownership broadcasting diversity product expertise accord judgment deference furthermore fcc reasoning respect minority ownership policies consistent longstanding practice communications act inception public regulation broadcasting premised assumption diversification ownership broaden range programming available broadcast audience thus upon ownership public policy places primary reliance respect diversification content historically proved significantly influential respect editorial comment presentation news tv app commission never relied market alone ensure needs audience met indeed one fcc elementary regulatory assumptions broadcast content purely little need consideration licensing decisions factors integration ownership management local residence civic participation vein fcc compared minority preferences local residence integration credits oth local residence minority ownership fundamental considerations licensing scheme policies complement concern diversification control broadcast ownership moreover similar assumptions underlie policies award enhancement credit local residence expected increased knowledge community license reflected station programming likewise credit minority ownership participation awarded comparative proceeding minority ownership likely increase diversity content especially opinion viewpoint radio jonesboro supra footnotes omitted congress also made clear view minority ownership policies advance goal diverse programming recent years congress specifically required commission appropriations legislation maintain minority ownership policies without alteration see supra remiss however ignored long history congressional support policies prior passage appropriations acts past two decades congress consistently recognized barriers encountered minorities entering broadcast industry expressed emphatic support commission attempts promote programming diversity increasing minority ownership limiting analysis immediate legislative history appropriations acts question erect artificial barrier full understanding legislative process fullilove klutznick powell concurring special attribute congress legislative body lies broader mission investigate consider facts opinions may relevant resolution issue one appropriate source information expertise congress acquires consideration enactment earlier legislation congress legislated repeatedly area national concern members gain experience may reduce need fresh hearings prolonged debate congress considers action area see also opinion burger congress course may legislate without compiling kind record appropriate respect judicial administrative proceedings congress experience began considered bill eliminated comparative hearing license renewal proceedings order avoid filing multiplicity competing applications often groups unknown restore order predictability renewal process give current license holder benefit doubt warranted previous investment experience cong rec letter scott congress heard testimony valuable broadcast licenses assigned many years ago comparative hearings renewal stage afford important opportunity excluded groups particularly minorities gain entry industry opponents warned bill exclude minority groups station ownership important markets fr eezing distribution existing licenses congress rejected bill congress confronted issue congressional committees held extensive hearings proposals extend broadcast license period three five years modify comparative hearing process license renewals witnesses reiterated renewals provided valuable opportunity minorities obtain foothold industry proposals never enacted renewal process left intact fcc office telecommunications policy presented views congress considered bill deregulate broadcast industry proposed communications act among things replaced comparative hearings lottery created fund minorities sought purchase stations described representative markey measure intended increase opportunities blacks women minorities country get communications systems country point view interests represented communications act hearings subcommittee communications house committee interstate foreign commerce vol pt bill sponsor representative van deerlin stated hope reason expectation framers bill effective way reach inadequacies broadcast industry employment programming something top increasing minority ownership management control broadcast stations vol executive branch objected lottery proposal ground harm minorities eliminating credit granted comparative hearing scheme developed fcc see although acknowledged lottery structured alleviate concern attributing weight minority ownership see executive branch explained preferred grant credit minority ownership comparative hearings finely tuned way achieving communication act goal broadcast diversity see ibid contending lottery take account individual needs particular communities although lottery legislation enacted year congress continued explore idea ultimately authorized lottery procedure congress established concomitant system minority preferences see omnibus budget reconciliation act pub stat act provided one application initial license construction permit received commission grant license permit qualified applicant use system random selection ed long fcc adopted rules ensure significant preferences lottery process groups underrepresented ownership telecommunications facilities accompanying conference report announced congress firm intention award lottery preference minorities historically underrepresented groups objective increasing number media outlets owned persons groups met conf fcc complained difficulty defining underrepresented groups raised problems concerning statute congress enacted second lottery statute reaffirming intention unmistakable terms section communications amendments act stat amending ed directs random selection lottery conducted fcc preference granted every applicant whose receipt license increase diversification mass media ownership diversify ownership media mass communications additional significant preference given applicant controlled member members minority group observing nexus ownership programming repeatedly recognized commission courts congress explained sought promote diversification media ownership consequent diversification programming content principle grounded first amendment conf new mandate congress commission adopted rules govern use lottery system award licenses low power television stations minority ownership issue returned congress october house subcommittee held hearing examine commission inquiry validity minority ownership policies subcommittee chair expressed view important message hearing today commission must dismantle longstanding diversity policies congress repeatedly endorsed time congress courts direct otherwise broadcast stations hearing subcommittee telecommunications consumer protection finance house committee energy commerce wirth commission issued order holding abeyance pending completion inquiry actions licenses distress sales minority preference dispositive number bills proposing codification minority ownership policies introduced congress members congress questioned representatives fcc hearings span six months respect fcc appropriation fiscal year legislation reauthorize commission fiscal years legislation codify commission minority ownership policies ultimately congress chose employ appropriations power keep fcc minority ownership policies place fiscal year see supra report originating committee appropriations explained congress expressed support policies past found promoting diversity ownership broadcast properties satisfies important public policy goals diversity ownership results diversity programming improved service minority women audiences committee recognized continuity congressional action field minority ownership policies noting approving lottery system selection certain broadcast licensees congress explicitly approved use preferences promote minority women ownership congress twice extended prohibition use appropriated funds modify repeal minority ownership policies continued focus upon issue example debate fiscal year legislation senator hollings chair authorizing committee appropriations subcommittee fcc presented senate summary june report prepared congressional research service crs entitled minority broadcast station ownership broadcast programming nexus study senator hollings reported clearly demonstrates minority ownership broadcast stations increase diversity viewpoints presented airwaves cong rec revealed historical evolution current federal policy congress commission concluded minority ownership programs critical means promoting broadcast diversity must give great weight joint determination judgment link expanded minority ownership broadcast diversity rest impermissible stereotyping congressional policy assume every case minority ownership management lead programming expression discrete minority viewpoint airwaves neither pretend programming appeals minority audiences labeled minority programming programming might described minority appeal nonminorities rather congress fcc maintain simply expanded minority ownership broadcast outlets aggregate result greater broadcast diversity broadcasting industry representative minority participation produce variation diversity one whose ownership drawn single racially ethnically homogeneous group predictive judgment overall result minority entry broadcasting rigid assumption minority owners behave every case rather akin justice powell conclusion bakke greater admission minorities contribute average robust exchange ideas sure guarantee minority owner contribute diversity neither assurance bakke minority students interact nonminority students particular minority students admitted typical distinct minority viewpoints see opinion powell noting educational excellence widely believed promoted diverse student body emphasis added nature things hard know even informal learning diversity actually occurs citation omitted although station owners guided extent market demand programming decisions congress commission determined may important differences broadcasting practices minority owners nonminority counterparts judgment conclusion nexus minority ownership broadcasting diversity corroborated host empirical evidence evidence suggests owner minority status influences selection topics news coverage presentation editorial viewpoint especially matters particular concern minorities inority ownership appear specific impact presentation minority images local news inasmuch stations tend devote news time topics minority interest avoid racial ethnic stereotypes portraying minorities addition studies show minority owner likely employ minorities managerial important roles impact station policies fcc equal employment policies ensure licensees programming fairly reflects tastes viewpoints minority groups naacp fpc difficult deny stations follow employment policies also contribute diversity illusion members particular minority group share cohesive collective viewpoint believe legitimate inference congress commission draw minorities gain ownership policymaking roles media varying perspectives fairly represented airwaves policies thus product analysis rather stereotyped reaction based abit fullilove stevens dissenting citation omitted cases demonstrate reasoning employed commission congress permissible recognized example fair requirement sixth amendment forbids exclusion groups basis characteristics race gender jury venire ithout requirement state draw jury lists manner produce pool prospective jurors disproportionately towards one classes defendants thus likely yield petit juries similar disposition holland illinois small step logic conclusion including minorities electromagnetic spectrum likely produce fair cross section diverse content cf duren missouri taylor louisiana addition many voting rights cases operate assumption minorities particular viewpoints interests worthy protection held example safeguarding effective exercise electoral franchise racial minorities jewish organizations williamsburgh carey plurality opinion quoting beer permissible use racial criteria confined eliminating effects past discriminatory districting apportionment rather state subject voting rights act stat amended may deliberately creat preserv black majorities particular districts order ensure reapportionment plan complies neither fourteenth fifteenth amendment mandates per se rule using racial factors districting apportionment find minority ownership policies relevant respects substantially related goal promoting broadcast diversity first commission adopted congress endorsed minority ownership preferences long study painstaking consideration available alternatives see fullilove opinion burger powell