Shurberg Broadcasting of Hartford, Inc. v. Federal Communications Commission, Astroline Communications Co., Intervenor

876 F.2d 902, 278 U.S. App. D.C. 24, 1989 U.S. App. LEXIS 8928

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 16, 1989
• Docket: 84-1600
• Status: Published

Opinions

Opinion PER CURIAM.

Separate Opinions filed by Circuit Judge SILBERMAN and Senior Circuit Judge MacKINNON.

Dissenting Opinion filed by Chief Judge WALD.

PER CURIAM:

The opinions by Judges Silberman and MacKinnon in some respects differ in analysis. However, both conclude that the FCC’s minority distress sale program unconstitutionally deprives Alan Shurberg and Shurberg Broadcasting of their equal protection rights under the Fifth Amendment because the program is not narrowly tailored to remedy past discrimination or to promote programming diversity. Specifically, the program unduly burdens Shur-berg, an innocent nonminority, and is not reasonably related to the interests it seeks to vindicate.

The cause is remanded to the Federal Communications Commission for further proceedings not inconsistent with this opinion.

Judgment accordingly.

SILBERMAN, Circuit Judge:

Alan Shurberg, a long-time resident of the Hartford, Connecticut area, and Shur-berg Broadcasting Company of Hartford, Inc., have been trying since 1982 to replace Faith Center, Inc., as the licensee of Channel 18 in Hartford. Shurberg appeals from an FCC Memorandum Opinion and Order granting Faith Center permission to sell its broadcast properties to a minority-controlled enterprise pursuant to the Commission’s distress sale policy. After Faith Center’s second unsuccessful attempt at a distress sale, Shurberg sought to file with the FCC a construction application that was mutually exclusive of Faith Center’s renewal application and to have his application set for comparative hearing with Faith Center’s renewal application. As the FCC could grant either Shurberg’s request for comparative consideration or Faith Center’s petition for permission to assign its broadcast license to a third distress sale buyer — intervenor Astroline Communications Company Limited Partnership (“As-troline”) — but not both, the FCC considered the two requests together. Deciding in favor of Faith Center, the FCC gave slightly greater weight to its distress sale policy than to the statutory policy favoring competition in licensing. Faith Center, Inc., 99 F.C.C.2d 1164, 1170 (1984). The Commission also held that the racial preference embodied in the distress sale policy did not violate the Constitution because the policy was meant to remedy past discrimination and to promote diversity of ownership and programming. Id. at 1170-72. And the Commission sustained the bona fides of Astroline’s minority status, dismissing Shurberg’s contention that Astroline’s purported minority ownership was a sham. Id. at 1172-73.

Our resolution of Shurberg’s appeal in this matter has been delayed for some time. After oral argument in this case, developments in a related case, Steele v. FCC, 770 F.2d 1192 (D.C.Cir.1985), led us to ask the FCC if it still fully supported the constitutionality of its distress sale policy. The Commission acknowledged that it had doubts and requested that we remand in order for it to reconsider the matter fully. In the midst of that reexamination, however, Congress passed and the President signed a continuing resolution forbidding, inter alia, the expenditure of funds for reconsideration of the distress sale policy. The Commission promptly terminated its proceedings and reinstated the policy, and therefore we must now consider Shur-berg’s challenges.

Shurberg argues that: the FCC’s decision is inconsistent with the governing statute, regulations, and judicial precedents, which he asserts required the Commission to consider his competitive application; the FCC’s proceedings were marred by ex parte contacts and other irregularities; the distress sale policy unconstitutionally discriminated against him on the basis of race. I discern no substantive or procedural flaw in the FCC’s action in this case that would require reversal if the agency’s distress sale policy were constitutional. I nevertheless vote to overturn the Commission’s decision because I have concluded, for the reasons set forth below, that the distress sale policy, as applied to bar Shurberg’s opportunity to compete for the license, is unconstitutional.

I.

A.

As a general rule, a licensee whose qualifications to hold a broadcast license come into question may not assign or transfer that license until the FCC has resolved its doubts in a noncomparative hearing. This policy is premised on the notion that “a licensee ... has nothing to assign or transfer unless and until he has established his own qualifications_” Northland Television, Inc., 42 Rad.Reg.2d (P & F) 1107, 1110 (1978); see also Jefferson Radio Co. v. FCC, 340 F.2d 781, 783 (D.C.Cir.1964). The distress sale policy is an exception to that general rule, developed initially as a way of avoiding time-consuming hearings when expeditious action to oust the licensee was desirable — for example, when the licensee was bankrupt or disabled. See Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 983 (1978) (“1978 Policy Statement”); see generally Stereo Broadcasters, Inc. v. FCC, 652 F.2d 1026, 1028-29 (D.C.Cir.1981). The policy allows one whose license has been designated for revocation hearing, or whose renewal application has been designated for hearing, to assign his license to an FCC-approved as-signee. See id.

In 1978, the FCC expanded the applicability of the distress sale policy. It would continue to be available “in circumstances similar to those now obtaining,” but, in addition,

in order to further encourage broadcasters to seek out minority purchasers, [the FCC would] permit licensees whose licenses have been designated for revocation hearing, or whose renewal applications have been designated for hearing on basic qualification issues ... to transfer or assign their licenses at a “distress sale” price to applicants with a significant minority ownership interest, assuming the proposed assignee or transferee meets our other qualifications.

1978 Policy Statement, 68 F.C.C.2d at 983 (footnote omitted). A holder whose license the FCC indicated it might terminate or refuse to renew due to basic qualification issues would be eligible, with FCC approval, to sell its assets and transfer its license to a qualified minority enterprise.¹ Licensees have a substantial incentive to exercise this option, because once a license has been designated for a revocation hearing, a licensee may not transfer the license other than through a distress sale. See Northland Television, Inc., 42 Rad.Reg.2d at 1110. The licensee may either gamble that he will prevail in the noncomparative hearing or make an early exit via a distress sale, which will allow him to salvage some portion of the license’s value. The distress sale price, to be approved, must be no higher than seventy-five percent of the station’s and license’s combined fair market value. This cap ensures the distress sale will involve a substantial loss for the licensee — and a substantial discount for the purchasers. See Grayson Enterprises, Inc., 47 Rad.Reg.2d (P & F) 287, 293 (1980).²

B.

This case has a long and complicated procedural history that reaches back to a period before the proceedings on Faith Center’s Hartford license and forward beyond the time of oral argument here. In addition to the Hartford license, Faith Center also held broadcast licenses for three California stations. In 1978, the FCC designated Faith Center’s renewal application for its San Bernardino station for hearing because of allegations of fraud in Faith Center’s over-the-air solicitation for funds and failure to cooperate with an FCC investigation. In 1980, the Administrative Law Judge in the San Bernardino proceeding dismissed Faith Center’s renewal application because of Faith Center’s refusal to cooperate in the proceeding. The Commission affirmed that decision, as did this court. Faith Center, Inc., 82 F.C.C.2d 1 (1980), reconsid. denied, FCC 81-235 (1981), aff'd mem., Faith Center, Inc. v. FCC, 679 F.2d 261 (1982), cert. denied, 459 , 103 S.Ct. 1188, 75 L.Ed.2d 435 (1983).

In December 1980, the FCC designated Faith Center’s renewal application for its WHCT-TV Channel 18 license in Hartford for noncomparative hearing. Faith Center had filed a renewal application in 1977, but it had been held in deferred status pending the outcome of the San Bernardino proceedings. After the San Bernardino proceedings were dismissed, the FCC reactivated the Hartford proceedings to consider issues left unresolved in the San Bernardi-no proceedings. The FCC’s order reactivating the Hartford proceedings acknowledged Faith Center’s interest in making a distress sale, which it could do while its application was in designated-for-hearing status, but not while in deferred status.

Faith Center filed with the FCC, in February 1981, a petition for special relief requesting permission to make a distress sale to Television Corp. of Hartford. The FCC granted the petition and the renewal application on condition that the proposed as-signee be “found fully qualified ... and that the contemplated assignment is in fact consummated within 90 days following such determination.” Faith Center, Inc., 88 F.C.C.2d 788, 795 (1981). The FCC’s order further stated, “[s]hould either condition not occur, this proceeding will return to its status prior to the filing of the above described Petition for Special Relief.” Id. The proposed sale to Television Corp., however, was not consummated, and the application was withdrawn. On September 29, 1982, Faith Center again petitioned for special relief, seeking approval for a distress sale to Interstate Media Corp. The FCC again granted Faith Center’s petition and application — this time over the opposition of Shurberg and others — and again conditioned its approval upon the proposed as-signee’s being found fully qualified and upon the sale’s being consummated within ninety days of the qualification determination. If either of these conditions failed, the application was to revert to its prior designated-for-hearing status.

Shurberg, on December 1, 1983, filed an application for a construction permit to build a television station in Hartford, an application that would be mutually exclusive with the Channel 18 renewal application. The FCC rejected this filing on the ground that its regulations precluded it from accepting applications in competition with designated-for-hearing renewal applications until the resolution of the noncom-parative proceedings. See 47 C.F.R. § 73.3516(e) (1987); City of Angels Broadcasting v. FCC, 745 F.2d 656, 662-64 (D.C.Cir.1984).

In February and April of 1984, Faith Center and Interstate Media informed the FCC they could not consummate the proposed distress sale. Faith Center said, however, that it had “an excellent opportunity to consummate an assignment to other minority parties,” and it requested another chance to pursue a distress sale. Letter from Kenneth E. Robertson (Counsel for Faith Center) to Allan Glasser (FCC Mass Media Bureau), March 29,1984. Faith Center’s renewal application reverted to designated-for-hearing status, and the ALT scheduled a prehearing conference. On April 19, 1984, Shurberg in turn filed a petition for extraordinary relief requesting that the construction permit application he had attempted to file in December 1983 be designated for comparative hearing with Faith Center’s renewal application. Then on June 25,1984, before the FCC had acted on Shurberg’s petition, Faith Center petitioned the Commission for approval of a distress sale to Astroline. The FCC’s General Counsel solicited comments from all parties on the conflicting requests for relief. Astroline, the Department of Communications of the Capital Region Conference of Churches, and the FCC’s Mass Media Bureau submitted comments in favor of the distress sale; Shurberg recorded his opposition to the sale and urged his application be set for comparative hearing.

The Commission announced its decision on the petitions for relief in a Memorandum Opinion and Order released December 7, 1984. Faith Center, Inc., 99 F.C.C.2d 1164. It first addressed Shurberg’s argument that he was entitled to a comparative hearing against Faith Center’s renewal application because the FCC’s September 1983 order regarding the second proposed distress sale had granted Faith Center’s renewal application and thereby opened a “window” for the filing of competitive applications. See 47 C.F.R. §§ 73.3516(c), (e), 73.3539 (1987). The Commission also rejected Shurberg’s argument that New South Media Corp. v. FCC, 685 F.2d 708 (D.C.Cir.1982), required the Commission to grant its request for a comparative hearing. 99 F.C.C.2d at 1168-70. It did note, however, that if Faith Center failed to accomplish the distress sale on its third try, the FCC would require Faith Center to file a supplemental renewal application. This would operate to open a window for all competitive applications, including Shuberg’s. 99 F.C.C.2d at 1170.

