Chairman Fowler. A nexus requirement is unpersuasive as a legal matter, untenable as a policy matter, and is wholly at odds with the Commission's prior commitment to expanding minority ownership and participation in broadcasting.

As I understand the Chairman's position, the weight given minority owner-managers in comparative licensing cases under TV 983 and its progeny must correspond to the presence of minorities in the community of license.34 This new approach would require a sort of sliding-scale formula to determine the weight due an applicant with minority ownermanagers—the larger the minority population in the community, the greater the weight awarded.

Only a highly restrictive reading of TV 9 and Garrett furnishes any support for the dissenters' legal view. It was just such inflexible analysis and decisionmaking by the FCC that those cases firmly rejected. In each case, the applicants argued that their minority status was entitled to special consideration in the licensing process, but the Commission brushed them aside and stubbornly clung to established administrative practice. In each case, the court criticized the Commission for its "heavy reliance upon maintenance of the status quo," 495 F.2d at 937, and emphasized that the public interest mandate is broad enough to acknowledge and seek to remedy the "infinitesmal" number of minority-owned and -operated stations nationwide. Id. at 936-38; 513 F.2d at 1031-33. The gloss placed on TV 9 by the Chairman-that the presence of local minorities was "critical" to the result is simply wrong. The court rather held that the Commission must award merit for minority ownership and participation where it is "likely to increase diversity of content, especially of opinion and viewpoint. . . ." 495 F.2d at 938. TV 9 and Garrett do note the presence of minorities in the cities in question, but do not even remotely suggest that the Commission is limited to awarding 'merit' in these circumstances. The decisions imply a permissive, not restrictive, application.

Since TV 9 and Garrett were decided, the Commission has developed a more positive interest in broadening minority participation in the media,

33 TV 9, Inc. v. FCC, 495 F.2d 929 (D.C. Cir. 1973), cert. denied, 418 U.S. 986 (1974). See Garrett v. FCC, 513 F.2d 1056 (D.C. Cir. 1975).

34 I must confess to some uncertainty over the Chairman's precise position. On the one hand, he seems to argue only that the majority's substantial enhancement for Waters' minority and female ownership was in error here because there are few blacks in Hart. On the other hand, he apparently believes that even if there were a more significant number of blacks in the community, race could not be "dispositive" because it is an unalterable trait. (In this regard, he approvingly quotes Judge Wilkey's dissenting statement to denial of rehearing en banc in TV 9 that awarding merit based on race is impermissibly discriminatory because "there is no way by which a white, yellow, or red man can achieve the same 'merit' point awarded the Black . . . here.") Under this latter view, the minority 'merit' would be duly recorded only to be ignored in the ultimate comparative analysis. The implications of the Chairman's nexus-based approach are thus more far reaching than may be evident.

consistent with the spirit and tenor of those cases. The narrow construction of these and other authorities advanced by the Chairman would reverse that consistent policy trend, and would, at least in my view, effectively signal a return to the days of pre-TV 9 policymaking. 36

There is also little, if any, legal or analytical consistency in supporting waiver of FCC rules, approval of distress sales and tax certificates, and award of licenses by weighted lottery to further minority ownership without reference to the racial and ethnic makeup of the community in question on the one hand, while on the other hand opposing special consideration of minority status in ordinary comparative cases without a nexus showing. All these measures find support in the cases the Chairman would so narrowly construe.37

The dissenters' view also makes for unwise and unworkable policy. It is unwise because, as our opinion observes, it would unduly restrict future expansion of minority ownership contrary to established Commission policy. The impact of such a restriction in comparative cases cannot be underestimated because channel assignments in the larger cities where minorities are most densely concentrated are substantially depleted. Remaining channel vacancies are plentiful in places like Hart, Michigan, where under the Chairman's theory, outcome-affecting merit could not be awarded. Thus, the dissenters' position in practical effect would largely

35 Since at least 1978, the Commission has held the view that adequate representation of minority viewpoints in broadcasting "serves not only the needs and interests of the minority community but also enriches and educates the non-minority audience" and thus enhances the "key objective" of diversity rooted in the Communications Act and the First Amendment. See Minority Ownership of Broadcasting Facilities, 68 FCC 2d 979, 981 (1978).