concurring many years fcc attempted encourage diversity programming content without consideration race station owners first addressed issue report entitled public service responsibility broadcast licensees blue book commission stated although licensees bore primary responsibility program service issuing renewing licenses broadcast stations commission give particular consideration four program service factors relevant public interest commission altered course somewhat announcing principal ingredient licensee obligation operate station public interest diligent positive continuing effort discover fulfill tastes needs desires community service area broadcast service network programming inquiry report statement policy licensees advised meet obligation two ways canvassing members listening public receive station signal meeting leaders community life others bespeak interests make community late become obvious efforts failed produce sufficient diversity programming kerner commission example warned various elements media communicated whites feeling difficulties frustrations negro shown understanding appreciation thus communicated sense negro culture thought history world television newspapers offer black audience almost totally white report national advisory commission civil disorders response commission promulgated equal employment opportunity regulations see supra formal ascertainment rules requiring broadcaster condition license ascertain problems needs interests residents community license areas undertakes serve specify broadcast matter proposes meet problems needs interests primer ascertainment community problems broadcast applicants commission explained although recognized single answer stations expected licensee devote significant proportion station programming community concerns citation omitted commission expressly included minority ethnic groups segments community licensees expected consult see ascertainment community problems broadcast applicants ascertainment community problems noncommercial educational broadcast applicants fcc held broadcaster failure ascertain serve needs sizable minority groups service area failure licensee responsibility regardless intent discriminate sufficient ground nonrenewal license see chapman radio television commission observed problems minorities must taken consideration broadcasters planning program schedules meet needs interests communities licensed serve broadcast see also mahoning valley broadcasting wkbn broadcasting pursuant policy example commission refused renew licenses eight educational stations alabama denied application construction permit ninth ground licensee take trouble inform needs interests minority group consisting percent population state alabama failure fundamentally irreconcilable obligations communications act places upon receive authorizations use airwaves alabama educational television citing red lion broadcasting fcc commission ascertainment policy static order facilitate application ascertainment requirement commission devised community leader checklist consisting groups institutions commonly found local communities see continued consider improvements ascertainment system see amendment primers ascertainment community problems commercial broadcast renewal applicants noncommercial educational broadcast applicants permittees licensees radio however commission determined even efforts influencing broadcast content effective means generating adequate programming diversity fcc noted hile broadcasting industry whole responded positively ascertainment obligations made significant strides employment practices compelled observe views racial minorities continue inadequately represented broadcast media minority ownership statement footnotes omitted support commission cited report commission civil rights found minorities underrepresented network dramatic television programs network news appear frequently seen token stereotyped roles window dressing set commission concluded despite importance equal employment opportunity rules ascertainment policies assuring diversity programming appears additional measures necessary appropriate regard commission believes ownership broadcast facilities minorities another significant way fostering inclusion minority views area programming see also commission policy regarding advancement minority ownership broadcasting became apparent order broaden minority voices spheres influence airwaves additional measures necessary beyond equal employment ascertainment rules short commission established minority ownership preferences long experience demonstrated means produce adequate broadcasting diversity fcc act precipitately devising programs uphold today contrary commission undertook thorough evaluations policies three times adopting minority ownership programs endorsing minority ownership preferences congress agreed commission assessment alternatives failed achieve necessary programming diversity moreover considered nature commission judgment selecting particular minority ownership policies issue today illustrated fact commission rejected types minority preferences example commission studied refused implement expansive alternative setting aside certain frequencies minority broadcasters see nighttime operations clear channels deletion acceptance criteria clear channel broadcasting reconsideration denied aff sub nom loyola university fcc app addition ruling released day adopted comparative hearing credit distress sale preference fcc declined adopt plan require advance public notice station sold advocated ground ensure minorities chance bid stations might otherwise sold industry insiders without ever coming market see soon afterward commission rejected minority ownership proposals advanced office telecommunications policy department commerce sought revise fcc time brokerage multiple ownership policies minority ownership policies furthermore aimed directly barriers minorities face entering broadcasting industry commission task force identified key factors hampering growth minority ownership lack adequate financing paucity information regarding license availability broadcast inexperience see task force report advisory committee alternative financing minority opportunities telecommunications final report strategies advancing minority ownership opportunities may commission assigned preference minority status comparative licensing proceeding reasoning enhancement might help compensate dearth broadcasting experience license acquisitions however necessity purchases existing stations limited number new stations available often less desirable markets less profitable portions spectrum uhf band congress fcc therefore found need minority distress sale policy helps overcome problem inadequate access capital lowering sale price problem lack information providing existing licensees incentive seek minority buyers commission choice minority ownership policies thus addressed factors isolated responsible minority underrepresentation broadcast industry minority ownership policies appropriately limited extent duration subject reassessment reevaluation congress prior extension reenactment fullilove opinion burger omitted although underscored emphatically support minority ownership policies congress manifested support series appropriations acts finite duration thereby ensuring future reevaluations need minority ownership program number minority broadcasters increases addition congress continued hold hearings subject minority ownership fcc noted respect minority preferences contained lottery statute ed congress instructed commission report annually effect preference system whether serving purposes intended congress able tailor program based information may eliminate preferences appropriate amendment commission rules allow selection among certain competing applications using random selection lotteries instead comparative hearings furthermore provision administrative judicial review commission decisions guarantees minority ownership policies applied correctly individual cases frequent opportunities revisit merits policies congress commission adopted policy minority ownership end rather means achieving greater programming diversity goal carries natural limit need minority preferences sufficient diversity achieved fcc plan like harvard admissions program discussed bakke contains seed termination cf johnson transportation agency santa clara county agency express commitment attain balanced workforce ensures plan limited duration finally believe minority ownership policies issue impose impermissible burdens nonminorities although nonminority challengers cases concede suffered loss broadcast license claim handicapped ability obtain one first instance determined part nation dedication eradicating racial discrimination innocent persons may called upon bear burden remedy wygant opinion powell similarly find congressionally mandated benign program substantially related achievement important governmental interest consistent equal protection principles long impose undue burdens nonminorities cf fullilove opinion burger constitutional defect program may disappoint expectations nonminority firms effectuating limited properly tailored remedy cure effects prior discrimination sharing burden innocent parties impermissible citation omitted marshall concurring judgment context broadcasting licenses burden nonminorities slight fcc responsibility grant licenses public interest convenience necessity ed limited number frequencies electromagnetic spectrum means one first amendment right license red lion applicants settled expectation applications granted without consideration public interest factors minority ownership award preference comparative hearing transfer station distress sale thus contravenes legitimate firmly rooted expectation competing applicants johnson supra respondent shurberg insists minority distress sale policy operates exclude nonminority firms completely consideration transfer certain stations greater burden comparative hearing preference minorities simply plus factor considered together characteristics applicants cf bakke johnson supra disagree distress sale policy imposes undue burden nonminorities terms policy may invoked commission discretion respect small fraction broadcast licenses designated revocation renewal hearings examine basic qualification issues licensee chooses sell distress price rather go hearing distress sale policy quota fixed quantity indeed nonminority firm exercises control whether distress sale ever occur policy operates qualifications existing licensee continue broadcasting designated hearing applications station question filed commission time designation see clarification distress sale policy radio thus nonminority prevent distress sale procedures ever invoked filing competing application timely manner practice distress sales represented tiny fraction less four tenths one percent broadcast sales since see brief federal communications commission distress sales since policy commenced see barrett federal communications commission minority employment ownership communications market ahead address bay area black media conference san francisco april means average percent renewal applications filed year resulted distress sales since policy commenced see fcc ann nonminority firms free compete vast remainder license opportunities available market contains broadcast properties nonminorities apply new station buy existing station file competing application renewal application existing station seek financial participation enterprises qualify distress sale treatment see task force report burden nonminority firms least relatively light created program issue fullilove set aside minorities percent federal funds granted local public works projects opinion burger see also iii commission minority ownership policies bear imprimatur longstanding congressional support direction substantially related achievement important governmental objective broadcast diversity judgment affirmed judgment reversed cases remanded proceedings consistent opinion ordered footnotes see task force report wimmer deregulation market failure minority programming socioeconomic dimensions broadcast reform see also infra see nondiscrimination employment practices broadcast licensees nondiscrimination employment practices broadcast licensees nondiscrimination employment policies practices broadcast licensees nondiscrimination employment policies practices broadcast licensees fcc current equal employment opportunity policy outlined cfr see telecommunications minority assistance program public papers presidents jimmy carter vol pp petition observed inority ownership markedly serves public interest ensures sustained increased sensitivity minority audiences see also infra ashbacker radio fcc held