Shurberg’s argument that the distress sale policy violated his constitutional right to equal protection was rejected by the Commission as “without merit.” In reaching that conclusion, the FCC relied both on its findings of “underrepresentation” of minorities in the broadcast industry and its view that increased minority ownership would increase programming diversity. Id. at 1170-71. The Commission also drew support from the 1982 amendments to the Communications Act in which Congress had approved the use of a lottery system that incorporated significant preferences for minority applicants as an alternative to the comparative hearing process. Id. at 1171-72. The conference report accompanying those amendments contained a statement that “the effects of past inequities stemming from racial and ethnic discrimination have resulted in a severe underrep-resentation of minorities in the media of mass communications, as it has adversely affected their participation in other sectors of the economy as well.” H.R.Rep. No. 765, 97th Cong., 2d Sess. 43 (1982) U.S. Code Cong. & Admin.News 1982 pp. 2237, 2281. Noting that the conference report also referred to the FCC’s 1978 policy statement, which expanded the distress sale policy, in establishing the need for preferential treatment of minorities, the Commission reasoned that “Congress ... has recognized the need for and approved the implementation of the minority ownership policies set forth in the 1978 policy statement.” 99 F.C.C.2d at 1172.

Shurberg also failed in his attack based on Astroline’s qualifications as a bona fide minority to participate in a distress sale. The Astroline partnership had two general partners and one limited partner. Richard P. Ramirez, the general partner whose Hispanic surname was the predicate for Astro-line’s participation in the distress sale as a minority enterprise, held a twenty-one percent ownership interest and a seventy percent voting interest in the partnership. WHCT Management, Inc., the second general partner, held a nine percent ownership interest and a thirty percent voting interest. Astroline Co. — not to be confused with the Astroline partnership — owned the remaining seventy percent of the company. The Astroline partnership represented to the FCC that the general partners would control the partnership’s affairs and would vote in accordance with their respective partnership interests. Shurberg attacked the bona fides of this arrangement, pointing to records indicating Ramirez had contributed less than one percent of the station’s operating capital; Shurberg asserted it was patently incredible that such a small contributor would be given control of the enterprise. Shurberg alleged that Ramirez was included in the partnership only as a device to permit the real party in interest, Astroline Co., to participate in the distress sale. The Commission determined, however, the Astroline partnership satisfied the basic requirements of minority control. Id. at 1173.

Shurberg filed this petition for review.³ Thereafter, this court issued its decision in Steele v. FCC, 770 F.2d 1192 (D.C.Cir.1985), which involved the FCC’s policy of extending preferential treatment to female applicants in comparative hearings for FM radio station licenses. A majority of the panel held the preferences invalid as exceeding the FCC’s statutory authority. The court en banc subsequently vacated the panel opinion and set the case for rehearing. The FCC requested, however, that we remand the case without considering the merits to allow the FCC to reconsider the basis for those preferences, since in the meantime it had “concluded that race, sex or national origin per se should not be a basis for licensing determinations.” Accompanying its motion for remand, the Commission filed a lengthy brief on the merits — in the event we might deny its motion and reach the merits — apparently conceding that its race and gender preferences violated the Constitution. We remanded the case, in October 1986, to allow the FCC to reexamine the bases of its racial and gender preference policies.

In light of these developments, we asked the FCC to file a supplemental brief in this case clarifying its position on the constitutionality of the minority distress sale provision. Instead of filing a brief, the Commission responded that the “distress sale policy raises many of the same questions that are present in the Steele case,” and requested a remand to allow inquiry into the distress sale policy along with consideration of the comparative preference policies raised in Steele. We granted the motion and remanded the record in June 1987.

On December 22, 1987, the President signed into law a continuing resolution appropriating funds for the federal government for fiscal year 1988. Pub.L. No. 100-202, 101 Stat. 1329 (1987). Among its provisions was the following:

That none of the funds appropriated by this Act shall be used to repeal, to retroactively apply changes in, or to continue a reexamination of, the policies of the Federal Communications Commission with respect to comparative licensing, distress sales and tax certificates granted under 26 U.S.C. 1071, to expand minority and women ownership of broadcasting licenses, including those established in Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d 979 and 69 F.C.C.2d 1591, as amended 52 R.R.2d 1313 (1982) [sic⁴] and Mid-Florida Television Corp., 60 F.C.C.2d 607 Rev.Bd. (1978) [sic⁵ ], which were effective prior to September 12, 1986, other than to close MM Docket No. 86-484 with a reinstatement of prior policy and a lifting of suspension of any sales, licenses, applications, or proceedings, which were suspended pending the conclusion of the inquiry....

In compliance with this provision, the FCC ended reconsideration of its comparative preference and distress sale policies, without issuing any conclusions, and announced it would reinstate such policies as they existed prior to September 12, 1986. See, e.g., Faith Center, Inc., 3 F.C.C.Rcd. 868 (1988).

Shurberg promptly moved the court for expedited resolution on the merits. Shur-berg noted that the case was fully briefed and argued more than two years ago, and that the termination of the Steele inquiry precluded any further evolution of the case. We granted the motion in part, agreeing to render our decision on the merits in the normal course of business. The FCC’s request for a remand to allow it to reexamine the distress sale policy, as well as its brief in Steele, suggested that it may now essentially agree with Shurberg’s constitutional arguments.

On the other hand, I also recognize that the FCC’s brief in Winter Park Communications v. FCC, Nos. 85-1755 and 85-1756, (D.C.Cir. argued Nov. 21, 1988) is supportive of the Commission’s minority preference policy as used in its comparative licensing procedures. The FCC asserted that approach is constitutional because it is based on the compelling government interest in the enhancement of diversity of programming — a contention which appears inconsistent with its brief in Steele. Still, in Winter Park, the FCC argued that its policy was narrowly tailored because “race is one of several factors to be considered rather than a decisive factor in and of itself.” Therefore, since race is only one consideration among many in the comparative license practice challenged in Winter Park, it is distinguishable from the distress sale policy in Shurberg. See infra at 913, 924-25.⁶

The continuing resolution apparently has prevented the formal expression of any further views by the FCC in this case, and the distress sale policy, reinstated by the FCC, is still operative and has an effect on Shur-berg’s interests. We therefore must consider his challenge, looking to the various briefs, which paradoxically include both the FCC’s defense and repudiation of its policy.

II.

Turning first to Shurberg’s nonconstitu-tional challenge to the Commission’s action, the major issue presented is the propriety of the Commission’s decision that Shurberg was not entitled to a comparative hearing. Giving appropriate deference to the FCC’s construction and application of its rules, see San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 30 (D.C.Cir.) (en banc), cert. denied, 479 U.S. 923, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986), I discern no basis for overturning the FCC’s determination on this ground.⁷

The Communications Act of 1934, as amended, provides that licenses in hearing status shall remain in effect pending final disposition of the hearing. See 47 U.S.C. § 307(c). The FCC’s regulations, moreover, provide that the Commission will not accept competitive applications after a certain time, in order to allow the Commission to designate renewal applications for hearing and to conduct such hearings in an orderly fashion. See 47 C.F.R. § 73.3516(e) (1987); City of Angels Broadcasting v. FCC, 745 F.2d 656, 662-64 (D.C.Cir.1984). In my view, the Commission properly applied the statute and its regulations when it refused to accept Shurberg’s competitive application while a hearing on Faith Center’s qualifications was pending. Shurberg argues that the posture of Faith Center’s renewal application was really more akin to deferred status than to designated-for-hearing status and under the rule of New South Media, 685 F.2d 708, the substance and not the form of a license’s status is controlling. As I have mentioned, designated-for-hearing applications are protected from competitive filings, but deferred applications are not. Deferred applicants are required to submit supplemental renewal applications at every interval during the time of their deferred status when a regular renewal application would be due. And those supplemental filings operate to open a window for competitive applications.

In New South Media, the FCC had granted several renewal applications conditioned upon the outcome of a comparative renewal proceeding involving another of the licensee’s licenses. Later the FCC denied renewal of that other license and decided to hold noncomparative hearings to determine how to treat the conditionally renewed licenses. Instead of waiting for the remaining licenses to expire and evaluating each at that time against competing applications, the Commission decided to reopen the earlier conditional renewals by designating those applications for hearing. Id. at 710. As the hearings were to begin after completion of all court appeals involving the unrenewed license, the FCC could fix no specific date for the hearings. This court overturned the FCC’s decision to hold the applications in designated-for-hearing status, shielded from competition for an interval longer than the license period itself. We found the situation analogous to that in Carlisle Broadcasting Associates, 59 F.C.C.2d 885 (1976), in which the FCC ruled that when a renewal application had remained in deferred status for three years (which was the license term), the Commission would entertain competing applications. See New South Media, 685 F.2d at 716. Between the time the FCC had designated the licenses for hearing and the completion of the judicial appeals involving the nonrenewed license, “all but one of the thirteen license renewals [had] run well beyond three years, with no renewal hearing ongoing at the Commission, no evidence-taking underway, no proceeding in midstream or even launched.” Id. We said: “In fact then, if not in form, the extended ‘conditional renewals’ in this case are like the renewal deferred for three years in Carlisle.” Id.

Shurberg argues that under New South Media the mere designation of a hearing is not sufficient to preclude competing applications, that there must actually be an ongoing renewal proceeding which would otherwise be hampered. Faith Center’s attempts to consummate a distress sale, it is asserted, cannot themselves be regarded as “administrative activity” sufficient to justify the Commission’s treatment of the Faith Center renewal proceeding as ongoing.

I disagree with Shurberg’s view of New South Media’s bearing on this case. New South Media treated the absence of ongoing administrative proceedings as a factor militating against keeping the renewal applications in protected status, but did not rule out the possibility that other interests might warrant continued protection against competitive applications. That competitive applications might disrupt ongoing proceedings is only one facet of a larger concern for administration of the FCC’s mandate. For the distress sale policy to work, the FCC must have the discretion to hold a renewal application in designated-for-hearing status long enough to permit the licensee to explore the possibility of such a sale. In this case, the FCC exercised its discretion to hold the application in designated-for-hearing status not once, but three times. All in all, the application was in deferred status for over three years and then in designated-for-hearing status for four years. Admittedly, that is a long time for competitors to be precluded from filing their applications, but I do not see here the total absence of administrative activity that was apparent in New South Media. The Commission’s efforts to allow Faith Center to avail itself of an FCC policy were not so unreasonable as to require reversal.

