新闻传播教案合集（英文版）：媒体力量和民主

Washington & Lee Public Law and Legal Theory Research Paper Series Working Paper No. 01-03 November 2000 ENHANCING THE SPECTRUM: MEDIA POWER, DEMOCRACY, AND THE MARKETPLACE OF IDEAS RONALD J. KROTOSZYNSKI, JR A. RICHARD M. BLAIKLOCK A final version of this working paper will be published in University of Illinois Law Review (2000) This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=253054 An index to the working papers in the Washington and Lee University School of Law Is located at http://law.wlu.edu/lawcenter/papers KROTO.DOC 12/07/00 9:35 AM 101 ENHANCING THE SPECTRUM: MEDIA POWER, DEMOCRACY, AND THE MARKETPLACE OF IDEAS Ronald J. Krotoszynski, Jr.* A. Richard M. Blaiklock** In their article, Professor Krotoszynski and Mr. Blaiklock assess diversity and broadcast me- dia regulation in contemporary America. First, the authors consider the Federal Communications Commission’s regulatory attempts to promote di- versity in television and radio broadcasting. The authors discuss the Commission’s difficulties in defining and characterizing “ diversity” and fur- ther note some of the inconsistencies inherent in the Commission’s dual emphasis on competition and diversity in broadcast programming, also mention- ing the threat to democratic values posed by un- duly concentrated media ownership. Next, the authors chronicle the burgeoning judicial hostil- ity to race-conscious governmental policies and practices. They discuss the related shift from intermediate scrutiny to strict scrutiny in equal protection jurisprudence and the Commission’s frantic efforts to provide justifications for its increasingly endangered race-based diversity * Associate Professor of Law, Washington and Lee University School of Law. ** Associate, Ice Miller. B.A., Hanover College; J.D., Indiana Univer- sity School of Law— Indianapolis. The views expressed in this article are those of Mr. Blaiklock, and not those of his employer. Ms. Jean Campbell, William and Mary Class of 1999, provided invaluable research assistance on this article. In addition, the faculty at the Wil- liam and Mary School of Law kindly invited Professor Krotoszynski to pres- ent this article incident to a faculty colloquium; the authors gratefully acknowledge the helpful and constructive comments and suggestions offered by William and Mary’s faculty. We also appreciate the helpful comments and suggestions provided by Charles “ Buck” Logan and Professors Michael Heise, Gary Spitko, Neal Devins, Alan Meese, Michelle Adams, Dan Cole, Betsy Wil- born Malloy, Lilli Levi, and Lyrissa Lidsky on earlier drafts of this arti- cle. As always, any errors or omissions are ours alone. KROTO.DOC 12/07/00 9:35 AM 102 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 regulations. The authors also examine the need for diversity in programming, both arguing that structural diversity among broadcast media out- lets presents the best means of securing ideo- logically diverse programming and responding to potential objections to structural regulations aimed at securing such diversity. Finally, the authors elaborate on how such structural media regulations do not raise serious equal protection problems and conclude with a reminder that a healthy democracy depends upon a myriad of voices. I. INTRODUCTION Since the inception of federal mass media regula- tion, the Federal Communications Commission (the Com- mission) has regulated the airwaves using its “ public interest, convenience, and necessity” standard. 1 A central component of the Commission’s public interest program historically has been to further diversity in both broadcast programming and program outlets. 2 Over the years, the Commission has invoked this concept to justify myriad restrictions on the distribution of licenses to operate radio and television stations, 3 as well as a broad array of complimentary regulatory po- lices that shape the day-to-day operation of stations after the Commission has licensed them. 4 Diversity, thus, is at the very core of contemporary broadcast media regulation. Indeed, it is second in importance only to the public interest standard from which it is derived. Careful consideration of the Commission’s diver- sity project reveals that a variety of cross-cutting and conflicting objectives have obscured the most im- portant role that government regulations designed to enhance media diversity can play: thwarting the crea- 1. 47 U.S.C. §§ 303, 309(a) (1994); see also Ronald J. Krotoszynski, Jr., The Inevitable Wasteland: Why the Public Trustee Model of Broadcast Television Regulation Must Fail, 95 MICH. L. REV. 2101, 2102 (1997); Erwin G. Krasnow & Jack K. Goodman, The Public Interest Standard: The Search for the Holy Grail, 50 FED. COMM. L.J. 605, 607 (1998). 2. See Krasnow & Goodman, supra note 1, at 627-28. 3. See THOMAS G. KRATTENMAKER & LUCAS A. POWE, JR., REGULATING BROADCAST PROGRAMMING 59-101 (1994); Jim Chen, The Last Picture Show (On the Twilight of Federal Mass Communications Regulation), 80 MINN. L. REV. 1415, 1431-50 (1996). 4. See infra text and accompanying notes 14-21. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 103 tion of undue concentrations of media power, thereby advancing the project of democratic deliberation. Disentangling the complex web of diversity-inspired regulations is no easy task, for the Commission’s ef- forts to promote diversity, not unlike a coral reef, have grown both incrementally and haphazardly. The Commission has invoked the diversity rationale to support a variety of disparate programs, including, but hardly limited to, structural regulations that divide and separate media ownership. Content- and viewpoint-neutral regulations that prevent the undue concentration of media ownership should be maintained and, perhaps, even strengthened. Conversely, diver- sity regulations aimed at controlling the content of programming, whether directly or indirectly, should be abandoned. The diversity question is especially deserving of close attention at the moment because Congress and the Commission are actively considering a variety of proposals that would weaken the structural regula- tions promoting diversity of ownership among media outlets. 5 The Telecommunications Act of 1996 also sig- nificantly weakened both national and local multiple ownership rules, 6 leading to a feeding frenzy of con- 5. See Newspaper/Radio Cross Ownership Waiver Policy, 11 F.C.C.R. 13,003, 13,003-08 (paras. 1-8) (1996) (notice of inquiry); Multiple Owner- ship of Standard, FM, and Television Broadcast Stations, 50 F.C.C.2d 1046 (1975), reconsidered, 53 F.C.C.2d 589 (1975), aff’d sub nom., FCC v. Na- tional Citizens Comm. for Broad., 436 U.S. 775, 779 (1978); 47 C.F.R § 73.3555 (1998). The newspaper-radio cross-ownership rule, id. § (d)(1)–(2), which generally prohibits a daily newspaper and a station in the same com- munity from being owned, operated, or controlled, either directly or indi- rectly, by the same party, is under review. See Newspaper/Radio Cross- Ownership Waiver Policy, 11 F.C.C.R. at 13,003-08 (paras. 1-8). In addi- tion, as part of its biennial review, the Commission issued a notice of in- quiry (NOI) reviewing its broadcast ownership rules. See Review of the Com- mission’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of The Telecommunications Act of 1996, 13 F.C.C.R. 11,276, 11,276-79 (paras. 1-8) (1998) (notice of inquiry). Among the rules under review are a national television ownership rule that limits the audience reach of a television network to an aggregate reach of 35%, see 47 C.F.R. § 73.3555(e)(1), a newspaper broadcast cross-ownership rule that prohibits a daily newspaper and a broadcast station in the same community from being owned, operated, or controlled, either directly or indirectly, by the same party, see id. § (d)(3), a local radio ownership rule that limits the num- ber of radio stations in a particular market that can be owned, operated, or controlled by a party, see id. § (a)(1), and the cable/television cross- ownership rule that prohibits a television station and a cable system in the same local community from being owned, operated, or controlled, either directly or indirectly, by the same party. See id. § 76.501(1). 6. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 KROTO.DOC 12/07/00 9:35 AM 104 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 solidation within the commercial radio and television broadcasting industry. 7 Although this round of con- solidation has not yet been completed, the national networks and large station groups immediately showed interest in acquiring even more radio and television stations. 8 In August 1999, the Commission surrendered to in- dustry pressure and adopted regulations that signifi- cantly weaken the multiple ownership rules. 9 Not con- (codified in scattered sections of 47 U.S.C.). 7. The Telecommunications Act of 1996 instructed the Commission to eliminate the national cap on the number of radio stations that can be jointly owned, see id. § 202(a), 110 Stat. at 110; increase the number of stations in an individual market that can be owned by one entity, see id. § 202(b), 110 Stat. at 110; eliminate the national cap on the number of television stations that can be jointly owned and increase the national audience reach to 35%, see id. § 202(c)(1), 110 Stat. at 111; conduct hear- ings concerning the limits on the number of television stations that an en- tity may own, operate, or control in the same television market, see id. § 202(c)(2), 110 Stat. at 111; extend its waiver policy with respect to the one-to-a-market ownership rule for the top twenty-five markets to the top fifty markets, see id. § 202(d), 110 Stat. at 111; and eliminate the prohi- bition on broadcast network-cable cross-ownership. See id. § 202(f)(1), 110 Stat. at 111. The results of these provisions have been both startling and swift, producing an orgy of consolidation. See Al Brumley, Radio Signals Are Hard to Read, DALLAS MORNING NEWS, Oct. 19, 1997, at C1; Tim Jones, Radio’s Hu- man Conglomerate, CHI. TRIB., Feb. 22, 1998, at C1; Tom Steighorst, Diversity Lost Among Station Sales, SUN-SENTINEL (Fort Lauderdale), Nov. 30, 1997, at F1. 8. See Paige Albiniak & Bill McConnell, Strange Bedfellows, BROADCASTING & CABLE, Aug. 16, 1999, at 6, 22 (reporting on the increasing pressure that Wall Street and the broadcasting industry, aided by their friends in Con- gress, are applying to FCC Chairman Kennard and his colleagues to liberal- ize the multiple ownership rules, thereby permitting greater concentrations of local and national broadcast media holdings). 9. The television duopoly rule, which precludes television broadcast stations with overlapping Grade B contours from being owned, operated, or controlled, either directly or indirectly, by the same party, see 47 C.F.R. § 73.3555(b) (1970), has been under review recently. See Review of the Com- mission’s Regulations Governing Television Broadcasting, 7 F.C.C.R. 4111, 4116-17 (paras. 22-28) (1992) (notice of proposed rulemaking); Review of the Commission’s Regulations Governing Television Broadcasting, Television Sat- ellite Stations Review of Policy and Rules, 11 F.C.C.R. 21,655, 21,661-63 (paras. 10-13) (1996) (second further notice of proposed rulemaking). On August 5, 1999, the Commission repealed in part the duopoly rule, allowing a single entity to own or control more than one television station in a single market if certain conditions are met. See generally Review of the Commis- sion’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903 (1999) (report and order); see also David Fiske, FCC Revises Local Television Ownership Rules, FCCREP. NO. 99-8, Aug. 5, 1999, available in, 1999 FCC LEXIS 3736 (providing an executive summary of the changes in the multiple ownership rules); Al- biniak & McConnell, supra note 8, at 6 (describing the policy changes in the local ownership rules and the politics surrounding these changes). The one- to-a-market rule, which generally prohibits a television station and a radio station in the same market from being owned, operated, or controlled, either KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 105 tent with this success, the broadcasting industry and its congressional allies are seeking even further de- regulation of the ownership of television stations. 10 Before facilitating another buying spree, the Commis- sion should consider very carefully the wisdom of permitting the further consolidation of radio and television holdings. A better course of action would be to weigh the potential negative effects of the in- creased concentration of media power in fewer and fewer hands against the broadcasting industry’s directly or indirectly, by the same party, see 47 C.F.R. § 73.3555(c) (1970), was repealed by the same report and order that rescinded the duopoly rule. See Review of the Commission’s Regulations Governing Television Broad- casting, 14 F.C.C.R. at 12,947-54 (paras. 100-114). The attribution rules, although not included within the broad category of broadcast ownership rules, are also relevant because they define what the Commission considers a cognizable interest for purposes of the ownership rules. See 47 C.F.R. § 73.3555, at n.1-10 (1998). After reviewing the attribution rules, Review of the Commission’s Regulations Governing Attribution of Broadcast Inter- ests, Review of the Commission’s Regulations and Policies Affecting Invest- ment in the Broadcast Industry, Reexamination of the Commission’s Cross- Interest Policy, 10 F.C.C.R. 3606 (1995) (notice of proposed reulmaking); Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, Review of the Commission’s Regulations and Policies Affecting Investment in the Broadcast Industry, Reexamination of the Commis- sion’s Cross-Interest Policy, 11 F.C.C.R. 19,895 (1996) (further notice of proposed rulemaking), the Commission modified these rules to include local marketing agreements, a variety of equity holdings, and contractual arrange- ments in which one station controls the programming decisions of another station in the same market. See Review of the Commission’s Regulations Gov- erning Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. 12,559 (1999) (report and order); see also Ken Silverstein, His Biggest Takeover: How Murdoch Bought Washington, NATION, June 8, 1998, at 18, 31-32 (describing Murdoch’s interest in the rule change); Broadcast Ownership Inquiry May Show FCC’s Philosophical Differences, COMM. DAILY, Mar. 13, 1998, available in 1998 WL 10696068; Ownership Restrictions Debated, TELEVISION DIGEST, Feb. 17, 1997, at 5, 5. To its credit, the Commission actually strengthened the attribution rules. See Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. at 12,563, 12,587-88, 12,592- 93, 12,597-99 (paras. 6, 60, 69, 83-88). Finally, the Commission modified its national ownership rules to take into account the changes to its attri- bution rules. See Review of the Commission’s Regulations Governing Televi- sion Broadcasting, Television Satellite Station Review of Policy and Rules, 14 F.C.C.R. at 12,903. For an overview of the Commission’s recent efforts to revise the multiple ownership rules, see Elizabeth A. Rathbun & Dan Trigo- boff, Ready, Set . . . Duopoly, BROADCASTING & CABLE, Aug. 9, 1999, at 4, 4-5. 10. See Paige Albiniak, GOP Pushes Ownership Dereg, BROADCASTING & CABLE, Sept. 20, 1999, at 19, 19 (describing efforts by the major networks, large station groups, and their friends in Congress to browbeat the Commission into further rollbacks of the multiple ownership rules); Bill McConnell, NAB Offers $10M for Minority Plan, BROADCASTING & CABLE, Feb. 22, 1999, at 14, 14-15 (describing National Association of Broadcasters’ (NAB) proposal to fund minority ownership of radio and television stations and the possibil- ity of relaxed limitations on the number of television and radio stations that a single owner could own or control). KROTO.DOC 12/07/00 9:35 AM 106 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 claims that “ bigger is better.” 11 A systematic reconsideration of the diversity pro- ject must also include the Commission’s efforts over the last thirty years to increase the number of ra- cial minorities and women in the broadcasting indus- try. Although the Commission’s efforts to ensure that the public’s airwaves are not controlled by those who engage in racial- or gender-based discrimination merit continued support, the Commission’s untested assumptions about the diversity-enhancing effects of minority or female station ownership should be met with skepticism. 12 Given the importance of the diver- sity project, the Commission should not permit short- term political efforts that reward select constituen- cies with valuable ownership and employment opportu- nities to overshadow or endanger the long-term proj- ect of ensuring a healthy and open marketplace of ideas. Part I of this article considers some of the scat- tershot ways in which the Commission has attempted to promote diversity through regulation. Part II exam- ines in greater detail the Commission’s efforts to use race and gender as a means of furthering its di- versity project, an effort that seems to be mis- guided. Part III considers the potential benefits as- sociated with a regulatory program that maintains structural diversity among broadcast media outlets, an effort that constitutes an important, perhaps cru- cial, regulatory objective. Part IV distinguishes be- tween the Commission’s attempts to foster program di- versity (efforts that are both ineffective and unnecessary) and its attempts to maintain structural diversity and localism (efforts that are both neces- sary and laudable). Finally, Part V suggests a pro- gram of reform that would disentangle the Commis- sion’s regulatory efforts at enhancing and promoting diversity from its efforts to ensure nondiscrimina- 11. See generally Louis B. Schwartz, Institutional Size and Individual Liberty: Authoritarian Aspects of Bigness, 55 NW. U. L. REV. 4, 9-14, 22-24 (1960) (discussing the potential ill-effects associated with corporate size generally and the dangers of undue concentrations of media power in par- ticular). 12. See infra notes 125-140 and accompanying text; see also Review of the Commission’s Broadcast and Cable Equal Opportunity Rules and Policies and Termination of the EEO Streamlining Proceding, 13 F.C.C.R. 23,004 (1998) (notice of proposed rulmaking) [hereinafter Broadcast & Cable EEO Review]. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 107 tion by the public trustees holding licenses for broadcast stations. In the end, the Commission’s failure to articulate a coherent vision for its di- versity efforts is less a reflection of the impor- tance and validity of the underlying policies them- selves and more a reflection of the Commission’s inability to escape interest group politics when for- mulating its regulatory policies. 13 II.THE ROLE OF DIVERSITY IN MASS MEDIA REGULATION The concept of diversity is a central component of contemporary broadcast regulation. Under the author- ity vested in it by the Communications Act of 1934, 14 the Commission regulates broadcasters using the “ pub- lic interest, convenience, and necessity” standard. 15 For many years, the Commission has taken the view that public interest encompasses not merely a general obligation on the part of broadcasters to provide pro-social programming but also the general public’s right to receive “ a diversity of views and informa- tion over the airwaves.” 16 Because physical con- straints limit the number of broadcast licenses that the Commission may issue, government regulation of the airwaves ostensibly is necessary to foster such diversity. These physical constraints are said to give rise to a “ scarcity” of available electromag- netic frequencies. 17 Accordingly, government regula- 13. See generally JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 106-30 (1997); ERWIN G. KRASNOW & LAWRENCE D. LINGLEY, THE POLITICS OF BROADCAST REGULATION 31-41 (1973). 14. Pub. L. No. 73-416, 48 Stat. 1064 (1934) (codified as amended at 47 U.S.C. §§ 151-609 (1994)); see also TV9, Inc. v. FCC, 495 F.2d 929, 942 (D.C. Cir. 1973) (noting that the Communications Act of 1934 “ is the Com- mission’s basic charter” ). 15. 47 U.S.C. §§ 303, 309(a). 16. Metro Broad., Inc. v. FCC, 497 U.S. 547, 567 (1990) (quoting FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 795 (1978)). The “ public interest” is, like diversity, an amorphous concept. See KRATTENMAKER & POWE, supra note 3, at 34 (“ Because the Communications Act provides no guidance, the FCC, along with its supporters and critics, must redefine every few years just what ‘public interest’ regulation might mean in the context of the industry and the technology that exists at that specific time.” ). As Professors Krattenmaker and Powe put it: “ neither the words nor history of the standard provides a useful guide to its application.” Id. 17. See Metro Broad., 497 U.S. at 566-67 (citing Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969)). The continuing validity of “ scarcity” the- ory has been called into serious question. See, e.g., Nancy R. Selbst, “ Un- regulation” and Broadcast Financing: New Ways for the Federal Communica- tions Commission to Serve the Public Interest, 58 U. CHI. L. REV. 1423, 1426 KROTO.DOC 12/07/00 9:35 AM 108 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 tions are necessary to ensure that those granted the privilege of broadcasting do not abuse that privilege by failing to operate their stations in the public interest. Consistent with furthering the public interest, the Commission’s regulation of broadcasters has his- torically been guided by two goals: competition and diversity. 18 Despite the existence of these dual goals, the diversity project has served as the pri- mary justification for the majority of the Commis- sion’s broadcast regulations, particularly its race- based affirmative action regulations. 19 More specifi- cally, the Commission’s diversity regulations and policies are designed to advance three types of di- versity: viewpoint, outlet, and source. 20 A. Definitional Difficulties For a concept of such sweeping importance, the Commission’s core definition of diversity has re- mained conspicuously elusive. As used by the Commis- sion over time, the concept of diversity can and does (1991) (“ Many courts and the FCC [have] rejected the scarcity rationale, thereby removing the FCC’s primary justification for regulation.” ). To date, however, the Supreme Court has proven unwilling to scrap the scarcity concept. See Charles W. Logan, Jr., Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85 CAL. L. REV. 1687, 1702 (1997) (“ Has the Supreme Court gotten the message? It may be sinking in, however slowly.” ). Both the desirability and the continuing validity of the scarcity rationale are beyond the scope of this article. 18. See 1998 Biennial Regulatory Review— Review of the Commission’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, 13 F.C.C.R. 11,276, 11,277 (para. 4) (1998) (notice of inquiry) [hereinafter 1998 Biennial Review]. 19. See Metro Broad., 497 U.S. at 566 (“ [T]he FCC has selected the mi- nority ownership policies primarily to promote programming diver- sity . . . .” ). The diversity goal is separate from the goal of promoting competition. See id. (“ Indeed, the Supreme Court has recently stated that ‘federal policy . . . has long favored preserving a multiplicity of broad- cast outlets regardless of whether the conduct that threatens it is moti- vated by anticompetitive animus or rises to the level of an antitrust vio- lation.’” ); see also 1998 Biennial Review, supra note 18, at 11,277 (para. 4). 20. See 1998 Biennial Review, supra note 18, at 11,278 (para. 6). View- point diversity occurs when the material presented by the media reflects a wide range of diverse and antagonistic opinions and interpretations . . . . Outlet diversity refers to a variety of delivery services (e.g., broadcast stations, newspapers, cable and DBS) that select and present programming di- rectly to the public . . . . Source diversity refers to promoting a variety of program or information producers and owners. Id. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 109 mean a great many things: it can refer to the race or gender of a broadcast station’s owners; 21 it can refer to the ideology of the owners; 22 it can refer to the net number of separately owned media outlets, whether locally or nationally; 23 it can refer to the types of programs that a particular television or radio sta- tion owner broadcasts; or it can refer to the sources of broadcast programming. 24 As will be demonstrated in greater detail below, the diversity concept means all of these things (or so the Commission would have us believe). Given its highly protean nature, the con- cept of diversity in mass media regulation seems in danger of becoming so hopelessly amorphous as to verge on being meaningless. Notwithstanding this lack of clarity, the Commission invokes the concept with a regularity suggesting that, although the Commission may have difficulty defining diversity, the Commis- sioners, like Justice Potter Stewart with respect to obscenity, “ know it when [they] see it.” 25 The Commission’s inability to define coherently the concept of diversity has resulted in a confused mix of regulatory policies— a regulatory gumbo that 21. See Metro Broad., 497 U.S. at 554; Lamprecht v. FCC, 958 F.2d 382, 390 (D.C. Cir. 1992). 22. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969); see also KRATTENMAKER & POWE, supra note 3, at 237-75. 23. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 10 F.C.C.R. 3524, 3550-53, 3573-74 (paras. 62-65, 113-15) (1995) (further no- tice of proposed rulemaking). 24. See Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309, 316 (7th Cir. 1994); Schurz Communications, Inc. v. FCC, 982 F.2d 1043, 1054 (7th Cir. 1992). 25. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concur- ring); cf. Neel Devins, Congress, the FCC, and the Search for the Public Trustee, 56 LAW & CONTEMP. PROBS. 145, 147 (1993) (describing the “ public in- terest” standard as so “ ill-defined” that it verges on “ the point of be- ing meaningless” ). Some years ago, the Commission conducted a comprehensive study of its diversity policies. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 10 F.C.C.R. at 3524. Incident to this project, the Com- mission’s staff considered the mish mash of policies that collectively con- stitute the Commission’s diversity project. See id. at 3546-59 (paras. 54- 80). Notwithstanding this promising start, the Commission has made little progress on reconsidering its diversity programs in a comprehensive fash- ion. As Commissioner Michael K. Powell recently explained, “ diversity is very hard to define, and is at some level a visceral concept.” Broadcast Television National Ownership Rules, Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,987 (1999) (report and order) (separate statement of Commissioner Michael K. Powell). KROTO.DOC 12/07/00 9:35 AM 110 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 lacks even the pretense of some overarching goal or objective. Instead, the Commission’s policies point in all directions of the compass, constituting a se- ries of independent, self-justifying means rather than logical attempts to further some articulable regulatory end. 26 Notwithstanding this abundant lack of clarity, the federal courts traditionally have deferred to the Commission’s various attempts to pursue the public interest goal of diversity. 27 The result is an ambigu- ous policy without focus or direction; the kind of policy that one would expect in the absence of bu- reaucratic accountability or serious judicial scru- tiny. There is now reason to believe that this state of affairs may be coming to an end. In April 1998, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Commission’s equal employment opportunity (EEO) guidelines. 28 Although the court rested its holding on Adarand 29 and equal protection principles, 30 it also registered its displeasure with the Commission’s attempts to justify the EEO guide- lines on diversity grounds. Judge Laurence Silberman not only questioned the Commission’s assertion of a link between race and program diversity but also sug- gested that the Commission had failed to define the goal of diversity in a minimally coherent fashion. 31 In another relatively recent case, Judge Richard Pos- ner, rejecting the Commission’s financial interest and syndication rules as arbitrary and capricious, similarly observed that “ while the word diversity ap- 26. See generally Lili Levi, Reflections on the FCC’s Recent Approach to Structural Regulation of the Electronic Mass Media, 52 FED. COMM. L.J. 581, 582–94 (2000) (describing and critiquing the Commission’s various ef- forts to promote diversity and competition through structured regulation of the commercial broadcasting industry). 27. See, e.g., Metro Broad., v. FCC, 497 U.S. at 596; Red Lion Broad., 395 U.S. at 396; National Broad. Co. v. United States, 319 U.S. 190 (1943). 28. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 356 (D.C. Cir. 1998). 29. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). 30. See Lutheran Church-Missouri Synod, 141 F.3d at 351-56. 31. See id. at 355-56 (“ It is at least understandable why the Commission would seek station to station differences, but its purported goal of making a single station all things to all people makes no sense.” ); see also Capi- tal Cities/ABC, Inc. v. FCC, 29 F.3d 309, 311 (7th Cir. 1994) (dismissing the Commission’s attempt to justify its financial interest and syndication rules on program diversity grounds); Schurz Comm., Inc. v. FCC, 982 F.2d 1043, 1045-46, 1050-52, 1054 (7th Cir. 1992) (same). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 111 pears with incantatory frequency in the Commission’s opinion, it is never defined.” 32 The federal courts are not alone in their skepti- cism about the Commission’s quest for diversity. Le- gal scholars have also attacked the Commission’s di- versity-based policies. 33 Some commentators have gone so far as to call for an end to the Commission’s di- versity efforts in favor of a free-market paradigm for broadcast regulation. 34 Such an approach is, how- ever, deceptively attractive. Although some of the Commission’s policies may be ill-considered— perhaps even incoherent— the objective of avoiding undue con- centrations of media power is, and for the foresee- able future will remain, critically important. B. Manifestations of Diversity As noted above, the Commission has described its efforts to promote diversity as ongoing attempts to achieve viewpoint, outlet, and source diversity within the broadcast media. 35 In its own way, each of the regulatory manifestations of the diversity goal sig- nificantly tax the broadcast industry— including a station’s broad strategic business decisions and its day-to-day operations. 36 It is questionable whether these efforts meaningfully advance their stated justi- fications. 1. Viewpoint Diversity In 1969, the Commission promulgated rules to fur- ther its policy of equal employment opportunity (EEO). 37 These rules imposed two basic obligations on 32. Schurz Comm., 982 F.2d at 1054. 33. See KRATTENMAKER & POWE, supra note 3, at 59-101; Chen, supra note 3, at 1440-58; J. Gregory Sidak, Telecommunications in Jericho, 81 CAL. L. REV. 1209, 1228-38 (1993). 34. See PETER HUBER, LAW AND DISORDER IN CYBERSPACE 44-45, 69-75, 156-59, 178- 81, 204-05 (1997); KRATTENMAKER & POWE, supra note 3, at 278-96; Chen, supra note 3, at 1486-1502; Sidak, supra note 33, at 1237-38; see also 1998 Bien- nial Review, supra note 18, at 11,302 n.1 (separate statement of Commis- sioner Harold W. Furchtgott-Roth). 35.See supra notes 10–20 and accompanying text. 36.See FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 780 (1978) (characterizing regulations as “ stringent restrictions” ); Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349-50 (D.C. Cir. 1998) (observ- ing that the EEO program increases “ an already significant regulatory bur- den” and that the regulations “ can be burdensome” ). 37.See Petition for Rulemaking to Require Broadcast Licensees to Show KROTO.DOC 12/07/00 9:35 AM 112 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 broadcasters. First, broadcasters could not discrimi- nate in employment against any person “ because of race, color, religion, national origin, or sex.” 38 Second, stations had to adopt an affirmative action program targeted at ensuring proper recruitment and retention of female and minority employees. 39 According to the Commission’s pre-2000 EEO rules, 40 broadcast stations must “ establish, maintain, and carry out a positive continuing program of specific practices de- signed to ensure equal opportunity in every aspect of station employment policy and practice.” 41 The rules required stations to target minority organizations and other potential sources of minorities for employment recruitment purposes. 42 To monitor compliance, stations with five or more full-time employees had to file a report with the Commission documenting “ the number of minority . . . referrals received from [minority sources].” 43 The Commission also compared “ the compo- sition of the station’s work force . . . with the relevant labor force” 44 to determine whether the fol- lowing guidelines were met: [S]tations with five to ten full-time employees meet the guidelines if the proportion of minority and female representation on their overall staffs Nondiscrimination in Their Employment Practices, 18 F.C.C.2d 240, 243, 245 (para. 6, app. A) (1969) (report and order); see also Petition for Rulemak- ing to Require Broadcast Licensees to Show Nondiscrimination in Their Em- ployment Practices, 23 F.C.C. 2d 430, 435 (app. A) (1970) (report and or- der); Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their Employment Practices, 13 F.C.C.2d 766 (1968) (memorandum opinion and order); Leigh Hermance, Comment, Constitutionality of Affirmative Action Regulations Imposed Under the Cable Communications Policy Act of 1984, 35 CATH. U. L. REV. 807, 812-15 (describing the early history of the Commission’s EEO rules). 38. 47 C.F.R. § 73.2080(a) (1999). 39.See id. § 73.2080(b)–(c). 40. On January 21, 2000, the Commission significantly revised its EEO rules. See Review of the Commission’s Broadcast and Cable Equal Opportu- nity Rules and Policies, 15 F.C.C.R. 2329 (2000) (report and order). For a consideration of the content of these new rules, see infra notes 67-73 and accompanying text. The Commission’s old EEO rules and policies neverthe- less remain important because of their significance in understanding the Commission’s overarching effort to promote diversity in broadcasting. 41. 47 C.F.R. § 73.2080(b) (1999). 42. See id. §§ 73.2080(c)(2)–(3). 