Winter Park Communications, Inc. v. Federal Communications Commission , 873 F.2d 347 ( 1989 )

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Opinion concurring in part and dissenting in part filed by Circuit Judge STEPHEN F. WILLIAMS.

HARRY T. EDWARDS, Circuit Judge:

In these consolidated cases, Metro Broadcasting, Inc. (“Metro”) and Winter Park Communications, Inc. (“Winter”) seek review of an order of the Federal Communications Commission (“FCC” or “Commission”) awarding Rainbow Broadcasting Company (“Rainbow”) a license to operate a UHF television station in Orlando, Florida. Winter argues that the Commission erred in refusing to award it a dispositive preference under section 307(b) of the Communications Act for providing the first local television service to the City of Winter Park, Florida. Metro raises a number of grounds of error, contending principally that the Commission violated the equal protection clause of the Constitution in giving Rainbow credit for minority ownership. On the record before us, we find that the Commission’s application of section 307(b) was consistent with FCC precedent. We also find that this case is clearly controlled by West Michigan Broadcasting Co. v. FCC, 735 F.2d 601 (D.C.Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 782 (1985), in which this court expressly held that the FCC’s use of an enhancement for minority status “easily passes constitutional muster.” Id. at 613. Accordingly, we deny the petitions for review.

I. Background

On February 26, 1982, following a rule-making proceeding, the FCC assigned a new UHF television channel to the City of Orlando, Florida. Amendment of § 73.606(b), Table of Assignments, 50 Rad. Reg.2d (P & F) 1714 (1982). Under the Commission’s then-existing “15-mile rule,” the channel was available for use in communities located within fifteen miles of Orlando.¹ Petitioners Metro and Winter and intervenor Rainbow filed mutually exclusive applications for use of the channel. Metro and Rainbow designated Orlando as their place of license, and Winter specified the neighboring City of Winter Park, but all three applicants proposed to serve the entire Orlando metropolitan area, including Winter Park.

When parties file mutually exclusive applications for use of a broadcast channel in different localities, the Commission first determines whether any of the applicants is entitled to a preference under 47 U.S.C. § 307(b) (1982) for providing first or second local service to a community.² If one applicant receives a section 307(b) preference over the others, then that applicant normally will prevail without a comparative hearing. See WHW Enterprises, Inc. v. FCC, 753 F.2d 1132, 1135 (D.C.Cir.1985). If no community is entitled to a section 307(b) preference, or if more than one applicant specifies the preferred community, the Commission then conducts a comparative hearing to evaluate the qualifications of the competing applicants. See, e.g., Buena Vista Telecasters, 94 F.C.C.2d 625, 628 (Rev.Bd.1983).

In a comparative hearing, the Commission weighs both “quantitative” and “qualitative” factors. The quantitative assessment rests on the applicant’s proportional integration of ownership into management. If one applicant has a clear quantitative advantage, then that applicant receives the station (assuming that the applicant is otherwise qualified and does not own other media interests). See, e.g., WHW Enterprises, Inc., 89 F.C.C.2d 799, 819 (Rev.Bd. 1982), rev. denied, FCC 83-368 (Sept. 15, 1983), aff'd in part and rev’d in part on other grounds, 753 F.2d 1132 (D.C.Cir. 1985). If no applicant has a clear qualitative advantage, then the Commission assesses the applicants’ relative strengths on a variety of qualitative factors, including minority ownership, local residence, civic participation, and prior broadcast experience. These qualitative enhancements cannot, however, overcome clear quantitative differences. See WHW, 89 F.C.C.2d at 817.

After Metro, Winter and Rainbow filed their applications, the proceeding was assigned to an administrative law judge (“AU”), who issued a decision awarding the channel to Metro for use in Orlando. Metro Broadcasting, 96 F.C.C.2d 1073 (1983) (Miller, AU). The AU found that neither the City of Winter Park nor Orlando was entitled to a preference under section 307(b), because the Commission had assigned the channel to the Orlando area, Winter Park was “an integral part of the Orlando Urbanized Area,” and the center of Winter Park was less than five miles from the center of Orlando. Id. at 1087. The AU then evaluated the qualifications of the applicants themselves, and disqualified Rainbow for “lack of candor” in its application. Of the remaining two applicants, the AU found that Metro had a ninety-nine to ten percent quantitative advantage over Winter and that this advantage, together with Metro’s various qualitative enhancements, made Metro an “overwhelming comparative winner” over Winter. Id. at 1088.