As Shurberg acknowledges, New South Media recognized that not all limitations on the Ashbacker policy of favoring competition are impermissible, especially insofar as they advance the FCC’s orderly administration of its work. See 685 F.2d at 716. If the distress sale policy were constitutional, it would present sufficiently weighty grounds for a limited exception to the Ash-backer policy. Because an agency’s balancing of competing policy considerations is entitled to considerable deference from a court, Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), I would be obliged to respect the Commission’s decision to implement the distress sale policy despite attendant delays. Accordingly, I do not quarrel with the Commission on this basis.⁸

III.

Shurberg challenges the distress sale policy as ultra vires on both statutory and constitutional grounds. We are, of course, normally obliged to consider the statutory question first — whether the policy exceeds congressional authorization — and I am mindful of the maxim that we construe statutes narrowly to avoid constitutional infirmities. Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 297, 76 L.Ed. 598 (1932). Still, the Commission operates under a broad statutory mandate to consider the “public interest, convenience and necessity.” 47 U.S.C. § 309(a) (1982). Congress has not disapproved the use of racial preferences as a means of carrying out the Commission’s view of the “public interest,” and has, in fact, authorized their use in certain licensing decisions. See 1982 Amendments to the Communication Act of 1934, 47 U.S.C. § 309(i)(3)(A). I think, therefore, that the FCC did not exceed its statutory authority when it adopted the distress sale policy.

The constitutional issue is whether or not the distress sale policy, by creating a preference for minority purchasers, violates the equal protection component of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The Supreme Court has struggled with the constitutionality of government-sponsored minority preferences four times in the last ten years,⁹ in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986); and City of Richmond v. J.A. Croson Co., — U.S. —, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Those cases have produced twenty-three opinions (some of which do not reach the constitutional issue). In their aftermath, I would be less than candid not to concede that discerning and applying constitutional principles in this area is difficult; in none of the first three cases does a majority of the Court join any one opinion. Under these circumstances, a lower federal court must do its level best to extract the holding that commanded a majority in each case to arrive at the governing principles and limitations. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977). In Croson, a majority of the Court did agree on the requirements for the constitutionality of a state or local affirmative action program. That opinion provides more guidance than the earlier cases, but the contours of its reasoning must still be fleshed out in future cases. I begin by briefly reviewing the four cases.

Bakke struck down a university admissions policy that set aside a fixed percentage of each class,for minority candidates. In the majority, only Justice Powell’s opinion reached the constitutional issue, and in discussing the possible justifications for the admissions program, he firmly rejected the notion that a racial classification could be based on a mere desire to assure that the student body contained specified percentages of particular racial and ethnic groups. 438 U.S. at 307, 98 S.Ct. at 2757. He also rejected the use of a preference as a remedy for past discrimination, because the university had not made any findings of discrimination, and indeed was not competent to make such findings. Id. at 307-09, 98 S.Ct. at 2757-58. Justice Powell’s opinion, however, did recognize that an academic institution has a compelling interest in promoting a diverse educational environment. Id. at 311-14, 98 S.Ct. at 2759-60. Bringing together students from diverse ethnic and cultural backgrounds allows them “to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.” Id. at 313 n. 48, 98 S.Ct. at 2760 n. 48 (citation omitted). Racial diversity is a legitimate aspect of a diverse student body, but it is only one part of the “genuine diversity” that is a compelling state interest. Id. at 315, 98 S.Ct. at 2761. Thus, the university could have used race as one factor in a multi-factor admissions decision. But simply employing a racial set-aside was inconsistent with the attainment of “genuine diversity,” an interest that would necessarily require consideration of factors other than race. See id. at 315-18, 98 S.Ct. at 2761-62.

Fullilove is the only case in which the Court has sustained the constitutionality of a governmentally-imposed minority preference not occasioned by a court’s remedial action.¹⁰ The Court considered a facial challenge to the constitutionality of a set-aside provision in an Act of Congress authorizing funding for public works construction.¹¹ In his plurality opinion, Chief Justice Burger stressed Congress’ special constitutional authority under the Fourteenth Amendment to enact measures to remedy past discrimination. See 448 U.S. at 472-78, 100 S.Ct. at 2771-74. Justice Powell’s concurrence also stressed that Congress had made the finding of past discrimination and that Congress had selected the particular remedy. See id. at 503-06, 100 S.Ct. at 2787-89 (Powell, J., concurring). The evidence before Congress demonstrated specific practices in the public procurement process that resulted in discrimination or an exacerbation of the effects of past discrimination. See id. at 477-78, 100 S.Ct. at 2774 (plurality); id. at 506, 100 S.Ct. at 2789 (Powell, J., concurring). Of key importance, it seems to me, was the Court’s determination that the set-aside was narrowly tailored to its remedial purpose. The Court prominently discussed features of the legislative history, id. at 463-67, 100 S.Ct. at 2767-69, and of the implemented program, id. at 486-88, 100 S.Ct. at 2779-80. The program was designed by Congress to assure that preference would be awarded only to disadvantaged minority enterprises: those enterprises that could show in the face of challenge that they were continuing to suffer the competitive effects of past discrimination (albeit discrimination not necessarily directed specifically at them). The Court also emphasized that the set-aside was likely to impose only a slight burden on nonmi-norities since its reach was small in proportion to the overall amount of funds expended in the construction industry and because the effects were diffused rather than concentrated on particular individuals. See id. at 484 n. 72, 100 S.Ct. at 2778 n. 72; id. at 514-15, 100 S.Ct. at 2793 (Powell, J., concurring).

In Wygant, the Court held unconstitutional a school layoff policy that accorded minority teachers a preference over nonmi-norities with seniority. As Justice O’Con-nor concurred in the Court’s judgment on narrow grounds and no other opinion was joined by five justices, one may take Justice O’Connor’s separate concurrence, and those parts of Justice Powell’s opinion in which she also concurred, to represent the holding of the Court. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993. The Court found that the school board had failed to establish the necessary factual predicate — i.e., evidence of past discrimination — for remedial action. See 476 U.S. at 277-78, 106 S.Ct. at 1848-49. The Court, however, relaxed its previous requirement that the governmental body make “findings” of discrimination. Recognizing that such findings might subject a government to liability, the Court authorized preferences to be predicated on substantial evidence of discrimination. Wygant, 476 U.S. at 289-92, 106 S.Ct. at 1854-56 (O’Connor, J., concurring). Flatly rejected, though, as a legitimate justification for the preferences was the school’s asserted need to provide minority role models; such a theory, the Court maintained, has “no logical stopping point.” Id. at 275-76, 106 S.Ct. at 1848. Essentially, the Court (Justice O’Connor) held that the layoff provision was not narrowly tailored to achieve its remedial purpose, because the hiring goal that the provision was designed to protect was calculated as a ratio of black teachers to black students, rather than as a ratio of black teachers to qualified minority teachers within the relevant labor pool. Id. at 294, 106 S.Ct. at 1857.

Croson, the Court’s most recent pronouncement, held unconstitutional Richmond’s Minority Business Utilization Plan, which required prime contractors awarded city construction contracts to subcontract at least thirty percent of the dollar amount of each contract to one or more “Minority Business Enterprises.” The Court ruled that a racial preference, at least when implemented by a state or local government, is subject to “strict scrutiny” review under the Equal Protection Clause. Croson, at -, 109 S.Ct. at 721; id. at -, 109 S.Ct. at 734-35 (Scalia, J., concurring). Given this standard of review, the Richmond plan was not supported by a sufficient factual predicate for remedial action. The City Council’s evidence was deficient, because “a generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy.” Id. at -, 109 S.Ct. at 723-24. In particular, the Court ruled that mere assertions of a “benign” purpose for the racial classification were “entitled to little or no weight,” id., and that a comparison between the number of prime contracts awarded to minority firms and the minority population of the city (as opposed to the number of qualified minority firms) is inappropriate. Id. at -, 109 S.Ct. at 725-26. The Richmond plan also failed the test of narrow tailoring because there had been no “consideration of the use of race-neutral means to increase minority business participation in city contracting,” id. at -, 109 S.Ct. at 727, nor did the plan provide for an “inquiry into whether or not the particular MBE seeking a racial preference ha[d] suffered from the effects of past discrimination_” Id. at -, 109 S.Ct. at 729-30.

Some general propositions may be gleaned from these four cases. Govern-mentally-imposed minority preferences are constitutionally permissible under certain limited circumstances, but they may not be based on the desirability per se of achieving racial balance or proportional representation of minorities in selected institutions. The Court has recognized that the objective of remedying past discrimination may justify the use of minority preferences, see Fullilove, 448 U.S. at 475, 100 S.Ct. at 2773, and at least one Justice has viewed promoting diversity in an educational context as a second compelling state interest. See Bakke, 438 U.S. at 311-15, 98 S.Ct. at 2759-61 (opinion of Powell, J.).

The nature of the evidence required to establish the existence of prior discrimination varies with the authority of the governmental body imposing the remedial preference. See Fullilove, 448 U.S. at 515 n. 14, 100 S.Ct. at 2793 n. 14 (Powell, J., concurring). Congress is clearly the institution with the most latitude to make findings of discrimination and authorize remedies on the basis of the evidence before it. See Croson, at -, 109 S.Ct. at 719-20; Fullilove, 448 U.S. at 472, 483, 100 S.Ct. at 2771, 2777; id. at 499-502, 100 S.Ct. at 2785-87 (Powell, J., concurring).¹² A state or local government must have stronger evidence of discrimination before it can employ racial classifications, Croson, at -, 109 S.Ct. at 720, and that evidence must “approach[ ] a prima facie case of a constitutional or statutory violation.” Id. at -, 109 S.Ct. at 723-24.

Assuming the factual predicate for remedial action by any governmental body has been established, a reviewing court must still ensure that the use of race is narrowly tailored to the remedial purpose. Croson, at -, 109 S.Ct. at 728; Wygant, 476 U.S. at 274, 106 S.Ct. 1847. Most important, a racial preference plan must allow for case-by-case consideration of applicants to ensure that each minority has in fact suffered from the effects of past discrimination. See Croson, at -, -, 109 S.Ct. at 719, 727-30; Fullilove, 448 U.S. at 486-87, 100 S.Ct. at 2779. The preference also must be structured in a way that minimizes the burden on nonminorities, so that innocent people are not asked to shoulder an undue share of the cost of remedying discrimination. Wygant, 476 U.S. at 282-84, 106 S.Ct. at 1851-52; Fullilove, 448 U.S. at 514-15, 100 S.Ct. at 2793 (Powell, J., concurring). When a remedy is limited and properly tailored, some sharing of the burden by innocent third parties may be unavoidable and does not render a remedial program unconstitutional. See Fullilove, 448 U.S. at 515, 100 S.Ct. at 2793 (Powell, J., concurring); Franks v. Bowman Transp. Co., 424 U.S. 747, 774-75, 96 S.Ct. 1251, 1269, 47 L.Ed.2d 444 (1976). But the government’s compelling need to employ a race-conscious remedy must outweigh the unfairness to innocent nonminorities. See Fullilove, 448 U.S. at 515, 100 S.Ct. at 2793 (Powell, J., concurring).