43. Streamlining Broadcasting EEO Rule and Policies Vacating the EEO For- feiture Policy Statement and Amending Section 1.80 of the Commission’s Rules to Include EEO Forfeiture Guideline, 11 F.C.C.R. 5154, 5159 (paras. 8-9) (1996) (order and notice of proposed rulemaking) [hereinafter Streamlining Broadcast EEO Rule]. 44. Id. at 5159-60 (paras. 8-11). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 113 is at least 50% of that relevant labor force, and on their upper-level staff is at least 25% of that of the relevant labor force. Stations with 11 or more full-time employees meet the guide- lines if the proportion of minority and female representation is at least 50% of that of the relevant labor force for both overall and upper- level job categories. 45 In short, “ [e]very broadcast station must develop a fairly elaborate EEO program and document its com- pliance.” 46 Those requirements involved “ paperwork, monitoring, and spending more money on advertise- ments.” 47 The entire program was “ built on the notion that stations should aspire to a workforce that at- tains, or at least approaches, proportional represen- tation.” 48 In 1980, the Commission issued revised processing guidelines disclosing the criteria used to select sta- tions for an in-depth EEO program review when those stations’ licenses came up for renewal. 49 Those crite- ria were based solely on a station’s ability to demon- strate that it was satisfying certain statistical re- quirements. 50 In other words, the Commission had established numerical goals that, if met, would mean that a broadcaster was not subject to an onerous, in- depth EEO review. 51 In 1987, the Commission changed its policy, osten- 45.Id. at 5160 (para. 11). 46. Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350 (D.C. Cir. 1998), reh’g and reh’g en banc denied, 154 F.3d 487 (D.C. Cir. 1998) (en banc); see also 47 C.F.R. §§ 73.2080(b)–(c) (1999). 47. Lutheran Church-Missouri Synod, 141 F.3d at 350; see also Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 707 (9th Cir. 1997). 48. Lutheran Church-Missouri Synod, 141 F.3d at 352. 49.See In re EEO Processing Guidelines for Broadcast Renewal Applicants, 46 Rad. Reg. 2d (P&F) 1693, 1693 (1980) [hereinafter EEO Processing Guide- lines], reconsideration denied, 79 F.C.C.2d 922 (1980); see Amendment of Part 73 of the Commission Rules Concerning Equal Employment Opportunity in the Broadcasting, Radio, and Television Services, 2 F.C.C.R. 3967, 3973-74 (paras. 44-50) (1987) (report and order) [hereinafter Part 73 Amendment]. 50. Essentially the Commission required that a station recruit and retain a workforce that contained minority persons in numbers equal to 50% of their total numbers within the local community. Hence, if Hispanics comprised 12% of the local community’s population, then at least 6% of the a local sta- tion’s employees must be Hispanic to avoid full review of its compliance with the EEO requirements. See EEO Processing Guidelines, supra note 49, at 1693. 51.See Part 73 Amendment, supra note 49, at 3969-70, 3973-74 (paras. 17- 23, 44-50); see also Lutheran Church-Missouri Synod, 141 F.3d at 353 (noting that these regulations “ operated as a ‘de facto hiring quota’” ). KROTO.DOC 12/07/00 9:35 AM 114 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 sibly to de-emphasize statistical compliance. 52 Al- though the Commission continued to place significant reliance on a station’s hiring statistics, it an- nounced that it would also consider the station’s self-description of its EEO program and policies, any EEO complaints filed against the station, and any other pertinent information. 53 At least as a formal matter, the Commission was abandoning a numbers-based enforcement scheme. As a practical matter, it remained reasonably clear to most licensees that race-based statistical analyses would continue to constitute an important component of the Commission’s EEO enforce- ment regime. As under the earlier iterations of its EEO rules, if the Commission concluded that a station failed to comply with its EEO rules and policies, the station’s application for license renewal could be de- nied 54 or a panoply of lesser sanctions brought to bear. 55 In 1996, the Commission proposed new EEO rules that would exempt from the reporting requirements those stations that satisfy an as-yet-undetermined benchmark. 56 Under this approach: [Q]ualifying stations would remain subject to the EEO rule and to reporting requirements regarding their employment profile and other EEO informa- tion called for as part of the renewal applica- tion but could elect not to file, submit, or re- tain detailed job-by-job recruitment and hiring records if their employment profile for overall and upper-level positions met certain benchmarks for most of the licensed term. 57 In essence, the benchmark would expressly serve as a safe harbor for stations. Yet the current EEO rules, as interpreted by the Commission and its staff, al- ready effectively established a numerical safe harbor 52.See Part 73 Amendment, supra note 49, at 3969-70, 3973-74 (paras. 17- 23, 44-50). 53. See id. at 3974 (paras. 48-50). 54. See Streamlining Broadcast EEO Rule, supra note 43, at 5160-61 (paras. 11-15). 55. The less draconian options open to the Commission included short-term license renewal, the imposition of special reporting requirements during the renewal period, or the imposition of monetary penalties (or a “ forfeiture” in Commission parlance). See Broadcast and Cable EEO Review, supra note 12, at 23006-8 (paras. 7-10). 56. See Streamlining Broadcast EEO Rule, supra note 43, at 5166-67 (paras. 24-27). 57.Id. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 115 for broadcasters, albeit not expressly. Following a significant judicial setback in the U.S. Court of Appeals for the District of Columbia Circuit, 58 the Commission issued another notice of pro- posed rulemaking in an attempt to rehabilitate its EEO rules and policies in the wake of Adarand. 59 Repeating its earlier position, the Commission argued that it “ believe[d] that a Commission recruitment policy that operates only to enhance the pool of candidates for a job opening will not subject anyone to unequal treat- ment on the basis of race and will not raise equal protection concerns.” 60 After citing evidence of con- gressional approval of its outreach efforts, 61 the Com- mission proposed to modify its EEO program by abandon- ing the statistical parity requirements contained in its processing guidelines: “ We stress that there is no maximum, minimum, or even optimal level of diver- sity in employment.” 62 Although the Commission stubbornly refuses to abandon its diversity rationale to support its revised EEO program, 63 it wisely adopted— as an alternative justification for the rules— the deterence of both conscious and unconscious forms of discrimination by Commission licensees. 64 Moreover, the Commission’s in- troduction to the proposed new rules also invokes non- discrimination as the principal motivation for at- tempting to retain the policy. 65 The Commission also describes its proposed policy as an antidiscrimination rule, rather than a type of diversity-enhancement rule. 66 On January 20, 2000, the Commission adopted a re- port and order revising the EEO guidelines to bring them into compliance with the mandate of the Lutheran Church opinion. 67 The report and order largely tracks 58. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998). 59.See Broadcast & Cable EEO Review, supra note 12, at 23,008-12 (paras. 11-21). 60.Id. at 23,012 (para. 21). 61.See id. at 23,014-23 (paras. 26-35). 62.Id. at 23,028 (para. 67). 63. See id. at 23,019-22 (paras. 39-45). 64.See id. at 23,025-26 (paras. 59-60). 65.See id. at 23,005-06 (paras. 1-6). 66.See id. at 23,013-14 (paras. 24-25). 67.See Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rule and Policies and Termination of the EEO Streamlining Pro- ceeding, 15 F.C.C.R. 2329 (2000) (report and order). KROTO.DOC 12/07/00 9:35 AM 116 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 the notice of proposed rulemaking: it abandons numeri- cal benchmarks in favor of an open-ended recruiting obligation to seek out and hire well-qualified minori- ties and women, coupled with extensive record keeping and reporting obligations on the success (or failure) of these efforts. 68 The Commission takes great pains to “ emphasize that, in the case of those broadcasters who utilize applicant pool data, there is no require- ment that the composition of applicant pools be pro- portionate to the composition of the local work force.” 69 The Commission also asserts that the re- quired outreach measures “ do not require employers to take any action based on race, ethnicity, or gender, and do not favor or disadvantage any job applicant based on his or her race, ethnicity, or gender.” 70 To the extent that the Commission has abandoned direct reliance on statistical quotas or benchmarks, the revised EEO rules are largely responsive to the D.C. Circuit’s mandate in Lutheran Church. On the other hand, the Commission stubbornly continues to rely on the diversity rationale to support its revised EEO program. 71 The new rules would stand a better chance of surviving judicial review if the Commission would simply abandon the diversity rationale as the basis for its EEO program and instead rely solely on preventing both conscious and unconscious forms of discrimination. 72 Simply put, the Commission would have advanced its cause more effectively had it straight- forwardly abandoned the diversity project as a princi- 68. See id. at 2331-33, 2358-89 (paras. 2-9, 63-148), see also Neil A. Lewis, F.C.C. Revises Rule on Hiring of Women and Minorities, N.Y. TIMES, Jan. 21, 2000, at A16 (describing the new EEO rules and the broadcasting in- dustry’s skeptical initial reaction to them). 69. Review of the Commission’s Broadcast and Cable Equal Employment Op- portunity Rule and Policies and Termination of the EEO Streamlining Proceed- ing, 15 F.C.C.R. at 2378 (para. 120). 70.Id. at 2416 (para. 219); see also id. at 2417 (para. 222) (“ We have made it clear that there is no requirement of applicant pool ‘proportional- ity’ to the composition of the local work force, nor could there be, since employers cannot control who applies for a position.” ); id. at 2418 (para. 226) (“ Moreover, having stated that we will not use the employment profile data collected on Form 395 to assess compliance with our EEO rules, we will be legally foreclosed from doing so.” ). 71. See id. at 2331, 2345-46, 2349-58 (paras. 2, 41, 48-62). 72. See, e.g., id. at 2419 (para. 228) (“ Thus, we are confident that we can take steps to ensure that minorities and women are not either intention- ally or ‘unthinkingly’ denied an equal opportunity to compete for jobs in the broadcast and cable industries without treading on rights guaranteed by the Equal Protection Clause.” ). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 117 pal reason for maintaining its EEO policies. 73 Even in its most recent pronouncements on the sub- ject, including the newly revised EEO rules, the Com- mission continues to rest its EEO program (at least in part) on the viewpoint definition of diversity. 74 Im- plicit in this position is the Commission’s belief that by employing minorities at broadcast stations, minority viewpoints will be reflected in the station’s programming. 75 There is good reason, however, to ques- tion the veracity of this proposition. First, the Commission has, at least implicitly, based its position on an untested assumption that most individuals within a particular minority group gener- ally share a common editorial viewpoint. 76 Second, the Commission’s approach also assumes that all employees at a given broadcast station, including janitorial staff (all employees fall within the EEO rules), have an impact on the viewpoints expressed in a station’s programming. 77 Both assumptions rest on questionable foundations. In addition to its EEO policies, the Commission has established four separate programs— two are still in effect today— to further its goal of enhancing viewpoint diversity by distributing licenses to those believed to hold unique editorial perspectives. These programs are lottery preferences, 78 comparative hearing preferences, 79 distress sales, 80 and tax certificates. 81 The Federal Communications Act gives the Commis- sion the power to grant broadcast licenses through a lottery, with additional chances given to minority groups. 82 The relevant provision of the Communications Act defines minorities for this purpose as “ Blacks, 73. See infra notes 435-63 and accompanying text. 74. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 354-56 (D.C. Cir. 1998); Review of the Commission’s Broadcast and Cable Equal Em- ployment Opportunity Rule and Policies and Termination of the EEO Streamlin- ing Proceeding, 15 F.C.C.R. at 2332, 2336-37, 2345, 2349-58 (paras. 4, 21, 41, 48-62). 75. See Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rule and Policies and Termination of the EEO Streamlining Pro- ceeding, 15 F.C.C.R. at 2349-58 (paras. 48-62). 76.See infra notes 125-26 and accompanying text. 77.See Lutheran Church-Missouri Synod, 141 F.3d at 354-56. 78.See infra notes 82-84 and accompanying text. 79.See infra notes 85-95 and accompanying text. 80.See infra notes 96-101 and accompanying text. 81.See infra notes 102-07 and accompanying text. 82.See 47 U.S.C. § 309(i) (1994). KROTO.DOC 12/07/00 9:35 AM 118 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 Hispanics, American Indians, Alaska Natives, Asians, and Pacific Islanders.” 83 The purpose of the addi- tional chances is “ [t]o further diversify the owner- ship” of stations. 84 Until very recently, the Commission also utilized comparative hearings to award radio and television li- censes. 85 Under this scheme, “ [w]hen several appli- cants ask the [Commission] for the same license, the [Commission] compares several relevant characteristics of the applicants, combines the comparisons to form an overall evaluation of which broadcaster would best serve the ‘public interest’ and then awards the li- cense to the best applicant.” 86 Ordinarily, the rele- vant “ comparative criteria” would include “ diversi- fication of ownership of mass media, integration of ownership with management, and technical virtuos- ity.” 87 Under certain circumstances, however, the Com- mission would assign an “ enhancement” or “ merit” point to a minority applicant. 88 For example, “ [t]he FCC awards a merit under the diversification-of- ownership criterion to an applicant if a substantial percentage of the applicant is owned by one or more minorities.” 89 Interestingly, in TV 9, Inc. v. Federal Communica- tions Commission, 90 the Commission argued that “ be- cause the Federal Communications Act was ‘color- blind,’ it would take an applicant’s race into account 83. Id. § 309(i)(3)(C)(ii). 84. Id. § 309(i)(3)(A); see Implementation of Section 309(j) of the Com- munications Act, 14 F.C.C.R. 12,541 (1999) (memorandum opinion and order); Implementation of Section 309(j) of the Communications Act, 13 F.C.C.R. 15,920, 15,921 (para. 1) (1998) (first report and order). 85. The Communications Act of 1996 generally requires the Commission to auction unissued licenses for television and radio stations to the highest bidder. See 47 U.S.C. §§ 309(j) (Supp. III 1997). Consistent with this man- date, the Commission is planning on using auctions to distribute all open licenses for commercial television and radio stations. See Bill McConnell, FCC Sets Broadcast Auction, BROADCASTING & CABLE, May 17, 1999, at 19, 19-20. 86. Matthew L. Spitzer, Justifying Minority Preferences in Broadcasting, 64 S. CAL. L. REV. 293, 297-98 (1990-91); see also 47 U.S.C. §§ 301, 307, 309 (1994). 87. Spitzer, supra note 86, at 298; see also Policy Statement on Compara- tive Broadcast Hearings, 1 F.C.C.2d 393, 394-95 (1965). 88. Spitzer, supra note 86, at 298; see also West Mich. Broad. Co. v. FCC, 735 F.2d 601 (D.C. Cir. 1984), cert. denied, 470 U.S. 1027 (1985); Cen- tral Fla. Enter. v. FCC, 598 F.2d 37, 49-51 (D.C. Cir 1978), cert. dis- missed, 441 U.S. 957 (1979). 89. Spitzer, supra note 86, at 298. 90. 495 F.2d 929, 936 (D.C. Cir. 1973), cert. denied, 419 U.S. 986 (1974). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 119 only to the extent that the applicant could show that its owner’s race would likely lead to better, more di- verse programming in the particular case.” 91 The U.S. Court of Appeals for the District of Columbia Circuit rejected the Commission’s position. Instead, the court “ essentially requir[ed] the FCC to award a merit to all minority applicants without any demonstration that the award would improve programming service.” 92 Ac- cordingly, in the comparative hearing context, minor- ity status 93 by itself would potentially result in preferential treatment. The Commission did not require any proof of a meaningful connection between minority station ownership and viewpoint diversity before granting a preference. 94 Although the Commission at- tempted to extend its comparative hearing preference to female applicants, the D.C. Circuit twice rejected the Commission’s effort to expand the program in this way. 95 The distress sale program likewise grants minori- ties a benefit based solely on their minority status and on the assumption that a reasonably direct link exists between minority ownership and a station’s pro- gramming policies. 96 When the Commission has good cause to question whether a particular broadcast licensee remains qualified to hold a license, the Commission issues an order to show cause and schedules a hearing 91. Spitzer, supra note 86, at 298. 92.Id. at 298-99 (citing TV 9, Inc. v. FCC, 495 F.2d 929, 938 (D.C. Cir. 1973)). 93. The Commission later expanded this rule to include women; however, the Commission granted women a preference “ of lesser significance.” See Ap- plication of Mid-Florida Television Corp., 69 F.C.C.2d 607, 652 (para. 95) (1978). 94.See Spitzer, supra note 86, at 299. 95.See Lamprecht v. FCC, 958 F.2d 382, 383-86 (D.C. Cir. 1992); Steele v. FCC, 770 F.2d 1192, 1193-94, 1196-99 (D.C. Cir. 1985). 96. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 567-72, 579-89 (1990) (sustaining the distress sale policy on diversity grounds and accepting the Commission’s argument that race serves as an effective proxy for view- point); Statement of Policy on Minority Ownership of Broadcasting Facili- ties, 68 F.C.C.2d 979, 980-81 (1978) (defending the need for distress sales because “ representation of minority viewpoints in programming serves not only the needs and interests of the minority community . . . . It enhances the diversified programming which is a key objective . . . of the Communications Act of 1934.” ); David P. Stoelting, Case Note, Minor- ity Business Set-Asides Must Be Supported by Specific Evidence of Prior Discrimination, 58 U. CIN. L. REV. 1097, 1133 (1990) (“ The purpose of the distress sale policy was to encourage a diversity of viewpoints in the airwaves by diversifying ownership and to remedy the effects of past dis- crimination in the broadcast industry.” ). KROTO.DOC 12/07/00 9:35 AM 120 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 to take evidence on the question of the licensee’s fitness and character. 97 Before that hearing takes place, “ the licensee may arrange to sell the license to a minority purchaser for not more than seventy-five percent of fair market value.” 98 In return for that investment, the minority purchaser receives a “ clean” license. 99 The Commission implemented the distress sale policy to further the goal of “ [f]ull minority participation in the ownership and management of broadcast facilities [that] results in a more di- verse selection of programming.” 100 The Commission has not extended the distress sale policy to female pur- chasers. 101 The final policy, tax certificates, was designed to increase minority ownership and management of broadcast facilities, thereby diversifying the pro- gramming available to the public. 102 Under the tax cer- tificate policy, the Commission granted the seller of a license a tax certificate when the seller trans- ferred a station to “ parties with a significant mi- nority interest.” 103 Via the tax certificate, the seller was permitted to defer any capital gain tax on the sale, provided that the monies were reinvested within a certain time. 104 Because of the clear tax benefits, “ [t]his policy gave the seller a substan- tial incentive to seek out qualified minority buyers and accept offers from minority buyers even where the minorities offered less money than prospective white 97.See Statement of Policy on Minority Ownership of Broadcast Facili- ties, 68 F.C.C.2d at 981; see also Jeff Dubin & Matthew L. Spitzer, Testing Minority Preferences in Broadcasting, 68 S. CAL. L. REV. 841, 845 (1995). 98. Dubin & Spitzer, supra note 97, at 845. 99. See id. 100. Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d at 981. Of course, there is no empirical data to support that con- clusion. 101.See Petition for Issuance of Policy Statement or Notice of Inquiry by National Telecommunications and Information Administration, 69 F.C.C.2d 1591, 1593 n.9 (1978) (memorandum opinion and order) (“ [W]e have not con- cluded that the historical and contemporary disadvantagement 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 pref- erential category defined by the presence of ‘minority groups.’” ). 102. See Statement of Policy on Minority Ownership of Broadcast Facili- ties, 68 F.C.C.2d at 983. 103.Id.; see also 26 U.S.C. § 1071 (1994). 104.See Statement of Policy on Minority Ownership of Broadcast Facili- ties, 68 F.C.C.2d at 983. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 121 purchasers.” 105 As with the distress sale program, the tax certificate program when in force did not apply to women. 106 In 1995, Congress repealed the statutory pro- vision authorizing the issuance of tax certificates; to date, Congress has not passed legislation reinstat- ing the availability of the tax certificate program. 107 2. Outlet Diversity The Commission has imposed several restrictions on the number and combination of stations that any one broadcaster may own or control. 108 These restrictions include the “ duopoly” rule, 109 the “ one-to-a market” rule, 110 the daily newspaper/radio cross-ownership 105.Id. at 981. 106.See Spitzer, supra note 86, at 299-300. 107.See Bill McConnell, Push for Minority Tax Certificates, BROADCASTING & CABLE, Mar. 29, 1999, at 9, 9. Commissioner Michael Powell and Senator John McCain currently support legislation to revive the minority tax certificate program. See Paige Albiniak & Bill McConnell, McCain Floats Tax Certificate Draft, BROADCASTING & CABLE, Sept. 20, 1999, at 22, 22; David Hatch, McCain Un- veils Tax Certificate Plan, ELECTRONIC MEDIA, Apr. 26, 1999, at 4, 27. 108.See 47 C.F.R. § 73.3555 (1998) . 109. This rule formerly stated “ that a party may not own, operate or con- trol two or more broadcast television stations with overlapping ‘Grade B’ signal contours.” 1998 Biennial Review, supra note 18, at 11,279-80 (para. 9) (quoting 47 C.F.R. § 73.3555(b) (1998)). This effectively meant that a single entity could not own or control two television stations within the same community, or even in closely neighboring communities (e.g., Wash- ington, D.C. and Baltimore, Maryland). The Commission repealed the duopoly rule in August 1999, and replaced it with a “ two-to-a-market” rule, pro- vided that certain conditions are satisfied. Under the new rules, a single entity may own or control two television stations in the same market if the second station is not among the top four stations in ratings and the market has at least eight separately owned stations. See 47 C.F.R. § 73.3555 (1998); Broadcast Television National Ownership Rules, Review of the Commis- sion’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,907-12, 12,975- 77 (paras. 8-12, app. B) (report and order) (1999). The Commission will also permit a single entity to own or control two television stations in a market if the second station has failed, is failing, or remains unbuilt notwith- standing the issuance of a valid license and construction permit. See 47 C.F.R. § 73.3555 n.7 (1998); Broadcast Television National Ownership Rules, Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Station Review of Policy and Rules, 14 F.C.C.R. at 12,954-58 (paras. 115-25). 110. Prior to August 1999, this rule “ generally prohibit[ed] the common ownership of a television and radio station in the same market.” 1998 Bien- nial Review, supra note 18, at 11,279 (para. 9) (quoting 47 C.F.R. § 73.3555(c) (1998)). In 1989, the Commission amended this rule to state that it would: “ look favorably” on requests for waiver of the restrictions in the top 25 television markets if, after the merger, at least 30 independ- ently owned broadcast voices remain, or if the merger involved a “ failed station.” Case-by-case review of a waiver of request is also KROTO.DOC 12/07/00 9:35 AM 122 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 rule, 111 local radio ownership rules, 112 the dual net- work rule, 113 the UHF and television discount, 114 and provided for in instances where the presumptive waiver of criteria are not present. Section 202(d) of the [Telecommunications Act of 1996, Pub. L. No. 104-104, § 202(d), 110 Stat. 56, 111] directed the Commis- sion to extend its presumptive waiver policy to the top fifty televi- sion markets if it finds that doing so would be in the public inter- est. Id. In August 1999, the Commission abandoned the one-to-a-market rule, per- mitting a single entity to own both a television station and a radio station in the same community of license. See Broadcast Television National Owner- ship Rules, Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Station Review of Policy and Rules, 14 F.C.C.R. at 12,947-53 (paras. 100-114). Having repealed the one-to-a-market rule, the Commission now claims to be out of the waiver business. See Bill McConnell, No Favors, No Waivers, BROADCASTING & CABLE, Sept. 13, 1999, at 24, 24. 111. This rule “ generally prohibits the common ownership of a daily news- paper and a radio station in the same community” and applies to all newspa- per/broadcast cross-ownership situations. 1998 Biennial Review, supra note 18, at 11,279 (para. 9) (citing 47 C.F.R. § 73.3555(d) (1998)). 112. Section 202(b) of the Telecommunications Act of 1996 directed the Commission to relax its radio multiple ownership rules to allow common own- ership as follows: (A) in radio markets with 45 or more commercial radio stations, a party may own, operate, or control up to 8 commercial radio stations, not more than 5 of which are in the same service (AM or FM); (B) mar- kets with between 30 and 44 (inclusive) commercial radio stations, a party may own, operate, or control up to 7 commercial radio stations, not more than 4 of which are in the same service; (C) markets with be- tween 15 and 29 (inclusive) commercial radio stations, a party may own, operate, or control up to 6 commercial radio stations, not more than 4 of which are in the same service; and (D) in markets with 14 or fewer commercial radio stations, a party may own, operate, or control up to 5 commercial radio stations, not more than 3 of which are in the same service (AM or FM), except that a party may not own, operate, or control more than 50 percent of the stations in such market. Telecommunications Act of 1996, Pub. L. No. 104-104, § 202(b)(1), 110 Stat. 56, 110. Also, Section 202(a) of the Telecom Act directed the Commission to eliminate its national radio ownership restrictions, which the Commission has now done; consequently, there are now no limits on the number of radio stations that may be owned nationally. See id. § 202(a), 56 Stat. at 110; Implementation of Sections 202(a) and 202(b)(1) of the Telecommunications Act of 1996, 11 F.C.C.R. 12368, 12,368-69 (para. 2) (1996) (order). 113. Section 202(e) of the Telecom Act directed the Commission to revise its “ dual network” rule order, 47 C.F.R. § 73.658(g). See Telecommunica- tions Act § 202(e), 56 Stat. at 111. Under the pre-Telecom Act dual network rule, “ the Commission generally prohibited a party from affiliating with a network organization that maintained more than one network of television broadcast stations.” 1998 Biennial Review, supra note 18, at 11,283-84 (para. 24). Pursuant to a directive in the Telecom Act, the Commission re- vised the rule to permit a television broadcast station to affiliate with a person or entity that maintains two or more networks of television broadcast stations unless such networks are composed of: (1) two or more persons or entities that were “ networks” upon the date the Telecom Act was enacted; or (2) any such network in an English-language program dis- tribution service that on the date of the Telecom Act’s enactment pro- vided 4 or more hours of programming per week on a national basis pur- suant to network affiliation arrangements with local television KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 123 the daily newspaper/broadcast cross-ownership rule. 115 All of these multiple ownership rules rest on the “ twin goals of promoting diversity and economic com- petition.” 116 Outlet diversity bears a close relation- ship to viewpoint diversity; by dividing up the owner- ship of media assets, the Commission hopes to ensure the distribution of diverse programming and, hence, viewpoints. 3. Source Diversity The Commission, in its continuing effort to foster source diversity, adopted financial interest and syn- dication rules (commonly known as the fin/syn rules). 117 These rules “ limit network control over television programming and thereby foster diversity of programming through the development of diverse and an- tagonistic programming sources, [and restrict] the ability of the three established networks (ABC, CBS, NBC) to own and syndicate television programming.” 118 Under severe judicial criticism, 119 the Commission “ voluntarily” scrapped these rules because it was unable to demonstrate that these rules advanced the goal of ensuring diversity with respect to programming broadcast stations and markets reaching more than 75 percent of tele- vision households. Id. (footnotes omitted). 114. The national television ownership rule states that an entity may own any number of television stations (subject to the restrictions of the local ownership rule) so long as “ the combined audience reach of the stations does not exceed 35 percent, as measured by the number of television households and their respective ADIs [Area of Dominant Influence]. Under [the Commis- sion’s] rules, UHF and television stations are attributed with 50 percent of the television households in their ADI market.” 1998 Biennial Review, supra note 18, at 11,284 (para. 25) (citing 47 C.F.R. § 73.3555(e)(2)(i) (1997)). 115. This “ rule prohibits the common ownership of a broadcast station and a daily newspaper in the same locale.” Id. at 11,285-86 (para. 28) (citing 47 C.F.R. § 73.3555(d) (1994)). 116.Id. 117. See Suzanne Rosencrans, The Questionable Validity of the Network Syndication and Financial Interest Rules in the Present Environment, 43 FED. COMM. L.J. 65, 65-68 (1990); Tamber Christian, The Financial Interest and Syndication Rules— Take Two, COMMLAW CONSPECTUS 107, 107-109 (1995); Marc L. Herskovitz, Note, The Repeal of the Financial Interest and Syndication Rules: The Demise of Program Diversity and Television Network Competi- tion?, 15 CARDOZO ARTS & ENT. L.J. 177 (1997). 118. Review of the Syndication and Financial Interest Rules, Section 73.655-73.663 of the Commission’s Rules, 10 F.C.C.R. 12,165, 12,165 (para. 3) (1995) (report and order). 119. See, e.g., Capital Cities/ABC, Inc., v. FCC, 29 F.3d 309 (7th Cir. 1994); Schurz Comm. v. FCC, 982 F.2d 1043 (7th Cir. 1992). KROTO.DOC 12/07/00 9:35 AM 124 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 sources. 120 Given the existence of a competitive mar- ketplace for programming and the emergence of two new television networks, 121 the fin/syn rules no longer served their original purpose of fostering diversity in television program production and distribution mar- kets. 122 The Commission also determined that the net- works likely would not act in ways detrimental to pro- gramming source diversity following deregulation, 123 and if they should attempt to do so, antitrust laws would provide an adequate remedy. 124 C. Incoherence and Contradictions in the Diversity Programs’ Definitions and Goals With the possible exception of the Commission’s attempts to create structural diversity through its multiple station ownership restrictions, the Commis- sion’s diversity efforts have not achieved their in- tended goals and purposes. Indeed, in at least some instances, the Commission’s efforts have perhaps im- peded the goal of promoting a particular manifestation of diversity. 1. Race as a Proxy for Programming Historically, the Commission’s EEO rules assume that a person holds a predetermined set of viewpoints based on his race. 125 Those viewpoints will then, by virtue of that person’s mere presence at a broadcast station, contribute to the diversity of viewpoints re- flected in that station’s programming. Yet there sim- ply is no reliable empirical evidence linking a per- 120.See Review of the Syndication and Financial Interest Rules, Section 73.655-73.663 of the Commission’s Rules, 10 F.C.C.R. at 12,168-71 (paras. 16-30); Review of the Syndication and Financial Interest Rules, Sections 73.655-73.663 of the Commission’s Rules, 10 F.C.C.R. 5672, 5672-73 (paras. 1-9) (1995) (notice of proposed rule making); Evaluation of the Syndication and Financial Interest Rules, 8 F.C.C.R. 3282, 3284-3311 (paras. 3-52) (1993). 121. The Commission was referring to UPN and Fox. See Review of the Syndi- cation and Financial Interest Rules, 10 F.C.C.R. at 12169-71 (paras. 23-27). In the last five years, two additional networks have entered the scene: War- ner Brothers and PAX. See John Marks, TV’s Lucky Seventh?, U.S. NEWS & WORLD REP., Sept. 7, 1998, at 38. 122.See 1998 Biennial Review, supra note 18, at 11,285-86 (para. 28). 123. See id. at 11,277 (para. 3). 124. See id. 125.See supra notes 21-34 and accompanying text. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 125 son’s minority status to his viewpoints. 126 Moreover, the Commission has failed to consider other means of promoting program diversity that do not rely on sus- pect race- and gender-based classifications. 127 These same observations also apply to the Commission’s at- tempts to vest broadcasting licenses with minority station owners. 