commission faced two mutually exclusive bona fide applications license two proposed stations incompatible technologically obligated set applications comparative hearing see fcc determined limited partnership qualify minority enterprise general partner member minority group holds least percent interest exercise complete control station affairs fcc also announced statement tax certificate policy minority preferences see issue today similarly commission gender preference policy see gainesville media television rev bd set aside grounds us today see winter park communications fcc app metro broadcasting inquiry grew appeals decision steele fcc app panel appeals held fcc lacks statutory authority grant enhancement credits comparative license proceedings women owners although panel expressly stated nder decisions commission authority adopt minority preferences clear commission believed opinion nevertheless raised questions concerning minority ownership policies en banc vacated panel opinion set case rehearing fcc requested appeals remand case without considering merits allow fcc reconsider basis preference policy request granted commission despite prior misgivings indicated clearly supports distress sale minority ownership policies shurberg broadcasting hartford fcc app wald dissenting denial rehearing en banc defended appropriations legislation provided none funds appropriated act shall used repeal retroactively apply changes continue reexamination policies federal communications commission respect comparative licensing distress sales tax certificates granted expand minority women ownership broadcasting licenses including established statement policy minority ownership broadcast facilities amended television effective prior september close mm docket reinstatement prior policy lifting suspension sales licenses applications proceedings suspended pending conclusion inquiry continuing appropriations act fiscal year stat shurberg sole owner shurberg broadcasting hartford respondent justice suggestion deference congress described fullilove rested entirely congress powers fourteenth amendment post simply incorrect chief justice expressly noted enacting provision issue congress employed amalgam specifically delegated powers fail understand justice kennedy pretend examples benign measures include south african apartheid law issue plessy ferguson internment american citizens japanese ancestry upheld korematsu confident examination legislative scheme history weinberger wiesenfeld separate benign measures types racial classifications see mississippi university women hogan course mere recitation benign compensatory purpose automatic shield protects inquiry actual purposes underlying statutory scheme weinberger supra see also brest foreword defense antidiscrimination principle rev strauss myth colorblindness concept benign measures even least nonremedial purposes old fourteenth amendment example freedman bureau acts authorized provision land education medical care assistance see cong globe statement hubbard think nation great gainer encouraging policy freedman bureau cultivation wild lands increased wealth industry brings restoration law order insurgent see generally sandalow racial preferences higher education political responsibility judicial role rev schnapper affirmative action legislative history fourteenth amendment justice passage joined chief justice justice white observed decision fullilove influenced fact program issue congressionally mandated citation omitted emphasis original justice opinion acknowledged decision fullilove regarding congressionally approved preference employ strict scrutiny see also opinion ely constitutionality reverse racial discrimination cited approval croson wygant jackson board education justice noted although precise contours uncertain state interest promotion racial diversity found sufficiently compelling least context higher education support use racial considerations furthering interest opinion concurring part concurring judgment stated nothing said today necessarily forecloses possibility find governmental interests relied upon lower courts passed sufficiently important compelling sustain use affirmative action policies ibid cf post dissenting example commission promulgated first multiple ownership rules fundamental purpose promote diversification ownership order maximize diversification program service viewpoints amendment sections rules regulations relating multiple ownership fm television broadcast stations report order initially multiple ownership rules limited common control broadcast stations commission current rules include limitations broadcast service common control broadcast stations see cfr commission always focused ownership theory ownership carries power select edit choose methods manner emphasis presentation critical aspect commission concern public interest amendment sections commission rules relating multiple ownership standard fm television broadcast stations second report order see also amendment sections commission rules relating multiple ownership standard fm television broadcast stations first report order multiple ownership rules promot diversification programming sources viewpoints amendment sections commission rules relating multiple ownership standard fm television broadcast stations report order greater diversity ownership particular area less chance single person group inordinate effect programming sense public opinion regional level editorializing broadcast licensees ownership enables licensee insure personal viewpoint particular issue presented station broadcasts see amend communications act hearings subcommittee communications senate committee commerce pt testimony earle moore national citizens committee broadcasting pt testimony john pamberton american civil liberties union testimony david batzka christian missionary society testimony william hudgins freedom national bank testimony john mclaughlin associate editor america magazine see broadcast license renewal hearings et al subcommittee communications power house committee interstate foreign commerce pt pp testimony william hanks pittsburgh community coalition media change testimony rev george brewer greater worth coalition free flow information testimony james mcculler action better community pt testimony morton hamburg adjunct assistant professor communications law new york university broadcast license renewal act hearings et al subcommittee communications senate committee commerce pt pp testimony ronald brown national urban league testimony gladys lindsay citizens committee media testimony joseph rauh leadership conference civil rights americans democratic action id pt testimony manuel fierro raza association spanish surnamed americans example proposed communications act provided minority applicant previously unassigned license counted twice lottery pool see staff subcommittee communications house committee interstate foreign commerce communications act analysis comm print see amendment part commissions rules allow selection among mutually exclusive competing applications using random selection lotteries instead comparative hearings see amendment commission rules allow selection among certain competing applications using random selection lotteries instead comparative hearings issue surfaced briefly congress proposals codify expand fcc minority ownership policies subject extensive hearings house see minority participation media hearings subcommittee telecommunications consumer protection finance house committee energy commerce sess parity minorities media hearing subcommittee telecommunications consumer protection finance house committee energy commerce sess broadcast regulation station ownership hearings subcommittee telecommunications consumer protection finance house committee energy commerce sess legislation passed see notice inquiry racial ethnic gender classifications amended bills recognized link minority ownership diversity introducing example senator lautenberg explained iversity ownership promote diversity views minority broadcasters serve need well served others address issues others see also see commerce justice state judiciary related agencies appropriations fiscal year hearings subcommittee senate committee appropriations sess see fcc authorization hearing subcommittee communications senate committee commerce science transportation fcc ntia authorizations hearings subcommittee telecommunications finance house committee energy commerce see broadcasting improvements act hearings subcommittee communications senate committee commerce science transportation congress simply direct kind mental standstill winter park app williams concurring part dissenting part rather appropriations legislation expressed unqualified support minority ownership policies instructed commission uncertain terms congress view need study topic appropriations acts like laws binding passe houses signed president stevens concurring judgment see also dickerson see departments commerce justice state judiciary related agencies appropriations act stat departments commerce justice state judiciary related agencies appropriations act stat example congressional research service crs analyzed data radio tv stations found strong correlation minority ownership diversity programming see crs minority broadcast station ownership broadcast programming nexus june percent stations ownership responded attempted direct programming audiences percent stations ownership reported see percent stations without hispanic ownership stated targeted programming hispanic audiences percent stations hispanic owners said see crs concluded argument made fcc policies enhanced minority station ownership may resulted minority audience targeted programming degree increasing minority programming across audience markets considered adding programming diversity based fcc survey data argument made fcc preference policies contributed turn programming diversity cover page fife impact minority ownership minority images local tv news communications key economic political change selected proceedings annual howard university communications conference survey four standard metropolitan statistical areas see also fife impact minority ownership broadcast news content study june report submitted national association broadcasters example university massachusetts boston survey local boston news stories found statistically significant difference treatment events depending race ownership see johnson media images boston black community william monroe trotter institute university massachusetts boston comparison television station station detroit concluded overall mix topic location coverage two stations statistically different higher use blacks newsmaker roles higher coverage issues racial significance station content represent different perspective news station fife impact minority ownership broadcast program content case study local news content report national association broadcasters office research planning see also wolseley black press ed documenting importance minority ownership radio stations example hired top management important job categories far higher rates stations even formats true hispanic hiring stations compared stations spanish language formats see honig relationships among eeo program service minority ownership broadcast regulation proceedings tenth annual telecommunications policy research conference gandy espinoza ordover eds september half hispanic general managers tv stations worked controlled stations see national association broadcasters minority broadcasting facts radio stations owned hispanics also majority hispanics management positions third stations majority hispanic managers percent stations hispanic managers see schement singleton onus minority ownership fcc policy radio communication see generally johnson supra many observers agree single largest reason networks poor coverage racial news related racial makeup networks staffs wimmer supra broadcast outlets tend hire minority employees policy minority ownership time lead growth minority employment shown produce programming footnotes omitted see also peters kiff opinion marshall unwilling make assumption exclusion negroes relevance issues involving race large identifiable segment community excluded jury service effect remove jury room qualities human nature varieties human experience range unknown perhaps unknowable necessary assume excluded group consistently vote class order conclude exclusion deprives jury perspective human events may unsuspected importance case may presented commission eschewed direct federal control discrete programming decisions radio television stations see network programming inquiry report statement policy hile commission may inquire licensees done determine needs community