Aside from remedying past discrimination, the only other state interest heretofore identified in a Supreme Court opinion and upheld as sufficiently compelling to support race-conscious policies is the promotion of diversity in a school’s student body. Bakke, 438 U.S. at 311-12, 98 S.Ct. at 2759 (opinion of Powell, J.). In Bakke, Justice Powell emphasized the special role and characteristics of institutions of higher learning and the First Amendment protections afforded them. Id. at 312-13, 98 S.Ct. at 2759-60 Pursuit of diversity, in his view, is a compelling basis for affirmative discrimination only in circumstances and settings, such as those found in academia, where “a countervailing constitutional interest, that of the First Amendment,” in the selection of students “is of paramount importance in the fulfillment of [the institution’s] mission.” Id. at 313, 98 S.Ct. at 2760. Seeking racial or ethnic diversity for its own sake in a governmental or government-regulated institution has been soundly rejected. It is synonymous with the illegitimate objective of racial balance or proportional representation and is thus equivalent to “discrimination for its own sake.” Id. at 307, 98 S.Ct. at 2757. Preferring minorities in order to create role-models has been similarly rejected because it too leads inexorably to explicit racial balancing. See Wygant, 476 U.S. at 274-76, 106 S.Ct. at 1847-48 Britton v. South Bend Community School Corp., 819 F.2d 766, 767-68 (7th Cir.) (en banc), cert. denied, — U.S. —, 108 S.Ct. 288, 98 L.Ed. 2d 248 (1987). The goal of racial diversity might be compelling then only when that greater diversity itself serves one of society’s fundamental goals. See Bakke, 438 U.S. at 311-15, 98 S.Ct. at 2759-61.

Even if the government is seeking racial diversity for a legitimate educational purpose, a court must still ask if the form and manner of the racial classification used is appropriate to achieve that purpose — again, whether the race-conscious measure is narrowly tailored. Id. at 315, 98 S.Ct. at 2761. The constitutional test for “narrow tailoring” appears to be slightly different when the government’s justification for a racial preference is the promotion of diversity (so far recognized only in an academic setting) rather than the remedy of past discrimination. The Court has rejected the use of minority set-asides as a means of promoting diversity. See id. at 315-18, 98 S.Ct. at 2761-62. Because ethnic (or racial) origin is just one of many factors that combine to create “genuine diversity” in an educational environment, the state’s interest is better promoted when ancestry is one element of a multi-factor evaluation that takes into consideration a variety of characteristics and attributes. Id. According to the Court (Justice Powell), the crucial requirement for a program that uses a racial preference to enhance legitimate diversity is that each applicant must receive individualized consideration. Bakke, 438 U.S. at 318 & n. 52, 98 S.Ct. at 2762 n. 52.

The FCC appears to justify its policy both as a means to foster diverse programming and as a remedy for past discrimination. Although the Commission’s brief emphasizes that the distress sale policy is “based principally” on its authority to promote diversity of programming, and the dissent suggests that the policy rests “exclusively on the diversity rationale,” dissent at 953, I feel obliged to address the remedial justification as well.¹³ In its Memorandum Opinion and Order that rejected Shurberg’s constitutional claims, the agency also relied on the remedial justification, arguing that preferential treatment of minorities was needed to address the “un-derrepresentation of minorities” in the broadcasting industries. Faith Center, Inc., 99 F.C.C.2d at 1171. It further cited congressional statements that minority un-derrepresentation was the result of past racial and ethnic discrimination, and discussed the remedial power of Congress. Id. at 1171-72. I treat the remedial justification first, because constitutional law is more fully developed on that subject than it is with respect to the pursuit of diversity.

The Court in Croson reaffirmed the plurality’s view in Wygant that, when considering actions by state and local governments, “[sjocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.” Croson, at -, 109 S.Ct. at 723-24 (quoting Wygant, 476 U.S. at 276, 106 S.Ct. at 1848). In dicta, however, three members of the majority read Fullilove to mean that, in certain circumstances, Congress, in the exercise of its powers under section five of the Fourteenth Amendment, could constitutionally “identify and redress the effects of society-wide discrimination.” Croson, at -, 109 S.Ct. at 720. If we are to conclude that the FCC has provided a sufficient factual predicate for the distress sale policy, we must rest on that dicta, because the indications of past discrimination used by the FCC to justify its program are only of the most general nature. Four years after the FCC implemented its distress sale policy, Congress commented that “the effects of past inequities stemming from racial and ethnic discrimination have resulted in a severe underrepresentation of minorities in the mass media communication, as it has adversely affected their participation in other sectors of the economy as well.” H.R.Conf.Rep. No. 765, 97th Cong., 2d Sess. 43 (1982) (emphasis added). The report cited statistics showing that minority-owned broadcasting stations accounted for less than two percent of commercial broadcasting stations. See id. The FCC had made similar findings of minority “under-representation” ¹⁴ in 1978 in the course of developing its 1978 Policy Statement, 68 F.C.C.2d at 981, which announced the new distress sale policy’s minority preference.

Neither Congress nor the FCC ever found any evidence to link minority “under-representation” to discrimination by the FCC or to particular discriminatory practices in the broadcasting industry.¹⁵ Indeed, the FCC in its brief in the Steele case to the en banc court states “[tjhere has never been a finding, nor so far as we know even an allegation, that the FCC engaged in prior discrimination against racial minorities or women in its licensing process.” Even in its Winter Park brief, which seeks to defend a (albeit distinguishable) minority preference policy, the FCC offers no proof of particular discrimination in the broadcast industry. And Congress, in the 1982 conference report, suggested that minority underrepresentation in broadcasting is merely part of the larger phenomenon of minority underrepresentation in certain professions and occupations. As a remedial measure, then, the distress sale policy appears to be based solely on evidence of societal discrimination.

The decision in Croson does not clearly explain whether there are any evidentiary requirements imposed by the Fifth Amendment on Congress before it can authorize a remedy for societal discrimination, nor does it define exactly what is meant by “societal discrimination.” The Court noted that “Congress made national findings that there has been societal discrimination in a host of fields,” Croson, at -, 109 S.Ct. at 727, but it is not evident whether all of those findings would support race-conscious remedies, remedies which are “ageless in their reach into the past, and timeless in their ability to affect the future.” Wygant, 476 U.S. at 276, 106 S.Ct. at 1848 (plurality opinion). As Justice Kennedy remarked, “[t]he process by which a law that is an equal protection violation when enacted by a State becomes transformed to an equal protection guarantee when enacted by Congress poses a difficult proposition.” Croson, at -, 109 S.Ct. at 734 (Kennedy, J., concurring).

I do not read the Court’s dicta in Croson to mean that Congress may act without some quantum of particularized evidence of the effects of societal discrimination in the relevant industry, and in that regard the general findings of minority underrep-resentation in the broadcasting field differ, in my view, from the congressional findings the Court encountered in Fullilove. In that case, Congress had “abundant evidence from which it could conclude that minority businesses have been denied effective participation in public contracting opportunities by procurement practices that perpetuated the effects of prior discrimination.” Fullilove, 448 U.S. at 477-78, 100 S.Ct. at 2774. In the case of broadcasting, the evidence before Congress of the treatment of minorities in the broadcast industry was considerably less particularized. Underrepresentation alone cannot be sufficient proof of the effects of past societal discrimination. There is, of course, the possibility that minorities may be “disproportionately attracted to industries other than [broadcasting].” Croson, at -, 109 S.Ct. at 725-26; see also Johnson v. Transportation Agency, 480 U.S. 616, 668, 107 S.Ct. 1442, 1471, 94 L.Ed.2d 615 (1987) (Scalia, J., dissenting) (phenomena of discrimination and underrepresentation due to social attitudes are “certainly distinct”). If we were to hold that Congress may authorize a racial set-aside based on the meager evidence presented here, I do not see what would prevent Congress from mandating proportional racial representation in all publicly-controlled employment opportunities.¹⁶

Nevertheless, assuming arguendo that the broadcasting field has been plagued by the type of “societal discrimination” to which the Court referred in Croson and that Congress has the power to authorize its redress, the FCC’s program does not conform to the stricture of the Constitution because it is not narrowly tailored to remedy past discrimination. That a remedial preference must be narrowly tailored implies, as I understand the concept, three distinct limitations. The degree of preference must be tied to the effects of past disadvantages or discrimination, see Fullilove, 448 U.S. at 486-88, 100 S.Ct. at 2779-80; Croson, at -, 109 S.Ct. at 719, 727-30; there must be prior consideration of the use of race-neutral means to increase minority participation, see Croson, at -, 109 S.Ct. at 727; Fullilove, 448 U.S. at 463-67, 100 S.Ct. at 2767-69; id. at 511, 100 S.Ct. at 2792 (Powell, J., concurring); and the burden the preference imposes on innocent third parties must not be unfair. See Wygant, 476 U.S. at 282-84, 106 S.Ct. at 1851-52; Fullilove, 448 U.S. at 484, 100 S.Ct. at 2777. The distress sale policy is deficient in each respect.

The FCC’s policy operates in a manner that bears only a fortuitous relationship to any effects of past disadvantage or discrimination. In Fullilove, Congress incorporated a detailed administrative waiver procedure to ensure that the set-aside did not extend beyond its remedial purpose. Under the waiver policy, a contractor could avoid subcontracting with a minority business enterprise at an “unreasonable” price. See Fullilove, 448 U.S. at 469-71, 100 S.Ct. at 2770-71. An “unreasonable” price was described as “a price above competitive levels which cannot be attributed to the minority firm’s attempt to cover costs inflated by the present effects of disadvantage or discrimination.” Id. at 471, 100 S.Ct. at 2771. Without this “fine tuning to remedial purpose, the statute would not have ‘pass[ed] muster.’ ” Croson, at -, 109 S.Ct. at 719 (quoting Fullilove, 448 U.S. at 487, 100 S.Ct. at 2779). Under the distress sale policy, by contrast, the degree of the preference is not at all tied to disadvantage or discrimination.

The price of the distress sale is set by bargaining between a minority purchaser who is insulated from nonminority competition and a seller who is presumably anxious to salvage some value for his license and assets. The discount to the minority purchaser — in one sense, the degree of the preference — is likely to be substantial. Indeed, in order to preserve some deterrent against violating basic qualification requirements, the Commission prescribes that a distress sale price may not exceed seventy-five percent of the station’s fair market value, see Lee Broadcasting Corp., 76 F.C.C.2d 462, 463 (1980), thus guaranteeing the minority purchaser a discount of at least twenty-five percent. In this case, Astroline purchased WHCT at a forty-seven percent of the average appraised value.¹⁷ Any limited partnership with a minority general partner who owns more than a twenty percent share of the partnership may qualify for this preference. See 1982 Policy Statement, 92 F.C.C.2d at 855.