128 2. Monopoly Promotes Programming Diversity The multiple ownership restrictions the Commission has imposed 129 are effective at fostering competition in local media markets. A consequence of fostering that competition, however, might be a net decrease in the number of programming formats available within a particular media market. More specifically, broadcast- ers receive their income from advertising revenues. In turn, these advertising revenues are contingent on the popularity of the station’s programming with local viewers or listeners. The larger the audience the sta- tion generates, the higher the station’s potential ad- vertising revenues. Broadcasters, therefore, attempt to find and air programming that will appeal to the largest possible audience. In doing so, broadcasters necessarily air programming that is likely to appeal to most people within the potential audience— that is, they air programming that appeals to the majority cul- ture’s viewpoint. In contrast, if a broadcast station owner owned multiple stations in a particular local market, he would be better able to target individual niche mar- kets (minority culture viewpoints) via different pro- gramming formats on separate stations without fearing a diminution in his core or base audience. 130 In the presence of a competing station with the same or a 126. The Commission has been unable to point to “ a single piece of evi- dence” that links low-level employees to programming content. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 356 (D.C. Cir. 1998); see also Lamprecht v. FCC, 958 F.2d 382, 398 (D.C. Cir. 1992) (holding that the Com- mission’s attempts to establish a sex-based preference were unconstitutional because the Commission failed to proffer evidence supporting a link between female ownership and “ female programming” ). 127.See infra notes 252-56 and accompanying text. 128.See infra notes 257-316 and accompanying text. 129.See supra notes 37-67 and accompanying text. 130.See Schurz Comm., Inc. v. FCC, 982 F.2d 1043, 1054-55 (7th Cir. 1992); KRATTENMAKER & POWE, supra note 3, at 40-45. KROTO.DOC 12/07/00 9:35 AM 126 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 similar format, however, the core local audience might simply tune in to the competitor if the broadcaster did not offer a host of fairly similar programming op- tions. Preventing or limiting the ability of broad- casters to own multiple stations within a single mar- ket significantly impairs the ability of broadcasters to target niche audiences, primarily because doing so would result in a net loss of advertising revenue. Thus, the multiple ownership restrictions can actually diminish programming diversity within a single market. On the other hand, significant benefits may be as- sociated with diversifying the ownership of media out- lets, even if such diversification leads to fewer pro- gramming formats within a particular market. 131 The owners of a television or radio station possess a unique ability to influence the direction of public affairs through selective coverage of contemporary events and candidates for public office. 132 Thus, the Commission must choose a course between pursuing poli- cies likely to lead to diversity in program formats and policies designed to limit the concentration of media holdings in too few hands. Because the means to each objective are directly contradictory, it is not possible to pursue both objectives simultaneously. D. Divided Media Power as Public Good The Framers took great pains to divide and sepa- rate political power. Not content with creating a fed- eral system in which the states and the federal gov- ernment would compete for power and influence, they further divided power at the federal level by estab- lishing three largely independent branches of govern- ment. 133 The Framers feared that undue concentrations of political power would lead to tyranny. 134 If it was 131.See infra notes 317-38 and accompanying text; see also Review of the Commission’s Regulations Governing Television Broadcasting; Television Sat- ellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,914-16 (paras. 21-24) (1999) (report and order). 132.See Office of Comm. of the United Church of Christ v. FCC, 359 F.2d 994, 998 (D.C. Cir. 1966); see also Review of the Commission’s Regulations Governing Television Broadcasting; Television Satellite Stations Review of Policy and Rules, Report and Order, 14 F.C.C.R. at 12,911-14 (paras. 17-21). 133.See THE FEDERALIST NO. 9, at 47 (Alexander Hamilton) (Random House 1937); THE FEDERALIST NO. 46, at 304 (James Madison) (Random House 1937); THE FEDERALIST NO. 47, at 312 (James Madison) (Random House 1937); THE FEDERALIST NO. 51, at 335 (Alexander Hamilton & James Madison) (Random House 1937). 134.See John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 127 prudent for the Framers to fear the ill effects of un- checked political power, we should consider carefully the potential ill effects associated with unchecked concentrations of media power. To be sure, concentrations of political power pre- sent a more direct kind of threat to democracy than do concentrations of media power. That said, it is possi- ble to use media power as a means of channeling, if not controlling, the flow of political power. 135 The owner of a television or radio station has a unique opportunity to influence the outcomes of electoral contests— both by reporting on candidates favorably and unfavorably and through benign (or malign) ne- glect. Media exposure is like oxygen to candidates for political office, particularly at the federal level. If a television station pretends that a candidate does not exist, her chances of election are considerably reduced. 136 It is certainly true that candidates for federal office have a statutory right of access to television and radio stations. 137 Accordingly, if a candidate for federal office has sufficient funds available, she can use the mass media to reach the electorate regardless of whether a particular radio or television station’s owners support the candidate or her policies. 138 As a practical matter, however, this right of access means little in the face of concerted negative media cover- age. Ross Perot, for example, spent millions of dol- lars to promote his candidacy for the presidency in REV. 1311, 1362-74, 1403-05 (1997). 135. As Professor Patricia Williams has explained: “ [T]he property of the communications industry is all about the production of ideas, images, and cultural representations, but it also selectively silences even as it creates.” Patricia J. Williams, Comment, Metro Broadcasting, Inc. v. FCC: Regrouping in Singular Times, 104 HARV. L. REV. 523, 537 (1990). 136. In this regard, consider the fate of minor party presidential candi- dates. Very few readers could even name the Libertarian Party’s candidate for president in the 1996 general election, even though Harry Browne’s name appeared on every state ballot in the country. See Donald P. Baker, Third Party “ Musketeers” Duel on TV, WASH. POST, Oct. 23, 1996, at A20. But see Arkansas Educ. Television Comm. v. Forbes, 523 U.S. 666, 683 (1998) (uphold- ing against a First Amendment challenge the editorial discretion of a pub- licly owned and operated television station to exclude “ minor” candidates from a televised candidates’ debate). In the 1996 presidential election, lo- cal television and radio stations did not go out of their way to disparage the Libertarian Party candidate— they simply ignored him. The net effect was quite the same. 137.See 47 U.S.C. §§ 312(a)(7), 315 (1994). 138.See generally Buckley v. Valeo, 424 U.S. 1 (1976). KROTO.DOC 12/07/00 9:35 AM 128 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 1992 and 1996, but persistent negative media coverage of his candidacy significantly blunted the effective- ness of those expenditures. 139 Although money can be used to influence the outcome of elections, sometimes even distorting the process of democratic delibera- tion, 140 its power is significantly limited by the broadcast media’s ability to drown out any message it does not find congenial. This linkage between media power and political power gives rise to a compelling need to check media power to avoid disruption of the electoral process. Just as unchecked political power presents an unac- ceptable threat to liberty, so, too, unchecked media power requires structural controls to maintain a vi- able marketplace of ideas. 141 To the extent that the Commission’s diversity policies have as their objec- tive dividing and checking media power, these policies serve a critical function. Critics of the Commission’s policies who advocate sole reliance on market forces to protect diversity have simply failed to consider the importance of maintaining structural diversity among the electronic media as a means of enhancing de- mocracy. Of course, to concede that a strong rationale exists for structural regulations that promote diver- sity within the broadcast media is not to say that the Commission’s current regulations meet this need effec- tively. 139. This is not to say, however, that Mr. Perot’s own efforts did his candidacy much good. See Kenneth T. Walsh & Linda Kulman, The Gilded Age of American Politics: Millionaires Are Lining up to Run for Office, U.S. NEWS & WORLD REP., May 20, 1996, at 26. Although Mr. Perot spent over $60 million of his own money on his 1992 presidential campaign, he won only 19% of the popular vote. See id. Other unsuccessful candidates who have expended large sums of money without generating much electoral success include Michael Huffington, who spent $30 million on his 1994 California senate race; Steve Forbes, who spent $37 million on his 1996 primary campaign for the GOP presidential nomination; and Al Checchi, who spent a record-setting $38 mil- lion on his primary campaign for governor of California but received only 22% of the popular vote. See Dan Balz, Once Again, It’s Okay to Be a Politi- cian, WASH. POST, June 4, 1998, at A1; Jack Germond & Jules Witcover, Elec- tions for Sale? Not Very Often, SAN DIEGO UNION-TRIBUNE, Nov. 29, 1997, at B10; Big Spenders Facing California Voters, NEWSDAY, June 3, 1998, at A19. 140.See Owen M. Fiss, Money and Politics, 97 COLUM. L. REV. 2470 (1997). 141.See infra notes 317-38 and accompanying text; see also ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 56 (1948). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 129 III.DIVERSITY AS RACE: A PROBLEMATIC APPROACH TO IMPLEMENTING THE DIVERSITY PROGRAM Even conceding the utility of diversity as a cor- nerstone principle in federal broadcast regulation, the Commission’s efforts to implement this goal have been wildly wide of the mark. Consider, for example, the Commission’s attempts to increase the number of minority-owned radio and television stations and its concurrent efforts to promote the employment of mi- norities by broadcast licensees. Using the rubric of diversity, the Commission has attempted to implement a variety of race- and gender-based programs. Although the federal courts once demonstrated a willingness to acquiesce in such efforts, recent developments suggest that this aspect of the Commission’s diversity agenda could be in grave danger. A. Metro Broadcasting and Diversity In 1990, the Supreme Court issued its landmark opinion Metro Broadcasting, Inc. v. FCC. 142 Metro Broadcasting upheld the validity of the Commission’s comparative preference and distress sale policies against arguments that these policies violated the equal protection principle implicit in the concept of due process of law. 143 The Court held that ostensibly “ benign” racial classifications would pass constitu- tional muster only if the classifications “ serve im- portant governmental objectives within the power of Congress and are substantially related to the achieve- ment of those objectives.” 144 Applying that standard, the Court concluded that programming diversity is an “ important governmental objective” and can “ serve as a constitutional basis for the preference poli- cies.” 145 The Court then found program diversity “ sub- stantially related” to minority ownership. 146 In so doing, however, the Court gave “ Congress and the FCC every possible benefit of the doubt.” 147 In fact, 142. 497 U.S. 547 (1990). 143. Id. at 552; see Bolling v. Sharpe, 347 U.S. 497, 500 (1954); see also U.S. CONST. amend. XIV, § 1. 144. Metro Broad., 497 U.S. at 549. 145.Id. at 566. 146.Id. 147. Dubin & Spitzer, supra note 97, at 849-50. As a preliminary matter, the Court noted that “ [i]t is of overriding significance . . . that the KROTO.DOC 12/07/00 9:35 AM 130 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 “ [t]he Court refused to examine the facts behind FCC policies, refused to question congressional findings, and characterized the relevant legislative history in a very deferential fashion.” 148 Whether such deference was actually justified is a matter open to serious doubts. 149 Although the Court noted that Congress found that “ the effects of past inequities stemming from racial and ethnic discrimination have resulted in a severe underrepresentation of minorities in the media of mass communications,” 150 the Court explained that “ Congress and the Commission [did] not justify the minority own- ership policies strictly as remedies for victims of this discrimination . . . .” 151 Instead, the Commis- sion argued that its minority ownership policies ex- isted “ primarily to promote programming diversity.” 152 The Court accepted this justification and concluded that the “ interest in enhancing broadcast diversity is, at the very least, an important governmental ob- jective and is therefore a sufficient basis for the Commission’s minority ownership policies.” 153 In analyzing the second prong of its equal protec- tion inquiry, the Court held that “ the minority own- ership policies are substantially related to the achievement of the Government’s interest” in enhanc- ing broadcast diversity. 154 The Court reached this con- clusion without the benefit of any definitive empiri- cal evidence demonstrating the existence of such a relationship. Indeed, the Court relied on the Commis- sion’s conclusory statement that there is “ an empiri- FCC’s minority ownership programs have been specifically approved— indeed, mandated— by Congress.” Metro Broad., 497 U.S. at 563. The Court observed that based on general separation of powers principles, it should provide an appropriate level of deference to such congressional findings. Id. (citing Fullilove v. Klutznick, 448 U.S. 448 (1980)). Ultimately, the Court placed great emphasis on the fact that Congress had blessed the Commission’s pro- grams. See id. at 564-65. 148.Id. 149. See generally Neal Devins, Metro Broadcasting, Inc. v. FCC: Requiem for a Heavyweight, 69 TEX. L. REV. 125 (1990). 150. Metro Broad., 497 U.S. at 566 (quoting H.R. CONF. REP. NO. 97-765, at 43 (1982), reprinted in 1982 U.S.C.C.A.N. 2237, 2261, 2287). 151.Id. at 566; see also id. at 611 (O’Connor, J., dissenting) (“ The FCC appropriately concedes that its policies embodied no remedial purpose . . . and has disclaimed the possibility that discrimination infected the alloca- tion of licenses.” ). 152. Id. at 566. 153.Id. at 567. 154.Id. at 569. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 131 cal nexus between minority ownership and broadcasting diversity,” 155 noting that this conclusion was a “ product of [the Commission’s] expertise.” 156 In con- sequence, the Court accorded the Commission’s state- ments the requisite deference. 157 The Court also noted that “ Congress . . . has made clear its view that the minority ownership policies advance the goal of di- verse programming.” 158 Although the Court engaged in a lengthy discussion of the congressional history of dealing with minority ownership issues in the broad- cast context, 159 nowhere did the Court point to any concrete congressional factual findings demonstrating that the policies effectively advanced the goal of di- verse programming. 160 Four dissenting Justices (who subsequently joined the Adarand majority) maintained that the Commission’s desire to use race as a proxy for program diversity was fundamentally at odds with the equal protection principle. 161 Justice O’Connor, writing for the dis- senters, described the Commission’s interests as “ certainly amorphous” 162 and emphasized that “ the in- terest in diversity of viewpoint provides no legiti- mate, much less important, reason to employ race clas- sifications apart from generalizations impermissibly equating race with thoughts and behavior.” 163 155.Id. at 570. 156. Id. 157. See id. 158.Id. at 572. 159.Id. at 572-79. 160.See generally Note, Deference to Legislative Fact Determinations in First Amendment Cases After Turner Broadcasting, 111 HARV. L. REV. 2312 (1998). 161. See Metro Broad., 497 U.S. at 602-03 (O’Connor, J., dissenting). 162.Id. at 614. 163. Id. at 615. Justice O’Connor added: The FCC and the majority of this Court understandably do not suggest how one would define or measure a particular viewpoint that might be associated with race, or even how one would assess the diversity of broadcast viewpoints. Like the vague assertion of societal discrimina- tion, a claim of insufficiently diverse broadcasting viewpoints might be used to justify equally unconstrained racial preferences, linked to nothing other than proportional representation of various races. And the interest would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to insure that the broadcasting spectrum continues to reflect that mixture. We cannot deem to be constitutionally adequate an inter- est that would support measures that amount to the core constitutional violation of “ outright racial balancing.” Id. at 614. KROTO.DOC 12/07/00 9:35 AM 132 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 B. After the Fall: Adarand and the Diversity Project In Adarand Constructors, Inc. v. Pena, 164 the Su- preme Court revisited its Metro Broadcasting holding that benign race-based affirmative action programs are subject to an intermediate level of scrutiny. The pro- gram at issue in Adarand was the brainchild of the De- partment of Transportation rather than the Commission. Essentially, the department provided significant financial bonuses to primary contractors who enlisted the help of minority-owned and -operated subcontrac- tors. 165 The Adarand Court declined to follow Metro Broadcasting and squarely held “ that all racial clas- sifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a re- viewing court under strict scrutiny.” 166 Writing for the majority, Justice O’Connor explained that under this standard of review, “ such classifications are constitutional only if they are narrowly tailored measures that further a compelling governmental inter- est.” 167 The Adarand Court expressly overruled Metro Broadcasting, at least insofar as anything in Metro Broadcasting conflicted with the Court’s opinion in Adarand. 168 In the Commission’s first response to Adarand, it amazingly concluded that Adarand did not implicate its EEO program. 169 The Commission maintained that the EEO program was an efforts-based program that did not re- quire a station to hire anyone based on race— in other words, it was race-neutral. 170 According to the Commis- sion, race-neutral programs did not violate equal pro- tection principles, much less trigger strict judicial scrutiny. 171 The Commission relied heavily on a memo- randum authored by then-Assistant Attorney General Walter E. Dellinger III. 172 Dellinger’s analysis of 164. 515 U.S. 200 (1995). 165. See id. at 204-05. 166.Id. at 227 (emphasis added). 167.Id. 168. See id. 169.See WCCB-TV, Inc., 11 F.C.C.R. 19,680, 19,682-83 (para. 11) (1996) (“ [W]e conclude that Adarand does not implicate our EEO program.” ). 170.See supra notes 37-66 and accompanying text. 171. See, e.g., Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350- 52 (D.C. Cir. 1998). 172.See Streamlining Broadcast EEO Rule, supra note 43, at 5162 (para. 15). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 133 Adarand concluded that: Mere outreach and recruitment efforts . . . typically should not be subject to Adarand stan- dards. Indeed, post-[Richmond v. JA Croson, Co. 173 ] cases indicate that such efforts are con- sidered a race-neutral means of increasing minor- ity opportunity. In some sense, of course, the targeting of minorities through outreach and re- cruitment campaigns involves race-conscious ac- tion. But the objective there is to expand the pool of applicants or bidders to include minori- ties, not to use race or ethnicity in the actual decision. If the government does not use racial or ethnic classifications in selecting persons from the expanded pool, Adarand ordinarily would be inapplicable. 174 Scrutiny of Professor Dellinger’s analysis reveals its flaws. On its face, Adarand requires strict scru- tiny of any use of race as a shorthand, regardless of the government’s purpose in doing so. Moreover, the use of outreach efforts, if coupled with statistical analysis of the success or failure of such efforts, could effectively bypass Adarand’s mandate by simply substituting an obligation to recruit broadly (coupled with quantitative analysis of the success of these ef- forts) for direct, outcome-based hiring quotas. 175 To the extent that outreach based efforts constitute a response to the problem of race- or gender-based dis- crimination, such efforts could well be constitu- tional. That said, Adarand’s analysis would apply to such programs; it seems quite possible, however, that anti-discrimination outreach based programs would sur- vive strict scrutiny. 176 The Supreme Court’s most re- cent pronouncements on the “ benign” use of race- based classifications support these conclusions. In Croson, which the Adarand Court cited with ap- proval, 177 Justice O’Connor, writing for the majority, cited the following examples of race-neutral measures to increase minority participation in the construction 173. 488 U.S. 469 (1989). 174. Memorandum from Walter Delinger, Assistant Attorney General, Office of Legal Counsel, U.S. Dep’t of Justice, to all Agency General Counsels 7 (June 28, 1995), reprinted in Streamlining Broadcast EEO Rule, supra note 43, at 5162 (para. 15) (citations omitted). 175. See infra notes 252-316, 457-64 and accompanying text. 176. See infra notes 434-49 and accompanying text. 177. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 221-22 (1995). KROTO.DOC 12/07/00 9:35 AM 134 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 industry: (1) small business preferences; (2) simpli- fication of bidding procedures; (3) reduced bond re- quirements; and (4) “ training and financial aid for disadvantaged entrepreneurs of all races.” 178 Accord- ing to the Croson majority, these measures reflected classifications based on factors other than race and/or gender and were, correspondingly, not subject to strict scrutiny. 179 Significantly, none of these al- ternatives rely directly upon classifications of race (or gender) for inclusion. The Supreme Court reiterated its position regard- ing the necessity of using race-neutral classifica- tions, rather that race-based classifications, in Miller v. Johnson, 180 a case decided only weeks after Adarand. The Miller Court explained that because the targeting of socioeconomic groups is not a distinction based on race, it is not a classification subject to strict scrutiny. 181 Because the classification is fa- cially race-neutral, it will be deemed a race-neutral classification even though a disproportionate number of minorities might fall within it. 182 This conclusion would probably hold true even if increasing the number of minorities contracting with the government agency is one of the principal reasons motivating the adop- tion of the classification. 183 Consistent with this analysis, the Commission’s EEO rules are thus race- neutral only if they require stations to target, or interview, individuals from sectors of the public based on factors other than the race and/or gender of the specified applicant pool. Of course, the EEO rules are not facially race- neutral. Rather than requiring licensees to seek job applications from broad segments of the community 178. Croson, 488 U.S. at 509-10. On the other hand, following Croson, sev- eral federal courts recognized certain affirmative action programs to be race-neutral. See, e.g., Branch v. Seibels, 31 F.3d 1548, 1571 (11th Cir. 1994); Peightao v. Metropolitan Dade County, 26 F.3d 1545, 1557-58 (11th Cir. 1994); Billish v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir. 1992), rev’d on other grounds, 989 F.2d 890 (7th Cir. 1993) (en banc); Raso v. Lago, 958 F. Supp. 686, 701-04 (D. Mass. 1997); Shuford v. Alabama State Bd. of Educ., 897 F. Supp. 1535, 1553 (N.D. Ala. 1995). 179. See Croson, 488 U.S. at 493-98. 180. 515 U.S. 900, 916 (1995) (targeting of socioeconomic community is not a distinction based on race.). 181. See id. 182. See id. 183.See Washington v. Davis, 426 U.S. 229, 242 (1976); McCray v. United States, 195 U.S. 27, 56 (1904). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 135 without regard to the applicants’ race or gender, in several instances the EEO rules make express reference to the specific targeting of minorities for a sta- tion’s recruitment efforts. 184 Without a doubt, the EEO rules require a station to make a decision— who to target for an interview— based on race. The initial argument advanced by the Commission, and those courts that have substantively addressed the issue, was explained in Raso v. Lago, 185 a case finding a housing plan designed to recruit minority applicants to be race-neutral: Although the affirmative recruitment of minor- ity applicants is race-conscious, . . . such con- duct alone does not constitute a “ preference” within the meaning of Croson and Adarand that is subject to strict scrutiny because: “ the crucial distinction is between expanding the applicant pool and actually selecting from that pool. Ex- panding the pool is an inclusive act. Exclusion ‘based on race[] . . . can only occur at the se- lection stage.’” 186 Central to this analysis is the conclusion that the equal protection principle protects against laws that give an individual a race-based preference only with respect to a hiring decision. This is, however, a particularly narrow reading of the equal protection mandate. Because the wording of a court’s inquiry nec- essarily predetermines the outcome of an equal protec- tion challenge, one must be careful to determine pre- cisely what the equal protection principle prohibits. 187 Although the Court in Adarand framed the constitu- tional equal protection mandate in terms of protec- tions against “ preference[s] based on racial or eth- 184.See 47 C.F.R. § 73.2080(c)(2) (1997) (“ use minority organizations” ); id. § (c)(2)(i-v) (describing how the requirements of (c)(2) may be satis- fied); id. § (c)(3) (comparing the composition of the relevant labor area workforce with the racial composition of a station’s workforce). 185. 458 F. Supp. 686 (D. Mass. 1997). 186. Id. at 702. 187. For example, if the inquiry is whether the EEO rules require a pref- erence in the decision to hire an individual, the answer — at least based on the facial requirements of the rules — is no. On the other hand, if the inquiry is whether the EEO rules require a station to make a race or gender distinction in the decision of whom to target for an interview, the answer is yes. Clearly the same facts, under differing inquiries, would probably lead to different outcomes as to the constitutionality of the Commission’s EEO rules. KROTO.DOC 12/07/00 9:35 AM 136 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 nic criteria,” 188 it ultimately held that all racial classifications were subject to strict scrutiny. 189 In its first post-Adarand Equal Protection Clause deci- sion, the Supreme Court stated that the clause’s “ central mandate is racial neutrality in governmental decision making. Though application of this imperative raises difficult questions, the basic principle is straightforward: ‘Racial and ethnic distinctions of any sort are inherently suspect and call for the most exacting judicial examination.’” 190 Although some lin- gering doubts might remain, 191 the best conclusion that can be drawn from these and other judicial pronounce- ments is that the Equal Protection Clause prohibits any law or regulation that requires any sort of racial or ethnic distinction to be factored into any deci- sion, absent a compelling justification (such as the remediation of prior unlawful discrimination). The Commission’s initial contention that its EEO rules are race-neutral is premised implicitly on the assumption that within the realm of employment-related equal protection jurisprudence, the Equal Protection Clause only impacts hiring decisions. Indeed, the Com- mission’s conclusion accepts the fact that affirmative recruitment of minority applicants is race-conscious conduct yet labels such recruitment race-neutral be- cause it is an inclusive, rather than exclusive, act. 192 The Commission is in essence concluding that unequal treatment based on race is race-neutral be- cause nobody has been denied a benefit (that is, a job). It is clear, however, that within the meaning of the Equal Protection Clause, the harm at issue is the 188. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219 (1995). 189. See id. at 227; see also id. at 201 (“ any racial classification sub- jecting that person to unequal treatment” is suspect (emphasis added)); id. at 223 (“ [A]ny official action that treats a person differently” is sus- pect) (emphasis added) (quoting Fullilove v. Klutznick, 448 U.S. 448, 523 (1980) (Stewart, J., dissenting)); McLaughlin v. Florida, 379 U.S. 184, 192 (1964) (“ [R]acial classifications [are] ‘constitutionally suspect’” (empha- sis added)); Hirabayashi v. United States, 320 U.S. 81, 100 (1943) (“ Dis- tinctions between citizens” are suspect (emphasis added)). 190. Miller v. Johnson, 515 U.S. 900, 904 (1995) (quoting Regents of Univ. of California v. Bakke, 438 U.S. 265, 291 (1978) (opinion of Powell, J.)) (citations omitted) (emphasis added). 191. See, e.g., Michelle Adams, The Last Wave of Affirmative Action, 1998 WIS. L. REV. 1395, 1446-62; Robert C. Power, Affirmative Action and Judicial Incoherence, 55 OHIO ST. L.J. 79 passim (1994). 192. See Shuford v. Alabama State Bd. of Educ, 897 F. Supp. 1535, 1550-57 (1995). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 137 “ denial of equal treatment . . . , not the ultimate inability to obtain [a] benefit.” 193 Upon close exami- nation, the Commission’s argument that the tangible harm done as a result of unequal treatment impacts the level of scrutiny appears to be little more than a contention that the EEO rules— that require unequal treatment— are not subject to strict scrutiny because the Commission has classified the harm caused by the unequal treatment as both benign and race-neutral as to its effects. Thus, the Commission essentially is asserting that strict scrutiny does not apply to be- nign, race-based decisions, precisely the conclusion expressly rejected in Adarand. 194 Even accepting for the sake of argument the Com- mission’s contentions that its pre-2000 EEO rules were facially race-neutral, they were not race-neutral in practice and for that reason were properly subject to strict scrutiny analysis. 195 If there is “ concrete evidence” that facially race-neutral measures are be- ing “ manipulated to provide a preference” on the ba- sis of race, the facially race-neutral measure is sub- ject to strict scrutiny. 196 The Commission maintained that “ [t]he numbers and percentages [utilized for comparing workforce profiles pursuant to 47 C.F.R. § 73.2080(c)(3)] are simply analytical aides . . . and 193. Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993); see also Adarand, 515 U.S. at 229-30 (“ [W]henever the government treats any person unequally be- cause of his or her race, that person has suffered an injury. . . .” ). The Supreme Court has made plain that being placed in one electoral district or another based solely on race constitutes a violation of the Equal Protection Clause. See Miller, 515 U.S. at 905; Shaw v. Reno, 509 U.S. 630, 642 (1993). Under the Commission’s logic, race-based districting decisions might be out- side the purview of strict scrutiny because no one is required to vote based on their racial identity. The Supreme Court, however, in Shaw and Miller, has squarely rejected such logic. The mere fact of government classification by race for districting purposes violates the equal protection rights of the voters so classified. See John Hart Ely, Standing to Challenge Pro-Minority Gerrymandering, 111 HARV. L. REV. 576, 594-95 (1997). 194. 515 U.S. 200 (1995). One should note, however, that the application of strict scrutiny should not mean that the government’s attempt to utilize a race-based classification always fails. See Wittmer v. Peters, 87 F.3d 916, 918-20 (7th Cir. 1996); Adams, supra note 191, at 1461-62. 195.See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 352-53 (D.C. Cir. 1998); 47 C.F.R. § 73.2080 (1997); Streamlining Broadcast EEO Rules, supra note 43, at 5162 (paras. 14-15). 196. South-Suburban Housing Ctr. v. Board of Realtors, 935 F.2d 868, 884 (7th Cir. 1991), cert. denied, 502 U.S. 1074 (1992); see also Miller, 515 U.S. at 913 (recognizing that statutes are subject to strict scrutiny under the Equal Protection Clause when they involve racial classifications or when they are race-neutral on their face but are motivated by a racial purpose). KROTO.DOC 12/07/00 9:35 AM 138 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 are not determinative [of compliance with the EEO rules].” 197 Despite the Commission’s position, even proponents of the EEO rules (for example, the National Black Media Coalition) 198 have acknowledged that “ many licensees view the [statistical] guidelines as a ‘ceiling’ rather than a ‘floor’ for minority employ- ment. . . [and that many] licensees [operate] just above or just below the numerical 50% parity guide- lines throughout their respective license terms.” 199 Adarand and its progeny effectively shift the bur- den of persuasion from those challenging the use of race as an administrative shorthand to the government entity wishing to use race incident to administering a particular program. As a burden-shifting device, Ada- rand places a nearly insurmountable barrier in the way of a governmental agency that wishes to engage or fa- cilitate race-conscious behavior of any sort. Absent the most compelling reasons and an utter inability to achieve the government’s objective using race-neutral means, the government loses. This turns the burden of proof on its head; in most cases, government action enjoys a strong presumption of validity. 