propose serve commission may impose upon private notions public hear order ensure diversity means administrative decree commission required familiarize needs every community monitor broadcast content every station scheme likely presented insurmountable practical difficulties light thousands broadcast outlets myriad local variations audience tastes interests even ambitious policy central planning feasible raised serious first amendment issues denied broadcaster ability carry particular program publish views risked government censorship particular program led official government view dominating public broadcasting red lion broadcasting fcc cf fcc sanders brothers radio station commission approval therefore avoid ed unnecessary restrictions licensee discretion interpreted communications act seek ing preserve journalistic discretion promoting interests listening public fcc wncn listeners guild one factor extent station carried programs unsponsored commercial advertisers hours public awake listening blue book commission believed expand diversity permitting broadcast less popular programs appeal particular tastes interests listening audience might otherwise go unserved see second commission called local live programs encourage local see third commission expected progam ming devoted discussion public issues ibid final factor amount advertising aired licensee ibid commission also devised policies guard discrimination programming example determined arbitrar refus al present members ethnic group views programming refusal present members groups integrated situations members groups constitute ground license nonrenewal citizens communications center addition commission developed nonentertainment guidelines called broadcasters devote certain percentage programming subjects news public affairs public service announcements topics see wncn listeners guild supra revision programming commercialization policies ascertainment requirements program log requirements commercial television stations hereinafter deregulation television deregulation radio applicants proposing less guideline amounts nonentertainment programming applications routinely processed commission staff rather applications brought attention commission commission recently eliminated ascertainment policies commercial radio television stations together nonentertainment programming guidelines see deregulation radio supra reconsideration denied rev grounds sub nom office communication church christ fcc app deregulation television supra reconsideration denied remanded grounds sub nom action children television fcc app commission found ascertainment rules imposed significant burdens licensees without producing corresponding benefits terms responsiveness community issues see ascertainment procedures intended means ensuring licensees actively discovered problems needs issues facing communities yet evidence procedures effect omitted although commission concluded growth traditional broadcast facilities development new electronic information technologies rendered fairness doctrine unnecessary report concerning general fairness doctrine obligations broadcast licensees commission made finding respect minority ownership policies contrary commission expressly noted decision abrogate fairness doctrine view call question regulations designed promote diversity syracuse peace council reconsideration justice offers alternatives policies fcc already employed found wanting insists fcc directly advance interest requiring licensees provide programming fcc believes add diversity post commission efforts use ascertainment program determine programming needs community comparative licensing procedure provide licensees incentives address programming needs met failure system diverse programming suffered fate introducing new problems well see supra justice proposal fcc evaluate applicants upon ability provide commitment offer whatever programming fcc believes reflect underrepresented viewpoints post similarly ignores practical difficulties determining underrepresented viewpoints community addition justice proposal tension view equal protection one hand criticizes commission failing develop specific definitions minority viewpoints might implement suggestion ibid see also post noting fcc declined identify particular deficiency viewpoints contained broadcast spectrum emphasis added hand implies effort violate equal protection principles interprets prohibiting fcc identifying constitutes black viewpoint asian viewpoint arab viewpoint determining viewpoints underrepresented post light justice perceive virtue rather vice fcc decision enhance broadcast diversity means minority ownership policies rather defining specific black asian viewpoint justice maintains fcc experimented financial informational measures post order promote minority ownership suggestion vague difficult evaluate case congress see supra describing minority financing fund accompanied lottery system commission considered steps address directly financial informational barriers minority ownership minority ownership task force identified requirement licensees demonstrate availability sufficient funds construct operate station one year see ultravision broadcasting obstacle minority ownership see task force report requirement subsequently reduced three months see financial qualifications standards television applicants financial qualifications aural applicants radio applicants addition commission noted minority broadcasters eligible assistance small business administration federal agencies see task force report commission also disseminated information potential minority buyers broadcast properties see fcc enterprise division minority ownership broadcast facilities report despite initiatives commission concluded dearth minority ownership telecommunications industry remained matter serious concern commission policy regarding advancement minority ownership broadcasting commission continued employ means promoting broadcast diversity example worked expand number broadcast outlets within workable technological limits see implementation bc docket increase availability fm broadcast assignments develop strict rules see supra encourage programming recognizing licensee obligation present programming responsive issues facing community license see television deregulation deregulation radio commission nonetheless concluded efforts substitute minority ownership policies see congress followed closely commission efforts increase programming diversity see supra including development ascertainment policy see pp broadcast license renewal act hearings et al subcommittee communications senate committee commerce pt testimony scott testimony brown congress heard testimony chief commission mass media bureau ascertainment rules seriously flawed became highly ritualistic created unproductive unseemly squabbling administrative trivia broadcast regulation station ownership hearings subcommittee telecommunications consumer protection finance house committee energy commerce witnesses testified minority ownership policies adopted specific findings commission ascertainment policies equal opportunity rules fell far short increasing minority participation programming ownership minority ownership broadcast stations hearing subcommittee communications senate committee commerce science transportation testimony clay smith national bar association enacting lottery statute congress explained current comparative hearing process failed produce adequate programming diversity policy encouraging diversity information sources best served assuring minority ethnic groups unable acquire significant degree media ownership provided increased opportunity conf way american public gain access wider diversity information sources proposal withdrawn vociferous opposition broadcasters maintained notice requirement create burden stations causing significant delay time presently takes sell station might require disclosure confidential financial information see public papers presidents supra petition issuance policy statement notice inquiry national telecommunications information administration petition advanced proposals blanket exemption minorities certain commission policies rule restricting assignments stations owners held stations less three years see cfr multiple ownership regulations precluded owner holding one broadcast facility given service overlapped another signal see top policy required showing compelling public interest owner allowed acquire third vhf fourth either vhf uhf television station largest television markets commission rejected proposals ground minorities might qualify waivers basis blanket exception minorities inappropriate licenses percent commercial television stations percent vhf stations existed already awarded percent fm radio station licenses authorized fcc already issued including percent stations see brief capital amicus curiae see also supra honig fcc fluctuating commitment minority ownership broadcast facilities reporting statistics tended least desirable properties lowest power highest frequencies hence smallest areas coverage see minority ownership broadcast stations hearing subcommittee communications senate committee commerce science transportation sess see also supra fullilove klutznick fcc minority preferences subject administrative scrutiny identify eliminate participation applicants bona fide see formulation policies rules relating broadcast renewal applicants competing applicants participants comparative renewal process prevention abuses renewal process fcc review board supervising comparative hearing process seeks detect sham integration credits claimed applicants including minorities see silver springs communications metroplex communications northampton media associates washoe shoshone broadcasting mulkey modified newton television limited magdelene gunden partnership tulsa broadcasting group pacific television review denied payne communications broadcasting rev bd hispanic owners kist aff modified aff sub nom american telecasters fcc app evidenced respondent shurberg unsuccessful attack credentials astroline see app fcc also entertains challenges bona fide nature distress sale participants see policy statement minority broadcasters obtain licenses means minority ownership policies stigmatized inferior commission programs audiences know broadcaster race reason speculate obtained license broadcaster judged merits programming furthermore minority licensees must satisfy otherwise applicable fcc qualifications requirements cf fullilove supra marshall concurring judgment petitioner metro contends practice minority enhancement credit part multifactor comparison applicants rather amounts per se preference minority applicant comparative licensing proceeding experience shown minority ownership guarantee applicant prevail see radio jonesboro lamprecht review denied appeal pending lamprecht fcc cadc horne industries vacationland broadcasting modified radio las misiones de bejar television rcv bd review denied fcc may waters broadcasting many cases cited metro even minority applicant prevailed enhancement minority status dispositive factor commission decision award license see silver springs communications alj richardson broadcasting group alj pueblo radio broadcasting service alj poughkeepsie broadcasting limited partnership alj barden alj perry television alj corydon broadcasting alj remanded order breaux bridge broadcasters limited partnership alj key broadcasting alj broadcasting alj aff review denied fcc gali communications alj bogner newton alj garcia alj aff review denied magdalene gunden partnership alj aff rev bd reconsideration denied review denied tulsa broadcasting group alj aff rev bd review denied tomko alj faith center also held broadcast licenses three california stations fcc designated hearing faith center renewal application san bernardino station allegations fraud connection solicitation funds failure cooperate fcc investigation although respondent shurberg file competing application prior commission decision designate hearing faith center renewal application hartford station competing applications two faith center california stations prevented transfer distress sale policy see faith center faith center course competitor may unable foresee fcc might designate license revocation renewal hearing might neglect file competing application timely fashion precisely circumstances minority distress sale policy least disrupt competitor settled expectations competitor perspective denied opportunity windfall expected current licensee continue broadcasting indefinitely anticipate license become available even troubled licensees distress sales relatively rare phenomena stations presented possibility license revocation opt utilize distress sale policy many