The FCC rules in no way require the preference to be tied to the extent of disadvantage suffered by the minority enterprise. There is no opportunity here to ensure that participating minority enterprises have actually been disadvantaged by past discrimination or its effects. See Croson, at -, 109 S.Ct. at 730; Fullilove, 448 U.S. at 487-89, 100 S.Ct. at 2779-80. The Commission apparently found Astroline to be eligible to participate in the distress sale simply because of Ramirez’s Hispanic surname.¹⁸ As far as I can tell, there was no procedural mechanism that would allow Shurberg or anyone else with an economic interest in the proceeding to prompt an inquiry into the economic status or the source of any disadvantage of Ramirez or his forebearers, nor did the FCC undertake any such investigation on its own initiative. Cf. Fullilove, 448 U.S. at 489, 100 S.Ct. at 2780 (waiver scheme “gives reasonable assurance that application of the MBE program will be limited to accomplishing the remedial objectives contemplated by Congress”). Under Fullilove and Croson, ancestry alone¹⁹ cannot be determinative in deciding who is entitled to a minority preference. There must be some opportunity to exclude those individuals for whom affirmative action is merely another business opportunity. For that reason, in my view, the FCC has failed sufficiently to target the preference to those actually entitled to a remedy.

Unlike the plan in Fullilove, it does not appear that Congress or the FCC chose adoption of a racial preference only after consideration and rejection of race-neutral means to increase minority ownership of broadcast stations. See Croson, at -, 109 S.Ct. at 719; Fullilove, 448 U.S. at 463-67, 100 S.Ct. at 2767-69 (Congress carefully examined and rejected race-neutral alternatives before enacting the MBE set-aside); id. at 511, 100 S.Ct. at 2792 (Powell, J., concurring). After identifying lack of information and lack of financing as the principal entry barriers working against people outside the “old-boy network,” see dissent at 937 the FCC did not consider race-neutral measures to increase dissemination of information about stations up for sale or to provide financing for prospective purchasers. Instead, the FCC opted immediately for racial preferences, both in the granting of tax-deferred certificates and in the authorization of distress sales. 1978 Policy Statement, 68 F.C.C.2d at 982-84. The agency’s conduct, therefore, is contrary to the direction of the Court in Croson and Fullilove that racial classifications may be employed only as a last resort.²⁰

I also believe that the distress sale policy requires innocent third parties to shoulder an excessive burden. The important question in the case of a remedial racial preference appears to be how directly and harshly a disadvantage falls on a nonminority. See Wygant, 476 U.S. at 282-83, 106 S.Ct. at 1851 (opinion of Powell, J.); Fullilove, 448 U.S. at 484, 100 S.Ct. at 2777. In Fullilove, for instance, the Court found the “actual ‘burden’ shouldered by nonminority firms is relatively light.” Id.; see also id. at 521, 100 S.Ct. at 2797 (Marshall, J., concurring). This was so because the public construction funds at issue constituted only two and one-half percent of all funds spent on contracting each year in the United States. The ten percent set-aside reserved for minorities amounted to only one-fourth of one percent of all construction contracting opportunities. Id. at 484 n. 72, 100 S.Ct. at 2777 n. 72. Similarly, in Wygant, the plurality opinion struck down a race-conscious layoff provision, in large part because “layoffs impose the entire burden of achieving racial equality on particular individuals.” 476 U.S. at 283, 106 S.Ct. at 1851. The employees in Wygant had developed a web of associations that would have made involuntary separation particularly painful even if other jobs were readily available. The uniqueness of the existing job made its potential deprivation an unconstitutional burden.

The distress sale policy imposes an unconstitutional burden on Shurberg because it deprives him of a unique opportunity to own a broadcasting station, solely because of his race. Unlike the construction-industry plaintiffs in Fullilove, whose prospective opportunities in the private sector greatly mitigated the theoretical hardship on any hypothetical individual contractor, no equivalent to a distress sale is available to Shurberg.²¹ Although there are five other television stations in the Hartford area, this is by no means a situation in which Shurberg has merely lost one of six comparable opportunities. If the distress sale policy had not been invoked and Faith Center had lost its license, Shurberg could have competed for Channel 18 in a comparative hearing. Because the incumbent licensee, Faith Center, had allegedly violated numerous FCC rules, Shurberg’s chances of being awarded (free of charge) the Channel 18 license were much greater than they would have been in the typical comparative renewal evaluation where the FCC awards the incumbent an “enhancement” based on the strength of the renewal expectancy. See Central Florida Enterprises v. FCC, 683 F.2d 503, 506-07 (D.C.Cir.1982), cert. denied, 460 U.S. 1084, 103 S.Ct. 1774, 76 L.Ed.2d 346 (1983).²² Shurberg’s only alternatives would be to purchase a station in the open market, assuming one is available, or hope that a new station is licensed in Hartford — something the Commission has indicated no intention of doing.²³ To label, as does the dissent, Shur-berg’s lost opportunity for a license as a mere potential “windfall” is to belittle the hardship that he suffers in losing that unique opportunity solely because of his race.

The dissent argues that the policy is narrowly tailored because only thirty-three stations were transferred to minorities through this technique since 1978. Dissent at 36. That is, as the dissent observes, a small percentage of the total broadcast licenses held in the United States, although I do not know what percentage of recent license transfers this number represents. But, in any event, this is not a facial challenge as in Fullilove, and these statistics are of little consequence to Shurberg; the burden on him is not lessened because only thirty-three other stations have been transferred by this technique. There is no reason to conclude that he shares a community of interest with other nonminority station owners spread throughout the country that might cushion his adverse treatment. It is a Hartford station Shurberg wants and, after all is said and done, he has been absolutely denied an opportunity to compete for one merely because of his race. A chance to compete for a license elsewhere in the country is not an equivalent opportunity for Shurberg. As an applicant for a license outside of Hartford, he would be at a material disadvantage because of the competitive enhancement the FCC accords applicants with ties to the local community. See West Michigan Broadcasting Co. v. FCC, 735 F.2d 601, 606 (D.C.Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. at 1392, 84 L.Ed.2d 782 (1985).

Shurberg’s situation is also analogous to the nonminority employees in Wygant Like the layoff provision in Wygant, the operation of the distress sale policy places a direct burden on a small group of individuals: those seeking to enter the broadcast industry in a particular market. The dissent, drawing on Wygant, contends that Shurberg's posture is to be compared to a potential new hire, rather than an employee faced with layoff, because Shurberg seeks entry into the Hartford broadcast market. Dissent at 951. As noted above, however, the operative distinction cannot be whether one is faced with the loss of a new economic opportunity or loss of an existing one but rather how directly the disadvantage falls on the nonminority. The constitutional distinction between a tolerable and intolerable burden on the innocent turns on the uniqueness and value of the opportunity lost. An existing job has unique characteristics not normally associated with new employment opportunities. But if a nonminority were disqualified from the only job currently available in a given community solely because of his or her race, I believe Wygant’s reasoning would apply. See Associated General Contractors v. City and County of San Francisco, 813 F.2d 922, 936 (9th Cir.1987) (whether a wide-ranging set-aside provision spreads its burden sufficiently depends on each industry’s characteristics; if government procurement is important and there are only a few nonminority firms, the burden may be crippling). I conclude that under the standards set forth in Fullilove and Wygant, the distress sale policy imposes an unfair burden on innocent nonminorities and specifically on petitioner.

C.

The FCC also justifies the distress sale policy as a means of promoting programming diversity.²⁴ As I have noted, Justice Powell has recognized that a state interest in the promotion of diversity in an educational setting may be sufficiently compelling to support the use of race-conscious measures in furthering that interest. See Bakke, 438 U.S. at 311-15, 98 S.Ct. at 2759-61 (opinion of Powell, J.). Bringing together students from different cultural backgrounds promotes “[t]he atmosphere of ‘speculation, experiment and creation’ ... so essential to the quality of higher education.” Bakke, 438 U.S. at 312, 98 S.Ct. at 2759 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring)). In Bakke, the state’s interest in promoting diversity was strengthened by the First Amendment interests of the school in structuring its educational environment as it sees fit. “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” Id. The policy decisions of a school are accordingly entitled to special deference, especially when the school seeks to “achieve a goal that is of paramount importance in the fulfillment of its mission.” Id. 438 U.S. at 313, 98 S.Ct. at 2760.

At the outset, I recognize that racial or ethnic diversity has been formally identified as a compelling government interest by only one Justice of the Supreme Court in Bakke.25 It is not at all clear, therefore, whether a majority of the Court would concur in that judgment, even in the narrow context of higher education. Indeed, in Croson, a plurality of the Court stated that classifications based on race should be “strictly reserved for remedial settings.” Croson, at -, 109 S.Ct. at 721; see also id. at -, 109 S.Ct. at 735 (Scalia, J., concurring); cf. id. at - & n. 1, 109 S.Ct. at 733 & n. 1, 735 (Stevens, J., concurring in part) (objecting to Court’s “premise ... that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong” and stating that “[ujnlike the Court” he would not prohibit race-based decisions for other purposes, such as promotion of diversity.). In light of that, I doubt that the FCC may employ a racial preference in order to promote diverse programming.²⁶ But even were a majority of the Court to embrace Justice Powell’s reasoning in Bakke, that holding could not sustain the distress sale policy.

In Bakke, Justice Powell saw diversity in institutions of higher education as a compelling state interest that justified racial preferences. It is vital to the educational mission, he concluded, that all students have “ ‘wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Bakke, 438 U.S. at 313, 98 S.Ct. at 2760. Crucial to his analysis was the fact that diversity benefited not just the preferred group, but all students and eventually the entire nation. Essentially, Justice Powell felt that the state has a compelling interest in requiring students to be exposed to a wide variety of people during their higher education.