Winter and Rainbow appealed to the FCC’s Review Board (“Board”), which reversed the AU on the lack-of-candor issue and awarded the channel to Rainbow.³ 99 F.C.C.2d 688 (Rev.Bd.1984). The Board agreed with the AU that Winter Park was not entitled to a section 307(b) preference. However, the Board reduced Metro’s integration credit and found that Rainbow’s resulting quantitative advantage was “probably a ‘clear’ enough difference to be decisional.” Id. at 703. The Board also concluded, however, that Rainbow was ahead qualitatively. The Board reviewed a number of factors, emphasizing that Rainbow had 90% hispanic ownership participation, whereas Metro had only one 19.8% partner who was black. Overall, the Board concluded:

[Although the qualitative comparison between Rainbow and Metro is close, Rainbow’s substantial minority preference, in conjunction with its slight female ownership advantage and solid broadcast experience preference, somewhat outweighs Metro’s local residence and civil participation advantage.

Id. at 704.

Winter and Metro appealed to the Commission, which denied review of the Board’s decision largely without discussion, stating merely that it “agree[d] with the Board’s resolution of this case.” FCC 85-558, slip op. at 2 (Oct. 18, 1985). Winter and Metro appealed to this court.

After the cases had been briefed and were awaiting oral argument, the Commission initiated a separate nonadjudicatory proceeding to explore its constitutional and statutory authority for awarding comparative preferences based on race and gender. Reexamination of the Commission’s Comparative Licensing, Distress Sales and Tax Certificate Policies Premised on Racial, Ethnic or Gender Classifications, 1 F.C.C. Red. 1315 (1986) (“Reexamination ”). We then granted the FCC’s request for remand to allow the Commission to reexamine whether Rainbow would have received the station absent its preference for minority ownership. On remand, the Commission found that Rainbow had no clear quantitative advantage and that deletion of Rainbow’s minority preference could reverse the outcome of the case. 2 F.C.C. Red. 1474, 1475 (1987). Accordingly, the Commission ordered the proceeding held in abeyance pending further action in the Reexamination proceeding on use of minority preferences.

On December 22, 1987, President Reagan signed into law the continuing resolution for fiscal year 1988, Pub.L. No. 100-202, 101 Stat. 1329 (1987). That resolution contained a provision forbidding the FCC from using any of the appropriated funds “to repeal, to retroactively apply changes in, or to continue a reexamination of' its policies to expand minority and female ownership of broadcasting licenses. 101 Stat. at 1331. Congress also ordered the FCC to reinstate prior policy and to lift the suspensions of all proceedings that had been held pending the conclusion of the Reexamination proceeding. See id. In compliance with this legislation, the Commission reactivated the case and reaffirmed its earlier order upholding the Board’s decision to grant Rainbow’s application. 3 F.C.C. Red. 866 (1988). Thus, the appellants’ earlier appeals were reinstated.

II. Analysis

A. Section 307(b)

Winter challenges the finding that it was not entitled to a dispositive preference under section 307(b) of the Communications Act. Orlando currently has five licensed television stations and Winter Park has none, although all five Orlando stations are received in Winter Park. The parties do not dispute that Winter Park is a city separate and distinct from Orlando. Consequently, Winter argues, the community of Winter Park has a greater need for local broadcast service than does Orlando, and FCC and court precedent require the Commission to accord Winter a dispositive 307(b) preference over the other applicants. We disagree.

In refusing to grant Winter a section 307(b) preference, the Board relied on the FCC policy of defining “community” more broadly in television cases than in radio cases. When a television station is sought:

“In cases involving mutually exclusive applicants from a principal city and a contiguous suburb, it has been held that where both applicants propose to serve substantially the same areas and populations the term ‘communities,’ as used in [section 307(b)] of the Communications Act, is not limited in meaning to ‘municipalities’ but may include metropolitan areas.”

Metro, 99 F.C.C.2d at 697 (quoting St. Louis Telecast, Inc., 22 F.C.C. 625, 713 (1957)); accord Cleveland Television Corp., 91 F.C.C.2d 1129, 1136 (Rev.Bd. 1982). In such situations, the city and the suburb comprise a single community, and neither receives a preference over the other under section 307(b).