200 The Commis- sion does not seem to have internalized this aspect of Adarand. Whereas the Commission’s actions usually en- joy a presumption of legality, this presumption does not exist when the Commission uses race as a short- hand, whether to promote diversity or to achieve some other objective. Accordingly, if a reviewing court were to apply strict scrutiny to any or all of the Commission’s 197. Catawaba Valley Broad. Co., 3 F.C.C.R. 1913, 1914 (para. 9) (1988); see also Amendment of Part 73 of the Commission’s Rules Concerning Equal Em- ployment Opportunity in the Broadcast Radio and Television Services, 4 F.C.C.R 1715, 1715 (para. 5) (1989) (“ [T]he Commission believe[s] that the principle element of a good EEO program was the effort undertaken to attract qualified minority and female applicant’s whenever a vacancy has occurred, rather than relying on a station’s statistical profile.” ) 198. See Catawaba Valley Broad. Co., 3 F.C.C.R. at 1913 (para. 4) (1988). 199. Id. Even though the Commission’s EEO rules force private employers into race-based hiring decisions, the state action requirement is neverthe- less satisfied. See Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967). Govern- ment cannot do indirectly that which it could not accomplish directly by forcing nonstate actors to implement constitutionally dubious policies. See id.; see also Ronald J. Krotoszynski, Back to the Briarpatch: An Argument for Constitutional Meta-Analysis in State Actor Determinations, 94 MICH. L. REV. 302, 320-21 (1995). Because the Commission could not directly mandate race-based hiring and recruitment decisions, it likewise cannot encourage or facilitate such behavior by private sector employers. 200. See, e.g., 5 U.S.C § 706(2) (1994). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 139 race-based programs, 201 then all of those programs— each one of which rests on the diversity justification— is in serious jeopardy of being struck down as violative of the equal protection principle. In her dissenting opinion in Metro Broadcasting, 202 Justice O’Connor, who later authored the majority opinion in Adarand, wrote that “ [m]odern equal protection doctrine has recognized only one . . . [compelling] interest: remedying the effects of racial discrimination. The interest in increasing the diversity of broadcast viewpoints is clearly not a compelling interest.” 203 Even though Justice O’Connor has opined otherwise with respect to the compelling nature of the same interest in higher education, 204 her strong statement in Metro Broadcasting has led even a pro-Commission commentator to conclude that “ it is probable that the FCC’s primary objective of promoting a diversity of voices . . . would not qualify as a com- pelling governmental interest for equal protection purposes— effectively failing the first prong of strict scrutiny.” 205 The Commission’s conclusion that its pre-2000 EEO rules did not conflict with the strict scrutiny stan- dard in Adarand was, at best, a doubtful proposition. Indeed, the Commission’s initial reaction to Adarand could be read to acknowledge implicitly the perils of arguing that its race-based regulations could satisfy strict scrutiny. 206 Notwithstanding the Commission’s protests that its EEO programs should survive Adarand, it did not take long for the other shoe to drop. 201.See supra notes 35-132 and accompanying text. 202. Metro Broad., Inc. v. FCC, 497 U.S. 547, 612 (1990) (O’Connor, J., dissenting). 203.Id. (emphasis added); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (holding that race-based affirmative action programs “ are strictly reserved for remedial settings” ). 204.See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O’Connor, J., concurring). 205. S. Jenell Trigg, The Federal Communications Commission’s Equal Oppor- tunity Employment Program and the Effect of Adarand Constructor, Inc. v. Pena, 4 COMMLAW CONSPECTUS 237, 253 (1996); see also Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996). Ms. Trigg served as a telecommunications policy analyst in the Office of Communications Business Opportunities at the Com- mission. 206.Cf. Mark. A. Neuser, Note, FCC’s Block Auction in the Wake of Ada- rand: Harbinger or Hoax?, 1996 WIS. L. REV. 821 (describing the Commission’s speedy decision in the wake of Adarand to abandon spectrum set-asides for women and minority bidders in the personal communications services (PCS) spectrum auctions). KROTO.DOC 12/07/00 9:35 AM 140 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 C. Lutheran Church-Missouri Synod and the Impact of Adarand In Lutheran Church-Missouri Synod v. FCC, 207 the Commission faced a direct Adarand-based challenge to the constitutionality of its EEO rules. 208 The D.C. Circuit found that the Commission’s EEO rules violated the Fifth Amendment’s implied equal protection guaran- tee. 209 This result has ominous implications for all of the Commission’s race-based affirmative action pro- grams, which rest on the diversity rationale emphati- cally rejected in Lutheran Church. 210 The facts of the case are relatively straightfor- ward. The Lutheran Church-Missouri Synod holds li- censes for two radio stations in Missouri. One, KFUO (AM), operates as a noncommercial station with a re- ligious format. The other station, KFUO-FM, operates commercially and broadcasts classical music with a re- ligious orientation, as well as some religious pro- gramming. Both stations are dedicated to the task of carrying out the “ Great Commission which Christ gave to His Church, to preach the Gospel to every creature and to nurture and serve the people in a variety of ways.” 211 Because of that mission, the church believes that many, if not most, of the positions at the sta- tion require a knowledge of the Lutheran doctrine. After receiving the church’s 1989 license renewal applications, the Commission’s staff requested more information about both stations’ affirmative action efforts during the preceding license term. In re- sponse, the church offered two primary explanations for its relative lack of success in recruiting and re- taining African American employees. 212 First, it re- 207. 141 F.3d 344 (D.C. Cir. 1998), reh’g and reh’g en banc denied, 154 F.3d 487 (D.C. Cir. 1998). The Commission declined to seek Supreme Court re- view of the Court of Appeals’ decision. See FCC Will Not Seek Supreme Court Review of Decision Striking Down EEO Program, 67 U.S.L.W. 2377 (Jan. 5, 1999). 208. See Lutheran Church-Missouri Synod, 141 F.3d at 345-46. 209. See id. at 351-56; see also Bolling v. Sharpe, 347 U.S. 497 (1954) (holding that the Due Process Clause of the Fifth Amendment provides citi- zens with an equal protection right as against the federal government). 210.See supra notes 35-107, 125-28, 141-90 and accompanying text. 211. Lutheran Church-Missouri Synod, 141 F.3d at 346. 212. As an indication of the sort of argument that goes on in these pro- ceedings, it is interesting to note that in this case the NAACP “ argued that the Church should not receive credit for hiring a Hispanic because there were so few Hispanics in the labor market.” Id. at 346 n.1. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 141 sponded that it did have minority employees, including African Americans. 213 Second, the church explained that it did engage in minority-specific recruitment. 214 Shortly thereafter, the NAACP filed a petition to deny the applications, contending that the church’s EEO ef- forts were insufficient, and that the stations had failed to employ an adequate number of minority em- ployees. 215 The case then proceeded to a hearing before an administrative law judge (ALJ). 216 Before the ALJ, the church reiterated and expanded upon its earlier two-pronged defense. First, it claimed that its hiring criteria of “ knowledge of Lu- theran doctrine” and “ classical music training” nar- rowed the local pool of available minorities. 217 Rely- ing on the Commission’s prior assurance that “ the Commission will, in its in-depth reviews, take cogni- zance of a licensee’s inability to employ women or mi- norities in positions for which the licensee documents that only a very limited number of women or minority groups have the requisite skills,” 218 the church as- serted that the NAACP’s claim of deficient minority hiring practices did not constitute evidence of dis- criminatory hiring or recruiting. 219 Second, the church explained that for many job openings it did not engage in any outside recruiting, largely because it drew many of its employees from its seminary, located on the same grounds as the radio station broadcast studios. 220 Because the church viewed the radio stations as integral to its religious mis- sion and to the conduct of its ministry, it considered employment at the stations an important part of the seminarians’ overall education. 221 As Judge Silberman explained, however, “ [t]hese explanations . . . did not satisfy the Commission and they further upset the 213. See id. at 346. 214. See id. 215. See id. 216. See id. at 346. 217. “ [T]he Church estimated that only 2% of the area population were mi- norities with Lutheran training and 0.1% were minorities with classical mu- sic training.” Id. 218.Id. at 347 (citing Equal Employment Opportunity Processing Guideline Modifications for Broadcast Renewal Applicants, 79 F.C.C.2d 922 (1980) (memorandum opinion and order)). 219. See id. 220. See id. 221. See id. KROTO.DOC 12/07/00 9:35 AM 142 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 NAACP, who thought that the station’s estimates of mi- norities with classical musical expertise reinforced negative stereotypes of blacks.” 222 Following the receipt of pleadings from all par- ties and the hearing, the ALJ determined that the church’s Lutheran hiring preference was too broad, de- spite the fact that Commission policy “ exempts relig- ious broadcasters from the ban on religious discrimi- nation, but only when hiring employees who are reasonably connected to the espousal of religious phi- losophy over the air.” 223 The Commission concluded that it was unnecessary for receptionists, secretar- ies, engineers, and business managers to have knowl- edge of Lutheran doctrine. 224 The Commission also found that the church violated the EEO rules by making in- sufficient efforts to recruit minorities. 225 Because the ALJ did not find any evidence that the church in- tentionally discriminated against minorities, he rec- ommended that the Commission grant the church’s li- cense renewal application. 226 The Commission accepted this recommendation but conditioned the renewal on a special reporting requirement, requiring the church to submit four reports at six-month intervals to the Com- mission. 227 These reports were to include detailed in- formation regarding compliance with the Commission’s 222. Id. 223.Id.; see also King’s Garden, Inc., 38 F.C.C.2d 339 (1972) (memorandum opinion and order), aff’d sub nom., King’s Garden, Inc. v. FCC, 498 F.2d 51 (D.C. Cir. 1974). 224. The Lutheran Church/Missouri Synod, 12 F.C.C.R. 2152, 2153 (1997) (memorandum opinion and order), aff’g 10 F.C.C.R. 9980 (1995) (initial deci- sion). 225. See Lutheran Church-Missouri Synod, 141 F.3d at 347. 226. See id. at 347-49. 227. The Commission required the church to provide it with the following information at those intervals: (1) a list of all job applicants and hires, indicating their referral or recruitment source, job title, part-time or full-time status, date of hire, sex, and race or national origin; (2) a list of all employees ranked from highest paid to lowest paid, indicating job title, part- time or full-time status, date of hire, sex, and race or national ori- gin; and (3) a narrative statement detailing the stations’ efforts to recruit minorities. Id. (citing Lutheran Church/Missouri Synod, 10 F.C.C.R. 9880, 9912 (1995) (initial decision)). The Commission also imposed a $25,000 fine on the church for misrepresenting the importance of classical music training in its hiring decisions. See Lutheran Church/Missouri Synod, 12 F.C.C.R. at 2165. On appeal, the imposition of that fine was determined to be arbitrary and capricious and was vacated. See Lutheran Church-Missouri Synod, 141 F.3d at 356-57. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 143 EEO rules. 228 The church objected to the reporting requirement and appealed the Commission’s decision to the United States Court of Appeals for the District of Columbia Circuit. On appeal, the church contended that “ the affirmative action portion of the Commission’s EEO Regulations is a race-based employment program in vio- lation of the equal protection component of the Fifth Amendment,” 229 a challenge that the reviewing court characterized as “ quite serious and far-reaching.” 230 After quickly dismissing the Commission’s argument that the church lacked Article III standing to raise an equal protection challenge because it had not suf- fered an equal protection injury, 231 the court directly engaged the equal protection issue. As expected, 232 the Commission argued that the race-based classifications inherent in its EEO rules did not trigger the strict scrutiny standard of review set forth in Adarand. Significantly, the Commission did not directly argue— as it had earlier 233 — that its EEO rules are race-neutral and, therefore, do not im- plicate the equal protection principle. Instead, the Commission argued that because the EEO rules stopped short of establishing preferences, quotas, or set asides, the rational basis standard of review should govern the court’s evaluation of the church’s claims. 234 The Commission maintained that Adarand did not go “ as far as it appears,” arguing before the D.C. Circuit that Adarand applies only to race- conscious hiring decisions. 235 Essentially, the Commis- sion suggested that its EEO rules do nothing more than 228.See Lutheran Church-Missouri Synod, 141 F.3d at 349. 229.Id. 230.Id. 231. In dismissing this assertion, the court found that “ [i]t is undeni- able . . . that the Church has been harmed by the Commission’s order finding it in violation of the EEO Regulations. The order is a black mark on the Church’s previously spotless licensing record and could affect its chance for license renewal down the road. . . . And the remedial reporting condi- tions, which require the Church to keep extremely detailed employment rec- ords, further aggrieve the Church by increasing an already significant regu- latory burden.” Id. 232.See supra notes 164-206 and accompanying text. 233.See Lutheran Church/Missouri Synod, 12 F.C.C.R. 2152, 2156 (memoran- dum opinion and order) (1997), aff’g 10 F.C.C.R. 9880 (1995) (initial deci- sion); see also notes 207-31 and accompanying text. 234. Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349-50 (D.C. Cir. 1998). 235. See id. at 351. KROTO.DOC 12/07/00 9:35 AM 144 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 “ seek non-discriminatory treatment of minorities.” 236 This argument— that logically suggests the government should have challenged the very application of the Fifth Amendment— presupposes that nondiscriminatory treatment typically will result in proportional repre- sentation in a station’s work force. The reviewing court immediately recognized and re- jected the Commission’s end-run around its previous race-neutral position. In Judge Silberman’s view, the Commission’s arguments were little more than an asser- tion that equal protection principles, at least as ex- plicated in Adarand, should not apply to the Commis- sion’s EEO rules. 237 The court accordingly rejected the Commission’s arguments that strict scrutiny should not apply because the “ crucial point is not . . . whether [the EEO rules] require hiring in accordance with fixed quotas; rather, it is whether they oblige sta- tions to grant some degree of preference to minorities in hiring.” 238 The EEO rules were built on notions that broadcasters should aspire to a workforce that attains, or at least approaches, proportional repre- sentation of the population of the community of li- cense and that broadcasters’ compliance with the EEO rules would be measured, at least in the first in- stance, by a yardstick exclusively defined by propor- tionate representation. The court thus concluded that the EEO rules effectively required broadcasters to grant some degree of preference to minorities in hir- ing. 239 Consistent with the Supreme Court’s holding in Adarand, the Lutheran Church court held that the Com- mission’s EEO rules were subject to strict scrutiny analysis. 240 For equal protection purposes, Judge Silberman ex- plained, it mattered not whether a “ government hiring program imposes hard quotas, soft quotas, or goals.” 241 The strictest necessity must justify any sort of government compelled, race-based classifica- 236.Id. 237. See id. at 352-54. 238.Id. at 351. 239. See id. at 352-54. 240.See id. at 354-56. 241. Id. at 354 (“ Any one of these techniques induces an employer to hire with an eye toward meeting the numerical target, . . . they can and will surely result in individuals being granted a preference because of their race.” ). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 145 tions of individuals. In this regard, the court next considered whether the EEO rules were “ narrowly tai- lored to serve a compelling governmental interest.” 242 As noted above, the Commission had “ unequivocally stated” that its EEO rules “ rest solely on its de- sire to foster ‘diverse’ programming content.” 243 Judge Silberman astutely observed that “ [t]he Commis- sion never defines exactly what it means by ‘diverse programming.’” 244 Undaunted by the Commission’s lack of definitional clarity, the court determined that “ diverse” programming constitutes “ the fostering of programming that reflects minority viewpoints or ap- peals to minority tastes.” 245 Judge Silberman then re- jected the Commission’s argument that Metro Broadcast- ing should control the outcome of the case because it held that the government’s interest in advancing di- versity is “ important,” reasoning that “ [e]ven if Metro Broadcasting remained good law in that respect, it held only that the diversity interest was ‘impor- tant.’” 246 He conceded that the Metro Broadcasting Court had determined that “ the Commission and Con- gress had produced adequate evidence of a nexus be- tween minority ownership and programming that reflects minority viewpoints.” 247 That said, the Supreme Court has “ never explained why it was in the government’s interest to encourage the notion that minorities have racially based views.” 248 Then, relying on Justice O’Connor’s “ powerful dissent” in Metro Broadcasting, Judge Silberman held that the definition of “ diver- sity” in this context was “ amorphous” and that “ it is impossible to conclude that the government’s inter- est, no matter how articulated, is a compelling one.” 249 Providing further problems for the Commis- 242.Id. 243.Id. 244.Id. 245.Id. 246. Id. 247. Id. at 355. 248.Id. 249.Id. at 354-55. As a final parting shot, Judge Silberman noted: [T]he sort of diversity at stake in this case has even less force than the “ important” interest at stake in Metro Broadcasting. While the minority ownership preferences involved in Metro Broadcasting rested on an inter-station diversity rationale, the EEO rules seek intra- station diversity. It is at least understandable why the Commission would seek station to station differences, but its purported goal of making a single station all things to all people makes no sense. It clashes with the reality of the radio market, where a station targets KROTO.DOC 12/07/00 9:35 AM 146 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 sion, Judge Silberman then held that even assuming that the Commission’s diversity interest is compel- ling, the EEO rules were “ quite obviously not nar- rowly tailored.” 250 In other words, whatever interest the Commission might have in diverse programming could be accomplished in race-neutral ways. The importance of Lutheran Church and Adarand to the Commission’s diversity programs cannot be over- stated. As it happens, all of the Commission’s race- based regulations, not just its EEO rules, rest on the diversity rationale. In consequence, the constitution- ality of all of these regulations is now in doubt. More broadly still, the Lutheran Church decision con- tinues a recent trend of judicial skepticism regarding the Commission’s efforts to promote diversity. 251 If the Commission intends to retain these programs, it will need to muster more plausible defenses of their necessity. Although the Commission’s ability to defend successfully its race- and gender-based diversity pro- grams seems (at best) uncertain, the prognosis for its structural diversity-enhancing regulations should be somewhat brighter. IV.DIVERSITY AND THE SEARCH FOR MEANING A. On Means, Ends, and Recognizing the Difference: Diversity As Race Reconsidered According to the Commission, “ as more minorities and women are employed in the broadcasting industry, varying perspectives are more likely to be aired.” 252 Thus, the underlying rationale for the Commission’s EEO policies is not the direct prevention of unlawful discrimination per se but “ rather [the advancement of] the Commission’s unique . . . diversity-related a particular segment: one pop, one country, one news radio, and so on. Id. at 355-56. 250.Id. (“ The majority in Metro Broadcasting never suggested that low- level employees, as opposed to upper-level employees, would have any broad- cast influence. Nor did the Commission introduce a single piece of evidence in this case linking low-level employees to programming content.” ). Accord- ingly, the Court noted that “ [t]he regulations could not pass the substan- tial relation prong of intermediate scrutiny, let alone the narrow tailoring prong of strict scrutiny.” Id. 251. See, e.g., Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309 (7th Cir. 1994); Schurz Comm., Inc. v. FCC, 982 F.2d 1043 (7th Cir. 1992). 252. Streamlining Broadcast EEO Rules, supra note 43, at 5156 (para. 3). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 147 mandate.” 253 The Commission could, of course, seek to ground its EEO policies on a remedial, as opposed to diver- sity-based, foundation. To date, however, the Commis- sion has not wavered in its justification of its EEO policies on diversity-enhancement grounds. 254 The prob- lem with this approach is that race and gender are both underinclusive and overinclusive markers for di- versity. Surely characteristics beyond race must be factored into the relative diversity of broadcast pro- gramming; in this sense the EEO policies are underin- clusive because they define diversity solely in terms of the station owner’s immutable characteristics rather than in terms of ideology or aesthetic sensi- bilities. 255 Likewise, there is likely as much diver- sity of opinion within a particular racial, ethnic, or gender group as there is between or among such groups; the Commission’s EEO policies are thus overinclusive because they assume that race and gender will serve as a meaningful predictor of a station owner’s program- ming decisions. 256 Over the years, a number of commentators have at- tempted to justify the Commission’s race- and gender- based diversity programs. One of the most recent ef- forts by former Commission staffer Jenell Trigg at- tempts to demonstrate how the EEO policies are actu- ally consistent with Adarand. 257 According to Ms. Trigg, “ [t]he need for employment affirmative action in the broadcast industry continues to be evident and the FCC’s efforts-based program is a means within the law to achieve this diversity.” 258 She also asserts 253.Id. at 5158 (para. 5). 254.But see Review of the Commission’s Broadcast and Cable Equal Employ- ment Opportunity Rules and Policies and Termination of the EEO Streamlining Proceeding, 13 F.C.C.R. 23,004, 23,005-06, 23,025-26 (paras. 1-6, 59-60) (1998) (notice of proposed rulmaking); see also id. at 23,019-22 (paras. 39- 45) (invoking the diversity rationale to justify race-based recruitment ef- forts by broadcasters). 255.See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 311-15 (1978) (Powell, J., [need to check further]); see also Timothy L. Hall, Edu- cational Diversity: Viewpoints and Proxies, 59 OHIO ST. L.J. 551, 569-74 (1998) (arguing that direct inquiries into the social, political, and eco- nomic viewpoints of potential applicants would yield a more diverse class of students than sole reliance on race- or gender-based shorthands). 256. Cf. Hall, supra note 255, at 573-74 (suggesting that the use of race or gender is a crude selection device). 257.See Trigg, supra note 205. 258.Id. at 262; see also Streamlining Broadcast EEO Rule, supra note 43, at 5161-62 (paras. 13-15). KROTO.DOC 12/07/00 9:35 AM 148 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 that “ [t]he history of broadcasting in America is riddled with discriminatory practices that have pre- vented minorities and women from full participation in employment, management and ownership positions.” 259 Like the Commission, Ms. Trigg makes no attempt to document either assertion. The Commission has not done a particularly effective job of demonstrating broad- casters’ rampant discrimination. 260 Nor has the Commis- sion maintained a consistent pattern of preventing ra- cial minorities or women from obtaining federal broadcast licenses. 261 Contrast the behavior of voting registrars in the Deep South with that of the Commission. Voting regis- trars in many Southern jurisdictions simply refused to register African American citizens in the 1960s. 262 By operation of both law and custom, local authorities denied minority citizens suffrage. The Commission, however, has never maintained an official policy of racial- or gender-based discrimination. As its worst, it proved grossly indifferent on the part of some li- censees. 263 Thus, it is not really plausible for the Commission to assume responsibility for the relative paucity of broadcast stations owned and operated by 259. Trigg, supra note 205, at 262. 260. In this regard, it bears noting that the Commission presently is seeking “ evidence, particularly empirical evidence, to support commenters’ assertions with respect to this issue.” Broadcast & Cable EEO Review, supra note 12 at 23,022 (para. 45). Such evidence will be crucial to sustaining any Commission diversity program that relies on race or gender as an effec- tive proxy for viewpoint. 261.See Croson, 488 U.S. at 493; see also David Honig, The FCC and Its Fluctuating Commitment to Minority Ownership of Broadcast Facilities, 27 HOW. L.J. 859, 873 (1984) (“ As far as is publicly known, the Commission has never refused to grant a license because the applicant was a minority.” ); Neuser, supra note 206, at 849-50 (“ Any discrimination suffered by minority appli- cants came from sources other than the FCC, particularly considering the FCC’s long tradition of encouraging minority participation in the communica- tions industry.” ). 262. See South Carolina v. Katzenbach, 383 U.S. 301, 312 (1966); Louisi- ana v. United States, 380 U.S. 145, 152 (1965); Gomillion v. Lightfoot, 364 U.S. 339, 341-42 (1960); Lassiter v. Northampton County Bd. of Elec- tions, 360 U.S. 45, 53 (1960). 263. See, e.g., Office of Comm. of the United Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969) (presenting the sad spectacle of the Commis- sion doing its best to justify granting the renewal application of WLBT- TV, a blatantly racist Mississippi television station); Lamar Life Ins. Co., 14 F.C.C.2d 495, 550 (para. 34) (1967) (granting the renewal request and denying standing to viewers challenging WLBT-TV’s renewal applica- tion). For a detailed account of the conflict over the renewal of WLBT- TV’s license, see FRED W. FRIENDLY, THE GOOD GUYS, THE BAD GUYS AND FIRST AMENDMENT: FREE SPEECH VS. FAIRNESS IN BROADCASTING 89-102 (1976). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 149 racial minorities and women. 264 If the Commission hopes to defend its EEO poli- cies, including both the EEO guidelines and its pro- grams to encourage minority ownership of broadcast stations, it must do a better job of documenting a problem in need of solution. Blithely asserting that “ [i]t is only appropriate that a greater representa- tion of qualified minorities and women participate” in the “ future of the communications industry” will not suffice. 265 Invoking the shibboleth of affirmative action 266 will do little to convince reviewing courts that the Commission’s affirmative action policies are serious and considered efforts to remedy past dis- crimination against racial minorities and women. Instead of isolating instances of discrimination against racial minorities and women, the Commission historically has pursued a kind of statistical fanati- cism. Using statistics comparing the number of racial minorities and women in the general population to the numbers of such persons in the broadcasting industry, the Commission concludes that a problem exists. 267 As 264. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); J.A. Croson Co. v. Richmond, 488 U.S. 469, 492, 498-99, 504-06, 509 (1989). This is not to say that there are not remarkably few minority broadcast- ers. It is rather to suggest that the reasons for the relatively low num- ber of minority of broadcasters have much more to do with discriminatory lending practices and general lack of access to investment capital than with bad faith or overt racism on the part of the Commission. See Honig, supra note 261, at 873–75; cf. Croson, 488 U.S. at 498-500 (applying strict scrutiny to a race-based government program and holding that a “ general- ized assertion that there has been past discrimination in an entire indus- try” is insufficient to meet this standard, as are “ a host of nonracial factors which would seem to face a member of any racial group attempting to establish a new business enterprise, such as deficiencies in working capital, inability to meet bonding requirements, unfamiliarity with bid- ding procedures, and disability caused by an inadequate track record” ). 265. Streamlining Broadcast EEO Rule, supra note 43, at 5158-62 (paras. 7- 15); Policies and Rules Regarding Minority and Female Ownership of Mass Me- dia Facilities, 10 F.C.C.R. 2788, 2788-91 (paras. 1-10) (1995); see also Croson, 488 U.S. at 499 (“ An amorphous claim that there has been past dis- crimination in a particular industry cannot justify the use of an unyielding racial quota.” ); Trigg, supra note 205, at 259. 266.See Trigg, supra note 205, at 259 (“ Unfortunately, there is still a need for affirmative action to create diversity in employment, especially in the broadcast industry.” ). But see Jim Chen, Diversity and Damnation, 43 UCLA L. REV. 1839, 1877-84, 1900-10 (1996) (attacking the diversity rationale for affirmative action as politically motivated and stigmatizing). Sadly, Ms. Trigg never bothers to identify why such a need exists or how the Com- mission’s EEO programs are responsive to the identified problems. 267.See Streamlining Broadcast EEO Rule, supra note 43, at 5155-62 (paras. 3-15); Trigg, supra note 205, at 258. But see Croson, 488 U.S. at 507-08 (rejecting as “ completely unrealistic” the idea that “ minorities KROTO.DOC 12/07/00 9:35 AM 150 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 any first-year constitutional law student knows, how- ever, a disparate impact, standing alone, is insuffi- cient to establish an equal protection claim. 268 One must demonstrate intentional discrimination to make out an equal protection claim against the govern- ment; 269 correlation is not the same as causation. Even under the more generous provisions of Title VII, which permit the use of disparate impact analysis to establish violations, 270 one generally must use a comparison of the number of minorities in a particular labor pool. 271 For example, suppose that Hispanics con- stitute ten percent of the population in a particular community, but there are virtually no Hispanic elec- trical engineers within the local labor pool. An engi- neering firm with no Hispanic electrical engineers would not be subject to a disparate impact claim al- leging racial discrimination against Hispanics based on the disparity between the presence of a sizable lo- cal Hispanic population and the utter paucity of His- panic electrical engineers at the firm. Of course, an individual who believed that she was denied employment on the basis of race could pursue a discrimination claim against the firm; it just would not constitute a disparate impact claim. Let us now return to the Commission’s pre-2000 EEO guidelines. The so-called processing guidelines made no effort to determine whether the total percentage of minorities within a given labor market reflected the percentage of minorities seeking particular kinds of jobs. To be sure, the processing guideline permitted a fifty percent deviation from the baseline demographic statistics. 272 Even so, if the specific labor pool did will choose a particular trade in lockstep proportion to their representa- tion in the local population” ). 268.See Washington v. Davis, 426 U.S. 229 (1976); see also McClesky v. Kemp, 481 U.S. 279 (1987). 269. See McClesky, 481 U.S. at 292-93. 270.See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). 271.See Croson, 488 U.S. 469, 501-02; Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-55 (1989); Sheet Metal Workers v. EEOC, 478 U.S. 421, 494 (1986) (O’Connor, J., concurring in part and dissenting in part). Although Congress legislatively overturned portions of the Supreme Court’s holding in Wards Cove with the Civil Rights Act of 1991, it intentionally left the Su- preme Court’s definition of “ disparate impact” untouched. See H.R. REP. NO. 102-40, at 33 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 571 (“ [T]he con- cept of disparate impact, as it has been developed by the courts would re- main unchanged by this legislation.” ). 272. See EEO Processing Guidelines, supra note 49, at 1693; see also KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 151 not contain minorities seeking particular jobs (for example, engineers), the station was potentially sub- ject to invasive discovery and protracted litigation to demonstrate that it was complying with its EEO ob- ligations in spite of its apparent failure to hire the appropriate number of minorities. In short, the Commission had failed to document an ongoing pattern of discrimination against racial mi- norities and women by either the Commission or its li- censees. It also had adopted a remedial scheme that bore little (if any) relationship to the reality of local labor conditions. 273 Given these circumstances, it is easy to understand why the D.C. Circuit found the program unconstitutional. In fairness to the Commission, it does seem to be receiving the message. Its most recent notice of pro- posed rulemaking regarding the EEO rules and policies abandons all reliance on numerical goals or quotas, whether as an absolute requirement or as a trigger for more intense review of a licensee’s application for renewal. 