We considered the suggested analogy between diversity of student bodies in institutions of higher education and diversity of broadcast programming in West Michigan Broadcasting Co. v. FCC, 735 F.2d 601, 614-15 (D.C.Cir.1984). At that time, we concluded that “the FCC’s goal of bringing minority perspectives to the nation’s listening audiences would reflect a substantial government interest ... that could legitimize the use of race as a factor in evaluating permit applications.” Id. at 614. For the time being, therefore, our precedent compels the conclusion that there is a compelling government interest in increasing diversity of programming.²⁷

Whatever the legal validity of the FCC policy at issue in West Michigan, that precedent cannot support the Commission’s desire to promote diversity through the distress sale policy, because the FCC itself has determined that there no longer is an inadequate diversity of viewpoints in television programming. The FCC recently determined that the fairness doctrine, aimed at promoting balanced broadcast presentations on matters of public interest, was violative of the First Amendment and inimical to the public interest. Obviously, the FCC cannot claim a compelling interest in fostering diversity of programming if such diversity already exists. Yet in disavowing the fairness doctrine, the FCC acknowledged the growth of media outlets that provide information to the citizenry, and abandoned the scarcity rationale as a justification for regulating the broadcast media more stringently than the printed press. Syracuse Peace Council v. Television Station WTVH, 2 F.C.C. Rcd. 5043, 5054-55 (1987), aff'd sub nom. Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.Cir.1989). Similarly, in its brief to this court sitting en banc in the Steele case, the FCC stated that “[w]ith changes in the broadcast industry over the last decade, the basis for the [race and gender] preference scheme becomes even more remote and the justification even less persuasive.”²⁸ If other media are substitutes for broadcasting for purposes of presenting diverse viewpoints on controversial issues of public importance, thereby rendering the fairness doctrine violative of the First Amendment in the view of the FCC, it seems implausible that the FCC at the same time can have a compelling interest in continuing to promote diverse programming through the distress sale policy.²⁹

But, assuming that West Michigan survives both Croson and the renunciation of the fairness doctrine, and is binding precedent on this point — that the FCC has a compelling interest in seeking racial or ethnic programming diversity when distributing broadcasting licenses — I am still faced with the issue whether a preference for minority ownership (or management) is an appropriate (narrowly tailored) means with which to achieve such programming diversity. The minority distress sale policy does not award a preference for diverse programming. Instead, the policy seeks to promote diversity of programming indirectly by limiting minority distress sale opportunities to broadcasting entities “with a significant minority ownership interest.” 1978 Policy Statement, 68 F.C.C.2d at 983. As a means to promote diverse programming, the distress sale policy rests on the questionable premise that minority ownership will by itself lead to minority programming (or programming that might be thought to have a minority perspective).³⁰ In its brief to us in the Steele case, however, the FCC conceded “no record has been established on which to base an assumption that a nexus exists between an owner’s race or gender and program diversity.” ³¹ If one of the advantages of racial diversity is to dispel invidious racial generalizations, see Wygant, 476 U.S. at 316, 106 S.Ct. at 1869 (Stevens, J., dissenting), it seems passing strange that a policy purporting to promote diversity should itself rest on a racial generalization. Presumably, a wide variety of factors determine a broadcaster’s programming proclivities. It seems impossible to say in the abstract that a person’s race or ethnic ancestry has a greater effect on his tastes than his profession, religion, or education.

My dissenting colleague insists that our decision in West Michigan controls this issue as well, but I find that contention unpersuasive. The Supreme Court’s subsequent decisions in Wygant and Croson undermine West Michigan’s determination of a nexus between ownership and programming, and we are thus not bound by West Michigan on that issue. See Dellums v. NRC, 863 F.2d 968, 978 n. 11 (D.C.Cir.1988).

The dissent maintains that it is “entirely foreseeable” that minority broadcasters “will have distinct perspectives to convey.” Dissent at 944. That statement more-or-less reflects the analysis of West Michigan, which held that the FCC may rely on a “[reasonable expectation” that minority owners are likely to increase diversity of content. West Michigan, 735 F.2d at 610 (reaffirming TV 9, Inc. v. FCC, 495 F.2d 929, 937-38 (D.C.Cir.1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974)).³² I take that reasoning to be an assertion of common sense rather than an empirically supported proposition; as such it is simply another way of expressing racial or ethnic stereotypes. That kind of “sense,” it seems to me, is all too common and has been explicitly disavowed by the Supreme Court. In Wygant, the Jackson Board of Education sought to justify a racial preference in teacher layoffs by citing the need to provide minority role models for its minority students. The Court rejected the Board’s justification and refused to subscribe to the theory that “black students are better off with black teachers.” 476 U.S. at 276, 106 S.Ct. at 1848. This kind of stereotyping, the plurality remarked, “could lead to the very system the Court rejected in Brown v. Board of Education.” Id.; see also Bakke, 438 U.S. at 310-11, 98 S.Ct. at 2759 (opinion of Powell, J.) (rejecting proposition that minority doctors are more likely than nonminority doctors to be interested in the medical problems of disadvantaged minorities).

The Court in Croson reiterated the im-permissibility of stereotyping. Justice Stevens remarked that “the Richmond City Council has merely engaged in the type of stereotypical analysis that is a hallmark of violations of the Equal Protection Clause.” Croson, at -, 109 S.Ct. at 733-34 (Stevens, J., concurring). In my view, that is exactly what this eourt in West Michigan (and subsequently the FCC) has done by relying on a “reasonable expectation,” without any supportive findings, that every minority owner will produce minority programming. As the Supreme Court aptly put it, “[ajbsent such findings, there is a danger that a racial classification is merely the product of unthinking stereotypes or a form of racial politics.” Id. at -, 109 S.Ct. at 732. And certainly, a desire to avoid the bureaucratic effort required to consider whether individual license applicants will increase diversity of programming cannot justify a racial generalization. Id.

If we simply assume that individual minority members have a comparative advantage in devising programs that appeal to their own racial or ethnic group, we would be obliged to accept the dangerous corollary assumption that members of the white majority have the opposite comparative advantage. But we have encountered and rejected that assumption in Beaumont Branch of the NAACP v. FCC, 854 F.2d 501, 510 (D.C.Cir.1988). There, we remanded and directed the FCC to hold a hearing, inter alia, to determine whether a station owner’s excuse for his sharply-reduced black employment — that blacks were not interested in or suitable for a new country and western music format — was supportable.

In any event, it is not at all apparent why a station owner, be she minority or nonmi-nority, would make programming decisions according to her personal tastes rather than in response to the demands of the marketplace. In its Steele brief, for example, the FCC explained that it has determined in a series of rulemaking proceedings that market forces are the primary creators of diverse programming.³³

It is also argued that Congress made findings that support the nexus between program diversity and minority ownership when it approved a lottery system for the selection of broadcast licenses. See H.R. Rep. No. 765, 97th Cong., 2d Sess. (1982). Although the holding of Fullilove is that Congress may act to remedy past discrimination based upon less particularized historical evidence than would be required of another governmental body or a court of law, it is not clear whether the same authority exists outside the remedial context. Whatever its authority, the House conference report regarding the lottery system is not instructive as to the existence of a nexus between program diversity and minority ownership. Significantly, the report does not purport to make historical findings of fact, as did Congress in enacting the set-aside plan at issue in Fullilove. Rather, the statements concerning the existence of a nexus between ownership and programming are in the nature of predictions as to future behavior. Nowhere in the House report is there evidence presented of a nexus between program diversity and minority ownership, nor is there reference to evidence upon which the committee drew. There are simply assertions that the former will follow from the latter. See, e.g., id. at 40 (“The nexus between diversity of media ownership and diversity of programming services has been repeatedly recognized by both the Commission and the courts.”);³⁴ see also dissent at 946 (conceding that evidence is merely “anecedo-tal”).

The closest thing to an actual historical finding is that “the Conferees find 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, as it has adversely affected their participation in other sectors of the economy as well.” H.R.Rep. No. 765, 97th Cong., 2d Sess. 43 (1982). This finding of “underrepresentation” does nothing to establish the nexus between minority ownership and diverse programming. Indeed, the report goes on from there to discuss the role of minorities in the economy rather than in the programming area. Id. at 44.

I respectfully submit that my position— concerning the effect to be given the House conference report — is hardly “judicial presumptiveness,” dissent at 940, or a “belittlement of Congress,” dissent at 946 n. 29, as the dissent accuses. Rather, to defer to such ipse dixit would be judicial abdication. If my dissenting colleague is correct, and mere congressional assertion without the support of any material developed in congressional hearings is adequate to justify a system of distribution of broadcast licenses based on race, then the Supreme Court’s language in Fullilove focusing on the evidence of discrimination in government contracting that was brought before Congress was just empty rhetoric.³⁵ Congress, under that view, can instead command that government agencies award benefits or privileges to American citizens based on simple racial stereotypes. I do not believe that is sound constitutional law.

In my view, therefore, the FCC’s attempt to justify the distress sale policy through analogy to the diversity goal recognized as compelling by Justice Powell in Bakke is inadequate. However, even assuming the dissent’s view that the FCC has cleared all the hurdles I have described, the distress sale policy clearly fails the Bakke test for narrow tailoring.

In Bakke, Justice Powell condemned the use of a racial preference designed to promote diversity when race was the only factor considered in certain admissions decisions:

The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.

Bakke, 438 U.S. at 315, 98 S.Ct. at 2761 (footnote omitted).³⁶ Justice Powell distinguished more flexible programs for promoting academic diversity. In particular, he pointed to the Harvard admissions policy, which considered race as one factor in a multi-factor decision, as one that promoted ethnic diversity without disregarding individual rights. Such a program would survive constitutional scrutiny because it would operate in a manner “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” Id. at 317, 98 S.Ct. at 2762. Whatever we might think of the constitutional distinction between a racial quota and a racial “plus-factor,” Justice Powell found the difference crucial, and we must look to his opinion — the only one to find promotion of “diversity” a compelling state interest — for guidance.

The distress sale policy shares the same flaw as the special admissions quota struck down in Bakke. Instead of considering the broad range of factors that would lead a prospective station owner to contribute to diverse programming, the policy singles out one aspect of diversity and elevates it to determinative status. Shurberg was “foreclosed from all consideration for [the Hartford station] simply because he was not the right color or had the wrong surname.” Bakke, 438 U.S. at 318, 98 S.Ct. at 2762 (opinion of Powell, J.). In a particular market, diversity of programming might be best promoted by factors other than a broadcaster’s race or ancestry, but the policy makes no provision for taking those factors into account.³⁷ The FCC does not consider whether aspects of a nonminority’s application other than his race suggest that he would add diversity to existing programming. Nor does it examine a minority applicant to determine whether a sale to him or her would indeed lead to an increase in diverse programming.³⁸

D.