36 Part of the Chairman's discussion of the latent constitutional infirmity he finds lurking here is reminiscent of the Commission argument rejected in TV 9. The Chairman complains that there has been no "showing on the record of the qualifications of Ms. Waters and how she proposed to use her racial background to provide the best practical service to Hart and surrounding Oceana County. . . ." The FCC unsuccessfully advanced a startlingly similar argument to justify its refusal to award credit for the participation of black owners in TV 9-because "there is nothing in the degree or type of participation proposed by [the black stockholders] which gives assurance that the benefits of their racial background would inure in any material degree to the operation of the station." 495 F.2d at 936. 37 The Chairman's repeated inscrutible charges that our action here is of "dubious constitutionality" may lead the casual reader to believe that he views any outcome-affecting consideration of race to be constitutionally impermissible (especially, as noted earlier, when coupled as it is with citation to Judge Wilkey's dissent). In any event, such positive consideration is consistent with applicable Supreme Court precedent, specifically the controlling plurality opinion in Regents of University of California v. Bakke, 438 U.S. 265 (1978). The diversity interest Bakke approved in the context of medical school admissions is functionally indistinguishable from the First Amendment interest in an uninhibited marketplace of ideas held paramount in broadcasting. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). The latter interest is furthered by diversity of ownership of broacast facilities. Importantly, for Bakke purposes, race of ethnicity is only one of numerious factors relevant to the decisionmaking process to choose between competing applications. In this case, contrary to the Chairman's contention, race was no bar to West Michigan. It could indeed have done more to show that it was comparatively superior to Waters-by proposing more efficient frequency use, or some form of specialized programming, to name just two possibilities. See Policy Statement on Comparative Broadcast Hearings, 1 FCC 2d 393, 397–98 (1965).

eviscerate the thrust of TV 9 and block the continued progress toward increased minority ownership which the Commission has identified as being of pressing public interest importance.

The sliding-scale approach to minority ownership and participation is also administratively unworkable. If the degree of enhancement would be magnified or diminished depending on the percentage of minority residents in the community of license, how would that weight be computed? For example, would an applicant with a ten-percent black owner-manager in a 100-percent black community be entitled to more or less merit than a 100-percent black-owned and -operated applicant for a community with a ten percent black population? Would the answers change if the abovedescribed situations were the same except that the resident minorities were hispanic? These questions of application would proliferate under a nexus approach.

In sum, the law and policy urged by the dissenters would convert our broadcast licensing system from one intended to foster a multiplicity of voices to one which encourages minority broadcast ownership opportunities only in minority communities. Such isolation of voices is reminiscent of the long discredited notion of "separate but equal." We have come too far as a Nation to revert to this view.

DISSENTING STATEMENT OF
COMMISSIONER STEPHEN A. SHARP

RE: HART, MICHIGAN COMPARATIVE FM PROCEEDING

The Commission has before it two competing applications for a construction permit for a new FM radio station in Hart, Michigan. The majority of the Commission reverses the Review Board which, in turn, reversed the Administrative Law Judge. Having read all the opinions in this case, I have concluded that this is, for the most part, an ordinary comparative hearing case.

What distinguishes this case from others is the injection of a politically sensitive policy issue into the decision: "Is the integration preference for minority ownership based upon some nexus to the existence or numbers of minority group members in the community's population?" While it might be politically expedient for a Commissioner who is committed to increasing minority ownership to follow the majority opinion or not to participate, I must dissent.

I dissent because I am a firm believer that, even where a policy might be correct, there is a right way and a wrong way to effect it. A good end does not justify improper means. Similarly, a consistent and intellectually honest basis for a policy is essential.

Here the Commission has changed its policy. To be sure the majority may believe that they have held this view all along. The fact is, however,

that such a view never has been articulated by the Commission. Chairman Fowler's dissent ably catalogues the applicable precedent and analyzes its impact.