The Board’s decision to deny Winter a section 307(b) preference was fully consistent with this urbanized area policy. All three applicants proposed to place a Grade B signal over the Orlando metropolitan area, including all of Winter Park. Thus, the Board found that there was no reason to award Winter a section 307(b) preference, because all applicants would be serving the same region. See 99 F.C.C.2d at 698.

Winter’s claim that the Commission has no such urbanized area policy is without merit. The Commission acknowledges that it has applied this policy somewhat erratically in radio cases, see, e.g., Debra D. Carrigan, 100 F.C.C.2d 721, 725, reconsid. denied, 101 F.C.C.2d 218 (Rev.Bd.1985), rev. denied, 104 F.C.C.2d 826 (1986); however, in television cases, there is no doubt that the FCC consistently has refused to grant a suburban community a section 307(b) preference over a central city when all applicants propose area-wide service.⁴ See, e.g., Cleveland, 91 F.C.C.2d at 1136; Buena Vista, 94 F.C.C.2d 625; Knoxville Broadcasting Corp., 59 Rad.Reg.2d (P & F) 1617, 1622-23 (Rev.Bd.1986); Charles Vanda, 8 Rad.Reg.2d (P & F) 427, 433-34 (Rev.Bd.1966); St. Louis Telecast, 22 F.C. C. at 627-30.

Moreover, this court has previously found that it is permissible for the Commission to define “community” differently in the radio and television contexts so as to avoid a section 307(b) analysis when wide-area television coverage is proposed. See New Radio Corp. v. FCC, 804 F.2d 756, 760 (D.C.Cir.1986). The FCC has broad discretion under section 307(b) to determine the public interest, see Loyola Univ. v. FCC, 670 F.2d 1222, 1226 (D.C.Cir.1982), and nothing in the Communications Act prevents the FCC from defining the term “community” differently in different contexts, or from adopting an interpretation that strays considerably from political boundaries, see, e.g., National Ass’n of Broadcasters v. FCC, 740 F.2d 1190, 1198 (D.C.Cir.1984) (upholding FCC approval of cable TV licenses on a nationwide basis and stating that “the constituency to be served is people, not municipalities”).

Contrary to Winter’s contention, the FCC’s refusal to grant a section 307(b) preference to a smaller suburban community over a central city has little to do with the relative sizes of the competing communities or with the type of television station — VHF or UHF — being sought. Rather, the Commission’s policy in the distribution of television licenses is based on the characteristics of that medium:

Television stations typically serve much larger areas than radio stations, involve considerably greater capital investments, and require larger audiences to attract more advertising revenues. Beyond these differences, the number of television channels available is much more limited and, consequently, the television service area for Section 307(b) purposes “should be defined in terms of coverage and not in terms of artificial political boundaries.” Evening Star Broadcasting Co., 27 FCC2d 316, 321 n. 4, 20 RR 2d 1311, 1321 n. 3a (1971), aff'd sub nom. Stone v. FCC, 466 F.2d 316 (D.C.Cir. 1972).

Cleveland, 91 F.C.C.2d at 1137, quoted in Metro, 99 F.C.C.2d at 698. Moreover, the Commission has often invoked its urbanized area policy in cases involving UHF licenses. See e.g., Cleveland, 91 F.C.C.2d 1129; Washington’s Christian Television Outreach, Inc., 99 F.C.C.2d 395, 408-10 (Rev.Bd.1984); Adell Broadcasting Corp., 99 F.C.C.2d 477, 508-10 (Rev.Bd.1984).

In the present case, the Review Board found that “the economic need of a television station to attract sizeable advertising revenues to cover the significant costs involved in its ongoing operation creates a strong presumption — unrebutted in this record — that each applicant will serve the entire Orlando metropolitan area.” 99 F.C. C.2d at 698. The Commission’s refusal to award Winter a section 307(b) preference was thus fully consistent with its existing policy regarding award of television licenses to competing applicants in the same metropolitan area.

B. Enhancement for Minority Ownership

Metro, Winter, and the Department of Justice as amicus curiae argue that the Commission’s use of a qualitative enhancement for minority ownership violates the equal protection clause of the Fifth Amendment.⁵ Although minority ownership is only one of-several factors considered by the FCC in awarding broadcast licenses, it may tip the balance in some cases. The issue is before us in this case because the Commission found on remand that Rainbow’s enhancement for minority ownership was probably dispositive. See 2 F.C.C. Red. at 1475.