What is truly extraordinary about this case is that after the FCC (the creator of the distress sale policy) admitted that it had not adequately established a nexus between minority status and broadcast diversity to withstand constitutional scrutiny and this court, in light of that admission, ordered a remand to enable the FCC to reconsider the issue, Congress intervened with a continuing resolution to prevent the FCC from expending funds to pursue that inquiry in accordance with our remand order. The conference report accompanying the resolution said “[t]he Committee also instructs the Commission to resolve within 60 days all proceedings that have been remanded by the court of appeals, including ... Shurberg Broadcasting of Hartford, Inc. v. Federal Communications Commission, No. 84-1600 (D.C.Cir. ordered remanded June 25, 1987).” S. Rep. No. 182, 100th Cong., 1st Sess. 77 (1987). Not surprisingly, the FCC complied with congressional direction rather than our remand order, closed the docket in which the Shurberg case was considered, and, in accordance with the continuing resolution, reinstated its prior distress sale policy.³⁹

My dissenting colleague draws on the continuing resolution to support the claim that there is a nexus between diversity of ownership and diversity of programming. I fail to see, though, how congressional statements made in 1987 can be relevant to the question whether the distress sale policy was constitutional as applied to Shur-berg in 1984. Congress cannot, after the fact, change a law that had effect three years earlier.⁴⁰ Moreover, the terse 1987 report of the Senate Appropriations Committee would add little foundation for the distress sale policy even if it were relevant, because it consists merely of an assertion that “[diversity of ownership results in diversity of programming and improved service to minority and women audiences.” S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987). The 1987 report itself relies primarily on the House conference report from 1982, see opinion of MacKinnon, J., at 931-33, which fails to establish the required nexus for reasons discussed earlier. See supra at 923-24.

******

In sum, the FCC has a policy in search of a justification. While the Commission claims to be principally pursuing diversity of programming, it uses racial stereotypes as a proxy for such diversity, and alternatively relies for support on congressional authority to remedy the effects of past racial discrimination. The dissent purports to rely exclusively on the diversity rationale, but seeks to strengthen the FCC’s position with references to remedial goals and authority. Whichever purposes actually motivated the FCC, the policy cannot withstand equal protection scrutiny.

It is doubtful that the FCC has a compelling interest in fostering programming diversity, and even if it does, the agency has failed to show that there exists a nexus between minority ownership and diversity of program content. Nonminorities interested in particular licenses are completely excluded by the operation of the policy, and it therefore fails the requirement of narrow tailoring enunciated in Bakke.

The remedial rationale fares no better. The historical basis for the plan is only general findings of underrepresentation, which might not even be a result of “societal discrimination” as used by the Court in Croson. If “remedial,” as used in Croson, carries the soft imprecise meaning that Chief Judge Wald suggests, see dissent at 953 n. 48, there really is no constitutional barrier to Congress legislating racial and ethnic proportional representation for beneficiaries of government programs or federal employees. In any event, the distress sale policy is not narrowly tailored to remedy past discrimination, because its effect is unrelated to the need for such a remedy, and it provides no procedures for ensuring that the policy’s beneficiaries have actually suffered from the effects of past discrimination. There is no indication, moreover, that the FCC sought to employ race-neutral programs to aid minorities before resorting to a racial set-aside. Finally, the distress sale policy imposes a heavy burden on innocent minorities by completely depriving them of opportunities to compete for unique television outlets.

Shurberg challenged the constitutionality of the distress sale policy only as a last resort in this proceeding and only after years of seeking an opportunity to compete openly and fairly for a television license in Hartford. We too have sought, procedurally and analytically, to avoid deciding this important constitutional question. I think, however, that I have no alternative now but to conclude that the FCC’s distress sale policy as applied to Shurberg is unconstitutional.

1 . The FCC has stated that a qualified minority enterprise is one that meets the Commission’s basic qualifications and in which the minority ownership interest exceeds 50% or is controlling. See Commission Policy Regarding the Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 853 (1982) (“1982 Policy Statement"). A special policy applies to limited partnerships: If there is a general partner who is a minority with a 20% interest in the partnership, the enterprise qualifies as one with "significant minority involvement.” Id. at 855.

2 . The distress sale policy is not without attraction to the station owner whose license has been designated for hearing. By selling his station, even at a 25% discount, the owner avoids the "costs of a renewal hearing and the risk of a revoked license." Comment, FCC Minority Distress Sale Policy: Public Interest v. The Public’s Interest, 1981 Wisc.L.Rev. 365, 366 (1981).

3 . This court has jurisdiction pursuant to section 402(b) of the Communications Act, 47 U.S.C. § 402(b) (1982).

4 . 52 Rad.Reg.2d (P & F) 1301 (1982).

5 . 69 F.C.C.2d 607 (Rev.Bd.1978).

6 . I express no opinion as to the validity of the minority preference policy in the comparative license practice raised in Winter Park.

7 . The dissent, although agreeing with the FCC that this issue presents a “close question,” seems to concur on this point, dissent at 935 n. 3; otherwise the dissent presumably would not reach the constitutional question.

8 . I also reject Shurberg’s argument that the FCC’s proceedings were fatally tainted by ex parte communications and other irregularities. None of the alleged communications warrants a remand. FCC regulations prohibit only ex parte communications "directed to the merits or outcome of a proceeding.” 47 C.F.R. § 1.1202(a) (1987). Only one of the alleged communications, a memorandum to the Commissioners from a non-decisionmaking employee, went to the merits of the Faith Center proceeding. The Commission has since included that memorandum in the record of this proceeding. It is obvious from reading the memorandum that the Commission's failure to make it public before it acted did not harm Shurberg in any meaningful respect. See PATCO v. Federal Labor Relations Authority, 685 F.2d 547, 564-65 (D.C.Cir.1982).

9 . A fifth case. Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986), is distinct both because it involved a court-ordered, remedy to discrimination and because it dealt primarily with Title VII.

10 . Court-ordered racial classifications have been sustained when used to remedy proven discrimination. See, e.g., Local 28 of the Sheet Metal Workers' Int'l Ass’n v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

11 . The plaintiffs in Fullilove did not seek damages or other specific relief for injuries caused by the application of the program, but only declaratory and injunctive relief striking down the program in toto. Fullilove, 448 U.S. at 480-81 & n. 71, 100 S.Ct. at 2775-76 & n. 71. The Court was not asked to consider the fairness of the burden borne by particular individuals; it observed that "questions of specific application must await future cases.” Id. at 486, 100 S.Ct. at 2779.

12 . For a discussion of Congress’ special role under the enforcement provision of the Fourteenth Amendment, see Nathanson, Congressional Power To Contradict the Supreme Court’s Constitutional Decisions: Accommodation of Rights in Conflict, 27 Wm. & Mary L.Rev. 331, 356-57 (1986).

13 . The dissent appears to agree, albeit for different reasons, that the distress sale policy cannot be sustained as a remedial program. See dissent at 935, 953. That is not entirely clear, however, since at other times the dissent characterizes the distress sale policy as “an effort to remedy the effects of past discrimination,” id. at 942, and relies on "the broad remedial powers of Congress.” Id. at 942.

14 . By "underrepresentation,” Congress and the FCC seem to have meant that the percentage of stations owned by minorities was less than the percentage of minorities in the population as a whole.

15 .The Minority Ownership Task Force report, to which the FCC’s 1978 Policy Statement refers, suggests that minority entry into the broadcasting industry is primarily hindered by difficulties in obtaining financing. But, minorities' lack of money is not linked to specific discriminatory practices.

16 . Recently, the Court suggested that the analysis in Croson is relevant to federally-mandated racial preference policies when it vacated for reconsideration in light of Croson the Eleventh Circuit’s decision in H.K. Porter Co. v. Metropolitan Dade County, 825 F.2d 324 (11th Cir.1987). See — U.S. —, 109 S.Ct. 1333, 103 L.Ed.2d 804 (1989). In H.K. Porter, the court upheld Dade County’s policy of requiring five percent participation by minority business enterprises in the construction of a federally-funded transit system. The Surface Transportation Assistance Act of 1978 made such percentage goals for minority business participation an absolute condition precedent to the receipt of federal funds. See 825 F.2d at 325, 331.

17 . The value of the license and other assets of WHCT was appraised three times at an average value of $6,520,000. The purchase price, however, was only $3,100,000.

18 . The need for case-by-case consideration to ensure that participants are truly disadvantaged is highlighted by the groups, in addition to blacks, who are included as "minorities” under the distress sale policy. They include those of Hispanic Surnamed, American Eskimo, Aleut, American Indian and Asiatic American extraction. 1978 Policy Statement, 68 F.C.C.2d at 980 n. 8. It should be obvious that the scope of the problem for each of these groups will "vary from market area to market area.” See Croson, at -, 109 S.Ct. at 719.

19 .The Court has not yet found it necessary specifically to address appropriate criteria for determining membership in a preferred minority group or class. Indisputably, millions of Americans, not generally thought by their fellows to be minorities, carry some percentage of minority blood and genes. When the preference for minority status is as economically valuable as here, is it not inevitable that some who can make a case for membership in a minority group will assert such claims despite relative affluence or good fortune? (In India, false claims of "untouchable” status, which can give access to jobs and university places, are apparently a serious problem. See Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum.L.Rev. 559, 572 n. 84 (1975)). It simply cannot be that administrative and judicial determinations of minority status can or would turn on genealogical inquiries. Besides the horrifying historical associations that would accompany such proceedings, see, e.g., Justice Stevens’ citation in his dissent of the Reichs Citizenship Law of November 14, 1935, defining Jews, Fullilove, 448 U.S. at 534 n. 5, 100 S.Ct. at 2804 n. 5, there are no appropriate objective criteria that could be applied. Furthermore, it seems rather flimsy to claim that a wealthy, well-educated, sophisticated individual, undeniably a member of a minority group, may constitutionally be preferred in the government’s distribution of broadcast licenses solely on account of his or her ancestry. Therefore, when the government grants preferences to individuals on the basis of “minority status,” determinations of that status, it seems to me, must depend on some notion of individual disadvantage, if not discrimination.

20 . The race-neutral measures to which the dissent refers — equal employment opportunity rules and ascertainment policies — were not designed to deal with the most significant barriers to minority ownership — lack of information and financing. Compare dissent at 947 with id. at 937. I thus disagree with the dissent’s conclusion that race-neutral methods to address these entry barriers have been found wanting. See id. at 948.

21 .A nonminority may be eligible to buy a station at a distress sale price only if the revocation hearing involves bankruptcy or disability. If, as in this case, those particular issues are not implicated, only minority-controlled enterprises are eligible as buyers if the licensee elects to pursue a distress sale. The state of the record makes it difficult for me even to guess at the extent to which nonminorities are excluded, except to say that it is potentially limitless and completely within the control of the FCC. It is, after all, the FCC’s exercise of discretion that determines which and how many licenses are designated for revocation hearing, which and how many renewal applications are designated for noncomparative hearing, and which issues are to be heard.

22 . The incumbent also has the considerable advantage of being a known quantity, ordinarily one with a record of proven performance, while the challenger usually has to rely on projections and promises. See Central Florida Enterprises, 683 F.2d at 507.

23 . It is also suggested, dissent at 952, that if Shurberg had conveyed management and control of his company to a qualified minority and retained only a financial interest then that new organization would have been permitted to bid for the station. For that matter he could also have invested in CBS stock or moved to New York and sought a broadcast license there. I fail to see how any of these possible alternatives affect his constitutional claim.