seek granted special relief fcc enabling transfer license another concern part negotiated settlement commission see coalition preservation hispanic broadcasting fcc app bankrupt licensees effect sale benefit innocent creditors second thursday doctrine see second thursday reconsideration granted northwestern indiana broadcasting wlth still others elect defend practices hearing justice stevens concurring today squarely rejects proposition governmental decision rests racial classification never permissible except remedy past wrong ante endorse focus future benefit rather remedial justification decisions remain convinced course racial ethnic characteristics provide relevant basis disparate treatment extremely rare situations therefore especially important reasons classification clearly identified unquestionably legitimate fullilove klutznick dissenting opinion opinion explains elements standard satisfied specifically reason classification recognized interest broadcast diversity clearly identified imply judgment concerning abilities owners different races merits different kinds programming neither favored disfavored class stigmatized way addition demonstrates case falls within extremely narrow category governmental decisions racial ethnic heritage may provide rational basis differential treatment public interest broadcast diversity like interest integrated police force diversity composition public school faculty diversity student body professional school view unquestionably legitimate therefore join opinion judgment see richmond croson stevens concurring part concurring judgment wygant jackson board education stevens dissenting cf croson fullilove see cleburne cleburne living center stevens concurring examining rational basis classification term rational course includes requirement impartial lawmaker logically believe classification serve legitimate public purpose transcends harm members disadvantaged class michael superior sonoma county stevens dissenting discussing level scrutiny appropriate equal protection cases see wygant stevens dissenting see see also justice opinion concurring part concurring judgment wygant recognizing goal providing role models discussed courts confused different goal promoting racial diversity among faculty see justice powell opinion regents university california bakke justice chief justice justice scalia justice kennedy join dissenting heart constitution guarantee equal protection lies simple command government must treat citizens individuals simply components racial religious sexual national class arizona governing comm tax deferred annuity deferred compensation plans norris social scientists may debate peoples thoughts behavior reflect background constitution provides government may allocate benefits burdens among individuals based assumption race ethnicity determines act think uphold challenged programs departs fundamental principles traditional requirement racial classifications permissible necessary narrowly tailored achieve compelling interest departure marks renewed toleration racial classifications repudiation recent affirmation constitution equal protection guarantees extend equally citizens application lessened equal protection standard congressional actions finds support cases constitution respectfully dissent recognized last term constitution requires apply strict standard scrutiny evaluate racial classifications contained challenged fcc distress sale comparative licensing policies see richmond croson see also bolling sharpe strict scrutiny requires upheld racial classifications must determined necessary narrowly tailored achieve compelling state interest abandons traditional safeguard discrimination lower standard review practice applies standard like applicable routine legislation yet government different treatment citizens according race routine concern precedents way justify marked departure traditional treatment race classifications conclusion different equal protection principles apply federal actions challenged policies fcc provides benefits members society denies benefits others based race ethnicity except narrowest circumstances constitution bars racial classifications denial particular individuals race ethnicity equal protection laws amdt cf croson supra dangers classifications clear endorse reasoning conception nation divided racial blocs thus contributing escalation racial hostility conflict see croson supra korematsu murphy dissenting upholding treatment individual based inference race destroy dignity individual encourage open door discriminatory actions minority groups passions tomorrow policies may embody stereotypes treat individuals product race evaluating thoughts efforts worth citizens according criterion barred government history constitution accord mississippi university women hogan racial classifications whether providing benefits burdening particular racial ethnic groups may stigmatize groups singled different treatment may create considerable tension nation widely shared commitment evaluating individuals upon individual merit cf regents university calif bakke opinion brennan racial characteristics seldom provide relevant basis disparate treatment classifications based race potentially harmful entire body politic especially important reasons classifications clearly identified unquestionably legitimate fullilove klutznick stevens dissenting footnotes omitted constitution guarantee equal protection binds federal government lower level scrutiny applies federal government use race classifications bolling sharpe supra companion case brown board education held equal protection principles embedded fifth amendment due process clause prohibited federal government maintaining racially segregated schools district columbia unthinkable constitution impose lesser duty federal government consistent view repeatedly indicated reach equal protection guarantee fifth amendment coextensive fourteenth paradise plurality opinion considering remedial race classification dissenting see also buckley valeo weinberger wiesenfeld congressional role prolonging fcc policies justify lower level scrutiny instances judicial review federal legislation lightly set aside considered judgment coordinate branch nonetheless respect due coordinate branch yields neither less vigilance defense equal protection principles corresponding diminution standard review weinberger wiesenfeld example upheld widower equal protection challenge provision social security act found assertedly benign congressional purpose illegitimate noted approach fifth amendment equal protection claims always precisely equal protection claims fourteenth amendment varied standard review entertaining equal protection challenges congressional measures see heckler mathews califano webster per curiam califano goldfarb traditional equal protection standard applies despite deference congressional benefit determinations opinion brennan buckley valeo supra frontiero richardson opinion brennan bolling sharpe supra involved extensive congressional regulation segregated district columbia public schools congress considerable latitude presenting special concerns judicial review exercises unique remedial powers fourteenth amendment see croson supra opinion case implicate powers section empowers congress act respecting course case concerns administration federal programs federal officials section provides congress power enforce appropriate legislation provisions article part provides state shall deny person within jurisdiction equal protection laws const amdt reflecting fourteenth amendment dramatic change balance congressional state power matters race croson opinion section provides congress particular structural role oversight certain actions see hogan supra grants power enforce amendment secure equal protection laws state denial invasion quoting ex parte virginia fullilove supra asserts fullilove supports novel application intermediate scrutiny benign measures adopted congress ante three reasons defeat claim first fullilove concerned exercise congress powers fourteenth amendment fullilove reviewed act congress required set aside percentage federal construction funds certain businesses remedy past discrimination award construction contracts although various opinions fullilove referred several sources congressional authority opinions make clear led apply different form review challenged program see organ government state federal repose comprehensive remedial power congress expressly charged constitution competence authority enforce equal protection guarantees opinion burger joined white powell powell concurring last term croson resolved doubt might remain regarding point croson invalidated local minority contractors distinguished fullilove upheld similar enacted congress ground fullilove congress exercising powers fourteenth amendment croson opinion opinion joined rehnquist white croson indicated decision fullilove turned unique remedial powers congress opinion latitude afforded congress identifying redressing past discrimination rested specific constitutional mandate enforce dictates fourteenth amendment justice kennedy concurrence croson likewise provides majority support questioned whether fullilove afford particular latitude even measures undertaken pursuant see second fullilove applies congressional measures seek remedy identified past discrimination upheld challenged measures fullilove congress identified discrimination particularly affected construction industry carefully constructed corresponding remedial measures see fullilove opinion burger opinion powell fullilove indicated careful review essential ensure congress acted solely remedial rather illegitimate purposes see opinion burger opinion powell fcc congress clearly acting remedial purpose see infra today expressly extends standard racial classifications remedial sense see ante case present considered decision congress president fullilove supra present remedial effort exercise powers finally even fullilove applied outside remedial exercise congress power support today adoption intermediate standard review proffered justice marshall rejected fullilove suggested standard government use racial classifications need substantially related achievement important governmental interests ante although correctly observes majority apply strict scrutiny six members rejected intermediate scrutiny favor stringent form review three members applied strict scrutiny see powell concurring challenged statute employs racial classification constitutionally prohibited unless necessary means advancing compelling governmental interest means selected must narrowly drawn stewart joined rehnquist dissenting chief justice burger opinion joined justice white justice powell declined adopt particular standard review indicated must conduct searching examination courts must ensure congressional program employs racial ethnic criteria accomplish objective remedying present effects past discrimination narrowly tailored achievement goal justice stevens indicated acial classifications simply pernicious permit exact connection justification classification dissenting opinion even justice marshall opinion joined justice brennan justice blackmun undermines course today opinion expressly drew lower standard review plurality opinion regents university bakke case involve congressional action stated appropriate standard review congressional measure challenged fullilove fourteenth amendment internal quotation omitted course fullilove preceded determination croson strict scrutiny applies preferences favor members minority groups including challenges considered fourteenth amendment guarantee equal protection extends citizen regardless race federal government like may deny person within jurisdiction equal protection laws observed last term croson bsent searching judicial inquiry justification measures simply way determining classifications benign remedial classifications fact motivated illegitimate notions racial inferiority simple racial politics opinion see also standard review equal protection clause dependent race burdened benefited particular classification reliance benign racial classifications ante particularly troubling benign racial classification contradiction terms governmental distinctions among citizens based race ethnicity even rare circumstances permitted cases exact costs carry substantial dangers person denied opportunity right based race classification hardly benign right equal protection laws personal right see shelley kraemer securing individual immunity treatment predicated simply membership particular racial ethnic group emphasis benign racial classifications suggests confidence ability distinguish good harmful governmental uses racial criteria history teach greater humility untethered narrowly