958 F.2d 382 (D.C. Cir. 1992), 88-1395, Lamprecht v. F.C.C.

Docket Nº:88-1395.
Citation:958 F.2d 382
Party Name:Jerome Thomas LAMPRECHT, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Barbara Driscoll Marmet and Dragon Communications, Inc., Intervenors.
Case Date:February 19, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 382

958 F.2d 382 (D.C. Cir. 1992)

Jerome Thomas LAMPRECHT, Appellant,

v.

FEDERAL COMMUNICATIONS COMMISSION, Appellee,

Barbara Driscoll Marmet and Dragon Communications, Inc., Intervenors.

No. 88-1395.

United States Court of Appeals, District of Columbia Circuit.

February 19, 1992

Argued Jan. 25, 1991.

Page 383

Appeal from an Order of the Federal Communications commission.

Michael A. Carvin, with whom Michael P. McDonald, Washington, D.C., was on the brief, for appellant.

C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., for appellee. With him on the brief, were Robert L. Pettit, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, and Laurel R. Bergold, Counsel, F.C.C., Washington, D.C.

Robert Lewis Thompson, Washington, D.C., was on the brief, for intervenor Dragon Communications, Inc.

Harold K. McCombs, Jr., Washington, D.C., entered an appearance, for intervenor Barbara Driscoll Marmet.

Before MIKVA, Chief Judge, BUCKLEY, Circuit Judge, and THOMAS, Circuit Justice. [*]

Opinion for the Court filed by Circuit Justice THOMAS.

Concurring opinion filed by Circuit Judge BUCKLEY.

Dissenting opinion filed by Chief Judge MIKVA.

THOMAS, Circuit Justice:

When Barbara Driscoll Marmet applied for permission to build a radio station, the Federal Communications Commission, pursuant to policy, awarded her extra credit for being a woman. Jerome Thomas Lamprecht contends that the Commission's policy deprived him of his constitutional right to the equal protection of the laws. We agree.

I

A

The Communications Act of 1934, Pub.L. No. 73-416, 48 Stat. 1064 (codified as amended in scattered sections of 47 U.S.C.), empowers the Federal Communications Commission to grant construction permits and operation licenses for radio and television stations when "public convenience, interest, or necessity will be served thereby." 47 U.S.C. §§ 307(a), 309(a); see also id. § 303. In 1965, the Commission first set out the general policy that it follows when it entertains mutually exclusive applications. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (1965), modified, 2 F.C.C.2d 667 (1966). Two principal goals guide the Commission in its choice. In furthering the first objective, "a maximum diffusion of control of the media of mass communications," the Commission examines each applicant's interests in other media properties, taking into account the significance of the other media properties and the extent of the applicant's interests. See 1 F.C.C.2d, at 394-95. In furthering the second objective, "the best practicable service to the public," the Commission awards what it calls "quantitative-integration credit," a term of art that describes the degree to which prospective owners will participate in their stations' day-to-day management. See id.

Page 384

The Commission then "enhances" the quantitative-integration credit based on "qualitative" factors, such as an owner's character and the service an owner proposes to offer, as well as (to the extent applicable) an owner's local residence, involvement in civic affairs, and experience and education in broadcasting. See id., at 396-99.

In 1972, the Commission's Review Board held that it was barred by statute from giving applicants qualitative-enhancement credit for being members of particular racial or ethnic groups. See Mid-Florida Television Corp., 33 F.C.C.2d 1, 17 (Rev.Bd.), review denied, 37 F.C.C.2d 559 (1972). This court disagreed. See TV 9, Inc. v. FCC, 495 F.2d 929 (D.C.Cir.1973) (reversing Mid-Florida), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974). A later case clarified that in this circuit's view the public-interest mandate of the Communications Act in effect requires the Commission to award applicants credit for being minorities. See Garrett v. FCC, 513 F.2d 1056, 1063 (D.C.Cir.1975); see also West Michigan Broadcasting Co. v. FCC, 735 F.2d 601, 609-11 (D.C.Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 782 (1985). In 1978, the Commission reacted to TV 9 and Garrett by expressly adopting three programs: the awarding of tax certificates, the holding of distress sales, and the giving of preferences in the comparative-licensing process. See Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 982-83 (1978); WPIX, Inc., 68 F.C.C.2d 381, 411-12 (1978); see also Reexamination of the Commission's Comparative Licensing, Distress Sales and Tax Certificate Policies Premised on Racial, Ethnic or Gender Classifications, 1 F.C.C. Rcd. 1315, 1315 (1986) (notice of inquiry), modified, 2 F.C.C. Rcd. 2377 (1987). Each of the three programs was meant to benefit members of only certain minority groups, specifically people of "Black, Hispanic Surnamed, American Eskimo, Aleut, American Indian and Asiatic American extraction." Statement of Policy on Minority Ownership, 68 F.C.C.2d, at 980 n. 8.