274 Although the Commission continues to em- brace diversity as a motivating rationale for its EEO rules and policies, it also embraces nondiscrimination as a co-equal objective. 275 Whether the Commission has truly internalized the new limitations on the use of race or gender as a proxy for viewpoint is unclear; for example, the recently adopted report and order amending the Commission’s EEO program places as much reliance on diversity concerns as it does on prevent- Streamlining Broadcast EEO Rule, supra note 43, at 5159-60 (para. 10) (de- scribing the processing guideline mandate of 50% representation of each demographic group). 273.See Croson, 488 U.S. at 492, 501-02, 507-08. But see Adeno Addis, Role Models and the Politics of Recognition, 144 U. PA. L. REV. 1377, 1419 n.111, 1440 (1996) (arguing that racial stereotyping undergirds arguments that the absence of members of particular minority groups within a given profession reflects a free choice on the part of members of the minority group rather than the product of social discrimination and racism). 274.See Broadcast & Cable EEO Review, supra note 12, at 23,024-30 (paras. 52-77). As the Commission explains: “ [I]n keeping with the Court’s reasoning in Lutheran Church, entities would be sanctioned for deficiencies in their recruitment and recordkeeping efforts and not for the results of their hir- ing decisions, subject of course to their duty to refrain from unlawful dis- crimination.” Id. at 23,030 (para. 74). 275. Compare id. at 23,019-22 (paras. 39-45) (defending the EEO program on the basis of a presumed nexus between the race and gender of a station’s em- ployees and the diversity of its programming), with id. at 23,025-26, 23,030 (paras. 56-60, 74) (defending the need for a revised EEO program on the ba- sis of preventing racial and gender-based discrimination). KROTO.DOC 12/07/00 9:35 AM 152 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 ing race- and gender-based discrmination. 276 This sug- gests that the Commission has not quite internalized Lutheran Church’s basic message. 277 Turning from the EEO employment programs to the Commission’s attempts to increase the number of minor- ity-owned and -operated television and radio stations, one again finds a lack of empirical support for the Commission’s EEO efforts. The Commission historically has refused to justify its distress sale, tax certifi- cate, and comparative hearing preference programs on remedial grounds, instead relying on a supposed link between minority ownership and program diversity. Such a connection might exist— to date, however, the Com- mission has failed to document any such relationship. As Ms. Trigg puts it: “ [I]t may be difficult to gather the factual predicate necessary for such an evaluation because the benefits of a diverse workforce are often subtle and intangible, but certainly not ‘insubstantial.’” 278 The fact of the matter is that the Commission has done very little beyond offering anecdotal evidence for such a link. As Justice O’Connor observed in Metro Broadcast- ing, there is no necessary connection between the race of a station owner and that station’s programming de- cisions. Indeed, a rational businessperson is likely to pursue the programming strategy that will maximize her return on equity. Thus, there is no reason to be- lieve that a minority-culture station owner would ref- use to program an FM radio station with country and western music or that a majority-culture station owner would refuse to select a program format that appeals 276. See Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies and Termination of the EEO Streamlining Proceeding, 15 F.C.C.R. 2329, 2358 (para. 62) (2000) (report and order) (“ [W]e believe that equal employment opportunities for minorities and women further the public interest goal of diversity of programming . . . by promoting minority and female ownership. Accordingly, we believe that the governmental interest in fostering diversity of programming provides additional authority for reinstating EEO rules.” ). 277. The diversity analysis is not strengthened by the Commission’s re- peated references and quotations to the mortally wounded majority opinion in Metro Broadcasting. See id. at 2351-53 (paras. 51-53). Given Adarand’s ex- press rejection of key portions of Metro Broadcasting and Judge Silberman’s rejection of arguments premised on Metro Broadcasting in Lutheran Church, the Commission’s reliance on Metro Broadcasting seems badly misplaced. In- deed, the diversity argument tends to undermine, rather than enhance, the overall persuasiveness of the Commission’s arguments. See id. at 2496-98 (statement of Commissioner Michael K. Powell). 278. Trigg, supra note 205, at 254. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 153 to a minority-culture audience (for example, Tejano music), if either format would generate the highest return on equity. Nevertheless, “ [w]ith respect to the FCC preference [programs], the diversity rationale presumes that racial status will influence the pro- gramming decisions of black and white license hold- ers.” 279 Professor Matthew Spitzer has assisted the Commis- sion by searching for a plausible link between the race and/or gender of a station owner and that sta- tion’s programming decisions. 280 His efforts may have earned him the gratitude of the Commission, but he and his co-author have failed to establish any conclusive empirical link between the race or gender of a station owner and the programming decisions of that station. By assuming that all white males are “ profit maximiz- ers” 281 and most persons of color and women are so- cially conscious, 282 he is able to produce a theoreti- cal defense of Metro Broadcasting’s embrace of a linear relationship between the color of the licen- see’s skin and major programming decisions. 283 Profes- sor Spitzer, like the Commission itself, is simply en- gaged in an exercise in racial- and gender-based essentialism by assuming that members of a particular minority group share a common set of values, aesthet- ics, and ideological commitments. 284 General Colin Pow- ell, Ward Connerly, Derrick Bell, and the Reverend Al Sharpton are all African Americans. To suggest that they share a common set of viewpoints is simply ludi- crous. 285 In many respects, it is insulting to assume that minority station owners would be more likely to forego sound business decisions to pursue an ideological 279. Neal Devins, The Rhetoric of Equality, 44 VAND. L. REV. 15, 35 (1991); see also Paul J. Mishkin, Foreword: The Making of a Turning Point— Metro and Adarand, 84 CAL. L. REV. 875, 882 (1996). 280.See Spitzer, supra note 86; see also Dubin & Spitzer, supra note 97. 281. Spitzer, supra note 86, at 296 n.11. 282.See id. at 319-34. 283. See id. at 357-61. 284.See Sheila Foster, Difference and Equality: A Critical Assessment of the Concept of “ Diversity” , 1993 WIS. L. REV. 105, 130-42. 285.See Hall, supra note 255, at 574 (“ The use of race or even gender as a proxy for a particular sought-after perspective, while not unreasonable per se, is nevertheless a crude selection device, calculated to satisfy nei- ther the asserted needs of an institution nor of a scholar.” (footnote omit- ted)). KROTO.DOC 12/07/00 9:35 AM 154 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 agenda. 286 From the perspective of an equity holder, the object of the enterprise is to make money, not po- litical statements. 287 Professor Spitzer’s assumption that nonminority station owners will seek to maximize shareholder returns while minorities will use corpo- rate assets to advance an ideological agenda suggests that minorities are poor managers. In a free market, a manager who fails to maximize shareholder value will find the value of her enterprise in sharp decline. Ul- timately, companies that fail to compete effectively will be swallowed up by less socially conscious enter- prises. It is also insulting to suggest that, to the ex- tent a station owner might forego profits to promote particular social goods, only minority station owners will make this decision. Are Ted Turner and Rupert Murdoch incapable of corporate altruism by virtue of their race and gender? Professor Spitzer would have us think so, suggesting that they could not even success- fully program a station targeting a minority audience if they wanted to do so. 288 If Ted Turner or Rupert Murdoch wishes to program a radio station that sought to build a Spanish-speaking audience, no reason sug- gests that either gentleman could not locate and em- ploy a program director quite capable of undertaking the task of selecting programming likely to appeal to this audience. 289 Professor Spitzer suggests that this solution raises the transaction costs involved and, moreover, that the owner could not effectively monitor the effectiveness of the station. 290 These arguments are specious. It is doubtful that 286. We certainly do not claim that minorities who participate in these programs must themselves feel ill-used, nor do we claim to speak on behalf of persons of color in these matters. See generally Patricia Williams, The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 MICH. L. REV. 2128, 2141 (1989) (“ Blacks, for so many generations deprived of jobs based on the color of our skin, are now told that we ought to find it de- meaning to be hired based on the color of our skin. Such is the silliness of simplistic either-or inversions as remedies to complex problems . . . . It is demeaning to be told what we find demeaning.” ). 287.See Krotoszynski, supra note 1, at 2108-17 (describing how the profit motive drives most major programming decisions on commercial television sta- tions). 288. Spitzer, supra note 86, at 328-32. 289. See, e.g., Deborah D. McAdams, Turner Courts Women, BROADCASTING & CABLE, June 14, 1999, at 14, 14 (describing cable station TBS’s efforts to recruit more female talent and to produce more programming aimed at a female audience). 290.See Spitzer, supra note 86, at 328-32. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 155 the owners of alternative rock radio stations under- stand or relate to the music. They hire program direc- tors to ensure that the station plays music that will appeal to its target audience. Moreover, station own- ers have little trouble monitoring the relative suc- cess of program directors; they follow the station’s ratings within the demographic group that the program- ming ostensibly is reaching. An Anglo owner could eas- ily determine whether his program director is succeed- ing in reaching a Spanish-speaking audience simply by consulting the station’s ratings for any given day, week, month, or year. If the programming director’s efforts fail to produce acceptable ratings (which, in turn, predetermines the price that the station can charge for advertising time), then the owner will fire the program director and find someone more effective. That some inextricable link exists between race and gender and programming patterns seems, at best, dubious. 291 Consider the example of Cox Cable. Based in Atlanta, Georgia, Cox Cable is a major multiple system operator (MSO). 292 For many years, two sisters, Anne Cox Chambers and Barbara Cox Anthony, owned and con- 291.See Mishkin, supra note 279, at 880-83. However, in a follow-up ef- fort to Professor Spitzer’s initial efforts in this field, Dubin and Spitzer analyze FCC data to determine whether a linkage exists between minority or women station owners and programming aimed at minority or female audiences. See Dubin & Spitzer, supra note 97, at 853-72. “ To sum up the test of our hypotheses, then, we have seen that minority ownership has a distinct and significant impact on minority programming, even after we control for the composition of minorities in the marketplace.” Id. at 869 (footnote omit- ted). One could quibble about the reliability of Dubin and Spitzer’s data set— something that the authors candidly acknowledge: “ Numerous problems inherent in the FCC survey prevent us from being as certain about this con- clusion as we might be.” Id. at 872. For example, the survey instrument failed to make any serious effort at limiting definitional terms: “ The FCC survey failed to include any definition of minority programming, relying on respondents to make what they wished of crucial survey terminology.” Id. Nor were any survey responses cross-checked for accuracy. See id. If an empiri- cal study is only as good as its data, Dubin and Spitzer’s study is not very good. Even if one were to credit fully their data and conclusions, they fail to make the case for minority ownership of commercial broadcasting stations as an effective proxy for programming diversity. The real question is not whether minorities will elect to use minority-friendly programming formats more frequently than nonminorities. Instead, the Commission must show that nonminorities simply will not provide minority-friendly programming, thus necessitating the use of race as a proxy for program format. Dubin and Spit- zer have not demonstrated that nonminorities will fail to target reliably minority audiences when it is economically feasible to do so. 292. See Paul Farhi & Sandra Sugawara, Southwestern Bell, Cox Plan Cable Partnership, WASH. POST, Dec. 8, 1993, at F1. KROTO.DOC 12/07/00 9:35 AM 156 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 trolled Cox Cable. 293 No published report exists that Cox’s cable systems provided a significantly different line up of channels or programming than other multiple cable systems operators. Indeed, it would be quite surprising if there were evidence of such behavior. 294 Contrary to Professor Spitzer’s supposition that fe- male programmers would offer “ programs geared to the special biological concerns of women— menstruation, childbearing, breast-feeding, menopause, and diseases of female organs,” 295 no Cox local system has ever of- fered such a channel, its female owners notwithstand- ing. In 1994, the Cox sisters sold a substantial stake in the company, collecting a cool $1.6 billion in ex- change for relinquishing a portion of their equity in- terest in the enterprise. 296 This demonstrates that 293. See id. 294. The only credible empirical evidence Professor Spitzer offers, a Con- gressional Research Service analysis of self-reported survey data from radio and television stations, does not demonstrate a causal relationship between the race or gender of a station owner and the station’s programming format. See Spitzer, supra note 86, at 342-45. As he puts it: “ [T]he problem[] with the extant data would prevent any reputable social scientist from placing much weight upon them.” Id. at 345. Moreover, even assuming that the meth- odological flaws do not zero out the value of the study, the results demon- strate that nonminorities often program their stations to appeal to minority audiences. Although 79% of minority-owned stations reported programming to a minority audience and only 20% of non-minority-owned station reported tar- geting minority audiences, there are numerically more non-minority-owned stations that target minority audiences. See id. at 339. Six hundred nine- teen minority-owned stations responded, whereas 3000 non-minority-owned sta- tions responded. See id. at 338. Professor Spitzer never bothered to do the math: 20% of 3000 nonminority stations means that 600 non-minority-owned stations attempt to reach minority audiences, whereas 79% of 619 stations yields a total of 495 minority-owned stations programming to minority audi- ences. This data— warts and all— suggests that it is fallacious to assume that only minorities will attempt to reach minority audiences. Given that 1 in 5 nonminority owners will voluntarily adopt a format that attempts to generate a minority audience, relatively minor incentives would easily en- sure an adequate supply of minority programming; that is, a comparative preference point or a bidding credit for voluntarily programming to the tastes of minority viewers or listeners. This data suggests that an absolute preference for persons of color and women is akin to building the Golden Gate Bridge to span a creek. 295. Spitzer, supra note 86, at 330. 296.See Farhi & Sugawra, supra note 292, at F1; see also Jerry Knight, Law That’s Supposed to Preserve Newspaper Competition Actually Precludes It, WASH. POST, Oct. 18, 1988, at C3 (noting that the Cox sisters owned a 98% stake of Cox Enterprises Inc., which was worth approximately $4.5 billion in 1988). Yet another example is Katherine Graham, who for many years exercised effective control of The Washington Post Company as its president, chairper- son of the board, and CEO, see MARQUIS WHO’S WHO, WHO’S WHO IN AMERICA 1647 (1998), and who continues to play a significant role as chairperson of the executive committee. See HOOVER’S BUSINESS PRESS, HOOVER’S HANDBOOK OF AMERICAN BUSINESS 1998, at 1508 (1998). The Washington Post Company owns and operates KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 157 women are quite capable of effectively managing large telecommunications concerns. It also suggests that women, like their male counterparts, seek to maximize return on equity; fidelity to fiduciary duty knows no immutable characteristics. It is certainly true that women and minorities do not enjoy access to positions of leadership in many U.S. companies. 297 The reasons for this phenomenon have much to do with systemic forms of racial and gender bias— issues that deserve beady-eyed scrutiny by poli- cymakers at all levels of government. This state of affairs does not, however, justify engaging in racial- or gender-based stereotyping when awarding broadcast licenses. 298 This is not to say that ownership of media outlets is utterly irrelevant. 299 Plainly, control of a radio or television station gives the owner the ability to influence the station’s coverage of both politics and current events. It is also possible that many members of a racial minority or women might view a particular matter differently than white males. We are not sug- gesting— nor would we suggest— that race or gender is both television and cable systems through various subsidiaries. See id. Al- though Ms. Graham is generally recognized as an astute businesswoman and manager and even called by some “ ‘the most powerful woman in the world,’” CAROL FELSENTHAL, POWER PRIVILEGE AND THE POST: THE KATHERINE GRAHAM STORY 293 (1993), no one has ever suggested that she undertook special efforts to promote gender- based causes with the company’s formidable media assets. See id. at 273. 297. See, e.g., Elizabeth A. Rathbun, Woman’s Work Still Excludes Top Jobs, BROADCASTING & CABLE, Aug. 3, 1998, at 22, 22-27 (describing the paucity of women in top jobs within the broadcasting industry and the short-term prospects for improvement in this area). But see Kay McFadden, Tuning in to Women, SEATTLE TIMES, July 4, 1999, at M1 (reporting on the relative success and visibility of female journalists on local television stations in Seat- tle, Washington). 298.Cf. Addis, supra note 273, at 1417-19, 1462-67 (arguing that nonmi- norities establish baseline assumptions for particular jobs that tend to fence out minorities and suggesting that affirmative action efforts are needed to reach a critical mass of minority participation in such fields, a critical mass that will then redefine the exclusionary baseline assump- tions); Blake D. Morant, Law, Literature, and Contract: An Essay in Realism, 4 MICH. J. RACE & L. 1, 5 (1998) (arguing against “ the avoidance of race and gender as influential issues in bargaining” to maintain an “ egalitarian fa- cade” and suggesting that “ ignor[ing] disparity when it is evident from the facts begets a fragmentary analysis at best” ). 299.Cf. BEN PROCTOR, WILLIAM RANDOLPH HEARST: THE EARLY YEARS, 1863–1910, at 115- 34 (1998) (describing how Mr. Hearst deployed his formidable media assets to advance causes that he deemed just, including the Spanish-American War of 1898); Clifford Krauss, Remember Yellow Journalism, N.Y. TIMES, Feb. 15, 1998, at 3 (noting that contemporary media practices are quite tame in rela- tive historical terms). KROTO.DOC 12/07/00 9:35 AM 158 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 utterly irrelevant to the way people perceive the world around them. 300 Rather, given the strong, almost unyielding mandate against the use of race and gender as a proxy post-Adarand, one should question whether the links among race, gender, and viewpoint are suffi- ciently robust to survive strict scrutiny, including a requirement that no race-neutral means of achieving the government’s objective be available. Thus, it is possible to question the legality of race- and gender-based programs aimed at promoting di- versity in the marketplace of ideas without rejecting the idea that ownership of broadcast media outlets is terribly important. 301 Indeed, undue concentration of media outlet ownership would present a grave threat to the ongoing project of democratic deliberation. 302 Ac- cordingly, the point is a more limited one: the race or gender of a station owner is an insufficiently pre- cise shorthand for programming decisions to justify the deployment of an otherwise impermissible form of race- or gender-based classification. This is doubly so when more direct means of advancing the govern- ment’s interest in program diversity are both avail- able and potentially as effective as the race- and gender-based approaches. If providing the public with particular program- ming formats is essential to serving the public inter- est, the Commission could easily deploy regulations that would ensure the existence of a wide variety of 300. See, e.g., Williams, supra note 135, at 533 (“ And yet clearly there is some relation between programming and the beliefs of an owner. And clearly there is some relation between one’s heritage and one’s be- liefs.” (footnote omitted)). 301.See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 190 (1997) (empha- sizing the importance of multiple, independently owned and operated broad- cast television stations to the maintenance of democratic deliberation); id. at 227 (Breyer, J., concurring) (agreeing with the majority to uphold the “ must-carry provisions” of the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §§ 534-535 (1994) as legitimate and con- stitutional regulations that “ seek[] to facilitate the public discussion and informed deliberation, which, as Justice Brandeis pointed out many years ago, democratic government presupposes and the First Amendment seeks to achieve” ); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663 (1994) (“ [A]ssuring that the public has access to a multiplicity of information sources is a government purpose of the highest order, for it promotes values central to the First Amendment.” ); id. (“ Indeed, it has long been a basic tenet of national communications policy that the widest possible dissemina- tion of information from diverse and antagonistic sources is essential to the welfare of the public.” (internal quotations and citations omitted)). 302.See infra notes 303-04 and accompanying text; see also Williams, su- pra note 135, at 535-37. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 159 program formats. Rather than using race as a proxy for programming preferences, the Commission could simply condition the grant of a license on programming to a particular audience. 303 Adarand and Croson make clear that government must use race-neutral means to achieve its objectives whenever such means are both available and effective. 304 In fact, the Commission has proven to be supremely indifferent to broadcast stations’ programming for- mats, 305 arguing that the market can best decide how a particular station should be programmed. 306 The Commis- sion has suggested that dictating program format might run afoul of cherished First Amendment principles 307 (principles the Commission routinely flouts when con- venient 308 ). It also has opined that it lacks the abil- 303. In this regard, Professor Spitzer is also mistaken in his assumption that the Commission could not directly command that licensees provide pro- gramming that speaks to a particular target audience. See Spitzer, supra note 86, at 294 & 294 n.6. Command and control regulations could directly advance the government’s interest in programming diversity. See Devins, su- pra note 149, at 147 (“ The notion that first-amendment diversity concerns, in general, outweigh core equal protection concerns is dumbfounding.” ). We agree that regulations that attempt to force commercial programmers to air programming that they do not wish to air are unlikely to be effective in some larger sense. See Ronald J. Krotoszynski, Jr., Into the Woods: Broad- casters, Bureaucrats, and Children’s Television Programming, 45 DUKE L.J. 1193, 1236-46 (1996). The problem is not that the government’s efforts to strong arm broadcasters will fail to yield additional programming of the de- sired sort, see id. at 1240-41; it is, rather, that the conscripted program- ming is unlikely to be very good and, therefore, is unlikely to be widely viewed, even by its target audience. See id. at 1241-42. 304.See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 237-38 (1995) (requiring consideration of whether a race-based measure is “ narrowly tailored” even if the government interest at stake is “ compelling” and de- fining “ narrow tailoring” to include the unavailability of race-neutral means to achieve the government’s objective); Richmond v. J.A. Croson Co., 488 U.S. 469, 507-08 (1989) (requiring narrow tailoring when the government uses race to classify citizens and defining this inquiry in terms of “ con- sideration of the use of racial-neutral means” to accomplish the govern- ment’s objective). 305.See Changes in the Entertainment Formats of Broadcast Stations, 60 F.C.C.2d 858 (1976) (memorandum opinion and order). 306.See WNCN Listeners Guild v. FCC, 450 U.S. 582 (1981). 307. See Revision of Programming and Commercialization Policies (Televi- sion Deregulation), 98 F.C.C.2d 1076, 1084-91 (1984) (report and order); Changes in the Entertainment Formats of Broadcast Stations, 60 F.C.C.2d at 863, 865-66 (1976), rev’d sub nom. WNCN Listeners Guild v. FCC, 610 F.2d 838 (D.C. Cir. 1979) (en banc), rev’d, 450 U.S. 582 (1981). 308.See Letter from William F. Caton, Acting Secretary, FCC, to Mel Kar- mazin, President, Infinity Broadcasting Corp., 9 F.C.C.R. 1746, 1746 (1994) (proposing a fine of $400,000 for indecency rule violations associated with “ The Howard Stern Show” ); see also FCC v. Pacifica Found., 438 U.S. 726, 731-32 (1978); Action for Children’s Television v. FCC, 58 F. 3d 654, 656 (D.C. Cir. 1995); KRATTENMAKER & POWE, supra note 3, at 104-19. KROTO.DOC 12/07/00 9:35 AM 160 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 ity to determine whether a particular programming for- mat is needed within a market. 309 Even if one credits these claims, the Commission could ensure some measure of program diversity simply by imposing limited common carrier obligations on broadcasters. 310 The Commission cannot credibly maintain that it lacks the ability to identify underserved listener populations, but, not- withstanding this limitation, vesting station licenses with racial minorities and women will ensure greater programming diversity and thereby satisfy viewer or listener preferences that would otherwise go unmet. Perhaps the most glaring deficiency in the Commis- sion’s EEO programs is its history of permitting mi- nority licensees to “ flip,” or transfer, their new licenses within a few months of receiving the li- censes. 311 Even if one were to accept the Commission’s 309.See Changes in the Entertainment Formats of Broadcast Stations, 60 F.C.C.2d at 861-65. 310. Under such an approach, commercial television broadcasters would be required to make available blocks of air time for the use of third-party programmers. These third-party programmers would presumably provide diverse programming or at least different programming than the station management would itself have selected. See KRATTENMAKER & POWE, supra note 3, at 327-29; Krotoszynski, supra note 1, at 2128-29; see also WNCN Listeners Guild, 610 F.2d at 849-59, rev’d, 450 U.S. 582 (1981); Citizens Comm. to Save WEFM v. FCC, 506 F.2d 246, 250-52, 261-62, 266-68 (D.C. Cir. 1974) (en banc). 311.See Jonathan D. Blake, FCC Licensing: From Comparative Hearings to Auctions, 47 FED. COMM. L.J. 179, 182 (1995); Peter W. Barnes, Bending the Rules: Investors Use Blacks as Fronts to Obtain Broadcasting Licenses, WALL ST. J., Dec. 11, 1987, at 1. Another persistent criticism of the program is the charge that the minority acts as a “ front person” while actual control of the station is in the hands of whites. See id.; see also Steven A. Holmes, TV Station Deal Draws Opposition, N.Y. TIMES, Apr. 11, 1999, at A26 (stating that Glencairn’s detractors, including the Rev. Jesse L. Jackson’s Rainbow/PUSH Coalition, view Glencairn as “ a sham whose company, Glencairn Limited, is little more than a black front to enable a major white company, Sinclair Broadcasting, to evade the Federal ban on owning more than one television station in a given market” ); Elisabeth A. Rathbun, Glencairn’s Dicey LMAs, BROADCASTING & CABLE, Mar. 29, 1999, at 34, 34 (describing the accu- sation that minority broadcaster Glencairn serves as a front operation for Sinclair Broadcasting, a non-minority-controlled entity). One frequently cited example involves Vernon Jordan, an informal political advisor to President Clinton. When the FCC awards licenses, it gives a preference to owners actively involved in the management of the station as opposed to pas- sive investors. Although Jordan’s group ultimately did not win the license, he was strongly criticized for stating in a 1983 license application that he intended to work 40 hours a week as editorial director while simultaneously maintaining a partnership at a major law firm, continuing to perform pro bono work, and serving as a director on numerous corporate boards. See Evan Gahr, FCC Preferences: Affirmative Action for the Wealthy, INSIGHT MAGAZINE, Feb. 22, 1993, at 6; see also Bill McConnell, FCC Yanks Trinity License, BROADCASTING & CABLE, Apr. 19, 1999, at 14, 14 (describing a fraudulent scheme to evade the multiple ownership rules by establishing a “ front” company headed by a person of color); Bill McConnell, FCC Probes Glencairn Deal, KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 161 undocumented assertion that minority ownership of broadcast stations remediates past discrimination and diversifies programming, the simple fact remains that these programs have not succeeded in keeping minori- ties at the helm. 312 If the Commission really believed its own rhetoric, it would impose relatively long minimum holding periods for licenses obtained through the distress sale policy or, better still, simply pro- hibit their transfer to non-minority-controlled enter- prises. Should a minority licensee attempt to transfer such a license to a non-minority-controlled enter- prise, the license should forfeit to the government. Rather than causing a surge in minority-controlled me- dia, one suspects that such policies would lead in- stead to a significant decrease in minority interest in the distress sale policy. 313 BROADCASTING & CABLE, Apr. 19, 1999, at 22, 22 (describing the Commission’s con- cerns about the allegation by the Rainbow Coalition/Operation PUSH that Glencairn serves as a front for another multiple station owner, Sinclair Broadcasting, and that Sinclair uses Glencairn to evade the duopoly rule). See generally Taking Affirmative Action Apart, N.Y. TIMES, June 11, 1995 (Magazine) at 36 (describing the Commission’s minority tax certificate pol- icy as an “ egregious” form of affirmative action “ that should be jetti- soned” because of persistent abuse). 312. See, e.g., Bruce R. Wilde, Note, FCC Tax Certificates for Minority Ownership of Broadcast Facilities: A Critical Reexamination of Policy, 138 U. PA. L. REV. 979, 1018-20 (1990) (describing a particularly egregious case involving use of tax certificates to effectuate the transfer of licenses at a discount from fair market value); Chris McConnell, Minority Ownership: A Not-Much-Progress Report, BROADCASTING & CABLE, July 20, 1998, at 7, 7 (report- ing that notwithstanding the Commission’s arsenal of EEO programs, minority ownership of television and radio stations has remained “ stuck at a mere 3%” for the past 20 years); see also Steighorst, supra note 7, at 1 (“ While minority ownership has always been low, it now stands at 2.8 percent of the nation’s 11,475 commercial radio and TV stations, according to the Depart- ment of Commerce.” ); Dan Trigoboff, PUSH Seeks FCC Hearing on Glencairn, BROADCASTING & CABLE, Aug. 10, 1998, at 18, 18 (describing the Rev. Jesse Jack- son’s concerns about whether Eddie Edwards, President of Glencairn, Ltd., an ostensibly minority-controlled entity holding broadcast licenses, effec- tively controls the operation and management of his stations). 313. In fairness to the Commission, antitrafficking rules did exist in 1978 when the Commission adopted its distress sale and comparative hearing preference rules. See Nancy R. Selbst, Note, “ Unregulation” and Broadcast Financing: New Ways for the Federal Communications Commission to Serve the Public Interest, 58 U. CHI. L. REV. 1423, 1427-28 (1991). Prior to 1982, a new licensee could not transfer a broadcasting license until after a waiting period of three years. In re Amendment of Section 73.3597 of the Commis- sion’s Rules, 55 Rad. Reg. 2d (P & F) 1081, 1082-88 (1982). Repeal of the antitrafficking rules, coupled with the distress sale policy, permitted mi- nority purchasers to buy radio and television stations at a discount of not less than 25% of fair market value and almost immediately resell the asset at fair market value. This process did little to increase the number of mi- nority station owner/operators but did offer the potential for a quick profit to politically well-connected minorities, such as former Democratic KROTO.DOC 12/07/00 9:35 AM 162 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 Ultimately, the Commission’s efforts to invoke the diversity rationale to defend glaringly obvious forms of “ racial politics” 314 undermines the legitimacy of the diversity project more generally. The Commission has so debased the concept of diversity that both re- viewing courts and commentators have come to dismiss the diversity rationale as little more than empty bu- reaucratic verbiage, a fig leaf inartfully used to conceal the Commission’s shame. 315 This is the real tragedy of the race-based component of the Commis- sion’s diversity project. 