confined remedial notions benign carries independent meaning reflects acceptance current generation conclusion politically acceptable burden imposed particular citizens basis race reasonable provides basis determining racial classification fails benevolent expressly distinguishing benign remedial measures leaves distinct possibility racial measure found substantially related important governmental objective also definition benign see ante depending preference moment racial distinctions might directed expressly practice racial ethnic group nation black white alone one teeming divergent communities knitted together various traditions carried forth individuals upon basis governed one constitution providing single guarantee equal protection one extends equally citizens dispute regarding appropriate standard review may strike lawyers quibble words standard review establishes whether constitution allow government employ racial classifications lower standard signals government may resort racial distinctions readily departure cases disturbing enough disturbing still renewed toleration racial classifications new standard review embodies ii history reveals blatant forms discrimination visited upon members racial ethnic groups identified challenged programs many lacked opportunity share nation wealth participate commercial enterprises undisputed minority participation broadcasting industry falls markedly demographic representation groups see congressional research service minority broadcast station ownership broadcast programming nexus june minority owners possess interest percent stations controlling interest percent stations shortfall may traced part discrimination patterns exclusion widely affected society nation aspire create society untouched history exclusion ensure equality defines citizens daily experience opportunities well protection afforded law reasons despite harms may attend government use racial classifications repeatedly recognized government possesses compelling interest remedying effects identified race discrimination subject even racial classifications claimed remedial strict scrutiny however ensure government fact employs measures remedial interest employs broadly interest demands see croson supra wygant jackson bd plurality opinion fcc congress may yet conclude suitable examination narrowly tailored measures required remedy discrimination may identified allocation broadcasting licenses measures clearly within government power yet equally clear policies challenged cases designed remedial measures sense narrowly tailored remedy identified discrimination fcc appropriately concedes policies embodied remedial purpose tr oral arg disclaimed possibility discrimination infected allocation licenses congressional action simply endorsed policy designed interest achieving diverse programming even appropriations measure transform purpose challenged policies text reveals remedial purpose accompanying legislative material confirms congress acted upon diversity rationale led fcc formulate challenged policies see refers bare suggestion contained report addressing different legislation passed past inequities led underrepresentation minorities media mass communications adversely affected participation sectors economy well ante statement indicates nothing whatever purpose relevant appropriations measures identifies discrimination broadcasting industry sufficiently identify discrimination even congress acting pursuant powers cf fullilove opinion burger surveying identification discrimination affecting contracting opportunities powell concurring evaluates policies measures designed increase programming diversity ante agree racial classifications upheld remedial measures iii appropriate standard strict scrutiny compelling interest may support government use racial classifications modern equal protection doctrine recognized one interest remedying effects racial discrimination interest increasing diversity broadcast viewpoints clearly compelling interest simply amorphous insubstantial unrelated legitimate basis employing racial classifications claim otherwise rather employs novel standard claims asserted interest need important conclusion twice compounds initial error reducing level scrutiny racial classification first casually extends justifications might support racial classifications beyond remedying past discrimination recognized racial classifications harmful nless strictly reserved remedial settings may fact promote notions racial inferiority lead politics racial hostility croson chief justice burger warned fullilove history governmental tolerance practices using racial ethnic criteria purpose effect imposing invidious discrimination must alert us deleterious effects even benign racial ethnic classifications stray narrow remedial justifications second initiated departure endorsing insubstantial interest one certainly insufficiently weighty justify tolerance government distinctions among citizens based race ethnicity endorsement trivializes constitutional command guard discrimination loosed potentially principle disturbingly odds traditional equal protection doctrine interest capable justifying measures must sufficiently specific verifiable supports limited carefully defined uses racial classifications croson held interest remedying societal discrimination considered compelling see city richmond presented evidence identified discrimination failed demonstrate compelling interest apportioning public contracting opportunities basis race determined generalized assertion past discrimination logical stopping point support unconstrained uses race classifications see internal quotation omitted wygant rejected asserted interest providing minority role models public school system minority students attempt alleviate effects societal discrimination plurality opinion ocietal discrimination without amorphous basis imposing racially classified remedy allow remedies ageless reach past timeless ability affect future cases condemned interests allow distribution goods essentially according demographic representation particular racial ethnic groups see croson supra wygant plurality opinion asserted interest case suffers defects interest certainly amorphous fcc majority understandably suggest one define measure particular viewpoint might associated race even one assess diversity broadcast viewpoints like vague assertion societal discrimination claim insufficiently diverse broadcasting viewpoints might used justify equally unconstrained racial preferences linked nothing proportional representation various races interest support indefinite use racial classifications employed first obtain appropriate mixture racial views ensure broadcasting spectrum continues reflect mixture deem constitutionally adequate interest support measures amount core constitutional violation outright racial balancing croson supra asserted interest justify discrimination members group found contribute insufficiently diverse broadcasting spectrum including groups currently favored wygant rejected insufficiently weighty interest achieving role models public schools part rationale readily used limit hiring teachers belonged particular minority groups see wygant supra plurality opinion fcc claimed interest similarly justify limitations minority members participation broadcasting unwise depend upon restriction holding benign measures forestall result divorced remedial purpose otherwise undefined benign means shifting fashions changing politics deem acceptable members racial ethnic group whether preferred fcc policies may find politically fashion subject disadvantageous benign discrimination majority holding fcc may also advance asserted interest viewpoint diversity identifying constitutes black viewpoint asian viewpoint arab viewpoint determining viewpoints underrepresented using determination mandate particular programming deny licenses deemed virtue race ethnicity less likely present favored views indeed fcc taken word essentially pursued course albeit without making express reasons choosing favor particular groups concluding broadcasting spectrum insufficiently diverse see statement policy minority ownership broadcasting facilities policy statement accept adequate equal protection purposes interest unrelated race yet capable supporting measures difficult distinguish proscribed discrimination remedial interest may support race classifications interest necessarily related past racial discrimination yet interest diversity viewpoints provides legitimate much less important reason employ race classifications apart generalizations impermissibly equating race thoughts behavior prove impossible distinguish naked preferences members particular races preferences members particular races possess certain valued views matter purpose government able claim favored certain persons ability stemming race contribute distinctive views perspectives even considered justification using race classifications asserted interest viewpoint diversity falls short weighty enough recognized interest obtaining diverse broadcasting viewpoints legitimate basis fcc acting pursuant public interest statutory mandate adopt limited measures increase number competing licensees encourage licensees present varied views issues public concern see fcc national citizens committee broadcasting red lion broadcasting fcc storer broadcasting associated press national broadcasting also concluded measures run afoul first amendment usual prohibition government regulation marketplace ideas part first amendment concerns support limited inevitable government regulation peculiarly constrained broadcasting spectrum see red lion supra conclusion measures adopted interest diversity broadcasting viewpoints neither beyond fcc statutory authority contrary first amendment hardly establishes interest important equal protection purposes fcc extension asserted interest diversity views case presents least unsettled first amendment issue fcc concluded american broadcasting public receives incorrect mix ideas claims adopted challenged policies supplement programming content particular set views although approved limited measures designed increase information views generally never upheld broadcasting measure designed amplify distinct set views views particular class speakers indeed suggested first amendment prohibits allocating licenses ends see national broadcasting supra congress authorize commission choose among license applicants basis political economic social views upon capricious basis commission regulations proposed choice among applicants upon basis first amendment issue us wholly different even interest determined legitimate one context suddenly become important enough justify distinctions based race iv traditional equal protection doctrine requires addition compelling state interest government chosen means necessary accomplish narrowly tailored asserted interest see wygant plurality opinion palmore sidoti element strict scrutiny designed ensur means chosen fit compelling goal closely little possibility motive classification illegitimate racial prejudice stereotype croson opinion chosen means resting stereotyping indirectly furthering asserted end plausibly deemed narrowly tailored instead finds racial classifications substantially related achieving government interest ante far less rigorous fit requirement fcc policies fail even requirement fcc claims advance asserted interest diverse viewpoints singling race ethnicity peculiarly linked distinct views require enhancement fcc choice employ racial criterion embodies related notions particular distinct viewpoint inheres certain racial groups particular applicant virtue race ethnicity alone valued applicants likely provide distinct perspective brief fcc see policy statement policies seek representation minority viewpoints programming brief fcc current ownership structure creates programming deficient minorities tastes viewpoints policies directly equate race belief behavior establish race necessary sufficient condition securing preference fcc chosen means rest premise differences race color person skin reflect real differences relevant person right share blessings free society hat premise utterly irrational repugnant principles free democratic society wygant supra stevens dissenting internal quotation omitted citation omitted policies impermissibly value individuals presume persons think manner associated race see steele fcc app minority preference contrary one cherished constitutional societal principles individual tastes beliefs abilities assessed merits rather categorizing individual member racial group presumed think behave particular way vacated remanded cadc fcc assumes particularly strong correlation race behavior fcc justifies conclusion insufficiently diverse viewpoints