The issue regarding the legality of the FCC's use of a qualitative enhancement for minority ownership is easily resolved because this case is controlled by our decision in West Michigan, 735 F.2d 601. In considering exactly the same policy at issue here, the court in West Michigan ruled that “the FCC’s plan easily passes constitutional muster,” id. at 613, for at least two reasons:

In our analysis two factors stand out as particularly important to our conviction that there is no constitutional infirmity in the FCC’s behavior. First, the Commission’s award of minority enhancements is not a grant of any given number of permits to minorities or a denial to qualified nonminorities of the ability freely to compete for permits; it is instead a consideration of minority status as but one factor in a competitive multi-factor selection system that is designed to obtain a diverse mix of broadcasters. Second, the Commission’s action in this case came on the heels of highly relevant congressional action that showed clear recognition of the extreme underrepresentation of minorities and their perspectives in the broadcast mass media. Congress found that this situation was a part of “the effects of past inequities stemming from racial and ethnic discrimination.” H.R.Conf.Rep. No. 97-765, 97th Cong., 2d Sess. 43 (1982), U.S.Code Cong. & Admin.News 1982, p. 2287. Congress must be understood to have viewed the sort of enhancement used here as a valid remedial measure. In giving special weight to these factors we in no way imply that either would be essential to the constitutionality of a government affirmative action program, but their presence places the program’s constitutionality beyond question.

Id. at 613-14 (emphasis in original).⁶

Since the decision in West Michigan, the Supreme Court has reviewed several challenges to race and gender preferences in employment.⁷ However, none of the Court’s recent cases has undermined the holding in West Michigan. Indeed, even the Justice Department has conceded that West Michigan controls the disposition of this case.

The Supreme Court’s recent decision in City of Richmond v. J.A. Croson Co., — U.S.-, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), does not alter this conclusion. In Richmond, the Court found that the City of Richmond had violated the equal protection clause by requiring prime contractors for the city to subcontract at least 30% of the dollar amount of their construction contracts to one or more minority business enterprises. A review of the Court's opinions, however, makes clear that Richmond does not significantly alter the constitutional framework underlying this court’s decision in West Michigan.

The West Michigan court, in upholding the FCC’s use of a qualitative enhancement for minority ownership, relied primarily on the Supreme Court’s earlier decisions in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), and Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). See West Michigan, 735 F.2d at 613. Neither of these decisions was repudiated by the Court in Richmond. A majority of the Court — the three justices who joined part II of Justice O’Connor’s opinion for the Court, and the three dissenters — continues to regard Fullilove, in which the Court upheld a congressional program creating a 10% minority set-aside for federal construction contracts, as good law. See Richmond, — U.S. at-- -, 109 S.Ct. at 717-20 (plurality opinion); id. at---, 109 S.Ct. at 750-52 (Marshall, J., dissenting); see also id. at-- -, 109 S.Ct. at 735-38 (Scalia, J., concurring in the judgment) (declining to revisit Fullilove). Indeed, Justice O’Connor relied heavily on the reasoning of Fullilove and was careful to point out why the facts of Richmond compelled a different result. See — U.S. at---,---, 109 S.Ct. at 717-20, 728-29. Similarly, none of the opinions in Richmond expresses any disagreement with Bakke, in which Justice Powell found racial diversity to be a constitutionally permissible goal, independent of any attempt to remedy past discrimination. See Bakke, 438 U.S. at 311-15, 98 S.Ct. at 2759-61 (plurality opinion). Accordingly, the constitutional foundation for West Michigan remains intact.⁸

Moreover, the Supreme Court in Richmond stressed two crucial differences between the set-aside program upheld in Fullilove and the plan struck down in Richmond, and in both respects the FCC’s policy is more similar to the Fullilove program found constitutional than to the Richmond plan.

First, the Court emphasized that the Richmond plan involved “an unyielding racial quota,” — U.S. at-, 109 S.Ct. at 724, in contrast to “the flexible nature of the 10% set-aside” upheld in Fullilove, id. at-, 109 S.Ct. at 718. The FCC’s policy, however, is even more flexible than the Fullilove set-aside plan: it does not involve any quotas or fixed targets whatsoever, and minority ownership is simply one factor among several that the Commission takes into account in the award of broadcast licenses. In fact, the Commission would not even have considered minority ownership if it had found that the City of Winter Park was entitled to a dispositive preference over the City of Orlando under section 307(b).