When the Commission changes course, it has a legal duty to provide "an opinion or analysis indicating that the standard is being changed and not ignored and assuring that it is faithful and not indifferent to the rule of law." Columbia Broadcasting System, Inc. v. FCC, 454 F.2d 1018, 1026 (D.C. Cir. 1971). This duty is especially pertinent where, as here, the Commission acts without public comment on the proposed change in policy. The Commission has abandoned a logical, defensible rationale for discriminating in favor of minority groups-the nexus between minority ownership and service to the minority community-and has, instead, diluted the justification to the point that the Commission appears to have made minority group membership decisive in and of itself. Such discrimination without adequate justification undermines the basis for the preference. The majority's short-term gain may be the Commission's and the public's long-term loss.

The following are summaries of Commission actions which were not printed in full. ASSIGNMENT OF LICENSE/TRANSFER OF CONTROL

Application for voluntary assignment of license of station WREN(AM), Topeka, Kansas, from WREN B/cing Co., Inc. to Radio Station WREN Co., Inc. granted. Request for waiver of Section 73.35(a) (duopoly rule) granted. October 6, 1982, (FCC 82-441)

Applications to assign licenses of KXXX and KXXX-FM, Colby, Kansas, from Golden Plains, Inc. to Lesso, Inc., granted. Request for waiver of Section 73.35(a) granted. November 1, 1982, (FCC 82-472)

MASS MEDIA BUREAU (FORMERLY B/C BUREAU)

Further Notice of Inquiry adopted regarding formulation of policies relating to b/c renewal applicant, stemming from comparative hearing process.

Application for review of B/c Bureau granting request of Mountain View B/cing Corp., permittee of new FM station KWOZ, Mountain View, Arkansas, for waiver of Section 73.1130(a) denied. October 6, 1982 (FCC 82-443)

Application for review of two previous decisions denying petition for rulemaking to delete FM Channel 252A from Clarksville, Virginia, denied. October 6, 1982 (FCC 82-444)

Motion for Stay Action on Pending Applications filed by Contemporary Communications Corp. for developmental authorizations to establish multi-channel systems denied. October 13, 1982 (FCC 82-446)

Petition for reconsideration filed by Media Access Project of Report and Order deleting Section 73.3611 of Commission's rules, Form 324 (Annual Financial Report of B/c Stations) denied. October 28, 1982, BC Docket 80-190 (FCC 82-474) Petition for rulemaking filed by Stern Community Law Firm, Nat. Citizens Committee for B/cing, and Citizens Communications Center requesting public disclosure of b/c licensee financial reports, FCC Form 324, denied. October 28, 1975 (FCC 82-475)

Application for review of B/c Bureau's ruling of April 14, 1981, and its Reconsideration thereof on February 4, 1982, filed by Jose Pedro Bio denied. November 3, 1982 (FCC 82-476)

Applications for review of hearing designation order released January 6, 1982, filed by Bay Area Community TV, Inc. and Redwood TV Ministries, Inc. granted. Order also enlarges issues concerning rule compliance and qualifications. December 14, 1982, BC Docket 81-912, (FCC 82-482)

Application for review filed by New-Vision, Inc. of Bureau action granting application of Chesapeake TV, Inc. for STV authorization for WBFF (TV), Baltimore, Maryland denied. July 16, 1982 (FCC 82-518)

Report and Order terminated proceeding amending Section 73.3597 (Voluntary assignments or transfers of control). December 2, 1982, BC Docket 81-897, 47 FR 55924 (FCC 82-519)

Application for review filed by Anthony R. Martin-Trigona of B/c's Bureau dismissal of petition of reconsideration regarding license renewal applications of Capital Cities Communications, Inc. for stations WTNH-TV, New Haven, Conn. and WPRO-AM/FM, Providence, R.I. denied. December 17, 1982 (FCC 82-530) Report and Order terminated proceeding regarding revision of Part 74, Subpart D, E, F, and H to reflect current policy and procedure. December 10, 1982, BC Docket 81-793, 47 FR 55931, (FCC 82-531)

Application for review filed by CDI Communications WIVI Partnership of Bureau's action assigning two class B FM channels to Christiansted, St. Croix, Virgin Islands denied. December 16, 1982, BC Docket 81-284, (FCC 82-532)

NPRM adopted re amendment of Part 76 relative to obligations of cable TV

systems to maintain public inspection files and retain subscriber records. December 27, 1982, MM Docket 82-813, 48 FR 844, (FCC 82-550)