broadcast reference percentage stations assumption correct extent stations provide desired additional views stations owned individuals favored preferences least broadcast underrepresented programming additionally fcc focus ownership improve programming assumes preferences linked race strong dictate owner behavior operating station overcoming owner personal inclinations regard market strong link race behavior especially mediated market forces assumption justice powell rejected discussion health care service bakke see case state medical school argued prefer members minority groups likely serve communities particularly needing medical care justice powell rejected rationale concluding assumption unsupported individual choices presumed ethnicity race ibid majority addresses point arguing equation race distinct views behavior impermissible particular case ante apart placing undue faith government courts ability distinguish good bad stereotypes reasoning repudiates essential equal protection principles prohibit racial generalizations embraces fcc reasoning applicant race likely indicate applicant possesses distinct perspective notes correlation race behavior rigid assumption minority owners behave every case ibid corollary notion plain individuals unfavored racial ethnic backgrounds unlikely possess unique experiences background contribute viewpoint diversity reasoning corollary reveal disregard objectionable stereotype racial generalization inevitably apply certain individuals persons may legitimately claim judged according race rather upon relevant criterion see los angeles dept water power manhart even true generalization class insufficient reason disqualifying individual generalization apply similarly disturbing majority reasoning different treatment basis race permissible efficacious aggregate ante wiesenfeld rejected similar reasoning obviously notion men likely women primary supporters spouses children entirely without empirical support generalization suffice justify denigration efforts women work whose earnings contribute significantly families support citation omitted similarly case even equation race programming viewpoint empirical basis equal protection principles prohibit government relying upon basis employ racial classifications see manhart supra practices classify employees terms religion race sex tend preserve traditional assumptions groups rather thoughtful scrutiny individuals reliance aggregate probabilities confirms abandoned heightened scrutiny requires direct rather approximate fit means ends tolerate government claim hiring persons particular race leads better service aggregate accept legitimate fcc claim case members certain races provide superior programming even aggregate constitution text cases nation history foreclose premises moreover fcc selective focus viewpoints associated race illustrates particular tailoring difficulty asserted interest advancing nation different social political esthetic moral ideas experiences red lion yet varied traditions ideas shared among citizens fcc sought amplify particular views identifies classifications suspect equal protection doctrine even distinct views associated particular ethnic racial groups focusing particular aspect nation views calls question government genuine commitment asserted interest see bakke opinion powell measures might employed diversity race one many aspects background sought considered relevant achieving diverse student body equal protection doctrine governing intermediate review indicates government may use race ethnicity proxy germane bases classification hogan quoting craig boren fcc used race proxy whatever views believes underrepresented broadcasting spectrum reflexive unthinking use suspect classification hallmark unconstitutional policy see wengler druggists mutual ins craig supra wiesenfeld supra ill fit means end manifest policy overinclusive many members particular racial ethnic group interest advancing views fcc believes underrepresented find utterly foreign policy awards preference disfavored individuals may particularly well versed committed presenting views fcc failed implement determination failure particularly unjustified individualized hearings already occur comparative licensing process see orr orr even remedial context required government adopt means ensure award particular preference advances asserted interest fullilove even reviewing exercise powers upheld challenged contained waiver provision ensured program served remedial function particular cases see fullilove opinion burger see also croson opinion moreover fcc programs survive even intermediate scrutiny untried means directly accomplishing governmental interest readily available fcc directly advance interest requiring licensees provide programming fcc believes add diversity interest fcc asserts programming diversity yet adopting challenged policies fcc expressly disclaimed attempted direct efforts achieve asserted goal see policy statement ante suggests administrative convenience excuses failure yet intermediate scrutiny bars government relying upon excuse avoid measures directly asserted interest see orr orr supra craig boren supra fcc suggest first amendment interests manner exempt fcc employing direct means achieve asserted interest essentially argue may bend equal protection principles avoid readily apparent harm first amendment values fcc ways either first amendment bars fcc seeking accomplish indirectly may accomplish directly fcc may pursue goal must manner comports equal protection principles fcc direct programming fashion must employ direct means resorting indirect means means also exist least direct fcc racial classifications fcc evaluate applicants upon ability provide commitment offer whatever programming fcc believes reflect underrepresented viewpoints fcc truly seeks diverse programming rather allocation goods persons particular racial backgrounds little excuse look racial background rather programming programming interest additionally fcc believes certain persons virtue unique experiences contribute owners diverse broadcasting fcc simply favor applicants whose particular background indicates add diversity programming rather rely solely upon suspect classifications also means exist allow access broadcasting industry persons excluded financial related reasons reasons various minority preferences including reflected distress sale overcome barriers information experience financing inhibit minority ownership ante financial informational measures directly reduce financial informational barriers fcc develop effective ascertainment policy one guaranteeing programming reflects underrepresented viewpoints discussion alternatives nearly exclusively focuses fcc ascertainment policy ante yet policy applied existing licensees addressed viewpoints issues concern often relatively homogeneous local communities fcc admission toothless ineffective according fcc ascertainment policies altered programming little market already provided guarantee concern ascertained formal informal means programming responsive concern presented commercial tv stations reconsideration denied remanded grounds sub nom action children television fcc app see also unsurprisingly fcc concluded limited ascertainment policy proven effective eliminated throughout media see nn surveying proceedings abandoning ascertainment requirements fcc posited relative absence minority viewpoints yet never suggested views might viewpoints might absent broadcasting spectrum never identified particular deficiency programming diversity subject greater programming necessitates racial classifications fcc never attempted assess alternatives racial classifications might prove effective policy statement referred two alternatives commission undertaken minority hiring policy ascertainment policy relying ownership statistics cursory evaluations viewpoints broadcasting spectrum contained fcc asserted insufficient programming diversity existed racial classifications necessary fcc attempt determine nature viewpoints might underrepresented determine whether effective measures might achieve fcc asserted interest see notice inquiry racial ethnic gender classifications modified fcc solicited comment range potential alternatives asked means might effectively increase program diversity whether require individualized showing ability contribute program diversity whether fcc allow nonminority members demonstrate ability contribute diverse programming whether fcc select applicants based demonstrated commitment particular issues rather according race see rcd inquiry course congressional appropriations measures halted see continuing appropriations act fiscal year stat thus record clear fcc never determined need resort racial classifications achieve asserted interest employed means adopting readily available alternative means fcc seeks avoid tailoring difficulties focusing minority ownership rather asserted interest diversity broadcast viewpoints constitution clearly prohibits allocating valuable goods broadcast licenses simply basis race see bakke opinion powell yet fcc refers lack minority ownership stations support existence lack diversity viewpoints fitted programs increase ownership see policy statement supra commission policy regarding advancement minority ownership broadcasting repeated focus ownership supports inference fcc seeks allocate licenses based race impermissible end rather increase diversity viewpoints asserted interest justification links use race preferences minority ownership rather diversity viewpoints ensures fcc programs like issue croson said narrowly tailored goal except perhaps outright racial balancing croson even apart tailoring defects fcc policies one particular flaw underscores government ill fit means end fcc policies assume rely upon existence tightly bound nexus owners race resulting programming lengthy discussion issue ante purports establish relation exists owners race programming fcc choice focus allocation licenses rationally related asserted end understandably makes stronger claims evidence provides support requisite deference obviously abandon heightened scrutiny argument sake grant review congressional hearings social science studies establishes existence rational nexus even assuming true discussion begin establish programs directly substantially related interest diverse programming equal protection issue turns degree owners race related programming rather whether relation exists extent fcc show nexus nearly complete failure confirms chosen means directly advance asserted interest policies rest instead upon illegitimate stereotypes individualized determinations must replace fcc use race proxy desired programming three difficulties suggest nexus owners race programming considerably less substantial first market shapes programming tremendous extent members minority groups licenses might thought like owners seek broadcast programs attract retain audiences rather programs reflect owner tastes preferences see winter park communications fcc app case williams concurring part dissenting part surveying evidence suggesting programming geared audience taste second station owners limited control content programming distress sale presents particularly acute difficulty sort unlike comparative licensing program distress sale policy provides preferences minority owners neither intend desire manage station respect see ante commission policy regarding advancement minority ownership broadcasting supra whatever distinct programming may attend race owner actively involved managing station absentee owner far less effect programming third fcc absolutely factual basis nexus adopted policies since established none support existence fcc believed public interest mandate policy statement precluded awarding preference based race ethnicity instead required applicants demonstrate particular entitlement advantage comparative hearing policy statement comparative broadcast hearings see television review denied rev tv fcc app cert denied appeals district columbia rejected fcc position statutory grounds see tv app rejected fcc arguments communications act like constitution race preference incompatible fcc governing statute ibid instead based nothing conception public interest required applicant membership minority group presumed lead greater diversity programming see garrett fcc app principally relying panel presumed nexus race programming fcc policy statement acquiesced established policies challenged cases see policy statement supra fcc prompted decisions indicating factual predicate must established support use race classifications unanimously sought examine whether extent nexus existed owner race programming see notice inquiry racial ethnic gender classifications modified chairman fcc explained congress extent