Second, the Richmond Court made a distinction between programs enacted by Congress and those adopted by states or local governments. The Court observed that the Richmond plan was adopted by a city council, which had no specific constitutional mandate to enforce the Fourteenth Amendment; rather “[sjection 1 of the Fourteenth Amendment is an explicit constraint on state power.” — U.S. at-, 109 S.Ct. at 719 (emphasis in original). The plan upheld in Fullilove, by contrast, was passed by Congress, which has “unique remedial powers ... under § 5 of the Fourteenth Amendment.” Richmond, — U.S. at-, 109 S.Ct. at 718. In reviewing a congressional program, the Court emphasized,

“we deal ... not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees.” [Fullilove,] 448 U.S., at 483, 100 S.Ct. at 2777 (plurality opinion) (emphasis added).

Richmond, — U.S. at-, 109 S.Ct. at 718.

Like the set-aside plan in Fullilove, the FCC’s minority preference policy has Congress’ express approval. Congress has interceded at least twice to endorse the FCC’s policy of enhancements for minority ownership in the award of broadcast licenses. See Pub.L. No. 97-259, § 115, 96 Stat. 1087, 1094-95, codified at 47 U.S.C. § 309(i)(3)(A), (C)(ii) (1982) (mandating use of minority preferences in lottery assignments); Pub.L. No. 100-204, 101 Stat. at 1331 (continuing resolution). “Any doubt concerning the constitutionality of the FCC’s consideration of minority status was ended by Congress’ approval of the Commission’s goals and means.” West Michigan, 735 F.2d at 615.

The FCC has indicated that it intends to adhere to its policy and we have no authority to overturn the agency’s judgment on this point. West Michigan disposed of the constitutional challenges to the use of enhancements for minority ownership, and we are bound to follow this law of the circuit. See Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C.Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).

C. Other Issues

Aside from the section 307(b) and constitutional issues, which were the main arguments on which the parties focused in oral argument and in the briefs, Metro also raised a number of other arguments that we find to be moot or to lack merit.

First, Metro argues that the Commission erred in its assessment of Metro's and Rainbow’s comparative quantitative integration of ownership into management. However, the Commission in fact agreed with Metro that the AU gave Metro too little credit for one of its partners, and the Commission rejected the ALJ’s finding that Rainbow’s quantitative advantage over Metro was probably decisive. See 2 F.C.C. Red. at 1475. Rather, the Commission found that neither party had a clear quantitative advantage over the other. See id. Although the Commission did not go as far as Metro would like and thus did not find that Metro had a quantitative advantage over Rainbow, the Commission’s determination is entitled to considerable deference, see Office of Comm’n of the United Church of Christ v. FCC, 707 F.2d 1413, 1424-25 (D.C.Cir.1983), and we find nothing in the record to suggest that it should be overturned.

Metro also contends that the 1987 continuing resolution, which directed the FCC to resolve the present case within sixty days in a manner consistent with the Commission’s existing policies, was an unconstitutional bill of attainder. However, “[t]he proscription against bills of attainder reaches only statutes that inflict punishment on the specified individual or group.” Selective Serv. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 851, 104 S.Ct. 3348, 3354, 82 L.Ed.2d 632 (1984). Metro has made no argument that Congress’ action imposed punishment on Metro. Although part of the same continuing resolution aimed at one individual, Robert Murdoch, was found unconstitutional in News America Publishing, Inc. v. FCC, 844 F.2d 800 (D.C.Cir.1988), the court in that case found that Congress had denied Murdoch a waiver that was available to all other applicants. In the present case, by contrast, Congress simply ordered the FCC to adhere to established substantive policies in resolving broadcast license disputes; Congress did not purport to instruct the agency how to decide any particular case on the merits. Congress neither singled out Metro nor directed that Metro be punished, and the continuing resolution was therefore not a bill of attainder as applied to Metro.⁹

III. CONCLUSION

We find that the Commission’s refusal to accord Winter a dispositive preference under section 307(b) was consistent with its previous interpretations of that section. We also find that our prior decision in West Michigan controls the disposition of the case with respect to the FCC’s use of a qualitative enhancement for minority ownership. Accordingly, the petitions for review are denied.