Women fared differently. In June 1978, the Review Board decided "[u]pon further reflection," but without explanation, to give preferences to women in its comparative-licensing program. Gainesville Media, Inc., 70 F.C.C.2d 143, 149 (Rev.Bd.1978). Early the next month, the Board offered reasons in support of its policy:

We hold that merit for female ownership and participation is warranted upon essentially the same basis as the merit given for black ownership and participation, but that it is a merit of lesser significance. The basic policy considerations are the same. Women are a general population group which has suffered from a discriminatory attitude in various fields of activity, and one which, partly as a consequence, has certain separate needs and interests with respect to which the inclusion of women in broadcast ownership and operation can be of value. On the other hand, it is equally obvious that the need for diversity and sensitivity reflected in the structure of a broadcast station is not so pressing with respect to women as it is with respect to blacks--women have not been excluded from the mainstream of society as have black people.

Mid-Florida Television Corp., 70 F.C.C.2d 281, 326 (Rev.Bd.1978), set aside on other grounds, 87 F.C.C.2d 203 (1981). Later that year, however, the Commission decided that women who are not also minorities may not participate in the tax-certificate or distress-sale programs. See National Telecommunications & Information Admin., 69 F.C.C.2d 1591, 1593 n. 8 (1978) (petition for notice of inquiry) (stating that "we have not concluded that the historical and contemporary disadvantagement [sic] suffered by women is of the same order, or has the same contemporary consequences, which would justify inclusion of a majority of the nation's population in a preferential category defined by the presence of 'minority groups' "); see also Wuenschel Broadcasting Co., 74 F.C.C.2d 389 (1979) (refusing to include women in a program that expedites the processing of minorities' applications).

Page 385

In 1983, James U. Steele was denied a construction permit in a case in which the sex of a competing applicant proved to be "decisively important." Cannon's Point Broadcasting Co., 93 F.C.C.2d 643, 656-57 (Rev.Bd.1983), review denied, No. 86-161 (Comm'n Apr. 13, 1984). Steele then challenged the Commission's sex-conscious policy in this court. In Steele v. FCC, we struck the policy down. 770 F.2d 1192 (D.C.Cir.1985) (reversing Cannon's Point). Noting first that the Review Board's reasoning had been unclear, Judge Tamm, joined by Judge Scalia, accepted the Commission's assertion that it sought to increase the quantity of women's viewpoints on the air. Comparing the Commission's ethnic-preference policy, the court then asked whether a station owner with ancestors from Italy, for example, "would primarily program Italian operas or would eschew Wagner in favor of Verdi,"id., at 1198, an assumption based in turn on two other presumed truths: that a station owner's heritage will determine the owner's interests, and that a station owner will indulge his or her own tastes and ignore the tastes of the members of the relevant programming audience.

Whatever the merit of these assumptions as applied to cohesive ethnic cultures, it simply is not reasonable to expect that granting preferences to women will increase programming diversity. Women transcend ethnic, religious, and other cultural barriers. In their social and political opinions and beliefs, for example, women in fact appear to be just as divided among themselves as are men. Therefore it is not reasonable to expect that a woman would manifest a distinctly "female" viewpoint.

Id., at 1199. We concluded that the policy violated the Communications Act. "Presumably, the Board thought that [its policy] was a Good Idea and would lead to a Better World. [But] a mandate to serve the public interest is not a license to conduct experiments in social engineering conceived seemingly by whim and rationalized by conclusory dicta." Id.

A majority of the active judges in the circuit then voted to rehear the case en banc and vacated the panel's opinion and judgment. Steele v. FCC, No. 84-1176 (D.C.Cir. Oct. 31, 1985) (en banc). After the court instructed the parties to file supplemental briefs, the Commission responded by admitting that it had assumed, with no factual support, a causal link between its preference schemes and increased diversity of viewpoints. See Brief for the Federal Communications Commission at 17-30, Steele v. FCC (D.C.Cir.) (No. 84-1176) (en banc). The Commission acknowledged that it thought its race- and sex-preference policies contrary to both the Communications Act and the Constitution, and it asked us to remand the Steele case for reconsideration. We granted the motion, and the Commission proceeded to call for comments on the wisdom and...

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