316 B. The Need for Diversity Imagine a world in which someone like Bill Gates controls not only a ubiquitous program for a computer operating system but also every radio station, televi- sion station, and newspaper within a single community. For the sake of discussion, let us call this hypo- thetical community “ Seattle.” The citizens of Seat- tle would have good cause for concern. If a single person controlled virtually all mass media outlets within the community, he would enjoy a near-perfect discretion to censor those materials, viewpoints, and programs that he deemed offensive or subversive of his interests. At one level, one could conceive of the problem as sounding in antitrust. Consumers suffer when monopo- National Committee Chairman and Department of Commerce Secretary Ron Brown and the super-lobbyist Vernon Jordan. See supra note 311. 314. Richmond v. J.A. Croson Co., 488 U.S. 469, 510 (1989). 315.See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351-56 (D.C. Cir. 1998). 316.See Devins, supra note 279, at 35 (“ In focusing on groups, diversity directly contradicts the ethos of individualism that underlies antidiscrimi- nation.” ). Commissioner Michael K. Powell has recognized the danger of in- voking the diversity rationale to defend policies more easily conceptualized as antidiscrimination efforts: I must confess, however, my discomfort about our continued desire to place extraordinary weight on the relatively tenuous nexus between the hiring of low level employees and its impact on diversity of program- ming. I am dubious of its validity and deeply worried that the courts have begun to view such rationale with dire skepticism. I certainly hope that by proferring this rationale (again despite the Lutheran Church court’s disapproval), we have not invited the judiciary to fracture any remaining legal foundation for diversity objectives. Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies and Termination of the EEO Streamlining Proceeding, 15 F.C.C.R. 2329, 2498 (2000) (report and order) (statement of Commissioner Mi- chael K. Powell) (footnotes omitted). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 163 lies or oligopolies choke off competition. 317 Note, however, that antitrust law’s principal concern is not with a diversity of products for its own sake but, rather, focuses on protecting the benefits of effi- ciency, a policy that generally leads to lower costs for goods and services in the market. Antitrust law is about maintaining open markets and fair pricing struc- tures, not the maintenance of democratic delibera- tion. 318 One could imagine a situation in which suffi- cient competition existed to provide fair prices to purchasers of advertising time or sellers of program- ming but failed to provide sufficient ownership diver- sity to ensure coverage of all major news of the day or coverage of all candidates for a particular of- fice. 319 It is difficult enough to gauge the level of com- petition sufficient to satisfy antitrust concerns. Af- ter all, the Department of Justice and the Federal Trade Commission have permitted Boeing to acquire its principal domestic competitor, McDonnell-Douglas, 320 and have similarly permitted regional Bell operating 317.See EARL W. KINTNER, AN ANTITRUST PRIMER 7-25 (2d ed. 1973); Robert H. Lande, Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged, 34 HASTINGS L.J. 67, 74-77, 93-106, 112-14, 150-51 (1982); cf. Eleanor M. Fox, The Modernization of Antitrust: A New Equilibrium, 66 CORNELL L. REV. 1140, 1141-42, 1146-55 (1981) (arguing that antitrust laws exist to facilitate democracy by preventing undue con- centrations of wealth and economic power). 318.See KINTER, supra note 317, at 15 (“ In summary, the antitrust laws seek to prevent conduct which weakens or destroys competition.” ); Lande, supra note 317, at 76–77 (“ This Article argues that Congress decided that consumers were entitled to the benefits of a competitive economic sys- tem. . . . Congress believed consumers were entitled to products priced at competitive levels and to the opportunity to buy the quantity of products a competitive market would offer.” ) 319.See generally Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 225-29 (1997) (Breyer, J., concurring). Justice Breyer voted to uphold the must- carry provisions of the 1992 Cable Act on First Amendment grounds and re- jected antitrust justifications for the statute, explaining that: [w]hether or not the statute does or does not sensibly compensate for some significant market defect, it undoubtedly seeks to provide over- the-air viewers who lack cable with a rich mix of over-the-air pro- gramming by guaranteeing the over-the-air stations that provide such programming with the extra dollars that an additional cable audience will generate . . . . Id. at 226; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663 (“ Likewise, assuring that the public has access to a multiplicity of infor- mation sources is a governmental purpose of the highest order, for it pro- motes values central to the First Amendment.” ). 320. See Adam Bryant, McDonnell Douglas-Boeing Merger Wins F.T.C. Ap- proval, N.Y. TIMES, July 2, 1999, at D3. KROTO.DOC 12/07/00 9:35 AM 164 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 companies to merge. 321 Thus, a certain degree of sub- jectivity seems inherent in deciding how big is too big. 322 There is even more room for debate regarding the optimal number of media outlets within a given community when viewed from the perspective of facili- tating democratic deliberation. It is not possible to offer up a specific formula to determine how many media outlets are sufficient to safeguard meaningful democratic deliberation. 323 Even so, the consequences associated with the absence of a sufficient number of independently owned media outlets are sufficiently unappealing to justify rules incorpo- rating a healthy margin of safety. As Federal Communi- cations Commission Chairman Kennard has put the ques- tion; “ What if four group owners owned every television station in every market in America? Would this have an effect on the quality of news coverage in America?” 324 One cannot reasonably gainsay Kennard’s answer: “ Of course it would.” 325 Returning to the hypothetical, although Gates’s stranglehold of Seattle media outlets could be concep- tualized as simply an antitrust problem, the nature of the problem transcends higher prices for advertisers or subscribers. The concentration of media power threatens to stifle meaningful public debate about matters essential to the community. In this regard, consider the fate of another fictional western me- tropolis, Cicely, Alaska. Former astronaut Maurice Minnifield, the owner of KBHR, the local radio sta- tion, attempted to use his media power to shape (if not control) the terms of various local controver- 321. See Steve Lohr, Telephone Giant: The Industry, N.Y. TIMES, May 12, 1998, at D1; see also David Ignatius, Big Doings in the “ Pipeline” Biz, WASH. POST., Oct. 10, 1999, at B7; SBC-Ameritech Deal Gets One Approval from U.S., N.Y. TIMES, Mar. 24, 1999, at C6. 322.See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,987 (1999) (report and order) (separate statement of Commissioner Michael K. Powell). 323. See id. at 12,923-24 (paras. 40-41). 324. Jon Lafayette, Consolidation: They May Be Giants, ELECTRONIC MEDIA, Oct. 5, 1998, available in 1998 WL 7998722 (quoting William Kennard, chairman of the FCC, address at a meeting of the Radio-Television News Directors Asso- ciation (Sept. 25, 1998)). 325.Id.; see also C. Edwin Baker, The Media that Citizens Need, 147 U. PA. L. REV. 317 (1998) (arguing that the media play a crucial role in facili- tating democratic deliberation and examining several First Amendment re- sponses that incorporate this insight). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 165 sies. 326 Returning ever-so-briefly to the real world, in contemporary Moscow, competing media moguls very clearly demonstrate how ownership of media can be used to create or mobilize political power. 327 A city in which media ownership is divided should, at least theoretically, feature more diversity in its coverage of local and national news, politics, and current events. As a practical matter, one should not attempt to oversell the point. In most newspaper and television newsrooms, the same maxim applies: if it bleeds, it leads. 328 The ability to attract and maintain a mass audience remains the principal objective, regardless of who owns a particular television or radio station. In many respects, the danger media concentration pres- ents is more of a theoretical threat than a certainty. That said, why assume such a risk if it can be avoided? This is doubly so when one considers that the Commission’s restrictions on multiple ownership of me- dia outlets are completely race-neutral and, accord- ingly, enjoy a high presumption of validity. 329 The burden of proof should be placed squarely on the shoulders of those who object to the continuing exis- tence of these regulations. Potential objections to bigness qua bigness also exist. Professor Louis Schwartz posits that “ the main significance of large size in units of social organi- zation lies in their tendency to substitute compulsion in place of persuasion, to emphasize discipline rather than liberty.” 330 Even if consolidation can bring 326.See Robert P. Laurence, “ Northern Exposure” Was a Tale of Real Peo- ple, SAN DIEGO UNION-TRIB., May 29, 1995, at E2 (describing Minnifield’s deci- sion unilaterally to displace a Walt Whitman reading with “ music he likes— Broadway musicals” ); see also Don Freeman, The Life and Times in Today’s Ci- cely, Alaska, SAN DIEGO UNION-TRIB., Mar. 25, 1996, at E2 (“ Maurice Minnifield, with his controlling interest, remains in denial that Cicely is not a thriv- ing metropolis in the wilds of Alaska. He still struts his stuff like a proud papa, as he gazes over the little burg, with a population of 615, that he perceives as his very own.” ). 327. Christian Caryl, Crisis? What Crisis?, U.S. NEWS & WORLD REP., June 22, 1998, at 44 (reporting on the new Russian media moguls’ overt use of their media holdings to shape public opinion, resulting in a pattern of “ selec- tive— even bizarre coverage” that “ depend[s] on the financial interests of the tycoons who own” the media outlets). 328.See Sara Sun Beale, What’s Law Got to Do With It? The Political, So- cial, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23, 45-46 (1997). 329.See infra note 344 and accompanying text. 330. Schwartz, supra note 11, at 4. KROTO.DOC 12/07/00 9:35 AM 166 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 benefits, “ it is nevertheless important to bear in mind the disadvantages as well as the advantages of bigness, to disentangle the real advantages from the mythical one with which all important institutions surround themselves, and to ask constantly whether on balance the units are not bigger than they need to be.” 331 Professor Schwartz is particularly concerned with consolidation of media resources, believing that it leads to an absence of “ critical judgment” and at times gives rise to a “ consensus of error.” 332 These consequences may be joined by mass circulations “ nourished on the blandest of diets,” in which “ big- ness in journalism blunts the edge of criticism in re- gard to news and ideas,” especially in regard to “ journalistic criticism of government and busi- ness.” 333 Schwartz’s ultimate fear is that bigness leads to authoritarianism, often the most efficient means of ordering society: “ Mussolini made the Ital- ian trains run on time.” 334 Professor Schwartz correctly intuits that effi- ciency cannot be equated with the social good; the most efficient ordering of media outlets might not be the most socially beneficial if the values associated with the media extend beyond maximizing shareholder value. “ Antitrust laws and principles can make a lim- ited contribution by restraining the number of [media outlets] that come under common control, and by pre- venting the affiliation of newspapers and broadcasting facilities.” 335 Schwartz believes that “ more than this is called for,” perhaps more than could “ be secured by law.” 336 In light of these considerations, the Commission’s diversity project, at least insofar as structural regulations aimed at diversifying the control of media outlets are concerned, presents a necessary program in addition to traditional antitrust regulation. 337 The diversity project should, at its best, protect the 331.Id. at 4-5. 332.Id. at 10-11. 333.Id. at 11-13. 334.Id. at 16-19. 335.Id. at 23. 336.Id. 337.See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 225-29 (1997) (Breyer, J., concurring); Turner Broad. Sys., Inc. v. FCC, 520 U.S. 622, 663-64 (1994). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 167 citizenry against the dangers associated with undue power to control the free flow of news and informa- tion. Commission regulations should relate in some logical fashion to the project of avoiding the concen- tration of too much media power in too few private hands. The question in every case should be whether the proposed regulation will promote structural diver- sity in some tangible fashion, thereby sustaining the project of democratic deliberation. 338 C. Some Preliminary Thoughts on Redeeming Diversity If misguided and ill-conceived government regula- tion of mass media outlets imposes unnecessary and wasteful costs on the nation’s consumers, an overzeal- ous, evangelical faith in the ability of markets to provide public goods presents an equally misguided regulatory paradigm. As Aristotle explained in his Ni- comachean Ethics, more often than not one must seek the virtuous mean between two undesirable extremes. 339 Professor Jim Chen and American Enterprise Insti- tute Fellow Gregory Sidak have launched a sustained attack on the Commission’s attempt to use government regulation to encourage the provision of public goods. 340 This point of view enjoys relatively broad, though far from unanimous, support within the legal academy. 341 At the other end of the ideological spec- trum, several prominent legal academics, including Professors Owen Fiss and Cass Sunstein, have argued in 338.See generally Schwartz, supra note 11, at 23-24. 339. ARISTOTLE, NICOMACHEAN ETHICS 42-53, ?? 1106a5-1109b (Terence Irwin trans., Hackett Publishing Co. 1985); see also Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 286-88 (1996) (discussing the Aristotelian notion that virtue lies in choos- ing the mean rather than the extreme forms of behavior); THE FEDERALIST NO. 10, at 60 (James Madison) (Random House 1937) (“ It must be confessed that in this, as in most other cases, there is a mean, on both sides of which incon- veniences will be found to lie.” ). 340.See Chen, supra note 3, at 1415; Sidak, supra note 33, at 1209 (1993); see also GEORGE A. KEYWORTH II ET AL., THE TELECOM REVOLUTION: AN AMERICAN OPPORTUNITY 31-36, 52-68 (Progress and Freedom Found. ed., 1995) (proposing the abolition of the Commission and the adoption of market-based policies regarding all communications services, including broadcasting). 341. See, e.g., KRATTENMAKER & POWE, supra note 3, at 298-315; KEYWORTH ET AL., supra note 340, at 31-34. In fairness to Krattenmaker and Powe, it bears noting that although they generally embrace a market-based paradigm for broadcast regulation, especially with respect to basic programming deci- sions, they do not believe that efforts to promote structural or outlet di- versity should be completely abandoned. See KRATTENMAKER & POWE, supra note 3, at 319-21. KROTO.DOC 12/07/00 9:35 AM 168 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 favor of more aggressive government regulatory efforts to force broadcasters to serve the public good. 342 Both sets of arguments have merit. As a baseline matter, the Commission’s critics must take into con- sideration the deference that administrative agencies usually receive when making policy judgments. 343 Thus, so long as the Commission’s assertion that diversifi- cation of the ownership of media outlets promotes the public interest is reasonable, it may lay claim to the benefit of the doubt. In point of fact, the Commis- sion’s policies are not merely rational but critically important to facilitating democratic deliberation. In this respect, the policies designed to promote struc- tural diversity stand on a very different footing than its race- and gender-based diversity programs. Given Adarand, the Commission bears a heavy burden when it relies on race or gender as an administrative short- hand; conversely, when the Commission uses regulatory criteria that do not implicate suspect classifica- tions, its work product enjoys a strong presumption of validity. 344 Critics of the Commission’s structural di- versity-enhancing regulations carry a much higher bur- den of proof than do the critics of the Commission’s race- and gender-based diversity programs. Although the Commission’s efforts to produce 342. OWEN H. FISS, THE IRONY OF FREE SPEECH (1996); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); Cass R. Sunstein, Television and the Public Interest, 88 CAL. L. REV. 499 (2000). 343. See, e.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Coun- cil, 467 U.S. 837 (1984); FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981); FCC v. National Citizens Comm. for Broad., 436 U.S. 775 (1978); Gray v. Pow- ell, 314 U.S. 402 (1941); Louis L. Jaffe, Judicial Review: Question of Law, 69 HARV. L. REV. 239, 263 (1955). 344.See Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186 (1935) (“ [W]here the regulation is within the scope of authority legally delegated, the presumption of the existence of facts justifying its specific exercise attaches alike to statutes, to municipal ordinances, and to orders of administrative bodies” ); see also United States v. Shimer, 367 U.S. 374, 382-83 (1961) (holding that if an agency decision maker’s “ choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned” ); Bates & Guild Co. v. Payne, 194 U.S. 106, 108-09 (1904) (“ [W]here Congress has committed to the head of a department certain duties requiring the exercise of judgment and discretion, his action thereon, whether it involve questions of law or fact, will not be reviewed by the courts, unless he has exceeded his authority or this court should be of opinion that his action was clearly wrong.” ). See generally Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850-53 (D.C. Cir. 1970). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 169 structural diversity in the ownership of media outlets generally deserve support, Professors Fiss and Sun- stein appear to have underestimated seriously the dif- ficulties associated with drafting and enforcing ef- fective regulations that will force commercial broadcasters to act as public trustees. 345 Nonstruc- tural, content-based regulations designed to coerce diverse programming might be constitutional but are unlikely to be effective. By the same token, commentators like Professor Chen and Mr. Sidak grossly overestimate the benefits of the market. Although markets are incredibly effi- cient ways of distributing goods and services, they will not reliably serve all communities nor will they meet all preferences absent a state of perfect compe- tition (which, in the real world, will never exist). Moreover, other shortcomings inherent in the market’s performance as a distributor of goods and services, including imperfect information and externalities— not to mention public goods, which everyone benefits from but has no incentive to purchase— effectively preclude sole reliance on market forces to regulate broadcast- ing. 346 Without some sort of government subsidy, persons living in rural areas are unlikely to enjoy access to the newest communications services, including access to state-of-the-art fiberoptic telecommunications net- works or new PCS services. 347 The cost of wiring rela- tively isolated, sparsely populated communities will make undertaking the project financially unattractive to entities seeking to maximize investors’ returns on equity. Left to its own devices, the market would cre- ate a nation of information “ haves” and “ have nots.” Of course, one could snidely invite those who live in rural communities to move to New York City if 345.See Krotoszynski, supra note 1, at 2108-22. 346.See Daniel H. Cole & Peter Z. Grossman, When Is Command-and-Control Efficient? Institutions, Technology, and the Comparative Efficiency of Al- ternative Regulatory Regimes for Environmental Protection, 1999 WIS. L. REV. 887. 347. “ PCS” stands for “ personal communications services.” PCS in- cludes new wireless, audio, visual, and data communications systems. See Redevelopment of Spectrum to Encourage Innovation in the Use of New Tele- communications Technologies, 7 F.C.C.R. 6886, 6886 (para. 2) (1992) (first report and order); Redevelopment of Spectrum to Encourage Innovation in the Use of New Telecommunications Technologies, 7 F.C.C.R. 1542, 1542-43 (paras. 4-8) (1992) (notice of proposed rulemaking). KROTO.DOC 12/07/00 9:35 AM 170 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 they desire access to the Internet or advanced tele- communications services. Since the New Deal, however, there has been a political consensus that government has a responsibility to correct the inequalities the Invisible Hand has visited upon rural America. For ex- ample, government subsidies were needed to ensure that rural America enjoyed access to electricity and basic telephone service, and the federal government provided this financial aid. 348 In the case of telecommunications services, Con- gress and the Commission have embraced a new statutory mandate termed Universal Service. 349 Taxes on inter- and intra-state telecommunications services will be used to subsidize the provision of telecommunications services to rural America and to schools, hospitals, and libraries. 350 If, as Thomas Jefferson suggested, only an educated and enlightened populace is capable of self-government, 351 the Universal Service project makes a great deal of sense. Given the market’s failure to provide telecommuni- cations services consistently and equally to all, it is only reasonable to question whether the market can be trusted to meet the nation’s programming needs. One need not argue in favor of heavy-handed command and control regulations that would mandate the airing of 348. See, e.g., Rural Electrification Act of 1936, 7 U.S.C. §§ 901-950aa (1994). 349.See 47 U.S.C.A. § 254 (West Supp. 1999); Universal Service, 47 C.F.R. pt. 54 (1998); Federal-State Joint Board on Universal Service, 12 F.C.C.R. 8776 (1997). 350.See Thomas G. Krattenmaker, The Telecommunications Act of 1996, 49 FED. COMM. L.J. 1, 21-23 (1996). Notwithstanding the high hopes of its sup- porters, there has been tremendous controversy over the universal service program at the federal level, and its future is in some doubt. See Thomas K. Crowe, The Controversy over Universal Service Costs, TELECOMMUNICATIONS, June 1998, at 20, 20; David Schoenbrod & Marci Hamilton, Congress Passes the Buck: Your Tax Buck, WALL ST. J., June 12, 1998, at A10. The FCC’s order im- plementing the universal service program has been challenged by numerous parties in court, see California PUC Joins Court Challenge Against Universal Service Order, COMM. TODAY, Aug. 14, 1997, available in 1997 WL 10864757, and an association representing small long distance carriers has challenged the program as an unconstitutional delegation of the taxation power. See ACTA Challenges Constitutionality of Universal Service Regulations, COMM. TODAY, March 11, 1998, available in 1998 WL 5265068. 351. See Letter from Thomas Jefferson to Joseph P. Cabell (Feb. 2, 1816), in THE BEST LETTERS OF THOMAS JEFFERSON 208-12 (J.G. de Roulhac Hamilton ed., 1926); Letter from Thomas Jefferson to Joseph P. Cabel (Sept. 9, 1817), in 17 WRITINGS OF THOMAS JEFFERSON 417-18 (P. Ford ed., 1899); Thomas Jefferson, A Bill for the More General Diffusion of Knowledge, in THE COMPLETE JEFFERSON 1048 (Saul K. Padover ed., 1943). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 171 particular amounts of politically favored programming to support content- and viewpoint-neutral structural ownership regulations designed to foster programming diversity. If one believes the possibility that gov- ernment regulation might be necessary to correct shortcomings inherent in the market, such structural regulation would be an entirely rational response. Take, for example, the value of localism. 352 It would be technically feasible to offer national tele- vision licenses rather than issuing licenses on a com- munity-by-community basis. 353 The Commission histori- cally has placed a high value on local control of broadcasting on the theory that local control would result in the provision of programming that better meets the needs of the community of license. 354 When threatening weather approaches or a major local event takes place, a locally based broadcaster is far more likely to provide coverage than a national station programmed from New York City, Chicago, or Los Ange- les. 355 A quick perusal of cable programming practices demonstrates the veracity of the proposition. With the exception of PEG 356 and leased-access channels, cable 352. “ Localism” refers to the Commission’s effort to distribute broad- casting licenses over a wide geographic area to provide as many individual communities as possible with television and radio stations. See generally FCC Policy Statement on Comparative Hearings, 1 F.C.C.2d 393 (1965) (public notice); Sixth Report and Order on Television Allocations, 17 Fed. Reg. 3905 (1952). Ideally, every community will enjoy access to a television or radio station located within or proximate to the community, thereby ensuring that matters of local concern receive coverage on the broadcast media. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663 (1994). 353.See T. BARTON CARTER ET AL., THE FIRST AMENDMENT AND FIFTH ESTATE 47 (4th ed. 1996) (“ High power stations in major urban centers could serve the entire country in only one-third the spectrum space presently used.” ). 354.See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d at 395-96 (1965); Network Programming Inquiry, 25 Fed. Reg. 7291 (1960); see also Turner Broad. Corp. v. FCC, 512 U.S. 622, 662-63 (1994); United States v. Southwestern Cable, 392 U.S. 157, 173-74 (1968). 355.See CARTER ET AL., supra note 353, at 47 (“ [L]ocal stations are impor- tant; they are outlets for local news and forums for local citizens to ex- press their views, they serve local advertisers, and they provide such local services as weather reports (which might be critical in areas subject to flash flooding or sudden tornadoes or storms).” ). 356. “ PEG” is an acronym for “ public, educational, and governmental” cable access channels. PEG channels provide a platform for locally pro- duced cable programming (e.g., real-world cable shows of the sort parodied on Saturday Night Live’s “ Wayne’s World” and “ Goth Talk” sketches). See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 734 (1996); id. at 781-82 (Kennedy, J., concurring in part, concurring in the judgment in part, and dissenting in part). KROTO.DOC 12/07/00 9:35 AM 172 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 programming presents very little programming respon- sive to the needs, wants, and desires of local commu- nities. 357 If you want the prized hog competition at the state fair covered live, you need a local media presence. Elections for city, county, and even state officers might go uncovered if left to the networks or national cable news channels. Although alternate sources of information exist, including the Internet and local newspapers, most Americans continue to rely upon local and network television for their news pro- gramming. 358 With respect to local news, local broad- casters are effectively the only game in town. 359 Given economies of scale, it might be inefficient to cover the hog competition at the state fair. Per- haps Jerry Springer or Montel Williams would generate higher ratings or cost less to broadcast. From a purely economic point of view, covering a debate be- tween the candidates for local office might be a com- 357. There are exceptions of course, such as local weather and news chan- nels. In our view, a quick perusal of these cable stations’ program offer- ings— especially when contrasted with locally originated broadcast televi- sion programming— simply confirms our general statement about the primacy of local commercial broadcast television. Moreover, the paucity of advertisers on such cable stations also confirms their marginal status. 358. Television is most important with respect to disinterested or margin- ally interested voters, whereas politically active individuals rely more on newspapers. See Steven Chaffee & Stacey Frank, How Americans Get Political Information: Print Versus Broadcast News, 546 ANNALS AM. ACAD. POL. & SOC. SCI. 48, 58 (1996). Although use of the Internet is increasing, especially among elites, it supplements rather than replaces traditional news sources. See Ted Bridis, More Americans Getting Their News on Internet, SEATTLE TIMES, June 8, 1998, at A5. 359. Local broadcasters have become the predominant source for news. See Steven D. Stark, Local News: The Biggest Scandal on TV, WASH. MONTHLY, June 1, 1997, at 38. One article even went so far as to call local television news the “ heavyweight champion” because in a recent survey local news received both a high trust rating and was ranked as one of “ two most frequent sources of news.” See Frank Newport & Lydia Saad, A Matter of Trust, AM. JOURNALISM REV., July 17, 1998, at 30, 30. According to provisions of the Cable Televi- sion Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992) (codified at 47 U.S.C. § 325(b)(1)), a local cable system must have the consent of a local broadcast station to retransmit that station’s signal. Every three years, broadcasters must choose whether to de- mand mandatory carriage or negotiate for compensation. See 47 U.S.C.A. § 325(b)(3)(B) (West Supp. 1999); see also Michael Katz, Table Time Ap- proaches for Retrans: BROADCASTING & CABLE, Feb. 26, 1996, at 46, 46. As a re- sult of retransmission consent negotiations with cable companies, a handful of local news and weather channels were created in communities across the country. See Linda Moss, The Upside of Retrans, MULTICHANNEL NEWS, Jan. 27, 1997, at 34A. However, few viewers watch such channels on a regular basis. Furthermore, when retransmission consent agreements were renegotiated in 1996, some channels were merged or condensed and are no longer operating as stand alone channels. See id. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 173 plete disaster. Many local television and radio sta- tions nevertheless provide such coverage on a volun- tary basis. Perhaps local commercial television broad- casters do not provide such coverage solely out of the goodness of their hearts or a keen sense of civic re- sponsibility. Nevertheless, the fact remains that a national television channel generally would not cover the lieutenant governor’s race in South Dakota absent the most extraordinary and unlikely of circumstances. The Commission’s practice of issuing broadcasting licenses on a community-by-community basis has the salutary effect of ensuring a local media presence. It also has the ancillary effect of dividing up ownership rights to the mass media. When coupled with the du- opoly rule and local and national ownership restric- tions, the Commission’s rules have the effect of dis- persing media power among multiple owners. If Madison was correct in asserting that the best safeguard of liberty is to set faction against faction, 360 the Com- mission’s approach to dividing ownership among multi- ple constituencies makes a great deal of sense. 361 Employees are unlikely to criticize their employ- ers, and this truism holds true for the Fourth Es- tate. 362 Accordingly, as fewer and fewer entities con- trol more and more broadcast outlets, the incentive to 360.See THE FEDERALIST NO. 10, at 58-60 (James Madison) (Random House 1937); THE FEDERALIST NO. 51, at 322 (James Madison) (Random House 1937); THE FEDERALIST NO. 53, at 322-26 (James Madison) (Random House 1937). 361.See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189-92 (1997); id. at 225-29 (Breyer, J., concurring); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663-64 (1994). 362.See BEN H. BAGDIKIAN, THE MEDIA MONOPOLY 217 (4th ed. 1992) (indicating that 33% of American newspaper editors said they would not feel free to print an item damaging to their parent firms); see also Howard Kurtz, ABC Kills Story Critical of Disney, WASH. POST, Oct. 14, 1998, at C2. The term “ Fourth Estate” describes the role of the press in eighteenth and nine- teenth century Great Britain. See LUCAS A. POWE, JR., THE FOURTH ESTATE AND THE CONSTITUTION: FREEDOM OF SPEECH IN AMERICA 233-34, 260-61 (1991) (describing the source of the phrase “ Fourth Estate” and Justice Potter Stewart’s importa- tion of the phrase into modern First Amendment jurisprudence); Potter Stew- art, Or of the Press, 26 HASTINGS L.J. 631, 634, 35 (1975). In English consti- tutional theory, the government consists of three main components or estates: the Crown, the Lords Temporal and Ecclesiastical, and the Commons. Thomas Carlyle quoted Edmund Burke on the status of press as a Fourth Es- tate, or fourth component of the English government, as follows: “ Burke said there were Three Estates in Parliament; but, in the Reporters’ Gallery yon- der, there sat a Fourth Estate more important far than they all. It is not a figure of speech or witty saying; it is a literal fact— very momentus [sic] to us in these times.” Stewart, supra, at 634. Given the importance of the press to the process of democratic deliberation, Burke’s appraisal of the press was undoubtedly correct. KROTO.DOC 12/07/00 9:35 AM 174 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 expose disinformation or to correct for undercoverage of a particular story decreases. 363 If Ted Turner en- joyed a media monopoly, would CNN and Time have fallen upon their swords so quickly in the aftermath of the Operation Tailwind story scandal? 364 It seems highly unlikely. The pervasive, negative attention brought to bear on CNN and Time’s conduct in reporting this story forced Time Warner to take aggressive corrective ac- tion. 365 When proponents of exclusive reliance on the mar- ket to regulate the broadcasting industry argue that media concentration promotes program diversity, they are only partially correct. It is certainly true that a person who owns two radio stations within the same market will probably select different program formats for each station, whereas divided ownership might lead to competition within the same format. 