So ordered.

1 . The rule has since been repealed, see The Suburban Community Policy, 93 F.C.C.2d 436, 451-53 (1983), and parties may now apply for use of a channel only in the locality to which it has been assigned. Thus, the section 307(b) inquiry now takes place in the initial rulemaking proceeding to assign the channel to a community, before the channel is open for applications from interested parties.

2 . Section 307(b) requires the Commission "to provide a fair, efficient, and equitable distribution" of broadcast service among states and communities. This provision instructs the FCC to "creat[e] a system of local broadcasting stations, such that ‘all communities of appreciable size [will] have at least one television station as an outlet for local self-expression.”’ United States v. Southwestern Cable Co., 392 U.S. 157, 174, 88 S.Ct. 1994, 2003, 20 L.Ed.2d 1001 (1968) (quoting H.R.Rep. No. 1559, 87th Cong., 2d Sess. 3 (1962)).

3 . Neither Winter nor Metro has sought review of the determination on lack-of-candor.

4 . Winter notes that the Commission proposed to adopt its urbanized area policy in a rulemaking proceeding but has not done so. See The Commission’s Policy, Pursuant to Section 307(b) of the Communications Act, of Granting Comparative Preferences Within Metropolitan Areas, 48 Fed.Reg. 19,428 (1983). Yet, neither has the Commission rejected the proposal; in fact, it has indicated that it will continue to apply the metropolitan area policy on a case-by-case basis until it takes further action in the rulemaking proceeding. See Debra D. Carrigan, 100 F.C.C. 2d at 731 n. 19 (citing its authority under SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947), to proceed case-by-case rather than by rulemaking).

5 . Metro also challenges the use of gender preferences. However, the Commission determined below that the outcome of the proceeding would not change even if no consideration were given to Rainbow’s five percent female participation. See 3 F.C.C. Red. at 867 n. 1. Accordingly, we consider only the legality of the FCC’s use of a qualitative enhancement for minority ownership.

6 . Unlike Congress, the FCC does not now base its policy of enhancement for minority ownership on a purpose to cure the effects of perceived racial discrimination. See Brief for FCC at 29-30. Rather, the FCC has indicated that its policy is designed to increase the participation of minority groups in the broadcast industry “in furtherance of the public interest goal of diversity of viewpoint — to enhance the public’s exposure through programming on broadcast stations to the viewpoints of the significant, diverse groups that make up the nation." Id. at 30; see Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 311-15, 98 S.Ct. 2733, 2759-61, 57 L.Ed.2d 750 (1978) (plurality opinion of Powell, J.); West Michigan, 735 F.2d at 614 (noting that ”[t]he FCC policy would clearly be validated under Justice Powell’s approach" in Bakke).

7 . See generally Edwards, The Future of Affirmative Action In Employment, 44 Wash. * Lee L.Rev. 763 (1987); Jones, The Genesis and Present Status of Affirmative Action in Employment: Economic, Legal, and Political Realities, 70 Iowa L.Rev. 901 (1985); Note, Rethinking Weber: The Business Response to Affirmative Action, 102 Harv.L.Rev. 658 (1989);. Sullivan, The Supreme Court, 1985 Term — Comment: Sins of Discrimination: Last Term’s Affirmative Action Cases, 100 Harv.L.Rev. 78 (1986).

8 . Most of the Supreme Court’s other recent cases involving challenges to affirmative action have upheld the legality of these plans in the employment context. See, e.g., Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987); United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed. 2d 203 (1987); Local 28 of Sheet Metal Workers' Int'l Ass’n v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986); Local No. 93, Inti Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). The only notable exception has been Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). Together, these cases surely do not undermine this court’s decision in West Michigan. Furthermore, none of these cases calls into question either Fullilove or Bakke.

9 . The other issues raised by Metro are moot. Metro argues that it should have been awarded "substantial” rather than "moderate" credit for local residency, and that Rainbow should not have been given a substantial preference over Metro for broadcast experience. The Commission indicated, however, that neither of these issues affected the outcome of the proceeding. See FCC 85-558 (Oct. 18, 1985); 2 F.C.C.Rcd. at 1475. Metro's charges against Winter are also moot, as we have upheld the Commission’s determination that Winter was not entitled to the station.