heightened scrutiny requires certain factual predicates discovered notwithstanding statements past regarding assumed nexus minority female ownership program diversity factual predicate never established example commission time examined whether nexus broadcaster owner race gender program diversity either basis generically reason tv told us indeed must assume nexus broadcast stations hearing subcommittee telecommunications consumer protection finance house comm energy commerce even apart limited nature claims little discerned congressional action first survey purport establish fcc congress identified particular deficiency viewpoints contained broadcast spectrum second degree congressional endorsement may transform equation race behavior thoughts permissible basis governmental action even express lavishly documented congressional declaration members certain races owners produce distinct superior programming allow government employ reasoning allocate benefits burdens among citizens basis third hesitate accepting definitive declaration regarding even existence nexus two legislative reports claim nexus exist refer sources provide support proposition see congress appropriations measures sought foreclose examination issue fcc believed entirely unresolved see continuing appropriations act fiscal year supra especially congress rejects considered judgment executive officials possessing particular expertise regarding matter issue courts hardly bound accept congressional declaration see rostker goldberg white dissenting additionally fcc created challenged policies congress appropriations process frozen policies place preventing fcc reexamining altering congressional action amount endorsement reasoning empirical claims originally asserted abandoned fcc reflect considered judgment embodied measures crafted legislative process subject hearings deliberation accompanying substantive legislation cf tva hill andrus sierra club finally government employ race classifications unduly burden individuals members favored racial ethnic groups see wygant plurality opinion challenged policies fail independent requirement well constitutional requirements comparative licensing distress sale programs provide eventual licensee exceptionally valuable property rare unique opportunity serve local community distress sale imposes particularly significant burden fcc base created specialized market reserved exclusively applicants rigid quota fact altered observation see ante fcc seller discretion whether stations may sold distress program purchaser person seeks compete station opportunity depends entirely upon race ethnicity argument distress sale allocates small percentage license sales ante also misses mark argument readily supports complete preferences avoids scrutiny particular programs response person denied admission one school discharged one job solely basis race schools employers discriminate comparative licensing program imposes significant burden emphasis multifactor process confused claim preference sense minor one basic nonrace criteria difficult meet given sums stake applicants every incentive structure ownership arrangement prevail comparative process applicants alter race course race clearly dispositive factor substantial percentage comparative proceedings petitioner metro asserts race overwhelmingly dispositive factor reply fcc admits assessed operation program brief fcc notes minority ownership guarantee applicant prevail ante sum government met burden even test approves racial classifications substantially related important governmental objective course programs even clearly fail strict scrutiny applied determined essence congress federal agencies exempted significant degree constitution equal protection requirements break precedents greatly undermines equal protection guarantees permits distinctions among citizens based race ethnicity constitution clearly forbids respectfully dissent justice kennedy justice scalia joins dissenting almost years ago plessy ferguson upheld measure louisiana law required equal separate accommodations white colored railroad passengers asked whether measures reasonable stated determining question reasonableness legislature liberty act reference established usages customs traditions people view promotion comfort plessy concluded measures reviewed reasonable served governmental interest increasing riding pleasure railroad passengers fundamental errors plessy standard review validation rank racial insult state distorted law six decades announced apparent demise brown board education plessy standard review explication disturbing parallels today majority opinion warn us something amiss today grants congress latitude employ benign measures designed compensate victims past governmental societal discrimination serve important governmental objectives substantially related achievement objectives ante interest accepts uphold commission measures broadcast diversity furthering interest told worth cost discriminating among citizens basis race increase listening pleasure media audiences upholding preference majority exhumes plessy deferential approach racial classifications abandons even broad societal remedial justification racial preferences advocated justice marshall regents university california bakke opinion marshall allow use racial classifications congress untied goal addressing effects past race discrimination need shown new approach justice stevens advanced richmond croson opinion concurring part concurring judgment wygant jackson board education dissenting opinion future effect discriminating among citizens basis race advance important governmental interest government takes step forbidden enacting law stereotypical assumption race owners linked broadcast content follows path becomes ever tortuous must decide races favor repeatedly refers preferences favoring minorities ante purports evaluate burdens imposed nonminorities ante must emphasized discriminatory policies upheld today operate exclude many racial ethnic minorities made commission list enumeration races protected borrowed remedial statute since remedial rationale must disavowed order sustain policy race classifications bear scant relation asserted governmental interest reasoning provides little justification welcoming return racial classifications nation laws agree constitution permits government discriminate among citizens basis race order serve interests trivial broadcast diversity abandoning strict scrutiny endorse interest turns back clock level scrutiny applicable federal measures even strict scrutiny may sufficed invalidate early laws doubtful validity learned korematsu relaxed standard review embraced today validate case number future racial classifications government may find useful strict scrutiny surest test yet devised holding true constitutional command racial equality modern precedents justice explains strict scrutiny must applied statute approach taken congressional measures fourteenth amendment fullilove klutznick even assuming validity see croson supra opinion kennedy applicable case exercises congressional power cases following bolling sharpe weinberger wiesenfeld effect overruled today held congress constrained actions standard applicable strict scrutiny racial classifications majority achieve goal upholding quotas rigor standard must devise intermediate test justice demonstrates statute survive even intermediate scrutiny understood today majority simply says otherwise providing little reasoning real attention past cases opinion pages insists programs review benign justice stevens agrees reason classification recognized interest broadcast diversity clearly identified imply judgment concerning abilities owners different races merits different kinds programming neither favored disfavored class stigmatized way ante stevens concurring fundamental error plessy similar confidence ability identify benign discrimination consider underlying fallacy plaintiff argument consist assumption enforced separation two races stamps colored race badge inferiority reason anything found act solely colored race chooses put construction upon although majority confident determine racial discrimination benign ante offers explanation also justifies result ground congress commission determined may important differences broadcasting practices minority owners nonminority counterparts ante correct type reasoning employed commission congress novel policies racial separation preference almost always justified benign even clear sensible observer following statement example fit well among offered uphold commission racial preference policy policy based concept superiority inferiority merely fact people differ particularly group associations loyalties cultures outlook modes life standards development see south africa rule law official publication south african government history governmental reliance race demonstrates racial policies defended benign often seen way individuals affected today dismissive statements aside plan type sustained may impose stigma supposed beneficiaries croson opinion stevens foster intolerance antagonism entire membership favored classes fullilove stevens dissenting although majority disclaims fcc policy seems based demeaning notion members defined racial groups ascribe certain minority views must different citizens special preferences also foster view members favored groups inherently less able compete rightly wrongly special preference programs often perceived targets exploitation opportunists seek take advantage monetary rewards without advancing stated policy minority inclusion perceptions excluded class must also weighed attention cardinal rule constitution protects citizen individual member group danger stereotypical thinking prompts policies fcc rules stigmatizes disadvantaged class unproven charge past racial discrimination croson opinion stevens whether programs described remedial message conveyed acceptable harm member group excluded benefit privilege considered acceptable constitution various possible explanations one group disadvantaged preference feel stigma racial preferences address evil intentional discrimination continuing unconscious use stereotypes disadvantage minority groups proposition many citizens knowledge never discriminated anyone basis race find easy accept another explanation might stigma imposed upon excluded class overlooked either past wrongs grievous disfavored class must bear collective blame individual harms simply irrelevant face efforts compensate racial inequalities premises even appears willing address analysis candid existence stigma imposed racial preferences affected classes candid animosity discontent create fullilove supra stevens dissenting open defending theory explains cost stigma worth bearing consist constitution basis shown today casual abandonment strict scrutiny though racial composition nation far diverse first justice harlan foresaw warning dissent apposite destinies two races country indissolubly linked together interests require common government shall permit seeds race hate planted sanction law plessy dissenting opinion perhaps succeed assumed role arbiter desirable benign government disfavor citizens favor others based color skin perhaps tolerance decency people aspire let disfavored rise hostility favored escape condescension history suggests much peril enterprise constitution forbids us undertake regret century judicial opinions interpret constitution move us separate equal unequal benign fails address difficulties practical constitutional task defining members racial groups decision require commission example found necessary trace applicant family history conclude applicant hispanic purposes minority tax certificate policy see storer broadcasting agree attempt define precision beneficiary qualifying racial characteristics repugnant constitutional ideals fullilove klutznick stevens dissenting see stewart dissenting national government make serious effort define racial classes criteria administered objectively must study precedents first regulation reich citizenship law november translated nazi conspiracy aggression document pp examples available see population registration act statutes republic south africa justice stevens assertion fcc policy imply judgment concerning merits different kinds programming ante curious policy explicitly aimed ultimate goal altering programming content imply judgment concerning merits different kinds programming difficult see fcc policy serves governmental interest let alone substantially furthers important one record one two cases indicates astroline communications company beneficiary distress sale policy case total capitalization approximately sole minority principal held astroline overall equity voting equity total cash contribution see app pp