366 Suppose, how- ever, that Disney owned both stations. Would the sta- tions’ news bureau report on Disney misdeeds with the same salacious alacrity of a competing local station unaffiliated with Disney? It seems rather unlikely. 367 Just as divided political power fosters accountabil- ity— a central tenet of federalism— so too, divided media power fosters accountability. The project of outlet diversity bears a clear re- lationship to the project of maintaining a viable, participatory democracy. To the extent that the Com- mission maintains rules and policies that divide and subdivide media ownership, it does the public a serv- ice. Moreover, this service is independent of anti- trust concerns regarding price fixing or undue market power. The Commission’s pursuit of diversity in the context of media regulation relates to fostering ac- 363.See Schwartz, supra note 11, at 11-13, 23-24. 364.See Steve McClellan, CNN Takes a Fall, BROADCASTING & CABLE, July 6, 1998, at 10, 10-11; see also Dan Trigoboff, Ex-Green Beret Sues CNN Over Tailwind, BROADCASTING & CABLE, Aug. 10, 1998, at 12, 12. 365.See Steve McClellan & Dan Trigoboff, Role Confusion in TV News, BROADCASTING & CABLE, July 13, 1998, at 14, 14-15. 366.See Schurz Comm., Inc. v. FCC, 982 F.2d 1043, 1054-55 (7th Cir. 1992); KRATTENMAKER & POWE, supra note 3, at 40-45; Daniel L. Brenner, Owner- ship and Content Regulation in Merging and Emerging Media, 45 DEPAUL L. REV. 1009, 1017 (1996); Peter O. Steiner, Program Patterns and Preferences, and the Workability of Competition in Radio Broadcasting, 66 Q.J. ECON. 194, 212- 17 (1952). 367.See Kurtz, supra note 362, at C2; Laurie Mifflin, An ABC News Re- porter Tests the Boundaries of Investigating Disney and Finds Them, N.Y. TIMES, Oct. 19, 1998, at C8. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 175 countability to the public. Even if competition ex- isted with respect to advertising rates or program purchasers, consolidation of media ownership could stifle the incentive to report on important issues of the day. As Professor Patricia Williams has observed: “ [T]he degree to which the major media, the culture- creators in our society, are owned by very few or are subsidiaries of each other’s financial interests, must be confronted as a skewing of the way in which cul- tural information is collected and distributed.” 368 D. Potential Objections to Pursuing Media Diversity Through Government Regulation The problem with the Commission’s efforts to fos- ter diversity is that too many of its diversity ef- forts have had precious little to do with enhancing structural diversity among media outlets. Mr. Sidak correctly notes that “ [a]s an initial matter, ‘diver- sity of expression’ is a remarkably vague objective for the United States government to pursue, consider- ing that it directly touches freedom of speech.” 369 Mr. Sidak further asserts that the Commission has been less than effective in defining the objectives and scope of its diversity project; at some times “ the phrase connotes diverse ownership,” and “ [a]t other times, it connotes a nannyish concern that listeners and viewers receive their recommended daily amount of various intellectual and cultural nutrients.” 370 The EEO guidelines and race-based licensing preferences are a case in point— does the Commission equate race or gender with predetermined attitudes toward program- ming (a highly essentialist point of view), or does it view minority ownership (however brief) as working a kind of social magic? Mr. Sidak argues that “ [o]nly a Panglossian would suppose that an agency as politicized as the FCC would arrive at a definition of ‘diversity of expression’ that was truly neutral with respect to content.” 371 He ultimately rejects the diversity project entirely, dismissing it as “ a euphemism for government’s appe- 368. Williams, supra note 135, at 535. 369. Sidak, supra note 33, at 1229. 370.Id. 371.Id. at 1230. KROTO.DOC 12/07/00 9:35 AM 176 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 tite to control resource allocation in the telecommu- nications industry.” 372 At most, in Mr. Sidak’s view, the “ FCC should construe diversity of expression to be an objective coextensive with the antitrust laws’ goal of maximizing consumer welfare by promoting com- petition in the markets for goods and services.” 373 Given the Commission’s history of confusing means with ends, one can understand Mr. Sidak’s eagerness to de- clare the project a failure. Mr. Sidak’s critique of the Commission’s diversity project contains two assumptions, both of which are highly contestable. First, he assumes that the diver- sity project cannot work because some of the Commis- sion’s past efforts have been ineffective. Second, he believes that the market, tempered by antitrust law, will ensure sufficient opportunities for the dissemi- nation of differing viewpoints. Even if the Commission’s attempts at promoting di- versity have not always worked, this does not mean that regulatory efforts aimed at preventing concentra- tions of media power have no social value. The flaw in many of the Commission’s diversity efforts has been its failure to consider the ends its diversity poli- cies are meant to achieve. Rather than establishing objectives, the Commission has instead pursued a vari- ety of means, many of which act in opposition to each other. For the diversity project to work, it must be implemented through policies designed to advance a co- herent theory of media power and democracy. Given the free-wheeling nature of much Commission policymaking and the unyielding pursuit of interest group advantage, 374 Mr. Sidak might be correct in argu- ing that the Commission is simply incapable of design- ing and implementing a meaningful diversity program. Even if, in theory, such a program could be designed, the Commissioners might simply lack the political capital to draft, implement, and enforce it in light of the unyielding pressures brought to bear against the Commission. 375 As between inept regulation and 372.Id. at 1232. 373.Id. at 1238. 374.See MASHAW, supra note 13, at 23-29, 106-30. 375.See KRASNOW & LINGLEY, supra note 13, at 127-39; see also Bill McConnell & Paige Albaniak, Kennard Catches Hill, BROADCASTING & CABLE, Mar. 22, 1999, at 8, 8-11 (describing the efforts of various members of Congress to browbeat the incumbent chairman into working their individual wills, often at cross KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 177 faith in the market, most reasonable people might pre- fer the tender mercies of the market. The Commission has proven itself to be incapable of enforcing open-ended public interest requirements that require more than a modicum of discretion. 376 At the same time, however, the Commission has demon- strated its ability to enforce public interest regula- tions that contain objective, quantifiable standards; limitations on commercial matter in children’s televi- sion programming provide a good example. 377 To the ex- tent that diversity-enhancing regulations do not rely on hopelessly subjective criteria for enforcement, there is good cause to believe that the regulations might work as intended. Turning to Mr. Sidak’s second premise, faith in the market, one should think twice before consigning the airwaves to the person or entity with the deepest pockets. Just as a government monopoly over the air- waves would present a grave risk to democracy, 378 so, too, the private accumulation of media power presents a threat to free and open debate. Unchecked concentra- tions of media power constitute a tangible threat to democracy. 379 If someone like Rupert Murdoch controlled the broadcast media in a particular community, he would enjoy tremendous power to set the terms of the public agenda. 380 Carefully separating and dividing political power will do little good if a handful of media oligarchs enjoy a stranglehold on the means of obtaining politi- cal power. In a mass, participatory democracy, candi- dates for public office rely on the broadcast media to reach the voters. Consider the case of California: with over 35 million citizens spread out across a vast expanse of land, a candidate for statewide office must purposes). 376.See Krotoszynski, supra note 1, at 2117-22. 377. See id. at 2120-21. 378.See generally MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA 31-37, 114-16 (1983); William W. Van Alstyne, The First Amendment and the Suppression of Warmongering Propaganda in the United States: Comments and Footnotes, 31 LAW & CONTEMP. PROBS. 530, 531-36 (1966). 379.See BAGDIKIAN, supra note 362, at 216-18. 380. See Geraldine Fabrikent, Fox Drops Drama Based on Charge Against Jus- tice Thomas, N.Y. TIMES, Sept. 14, 1998, at C1 (reporting that Rupert Murdoch personally killed programming highly critical of Associate Justice Clarence Thomas that was slated to run on the FOX network because “ Justice Thomas was a friend of his” ). KROTO.DOC 12/07/00 9:35 AM 178 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 of necessity conduct her campaign over the airwaves. Notwithstanding the ballyhooed claims of a new media era, television provides the most effective means of generating a mass audience. Whether for Princess Di- ana’s funeral or the Super Bowl, broadcast television continues to serve as a first among ostensible equals within the Fourth Estate. 381 Mr. Sidak suggests that the electronic media should be treated like the publishing industry, peri- odicals, and newspapers. 382 Using print regulation as a paradigm, he questions why broadcasters should be sub- jected to a different regulatory regime. 383 His pro- posed analogy to print and newspapers is not, however, entirely apt. Newspapers tend to be very local in their scope. Local advertisers want to reach local consumers. The Commission’s multiple ownership re- strictions, network-affiliate rules, and localism policies have, through regulation, largely replicated for the electronic media the local nature of newspaper publishing. Absent such policies, it is not only pos- sible, but quite likely, that programming decisions would be more highly centralized. 384 There is good rea- son to fear that the massive consolidation taking place in broadcasting, and particularly in radio 381.See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,912 (para. 18) (1999) (report and order). Although the networks’ share of the total television audience continues to decline, it nevertheless remains true that only network television is capable of drawing a huge national audience for special events such as the Superbowl or the fi- nal episode of Seinfeld. See Brian Lowry, Peacock Clinches Top Spot: NBC Wins Season’s Battle for Viewers as Big-Network Ratings Continue to Slide, L.A. TIMES, May 22, 1998, at F1; Jon Krampner, On the Edge at 50, L.A. TIMES, May 17, 1998, at 8; see also Henry Geller, Public Interest Regulation in the Digital TV Era, 16 CARDOZO ARTS & ENT. L.J. 341, 341-42 (1996). Moreover, local and network television remain the electorate’s prinicipal source of informa- tion about candidates and campaigns. See David Ho, Americans Seeking Alter- native News Sources, INDIANAPOLIS STAR, Feb. 6, 2000, at A9 (reporting that a “ January [2000] poll showed that while three fourths of the public still get most of their campaign news from television, viewers have migrated from the networks since the last presidential election” ). 382. See, e.g., Sidak, supra note 33, at 1230-31. 383. See id. 384. As one irate commentator has remarked: “ I wonder if Congress knew when it passed the telecom bill that people are pigs?” Al Brumley, Radio’s Signals Are Hard to Read, DALLAS MORNING NEWS, Oct. 19, 1997, at 5C. Goff Lebhar, the commentator and general manager at a locally owned radio station in Washington, D.C., followed up with an equally pithy second rhetorical question: “ Did they realize that half a dozen people, all males, would some- day control what goes on the radio who have no obligation to satisfy anyone but Wall Street?” Id. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 179 broadcasting, will inevitably lead to “ homogenized radio that sounds the same in every city, less and less local programming, less and less input from the listeners.” 385 Without the ownership rules, broadcast television would probably look more like cable televi- sion, which generally programs to a mass, national audience twenty-four hours a day, seven days a week. Under the current regulatory regime, local televi- sion broadcasters do not necessarily adhere to this “ one size fits all” model. That is to say, a local broadcaster will sometimes elect not to clear network programming that the station manager believes local viewers will find offensive. Although most local af- filiates air most network programming, this is not universally true. 386 The Commission’s efforts to pre- serve localism as a feature of the broadcast media will be effectively thwarted if large, corporate enti- ties are permitted to amass large station holdings and use central programming techniques to achieve econo- mies of scale and scope. 387 The dangers associated with consolidation of media power in fewer and fewer hands presents more than a threat to locally based programming decisions. Uncon- trolled centralization of media power presents a threat to liberty no less acute than the uncontrolled 385.Id. 386. For example, WLOX-TV, an ABC network affiliate that operates on chan- nel 13 in Biloxi, Mississippi, does not air NYPD Blue, preferring instead to air two syndicated “ Seinfeld” shows in its place. Similarly, several public television stations refused to air Armistead Maupin’s Tales of the City, be- lieving the subject matter to be too controversial for local audiences to tolerate. See Krotoszynski, supra note 303, at 1231 n.181; see also Lisa de Moraes, Two NBC Affiliates, Refusing to Play “ God” , WASH. POST, Mar. 7, 2000, at C7 (reporting on the decision of NBC affiliates in Salt Lake City, Utah, and Pocatello, Idaho, to refuse to air the NBC primetime cartoon God, the Devil, and Bob because of its controversial content); In Brief, BROADCASTING & CABLE, Apr. 3, 2000, at 104, 104 (reporting that NBC had can- celled God, the Devil, and Bob and that twenty-two NBC affiliate stations, representing about 5% of the country, did not air the series). Local pro- gramming decisions also run in the other direction— WKRG-TV, a CBS affiliate broadcasting on channel five in Mobile, Alabama, regularly preempts network programming to broadcast the Rev. Billy Graham’s crusades. These localized programming decisions would be far less likely to exist in a regime charac- terized by effectively nationalized ownership of broadcast stations. 387. See Frank McCoy, A New Media Giant Is Born, U.S. NEWS & WORLD REP., Sept. 7, 1998, at 50 (describing the phenomenal growth of Chancellor Media Group, which is controlled by Hicks, Muse, Tate & Furst, Inc., a company run by Tom Hicks); Jones, supra note 7, at C1 (reporting that “ [w]ithin two to three years,” Tom Hicks “ will own 600 to 700 radio stations nationwide” and “ 50 to 100 television stations” ). KROTO.DOC 12/07/00 9:35 AM 180 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 centralization of political power. Concentrated media power is utterly unaccountable to the citizenry. 388 Simply put, those who control the electronic media could, with sufficient concentrations of media power, effectively displace citizens as the de facto rul- ers. 389 Of course, resolving this difficulty by making the electronic media democratically accountable would be a cure worse than the disease. 390 A free and inde- pendent Fourth Estate is essential to the functioning of our participatory democracy. Even if one concedes that imposing democratic accountability would be both undesirable and infeasible, the use of content- and viewpoint-neutral government regulations to ensure ac- countability through structural diversity remains a viable solution to the problem. To date, the Commission has not forcefully and consistently articulated the connection between its diversity project and democracy. 391 Its failure to do so has left the Commission’s diversity programs sub- 388.Cf. THE FEDERALIST NO. 10 (James Madison) (Random House 1937). 389. At the moment, this prospect admittedly remains the stuff of James Bond films. See TOMORROW NEVER DIES (Universal Pictures 1997) (featuring the geopolitical machinations of fictional media mogul Elliot Carver, who seems to be loosely modeled on Rupert Murdoch). In the absence of effective gov- ernment regulations that disperse media power, it is far from certain that this danger will remain solely a work of fiction. 390.See Letter from Thomas Jefferson to Edward Carrington (Jan. 16, 1787), in THE PORTABLE THOMAS JEFFERSON 414 (Merill D. Peterson ed., 1975) (“ [W]ere it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a mo- ment to prefer the latter” ); Letter from Thomas Jefferson to Elbridge Gerry (Jan. 26, 1799), in THE PORTABLE THOMAS JEFFERSON, supra, at 477-78 (“ I am for . . . freedom of the press, & against all violations of the constitution to silence by force & not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents.” ). Of course, after serving as president for two terms, Jefferson’s enthusiasm for the press declined precipitously, although he never abandoned his formal posi- tion that a free and uncensored press was essential to the maintenance of a participatory democracy. See Letter from Thomas Jefferson to John Norvell (June 14, 1807), reprinted in THE PORTABLE THOMAS JEFFERSON, supra, at 506 (“ Per- haps an editor might begin a reformation in some such way as this. Divide his paper into 4 chapters, heading the 1st, Truths. 2d, Probabilities. 3d, Possibilities. 4th, Lies.” ). 391. The Commission’s recent report and order regarding the limited repeal of the duopoly and one-to-a-market rules provides an important possible ex- ception. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,911-16 (paras. 16-24) (1999) (report and order) (justi- fying the Commission’s continuing concern about undue concentrations of mass media ownership in terms of facilitating democratic deliberation). It re- mains to be seen whether the Commission will consistently invoke democratic deliberation as the touchstone of its diversity policies in general or its multiple ownership rules in particular. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 181 ject to sharp attack. By dividing and limiting the concentration of media power, the Commission’s diver- sity policies enhance democracy. From a law-and- economics perspective, this objective might not be worthy of foregoing the efficiencies of an unregulated market. Reasonable minds can disagree. E. The Need for Structural Regulations to Maintain Ownership Diversity Daniel Brenner, vice-president of the National Ca- ble Television Association, has argued that “ it is difficult to predict that large owners vis-à-vis small ones are more inclined towards antidemocratic val- ues.” 392 He suggests that the size of a company or the number of stations it controls does not necessarily correlate with the broad mindedness of its programming decisions. 393 This observation may well be true. In some circumstances, bigger might be better, and smaller might translate into small minded. That said, if the ownership of local media outlets is centralized among a few owners, the dangers of self-serving and, perhaps, antidemocratic, behavior loom much larger. As Brenner himself recognizes, a frenzy of consolidation has occurred in the mass media industry over the past decade. 394 The need for structural regulation does not, how- ever, translate into a need for behavioral regulation. The Commission has demonstrated its utter inability to police meaningfully content-based regulations of broadcast programming. 395 As Brenner puts it, “ [t]he goals of behavioral regulation aren’t the problem; its enforcement is.” 396 This is so because this type of regulation requires the Commission to make subjective determinations about the content of programming— a task for which bureaucrats are extremely ill-suited. 397 For the most part, the Commission has wisely given up 392. Brenner, supra note 366, at 1033-34; cf. Schwartz, supra note 11, at 4-7, 11-13, 22-24. 393.See Brenner, supra note 366; at 1034; cf. Schwartz, supra note 11, at 11-13. 394.See Brenner, supra note 366, at 1010-11. 395.See Krotoszynski, supra note 1, at 2110-13. 396. Brenner, supra note 366, at 1015. 397.See KRATTENMAKER & POWE, supra note 3, at 70-84, 298-309, 313-15; Kro- toszynski, supra note 1, at 2119-20. KROTO.DOC 12/07/00 9:35 AM 182 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 on this quixotic endeavor. 398 Structural regulation— limiting the number of sta- tions that a single entity can control, divorcing own- ership of print media from ownership of broadcast me- dia within the same community, limiting the number of stations that a single entity can own or control within a community, or licensing stations on a commu- nity-by-community basis— operates quite differently. These rules are mechanical in operation; the Commis- sion does not engage in content-based inquiries to de- termine whether a licensee (or would-be licensee) is in compliance. They are also viewpoint-neutral. The Commission is not picking and choosing among potential speakers in drafting or applying these rules. Given the inherent dangers associated with undue and unchecked concentrations of media ownership, these Commission rules and policies serve the public quite well. They also go well beyond the concerns of tradi- tional antitrust regulation. 399 The Commission is not attempting to protect consumers of commercial adver- tising time from unfair prices but rather is trying to ensure that the community enjoys access to a competi- tive marketplace of ideas. Indeed, the marketplace metaphor aptly describes the Commission’s structural diversity policies. Con- sider a typical farmers market containing several dozen tables for would-be sellers to use to display their produce. Suppose that a large grocery chain, Bigco, purchases the property. Suppose further that Bigco reserves about the half the stalls for its own use and leases the remaining stalls on a highly selec- tive basis, generally permitting only those with infe- rior produce to obtain space. Assuming that other op- portunities to sell produce exist within the community, Bigco has not committed any antitrust vio- lation. Indeed, Bigco could have torn down the market and erected a shiny new superstore on the property, if it were so inclined. The town’s farmers market is no more. To the ex- tent that the community derived some utility from shopping at a traditional farmers market, that utility has been lost, even if produce is otherwise available 398.See Brenner, supra note 366, at 1013-15. 399.Cf. Chen, supra note 3, at 1482-94. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 183 on competitive price terms elsewhere within the commu- nity. A community can do without an open-air, multi- ple-vendor market for fresh produce. A community com- mitted to democratic self-government cannot do without a competitive marketplace of ideas, and, for better or worse, locally based television broadcasters continue to play a special role in facilitating the process of democratic deliberation. 400 The free-market crowd would probably assert that even if media concentrations led to oligopolistic con- centrations of media power, market forces would never- theless prevent the owners from acting irrationally. Judge Richard Posner made exactly this sort of argu- ment in Schurz Communications, Inc. v. Federal Commu- nications Commission, 401 a case that struck down the Commission’s financial interest and syndication rules. 402 Law-and-economics types generally assume that human beings will always seek to maximize rents. In plain English, this means that people consistently will act in a fashion that provides them with the most money. This assumption, however, does not hold true in the real world. 403 As Professor Steven Lubet has demonstrated, inter- vening “ cultural or historical variables” can inter- fere with economic predictions of rent-maximizing be- havior. 404 As he puts it, “ [e]conomic modeling . . . is a pastime that should be limited to consenting adults.” 405 Lubet cautions against using economic analysis of the law as a substitute for careful judi- cial analysis of actual human behavior and the predi- cative insights history and culture offer. 406 In this regard, Lord Acton has more than a little relevance: “ Power tends to corrupt and absolute power corrupts absolutely.” 407 400.See S. REP. NO. 102-92, at 38-46, 50-62 (1992), reprinted in 1992 U.S.C.C.A.N. 1133, 1171-79, 1183-95; see also Cable Television and Consumer Protection Act of 1992, Pub. L. No. 102-385, §§ 2(a)(6) & (a)(9)-(11), 106 Stat. 1460, 1461. 401. 982 F.2d 1043 (7th Cir. 1992); see also Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309, 312 (7th Cir. 1994). 402. Shurz, 982 F.2d at 1043. 403.See Steven Lubet, Notes on the Bedouin Horse Trade or “ Why Won’t the Market Clear, Daddy?” , 74 TEX. L. REV. 1039, 1050-57 (1996). 404. Id. at 1054-57. 405.Id. at 1057. 406. See id. 407. Letter from Lord Acton to Bishop Mandell Creighton (Apr. 5, 1887), reprinted in LORD ACTON, ESSAYS ON FREEDOM AND POWER 329, 335-36 (Gertrude Himmel- KROTO.DOC 12/07/00 9:35 AM 184 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 There is simply no reason to believe that someone like Ted Turner or Rupert Murdoch will consistently seek to maximize economic returns rather than use his media power to influence political events in ways he deems desirable. 408 Rather than attempting to control the content of programming via regulation— the Fair- ness Doctrine provides an example of such behavior 409 — a better regulatory approach is to ensure that media power is diluted and widely dispersed. To a large ex- tent, the Commission’s regulations incorporate this view. Finally, it is difficult to quibble with the free- market crowd’s assertion that competition is a good thing. Common ownership of media outlets is not condu- cive to competition in news and other local content programming. Consolidated news departments, like con- solidated marketing departments, are a common feature of multiple stations groups. 410 Divided control of me- dia outlets within a community creates a healthy com- petition among news and programming sources, and, as noted before, it creates and sustains a healthy check- farb ed., 1955). 408. At the turn of the century, “ yellow journalism” flourished as pub- lishers such as William Randolph Hearst and Joseph Pulitzer competed vigor- ously against each other for readers and shamelessly used their newspapers to further their own personal agendas. See PROCTOR, supra note 299, at 115-34. Historians generally acknowledge that screaming headlines and inaccurate, one-sided stories in Hearst’s newspapers fanned public sentiment against Spain and greatly contributed to bringing about the Spanish-American War. See id.; see also Krauss, supra note 299, at A3. 409. The Fairness Doctrine required commercial broadcasters to provide minimum amounts of even-handed coverage of the day’s controversial issues. See generally Inquiry into Section 73.1010 of the Commission’s Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broad- cast Licensees, 102 F.C.C.2d 143 (1985) (providing a history of the now- defunct Fairness Doctrine, which required television broadcasters to air programming on controversial issues of the day in a balanced fashion); KRATTENMAKER & POWE, supra note 3, at 61-65, 150-56, 237-75 (describing and critiquing the Fairness Doctrine); Thomas G. Krattenmaker & L.A. Powe, Jr., The Fairness Doctrine Today: A Constitutional Curiosity and an Impos- sible Dream, 1985 DUKE L.J. 151 (severely criticizing the Fairness Doctrine as difficult to enforce and inconsisent with free speech rights). Under severe pressure from the federal courts, the Commission abandoned the Fairness Doctrine in 1987. See Syracuse Peace Doctrine v. Television Sta- tion WTVH, 52 Fed. Reg. 31,768 (1987) (adjudication ruling); see also R. Randall Rainey, The Public’s Interest in Public Affairs Discourse, Demo- cratic Governance, and Fairness in Broadcasting: A Critical Review of the Public Interest Duties of the Electronic Media, 82 GEO. L.J. 269, 293-302 (1993) (tracing the development and demise of the Fairness Doctrine). 410.See Dan Trigoboff, Shared News: Strained Bedfellows, BROADCASTING & CABLE, Aug. 31, 1998, at 36, 36-37; Steve McClellan, The Urge to Merge, BROADCASTING & CABLE, Sept. 4, 1995, at 29, 29-30. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 185 ing function that ensures that news and information is accurate. V. TOWARD IMPLEMENTING DEMOCRACY-ENHANCING DIVERSITY REGULATIONS The Commission’s structural regulatory efforts to maintain a diversity of media outlets should be con- tinued and, perhaps, strengthened. In recent years, both Congress and the Commission have permitted greater concentrations of media power by relaxing both national and local ownership restrictions. 411 These ef- forts assist economically marginal media outlets by providing the opportunity for station owners to bene- fit from economies of scale. If a station might go dark in the absence of a takeover by another entity that already operates a radio station within the same market, better that the station should remain on the air even if it is owned by a company that also owns another station within the same market. In other words, having two stations owned by the same entity within the same market is preferable to having only one station. For reasons that will be discussed more fully below, this logic should not be given control- ling weight, at least insofar as ownership of televi- sion stations is concerned. 412 A. Media Consolidation and the Differences Between Radio and Television As noted earlier, television plays a unique role in contemporary American society. 413 Accordingly, con- 411. See, e.g., Telecommunications Act of 1996, Pub. L. No. 104-104, §§ 202(c)–(f), 110 Stat. 56, 111; H.R. REP. NO. 104-204, at 118-20, 161-64 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 85-87, 174-77; Review of the Commission’s Regulations Governing Television Broadcasting, Television Sat- ellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,904-10, 12,922-24 (paras. 2-14, 37-41) (1999) (report and order); see also Randi M. Albert, A New “ Program for Action” : Stereotyping the Standards for Non- Commercial Licensees, 21 HASTINGS COMM. & ENT. L.J. 129, 150-52 (1998); Paige Albiniak, A House Divided, BROADCASTING & CABLE, June 28, 1999, at 16, 16-18; Chris McConnell, Broadcasters Say More is Better, BROADCASTING & CABLE, July 27, 1998, at 14, 14; Elizabeth A. Rathbun, Duopoly Race Sets Busy Pace, BROADCASTING & CABLE, Nov. 22, 1999, at 6, 6. 412.See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Station Review of Policy and Rules, 14 F.C.C.R. at 12,907, 12,910-11 (paras. 7, 15). 413.See supra notes 135-41 and accompanying text. KROTO.DOC 12/07/00 9:35 AM 186 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 centrations of media ownership that encompass televi- sion stations represent a more tangible threat to the marketplace of ideas than other kinds of concentra- tions of media power. 414 Under this reasoning, it might be acceptable to permit multiple ownership of some me- dia assets within a single market and not permit mul- tiple or cross-ownership of other media assets. 415 Such an approach could help to maintain program diversity because an entity that owns two radio sta- tions within the same market is likely to select dif- ferent formats for both stations. 416 One cannot deny that this arrangement benefits the listening public, at least insofar as access to entertainment program- ming is concerned. Moreover, although most radio sta- tions provide limited news and weather coverage, most people do not rely on radio as their primary source of news and information. There are also many more radio stations in most markets than television stations. For example, metropolitan Los Angeles has eighty-seven ra- dio stations but only twenty-five television sta- tions. 417 In light of these considerations, concentra- tions of radio ownership present less of a threat to the marketplace of ideas than do concentrations of television ownership. Concentrations of television station ownership present a different matter entirely, particularly within a single market. Historically, the Commission has prohibited the ownership of multiple television stations within a single market. 418 Recently, broad- 414. For example, someone might own all the Thrifty Nickel-type publica- tions within a single market. This publisher would have monopoly powers with respect to advertisements for the sale of 1982 Ford Fairmonts but would not enjoy any meaningful measure of control over the process of democratic de- liberation. To be sure, consolidation of the ownership of advertising com- pendiums might raise antitrust problems, but such issues would have little to do with the project of maintaining a meaningful dialogue about self- government. See ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 24-28, 70-75 (1965). 415.See Lee C. Bollinger, Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 MICH. L. REV. 1 (1976) (arguing that different First Amendment paradigms for different kinds of me- dia might optimize the mass media’s collective contribution to facilitating democratic self-government). 416.See KRATTENMAKER & POWE, supra note 3, at 40-45; Chen, supra note 3, at 1448-50. 417.See Application of Fouce Amusement Enterprises (Transferor) and LBI Holding I, Inc. (Transferee); For Consent to the Transfer of Control of Sta- tion KRCA(TV), 12 F.C.C.R. 22,009, 22,011 (para. 3) (1997). 418. See KRATTENMAKER & POWE, supra note 3, at 94-96; Chen, supra note 3, KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 187 casters successfully have lobbied the Commission to repeal its “ duopoly” rule, thereby permitting multi- ple ownership of television stations that reach a com- mon audience. 419 In some respects, this repeal simply ratified what some station owners have accomplished de facto through leased access agreements. In a leased access agreement, the owner of television station A agrees to assume principal responsibility for some portion of the programming selections on station B. In return for the power to program station B, station A pays station B a fee. 420 Although the owners of station A do not legally own or directly control station B, the leased access arrangement (also known as a local marketing agreement or LMA) gives them the practical ability to control a second station within the same market. For several years, Commissioner Susan Ness has called for a Commission investigation of these ar- rangements. 