24 . In addition, the FCC seeks to rationalize its minority distress sale policy with the distinct goal of promoting diversity of ownership without regard to diversity of programming. In its policy statements, the FCC has contended that diversity of ownership is a goal that in and of itself justifies racial preferences. 1978 Policy Statement, 68 F.C.C.2d at 981. Economic diversity of ownership may well be part of the "public interest” that the Commission is authorized to promote. I do not doubt that the Commission may limit multiple ownership so as to diversify control of the public airwaves. But a desire to prevent concentration of ownership cannot justify diversification along racial lines. By itself, racial diversity of ownership is conceptually no different from racial balance in the workplace.

25 . Justice O’Connor did make reference to the diversity rationale in her concurring opinion in Wygant, 476 U.S. at 286, 106 S.Ct. at 1853, but her opinion for the Court in Croson suggests that she would not consider promotion of racial diversity a sufficient justification for a racial set-aside. See Croson, at -, 109 S.Ct. at 721. Justice Stevens does appear to have endorsed Justice Powell’s discussion in Bakke. See Croson at - n. 1 109 S.Ct. at 733 n. 1 (Stevens, J., concurring).

26 . Even under Justice Stevens' broader view of acceptable governmental interests, I doubt whether the FCC’s policy is legitimate. The melting pot notion, which Justice Stevens expressed in Wygant and reiterated in Croson, suggests that "one of the most important lessons that the American public schools teach is that the diverse ethnic, cultural, and national backgrounds that have been brought together in our famous ‘melting pot’ do not identify essential differences among the human beings that inhabit our land.” Wygant, 476 U.S. at 313-15, 106 S.Ct. at 1867-68 (Stevens, J., dissenting) (quoted in Croson, at -, 109 S.Ct. at 733 n. 2 (Stevens, J., concurring)). Unlike the state's goal in Bakke, which arguably served to break down racial and ethnic stereotypes, the FCC’s policy does not reinforce the "melting pot” because television viewers never have any knowledge of the race or ethnicity of the various station owners.

27 . Were I free to reach the question anew, I would find the analogy wanting. It is simply unacceptable, in my view, to say that the government has a role in educating the general public through television broadcasts that is parallel to its interest in promoting diversity in the educational setting. That is a somewhat Orwellian notion. Through public education, the government has assumed a special function in preparing our youth for participation in society. Justice Powell reasoned that because "[t]he atmosphere of ‘speculation, experiment and creation’ " is “so essential to the quality of higher education,” a university has a compelling interest in ensuring that students are exposed to a diverse group of peers during their formative years. 438 U.S. at 312, 98 S.Ct. at 2759. But there is no indication that Justice Powell contemplated that his reasoning would extend beyond the distinctive context of education where the state legitimately engages in a form of indoctrination. Indeed, Justice Powell indicated that the state’s interest in fostering diversity is stronger when students are younger:

It may be argued that there is greater force to these views at the undergraduate level than in a medical school where the training is centered primarily on professional competency. But even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial.

Id. at 313, 98 S.Ct. at 2760 (emphasis added).

28 . The FCC did not entirely repudiate this position in its Winter Park brief, but it came close by defending its preference scheme in a comparative license procedure as a constitutionally sound method of "achieving the compelling government interest — diversity of programming.” The FCC also praised its policy implicated in Winter Park as a "structural method[ ]” designed to "avoid[ ] government intrusion into regulation of program content.”

29 . I do not reach the question of whether the broadcast media continue to possess unique qualities sufficient to justify content regulation. I note the FCC’s inconsistency on the need for content regulation only because it undermines the "compelling need” of the agency's diversity-based rationale for the distress sale policy. The dissent argues that the 1987 continuing resolution, which prohibited the FCC from reconsidering the distress sale policy, takes precedence over the FCC’s decision to discontinue the fairness doctrine and renders the FCC’s inconsistency unimportant. The continuing resolution, however, can hardly be characterized as a “congressional determination that the public need for diversity in programming still warrants affirmative protection.” Dissent at 944 n. 25. Congress made no factual findings whatsoever concerning the existence or nonexistence of diverse programming in 1987.

30 . The dissent terms the distress sale policy "thoughtfully conceived and monitored,” dissent at 934, yet there is no evidence that once a sale was concluded the FCC made even the slightest effort to monitor the new station’s contribution to minority programming.

31 . Once again, I am obliged to point out the FCC’s brief in Winter Park offers only scanty evidence in support of the existence of such a nexus.

32 . Ironically, the FCC itself formerly took the position that minority preferences should be granted only after the minority applicant demonstrated a nexus to program diversity, but it was ordered by this court to assume that minority ownership would foster program diversity. TV 9, Inc. v. FCC, 495 F.2d 929, 937-38 (D.C.Cir.1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974); Garrett v. FCC, 513 F.2d 1056, 1062-63 (D.C.Cir.1975); see Notice of Inquiry, MM No. 86-484, 52 Fed.Reg. at 596 (1987). Our decision in TV 9, which did not involve a constitutional question and was rendered before any of the Supreme Court’s affirmative action decisions, offered no support for such a nexus. Its only authority for the proposition that ownership influences content was a citation to commentary which conceded that "the proposition does not lend itself to empirical analysis,” and, in any event, only addressed whether diversity would be enhanced by increasing the number of owners (thereby minimizing concentration of ownership) not whether the race of an owner somehow affected programming content. TV 9, 495 F.2d at 938 n. 31; see Note, Media and the First Amendment in a Free Society, 60 Geo.LJ. 871, 896, 1006 (1972).

33 . The dissent complains that Congress is "between a rock and a hard place,” dissent at 946, because, on the one hand, it cannot under the First Amendment directly ensure a certain kind of programming or viewpoint diversity, and, on the other hand, the distress sale policy violates the Fifth Amendment because there is no evidence that the policy will ensure diverse programming. The rock and the hard place hardly seem so ominous, however, when one realizes that they are actually two constitutional provisions. It may simply be that diversity of programming is not a sufficient basis to justify this racial preference, because ensuring diverse content of radio broadcasts is not a permissible goal under the First Amendment, much less a compelling governmental interest under the Fifth. The apparent implication of Chief Judge Wald's reasoning is that Congress and the FCC may indirectly do what the First Amendment prevents them from doing directly in order to justify a plan that would otherwise violate the Fifth Amendment.

34 . As noted above, see supra note 32, the FCC originally insisted on a case-by-case determination as to whether a minority owner would enhance programming diversity, but was ordered by this court, without supporting evidence, to assume that nexus. See TV 9, Inc. v. FCC, 495 F.2d 929, 937-38 (D.C.Cir.1973), cert. denied, 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974); Garrett v. FCC, 513 F.2d 1056, 1062-63 (D.C.Cir.1975). In an unfortunate parody of reasoning, Congress apparently relied on the TV 9 decision, and its progeny in the FCC and this court, to document the disputed nexus.

35 . The dissent mistakenly suggests that I have adopted the approach of Justice Stevens’ dissenting opinion in Fullilove. Dissent at 940 & n. 15. My concern is not that "judicial review should include a consideration of the procedural character of the decisionmaking process.” Fullilove, 448 U.S. at 551, 100 S.Ct. at 2812 (Stevens, J., dissenting). That contention has been properly rejected by this court. National Treasury Employees Union v. Devine, 733 F.2d 114, 117 n. 8 (D.C.Cir.1984). The problem with Congress’ "findings" on the nexus between diversity of ownership and diversity of programming is not that they were made without adequate deliberation but that Congress did not have before it the kind of "direct evidence” that provided an “abundant historical basis" for the set-aside plan in Fullilove. 448 U.S. at 478, 100 S.Ct. at 2774 (opinion of Burger, C.J.). Indeed, Congress did not even purport to rely on any evidence.

36 . For a telling analytical parallel, see Comment, FCC Minority Distress Sale Policy: Public Interest v. The Public’s Interest, 1981 Wisc.L.Rev. 365, 389 (”[B]y approving the assignee ... solely on the basis of its minority ownership and basic qualifications, the Commission does a great disservice to its ultimate goal of increasing diversity of programming.”).

37 . This is in contrast to the manner in which minority status is taken into account in comparative licensing hearings. As noted, supra at 908 n. 6, I offer no opinion on the constitutionality of minority preference schemes in comparative licensing procedures such as those at issue in Winter Park, which are called into question by recent Supreme Court cases. But even in West Michigan, we upheld the constitutionality of the FCC's comparative evaluation process largely because "it explicitly provides for examination of a wide variety of traits to assess an applicant's potential for increasing diversity and quality of programming." 735 F.2d at 615. Race is also only a partial determinant in the random selection alternative provided for by Congress in the 1982 amendments to the Communications Act of 1934. See 47 U.S.C. § 309(i) (1982).

38 . When discussing the distress sale policy’s effect on nonminorities, the dissent states that “no pre-determined number of stations is reserved exclusively for minority ownership.” Dissent at 948. However, a specific, albeit random, group of licenses are set aside: all those placed in designated-for-hearing status. Analytically, there is little difference between a specific number being set aside and a specific group being set aside for minority-use only insofar as the set-aside has an impact on nonminorities. In either case, nonminorities are absolutely barred from bidding on some predetermined number of licenses. Whether that number is calculated by percentage or by fortuity — all those stations which are designated for hearing — is of no moment.

39 .The congressional action is especially troubling because it prevented the FCC from complying with a direct order of this court to resolve the issues described in its Notice of Inquiry concerning the justification for the distress sale policy. The continuing resolution commanded that no funds shall be used "to continue a reexamination of” the distress sale policy, and the Senate Appropriations Committee explicitly directed the FCC "to resolve within 60 days all proceedings that have been remanded by the court of appeals ..., including Shur-berg, ... in a manner consistent with the policies that mandated incentives for minorities and women in broadcast ownership.” S.Rep. No. 182, 100th Cong., 1st Sess. 77 (1987). By its action, not only has Congress prevented the FCC from attempting to muster factual support for a position that it conceded was impermissible on the present record, but it has placed the FCC in a situation where it was obligated to disregard an order of this Court. Congress’ action thus carries serious constitutional implications, because there is little difference between stripping a court of jurisdiction and stripping the Executive Branch or an independent agency of authority to comply with orders of the court. Cf. United States v. Klein, 80 U.S. (13 Wall.) 128, 145, 20 L.Ed. 519 (1872) (Congress exceeds power under exceptions clause when "language of the [statute] shows plainly that it does not intend to withhold jurisdiction except as means to an end.”); Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1869).

40 . It is the impossibility of retroactive effect that renders the continuing resolution irrelevant to this litigation. Congress might be able to dictate a new rule for prospective application to a pending dispute. See Multi-State Communications, Inc. v. FCC, 728 F.2d 1519 (D.C.Cir.1984). In saying that I "dismiss) ] the entire episode,” dissent at 946, my colleague apparently overlooks the distinction between prospective and retroactive effect.