421 In August 1999, the Commission adopted new rules that attribute LMAs as ownership interests if a tele- vision station controls fifteen percent or more of the programming schedule of another station in the same market. 422 The Commission grandfathered existing LMAs for a limited time 423 and simultaneously repealed the at 1443-50. 419.See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,907-10 (paras. 8-13) (1999) (report and order); see also 1998 Biennial Regulatory Review, supra note 18, at 11,279-80 (paras. 9-10); cf. 47 C.F.R. § 73.3555(b) (1998) (prohibiting common ownership or control of television stations with overlapping Grade B contours). 420.See Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. 12,559, 12,563, 12,591-604 (paras. 6, 66-99) (1999) (report and order). 421.See Mass Media, COMM. DAILY, June 11, 1998, at 1, available in 1998 WL 10696625 (“ We are overdue to count LMA’s towards ownership restrictions.” ); Chris McConnell, LMA Comes Under Fire, BROADCASTING & CABLE, May 20, 1996, at 19, 22 (describing Commissioner Susan Ness’s concerns about the effects of LMAs on media diversity); see also Chris McConnell, Ness, Tristani Criticize FCC’s Review of Radio, BROADCASTING & CABLE, Aug. 17, 1998, at 14, 14-15 (de- scribing Commissioners Ness and Tristani’s concerns about the Commission’s analyses of the competitive effects of several recent radio buy-outs). In August 1999, the Commission adopted an attribution rule that would apply the duopoly rule to any leased access agreement for 15% or more of the lessor station’s programming schedule. See Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. at 12,597-601 (paras. 83-91). 422.See Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. at 12,591-92, 12,597-98 (paras. 66-67, 83-85). 423.See id. at 12,600-02 (paras. 91-94). KROTO.DOC 12/07/00 9:35 AM 188 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 duopoly rule, which had forced broadcasters to resort to LMAs in the first place. 424 Commissioner Ness char- acterized these changes as “ forward-looking,” pro- viding “ increased flexibility and clarity, while still avoiding the dangers of undue concentration of ownership of vital sources of news and informa- tion.” 425 To maintain structural diversity, the Commission should resist efforts to further weaken its multiple ownership rules, particularly with respect to televi- sion stations. These rules ensure a healthy diversity of voices in the local marketplace of ideas and pro- vide an important checking function in local media markets. 426 On the other hand, the Commission’s at- tempts to promote diversity through behavioral regula- tions should be abandoned. The market, rather than the Commission, is the best arbiter of what the public wishes to see and hear. The Commission is in a very poor position to de- cide what kinds of programming should be aired. Both the national networks and the local stations have proven themselves quite adept at producing and airing programming that appeals to mass audiences on a con- sistent basis. Given this track record of success, there is little cause for Commission concern about maintaining programs that appeal to broad segments of the community. Moreover, even if broadcasters somehow collude to deny viewers access to a particular kind of programming, other fungible program delivery services would bridge the gap. Cable programmers, for example, have demonstrated that they are quite capable of de- veloping programming that appeals both to mass and niche audiences. 427 With the explosive growth of the 424. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,929-44 (paras. 54-91) (1999) (report and order). 425. Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. at 12,660 (separate statement of Commissioner Susan Ness). 426.See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663-64 (1994) (de- scribing the importance of a local media presence, even in the era of cable and direct broadcast satellite (DBS) program distribution). 427.See Donna Petrozello, Basic Cable Beats Broadcast Networks for Week, BROADCASTING & CABLE, Aug. 31, 1998, at 13, 13. Although cable programming has eroded the broadcast networks’ viewer base, ratings for individual cable shows still tend to be quite low relative to the ratings for highly viewed broadcast programming. See Cable’s Top 25, BROADCASTING & CABLE, Aug. 17, 1998, at 68, 68 (containing Nielsen Media Research data). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 189 Internet and the growing phenomenon of direct-to-video programming, there is little reason for the government to concern itself with the market for programming. In this regard, the Commission’s distress sale and comparative hearing preference programs should be deemed behavioral, rather than structural, efforts. The Commission’s staff would no doubt assert that the two programs are structural, rather than behavioral, in nature; these programs decide who receives a li- cense, not what one must do with a particular license. In operation, however, the programs are behavioral in nature. The Commission gives preferences to minority- owned enterprises on the assumption that these new li- censees will program in a specific fashion (e.g., to a minority audience). 428 For the Commission to move beyond an unjustifiable form of racial essentialism in its diversity proj- ect, 429 it must expand its definition of diversity to include other characteristics that might affect a sta- tion’s editorial and programming decisions. 430 There is no preference program for religious organizations, la- bor organizations, civic groups, or other entities that might bring to bear a particular editorial or programming sensibility. 431 The Commission could at- tempt to develop a more inclusive diversity program— a policy that seeks to spread licenses around different persons and organizations on a theory that the widest possible distribution of licenses will result in the most diverse programming decisions. Such a policy would surely fail, notwithstanding the Commission’s best efforts. Even if the Commission could redistribute de novo radio and television li- censes based on a new and improved diversity plan, the 428.See Streamlining Broadcast EEO Rule, supra note 43, at 5155-56 (paras. 1-3); see also Policies and Rules Regarding Minority and Female Own- ership of Mass Media Facilities, 10 F.C.C.R. 2788, 2788-91 (paras. 1-10) (1995); Devins, supra note 279, at 35; Devins, supra note 149, at 129, 144. 429.See Foster, supra note 284, at 126-42. 430.See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 315 (1978) (Powell, J., [need to check further]) (“ The diversity that furthers a compelling government interest encompasses a far broader array of qualifica- tions and characteristics of which racial or ethnic origin is but a single though important element.” ). 431.Cf. id. at 315-19 (explaining that an exclusive focus on race or eth- nicity would tend to “ hinder” rather than facilitate the “ further attain- ment of genuine diversity” ); Hall, supra note 255, at 585-91 (noting that sole reliance on race and gender to secure diversity cannot be explained in light of other potential markers for viewpoint, such as religious belief). KROTO.DOC 12/07/00 9:35 AM 190 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 market would simply re-redistribute those licenses over time to those who place the highest value on them. The Commission could avoid this problem by adopting stringent antitrafficking rules. Since the 1980s, however, the Commission has generally allowed the free alienability of licenses for broadcast sta- tions 432 and also has taken the view that the market is the most reliable programmer. 433 The new diversity pro- ject could ensure that licenses are held by an eclec- tic lot, but it would not be able to guarantee effec- tive programming decisions or, more importantly, a significant viewership. Given the fungible sources of programming that presently exist, strong antitraffick- ing rules would simply accelerate the decline of broadcast television in favor of cablecasting, DBS, 434 and other alternative means of program distribution. The Commission should instead pursue a content- and viewpoint-neutral approach to broadcast regula- tion, adopting and enforcing strong structural regula- tions that prevent the creation of undue concentra- tions of media power. Such an approach would well serve the goal of maintaining diversity without incur- ring the costs associated with fighting the market forces that currently shape (if not control) most pro- gramming and editorial decisions. B. Remediation and Diversity Distinguished The Commission’s EEO guidelines, like its distress sale, tax certificate, 435 and comparative preference programs, could be defended on either diversity or re- mediation grounds. The diversity justification would posit a nexus between station personnel and a sta- tion’s editorial and programming decisions. Hence, the 432.See Jennifer L. Gimer, Note, Tender Offers in the Broadcast Industry, 1991 DUKE L.J. 240. 433.See Mark S. Fowler & Daniel C. Brenner, A Marketplace Approach to De- regulation, 60 TEX. L. REV. 207 (1982). 434. “ DBS” stands for “ direct broadcast satellite.” See Inquiry into the Development of Regulatory Policy in Regard to Direct Broadcast Satel- lites for the Period Following the 1983 Regional Administrative Radio Con- ference, 55 Rad. Reg. (P & F) 1341, 1343 n.1 (1982); Logan, supra note 17, at 1705 n.106. 435. Congress killed the tax certificate program in 1995 and has not yet reauthorized it. See McConnell, supra note 107, at 24. But see In Brief, su- pra note 386, at 80 (describing Senate Majority Leader Trent Lott’s support of pending legislation that would reinstate the Commission’s minority tax certificate program). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 191 argument goes, a station with an employee group that roughly mirrors the local population should be more sensitive to minority sensibilities than a station comprised entirely of nonminorities. As with the distress sale and comparative prefer- ence programs, there is a kernel of truth to the as- sertion that people from different backgrounds view the same event from different perspectives. 436 The problem with this reasoning is that the nexus among race, gender, and viewpoint is too attenuated to jus- tify a set of rules that virtually compel local tele- vision and radio broadcasters to make race- or gender- based employment decisions. 437 Moreover, race is hardly a comprehensive means of defining diversity. 438 If the Commission attempts to justify its EEO guidelines solely on diversity grounds, it is not likely to con- vince reviewing courts that it has satisfied Adarand’s strict scrutiny standard of review. Remediation presents a much stronger basis upon which the Commission could rest its EEO guidelines. Even if the Commission itself has not engaged in overt forms of discrimination, local television and radio stations have done so. 439 This illegal behavior is not attributable to the Commission, of course, but the Commission should nevertheless ensure nondiscrimina- tion by its licensees and can do so constitution- ally. 440 Indeed, the Commission’s case is particularly strong on remedial grounds. 441 Commercial television 436. See Williams, supra note 135, at 533-34. 437.See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351-56 (D.C. Cir. 1998). 438. See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 311-15 (1978) (Powell, J., [need to check further]); Hall, supra note 255, at 569- 74. 439.See, e.g., Office of Comm. of the United Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969). 440.See Richmond v. J.A. Croson Co., 488 U.S. 469, 509 (1989) (“ Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction.” ); id. at 492 (“ Thus, if the city could show that it had essentially become a ‘passive participant’ in a system of racial exclusion practiced by elements of the local construction industry, we think it clear that the city could take af- firmative steps to dismantle such a system.” ). 441.Cf. Streamlining Broadcast EEO Rule, supra note 43, at 5157-58 (paras. 5-6) (justifying EEO programs not on remedial grounds but rather on diversity grounds); Mishkin, supra note 279, at 880, 882 (questioning reli- ance on diversity enhancement rather than remediation as the rationale for the Commission’s race-conscious licensing and employment programs). KROTO.DOC 12/07/00 9:35 AM 192 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 and radio stations require licenses from the govern- ment to operate. Although licensing, by itself, does not transform television and radio stations into state actors, 442 the public trustee status of commercial broadcasters provides the Commission with a legitimate basis for requiring active nondiscrimination ef- forts. 443 The Commission is acting well within this public trustee concept by requiring licensees to main- tain active efforts against both conscious and uncon- scious forms of racial discrimination and gender bias in employment. 444 Some might object that the Commission’s EEO guide- lines are merely duplicative of the Equal Employment Opportunity Commission’s (EEOC) efforts. This objec- tion is without merit. The EEOC’s efforts are largely reactive; the EEOC acts only after a complaint has been filed. Given the public trustee status of licen- sees and the Commission’s duty to ensure that licen- sees use the airwaves in a fashion that promotes the public interest, 445 it is reasonable for the Commission to maintain proactive rules that require licensees to demonstrate their ongoing compliance with the nondis- crimination principle. In many respects, such treat- ment differs little from federal contractors subject to a variety of executive orders requiring affirmative efforts to seek minority candidates for jobs and sub- contracts and imposing reporting requirements on the success of such efforts. 446 442.See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350-52, 358 (1974); see also Krotoszynski, supra note 199, at 302. 443.See generally Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388-90 (1969); see also Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination, 18 F.C.C.2d 240 (1969). 444.See Bob Jones Univ. v. United States, 461 U.S. 574, 598-99 (1983) (rejecting tax exempt status for Bob Jones University because the university practiced racial discrimination and, therefore, did not qualify as a “ chari- table” institution). If it is constitutionally permissible for the Internal Revenue Service to deny tax exempt status to an institution of higher learn- ing that practices racial discrimination incident to its religious beliefs on a theory that the university’s practices contravened the public interest and, therefore, were not charitable, then surely the Commission can require licensees, who voluntarily assume the duties of “ public trustees,” to re- frain from discrimination in their hiring and promotion policies. See id. at 591-96; see also Red Lion Broad. Co., 395 U.S. at 388-90. 445.See 47 U.S.C. §§ 303, 309(a) (1994). 446.See Exec. Order No. 8802, 3 C.F.R. 957 (1938-1943); Exec. Order No. 10,925, 3 C.F.R. 339 (1964-1965), reprinted as amended 5 U.S.C. § 3301 (1994); Exec. Order No. 11,246, 3 C.F.R. 339 (1964-65), reprinted as amended 42 U.S.C. § 2000e-2 (1994); 41 C.F.R. 60-61 (1999); see also Adams, supra note 191, at 1403-07 (describing outreach-based federal affirmative action KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 193 The Commission seems to be receiving the federal judiciary’s message. As noted earlier, 447 the Commis- sion recently issued a notice of proposed rulemaking that proposes reforming the EEO guidelines. More spe- cifically, it supports abandoning any use of numerical goals or incentives and reorienting the program away from promoting diversity and toward preventing dis- crimination. The recently adopted report and order in this proceeding boldly reorients the EEO program to advance the nondiscrimination project. 448 This ration- ale goes a long way toward resolving the most serious constitutional objections to the program. Because pre- venting acts of discrimination is one of the few com- pelling government interests that the Supreme Court has identified in the post-Croson/Adarand era, to the extent that the Commission rests its EEO guidelines on preventing discrimination, it stands a much better chance of the guidelines surviving judicial review. 449 On the other hand, the Commission’s stubborn re- fusal to abandon the diversity rationale as a co-equal basis for its EEO policies leaves its revised EEO pro- gram subject to constitutional attack. Moreover, judi- cial skepticism of the diversity rationale in the EEO context could easily have unintended, adverse conse- quence for diversity regulations in other contexts. 450 Because the nondiscrimination project provides more than ample support for the revised EEO guidelines, it is difficult to understand why the Commission did not simply abandon the diversity rationale as a justifica- programs); Barbra Murray, New Minority Contract Rules, U.S. NEWS & WORLD REP., July 6, 1998, at 59 (describing recent changes to outreach-based federal af- firmative action programs). 447.See supra note 274 and accompanying text. 448. See Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies and Termination of the EEO Streamlining Procedure, 15 F.C.C.R. 2329, 2331-32, 2359-63 (paras. 2-4, 65-75, 228) (2000) (report and order). 449. It is telling that one recent commentator on the Lutheran Church case, Professor Michelle Adams, makes no effort to defend the Commission’s EEO program on diversity grounds, relying instead on the nondiscrimination project to justify the program. See Adams, supra note 191, at 1445-50. This is perfectly understandable— the Commission’s EEO program is much easier to justify as an effort to ensure nondiscrimination by licensees than as a means of securing diverse programming. See id. at 1461-62. 450.See Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies and Termination of the EEO Streamlining Pro- ceeding, 15 F.C.C.R. at 2496-98 (2000) (statement of Commissioner Michael K. Powell). KROTO.DOC 12/07/00 9:35 AM 194 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 tion for its revised EEO policies. 451 Thus, the history of discrimination within the broadcasting industry, coupled with the public trustee duties of licensees and the Commission’s obligation to manage the airwaves to promote the public interest, support the Commission’s decision to require licensees to take affirmative steps to avoid discriminating against minorities and women in their hiring and pro- motion decisions. Yet the Commission historically has overseen a program that virtually requires licensees to engage in race-based hiring to avoid onerous Com- mission EEO compliance proceedings. 452 Even if the Com- mission may lawfully require licensees to refrain from discriminating, including the adoption of proactive policies to avoid both conscious and unconscious forms of discrimination, the Commission may not require li- censees to engage in race-based hiring efforts. 453 451. One reason for this approach might be the potential collateral effect such a concession would have on the Commission’s ability to defend its dis- tress sale policy. A renewed tax certificate policy would have to rely on the diversity rationale, rather than the nondiscrimination project, as a justification for its existence. Had the Commission abandoned the diversity rationale in the context of its EEO program, it would have been hard pressed to defend the diversity rationale in the context of its distress sale policy or a new tax certificate policy; accordingly, the Commission retained the diversity rationale in the EEO context, thereby maintaining its ability to defend these other programs on the same basis. The distress sale policy and a race- or gender-based tax certificate policy would probably not survive scrutiny under Adarand (although the Commission appears prepared to fight for both programs). The better course of action, at least from the perspec- tive of surviving an equal protection-based challenge, would have been to decouple the EEO program from the diversity rationale, relocating it en- tirely as a nondiscrimination effort. 452.See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351-52 (D.C. Cir. 1998); cf. Adams, supra note 191, at 1446-47 (arguing that the D.C. Circuit should have divorced the EEO rules from the Commission’s numerical processing guidelines). 453. Professor Adams suggests that nonpreferential, outreach-based af- firmative action programs may not survive Adarand scrutiny. See Adams, supra note 191, at 1397-98. She notes, correctly in our view, that “ [t]he irony is that non-preferential forms of affirmative action actually support the very thing affirmative action’s critics say they want: A truly competitive and free market composed of qualified individuals from which employers, contract makers, universities, and other decision-makers can choose without regard to race.” Id. at 1413. That said, one could easily disagree with Professor Ad- ams’s harsh assessment of Lutheran Church. See id. at 1426-31, 1445-50. A reasonable person could part company with Professor Adams on the question of whether the Commission’s rules were truly efforts-based, as opposed to out- come-based. See supra note 170-84 and accompanying text. Even so, she cor- rectly asserts that nonpreferential, outreach-based programs adopted in re- sponse to histories of discrimination do not warrant strict scrutiny under Adarand or Croson. Moreover, even if such schemes do trigger strict scru- tiny, the government’s interest in eradicating the lingering effects of past KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 195 The U.S. Court of Appeals for the District of Co- lumbia Circuit was correct in concluding that the Com- mission’s then-existing EEO policies effectively com- pelled licensees to meet the Commission’s processing guidelines. 454 A licensee who satisfied the processing guidelines is presumptively in compliance with the Commission’s nondiscrimination policies. 455 A licensee who failed to meet the benchmarks, in contrast, was subject to expensive and time-consuming discovery in a process that could lead to the revocation of the sta- tion’s license 456 — literally, the death of the station. Given the stakes, any rational station manager would have attempted to ensure that the station stayed within the benchmarks, even if this meant preferring less qualified minority candidates over more qualified nonminority candidates. In practice, the pre-2000 guidelines went even further and strongly induced the hiring of specific minorities. Thus, if the best qualified candidate for a job happened to be African American, but the station was running low on Hispan- ics, for purposes of the Commission’s racial bench- marks, the Commission’s processing guidelines would have induced the station manager to prefer a less qualified Hispanic candidate to a better qualified Af- rican American candidate. This outcome turns the non- discrimination principle on its head. The Commission attempted to avoid responsibility for these sorts of undesirable outcomes; it noted that its processing guidelines were merely illustrative of one means of demonstrating compliance with its EEO policies. 457 As Ms. Trigg explains it, “ [t]he key fac- tor that makes the Commission’s EEO program race- neutral is that consideration of race or gender is not required in the actual hiring decision.” 458 She may be correct in asserting that “ [a] licensee is free to hire any candidate, regardless of race, ethnicity, or discrimination should be sufficient to justify such programs. 454.See Lutheran Church-Missouri Synod, 141 F.3d at 351-53. 455.See Part 73 Amendment, supra note 49, at 3967 (paras. 1–3); EEO Proc- essing Guidelines, supra note 49, at 1693; see also 47 C.F.R. § 73.2080(c) (1999). 456.See Part 73 Amendment, supra note 49, at 3974 (para. 50). 457.See Applications of Kelly Communications, Inc., 12 F.C.C.R. 17868, 17869 (para. 5) (1997) (memorandum opinion and order and notice of apparent liability); Streamlining Broadcast EEO rule, supra note 43, at 5155-61 (paras. 3-12); Trigg, supra note 260, at 241-46. 458. Trigg, supra note 260, at 246. KROTO.DOC 12/07/00 9:35 AM 196 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 gender[,]” 459 but the reality is that few station man- agers were going to miss hitting the benchmarks. Judge Silberman was correct to label the net effects of the Commission’s EEO policies, at least as implemented at that time, as race-based hiring. 460 It is true, of course, that private companies may adopt and enforce affirmative action plans voluntar- ily. 461 This observation has little bearing on the re- lationship between the Commission’s pre-2000 safe har- bor guidelines and broadcasters’ hiring practices. Just as the government may not directly discriminate on the basis of race or gender, 462 it is likewise pro- hibited from either encouraging private parties to en- gage in this sort of behavior or directly facilitating such behavior. 463 Here, the Commission’s safe harbor guidelines did just that: they strongly encouraged private parties (that is, commercial television and radio stations) to use race as an absolute qualifica- tion in making certain hiring decisions. The Commission cannot create an incentive struc- ture that virtually demands race-based hiring deci- sions and then suggest it has no responsibility for the private conduct that results from the system. In- deed, if the Commission’s attempt to characterize the pre-2000 EEO guidelines as merely “ efforts-based” had succeeded, virtually every affirmative action pro- gram in the nation could be saved from undergoing strict scrutiny by simply replacing hard quotas with safe harbors and establishing a sufficiently unappeal- ing administrative consequence for failing to meet the safe harbor targets. The Commission unsuccessfully at- tempted to elevate form over substance in a fashion that was both unconvincing and unappealing. 464 Whether the Commission had labeled the minimum acceptable num- ber of minority employees as a quota, a target, a benchmark, or a processing guideline, the net effect of the policy was not difficult for anyone outside the 459.Id. 460.See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351 (D.C. Cir. 1998). 461.See United Steelworkers of America v. Weber, 443 U.S. 193, 197 (1979). 462. See United States v. Virginia, 518 U.S. 515, 529-35 (1996). 463.See Reitman v. Mulkey, 387 U.S. 369, 375-76 (1967); see also Kro- toszynski, supra note 199, at 320-21. 464.See Trigg, supra note 205, at 247-51. KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 197 Commission’s bureaucracy to see. The Commission’s re- vised EEO program avoids the vice of statistical fa- naticism and begins to reorient its rationale from di- versity to nondiscrimination. These are welcome changes that significantly enhance the revised pro- gram’s prospects for surviving judicial review. Thus, although the Commission undoubtedly pos- sesses both the power and the responsibility to ensure that licensees do not engage in race- or gender-based employment discrimination, a reasonable person could nevertheless question the constitutional integrity of the now-defunct efforts-based program. 465 Rather than holding licensees to strict numeric quotas, the Com- mission can and should simply require licensees to demonstrate that they do not engage in employment dis- crimination and have taken affirmative efforts to en- courage racial minorities and women to seek employ- ment. The Commission could require documentation of such efforts; if the documentation leaves the Commis- sion with serious doubts about the sincerity of the licensee’s efforts, it could designate the station’s renewal application for hearing or, if the license is not up for renewal, issue an order to show cause on pain of a fine or forfeiture. Rather than prescribing the precise levels of minority employment required to show good faith, the Commission should require gener- alized proof of reasonable efforts to include minori- ties and women in the candidate pool. Fortunately, the Commission’s revised EEO program reflects and incorpo- rates these principles. 466 Both commissioners and the Commission’s staff are likely to argue that the safe harbor processing guide- lines work to the advantage of licensees; they provide licensees with clear guidance on how much effort is sufficient to satisfy the Commission. 467 They also make 465. Professor Adams correctly notes that discrimination is not always in- tentional. As she puts it: “ [T]he recognition of inadvertence here accepts the notion that critical race scholars and others have advanced for years: that much discriminatory activity is motivated by unconscious beliefs, and to construct a legal system that attains true equality, we must acknowledge that race-based decision-making still exists.” Adams, supra note 191, at 1448. 466. See Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies and Termination of the EEO Streamlining Pro- ceeding, 15 F.C.C.R. 2329, 2336-37, 2359-63, 2414-19 (paras. 20-21, 65-75, 217-28) (2000). 467. See, e.g., NEWTON N. MINOW & CRAIG L. LAMAY, ABANDONED IN THE WASTELAND: KROTO.DOC 12/07/00 9:35 AM 198 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 life easier on the staff by reducing the need for the Commission to exercise discretion when reviewing EEO compliance materials. The simple answer to these ob- servations is that mere administrative convenience is not a sufficient justification for rules that virtu- ally command Commission licensees to make race-based hiring decisions. 468 Moreover, to the extent that li- censees are uncertain that their minority outreach ef- forts are sufficient to satisfy the Commission, they would be wise to err on the side of overkill. Rather than resorting to a quota-based formula, licensees would be compelled to demonstrate policies that pro- mote nondiscriminatory and inclusive hiring practices. In many respects, a certain measure of uncertainty would promote, rather than impede, the attainment of what should be the Commission’s goal in maintaining its EEO policies— nondiscriminatory hiring practices by Commission licensees. There are, no doubt, many other details that one should consider in developing a constitutionally unob- jectionable EEO policy. For present purposes, however, this article will abjure further analysis of this is- sue because it lies largely outside the scope of its project— an exploration of the concept of diversity in mass media regulation. As indicated above, the most promising justification for EEO policies lies in reme- dying the effects of past and ongoing discrimination, and thereby furthering the public trustee concept, rather than in increasing viewpoint diversity within individual television and radio stations. In fact, as explained above, the Commission has good cause for CHILDREN, TELEVISION, AND THE FIRST AMENDMENT 192 (1995) (arguing that broadcasters should err on the side of compliance with public interest obligations and asking the rhetorical question: “ Why should you want to know how close you can come to the edge of a cliff?” ); Reed E. Hundt & Karen Kornbluh, Renewing the Deal Between Broadcasters and the Public: Requiring Clear Rules for Children’s Educational Television, 9 HARV. J.L. & TECH. 11, 16-19 (1995) (ar- guing that broadcasters should welcome clear guidance from the Commission on how to comply with public interest duties); Reed E. Hundt, The Public’s Air- waves: What Does the Public Interest Require of Television Broadcasters?, 45 DUKE L.J. 1089, 1110-17 (1996) (arguing that clear rules with quantified standards benefit broadcasters by facilitating easy compliance). 468.See Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (“ [W]hen we enter the realm of ‘strict judicial scrutiny,’ there can be no doubt that ‘administrative convenience’ is not a shibboleth, the mere recitation of which dictates constitutionality.” ); see also Richmond v. J.A. Croson Co., 488 U.S. 469, 508 (1989) (rejecting “ simple administrative convenience” as a justification for maintaining “ a quota system” ). KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 199 maintaining an EEO policy that advances the cause of nondiscrimination. At the same time, one should simply reject out-of-hand viewpoint diversity as the basis on which the Commission can justify such a program. VI.CONCLUSION James Madison warned that to protect liberty, “ [a]mbition must be made to counteract ambition.” 469 In his view, a strong separation of powers was “ nec- essary to control the abuses of government.” 470 The Framers took great pains to establish a system of gov- ernment that would provide adequate security for the citizens’ liberty. This scheme of government, however, presupposes a free and open marketplace of ideas. An uninformed citizenry is incapable of self- government. 471 At the beginning of the twenty-first century, one cannot reasonably dispute that the electronic media play an essential role not only with respect to the ongoing national debate about who should govern in Washington and what should be done once a candidate is in office, but also with respect to who should serve in the state house or in city hall. For better or worse, at the local, state, and national levels of government, television serves as the nation’s town hall. 472 Given the dependency of our democratic prac- tices on this medium, it seems reasonable to ask whether it should be for sale to the highest bidder, for such uses and for such purposes as the buyer might require. We think it reasonably self-evident that this proposition must be rejected. Historically, the Commission has attempted to im- pose structural regulations on the electronic media that limited the ability of any one person or entity to corner the marketplace of ideas, whether nationally or in a particular community. At present, these ef- forts are under sustained attack by powerful industry groups, and the Commission’s resolve to maintain its 469. THE FEDERALIST NO. 51, at 337 (James Madison and Alexander Hamilton) (Random House 1937). 470.Id. 471.See MEIKLEJOHN, supra note 414, at 24-28, 70-75. 472. This is a state of affairs not lost on William Jefferson Clinton, who demonstrated the potential power of the electronic media to rally the citi- zenry to a particular policy agenda. KROTO.DOC 12/07/00 9:35 AM 200 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 structural regulations is open to serious doubt. Ide- ally, the Commission will take a lesson from the Fram- ers and insist on dividing media control, thereby en- suring that structural checks preserve accountability within the powerful Fourth Estate.