Hearing battle
In 1982, four groups applied for a construction permit to build a new TV station on channel 65 in Orlando. The channel had been inserted on a petition by Astro Enterprises, owner of WWBC in Cocoa, which presented engineering studies showing the channel was viable.[1] The first group to seek the channel was Metro Broadcasting, a consortium led by Orlando car dealer and state representative Art Grindle and featuring a variety of local businesspeople.[2] Three other groups filed at the deadline: Winter Park Communications, a company with Virginia and local interests whose application specified nearby Winter Park instead of Orlando as the city of license;[3] Orlando Family Television, whose backers hailed from Georgia; and Rainbow Broadcasting Company, owned by Joseph Rey of Coral Gables. These firms faced a comparative hearing at the Federal Communications Commission (FCC), in which the applications would be judged on several criteria, including integration of ownership and management (whether owners were involved in station operations) and an affirmative action criterion on minority ownership. Metro Broadcasting originally did not have any minority investors but brought on a Black part-owner of a car dealership; Winter Park Communications had a Hispanic investor; one investor in Orlando Family Television was Black; and Rey's consortium included investors of Cuban descent, including Rey himself, a Cuban immigrant[4] whose family fled the country when he was 11 in 1961.[5]
The initial decision from FCC administrative law judge Walter Miller, issued December 14, 1983, favored Metro Broadcasting over Winter Park and Rainbow.[6][7] The judge had dismissed Orlando Family Television, who successfully appealed the action to the FCC review board.[8] The entire case came to the review board, which in December 1984 overturned Miller's initial decision and awarded channel 65 to Rainbow Broadcasting, whom Miller had disqualified for misrepresenting the involvement of one of its principals in station operations in another application in Sacramento, California. The review board disagreed with the denial and found that Rainbow beat Metro Broadcasting slightly on the integration criterion.[9]
Metro challenged this ruling as well as the FCC's affirmative action practice of favoring women and minorities. In 1986, the FCC asked a court to declare these policies unconstitutional, an action that came under fire from minority and women's organizations, and it asked for Metro's legal challenge to be remanded to it so it could determine whether the preferences were of "decisional significance" in the channel 65 case;[10] it found this to be the case.[11] In 1987, Metro wrote in a separate commission proceeding on these preferences that they were unconstitutional: "Because the qualitative comparative criteria are few, the minority and gender preferences, especially when combined, assume overwhelming importance, unconstitutionally depriving nonfavored applicants of equal protection in violation of the Fifth Amendment."[12] The proceeding, which was later shut down by Congress, delayed the whole case a year.[13] Winter Park Communications also challenged but on different legal grounds: it believed that, because Orlando already had licensed TV stations and Winter Park did not, the grant of another Orlando-licensed station was inequitable and violated the Communications Act of 1934.
The United States Court of Appeals for the District of Columbia Circuit heard the case in late 1988. A majority of members of the three-judge panel believed that they were bound by precedent to uphold the minority preferences because of a 1984 decision, West Michigan Broadcasting Corporation; Metro was supported by an amicus curiae brief from the U.S. Department of Justice,[14] but the FCC reversed its earlier stance and came out in support of minority preferences.[15] The court, first in a three-judge panel and later in an en banc rehearing, backed the FCC's award of channel 65 to Rainbow Broadcasting in deciding Winter Park Communications, Inc. v FCC. Metro Broadcasting announced that it was prepared to appeal the adverse rulings.[16] Analysts, including those in favor of the affirmative action policies, believed that recent rulings were unfavorable to their cause.[17]
Metro Broadcasting petitioned the Supreme Court of the United States for review of the D.C. Circuit decision in September 1989, arguing that precedent failed to be narrowly tailored and that a review would resolve inconsistencies in recent legal cases.[18] Concurrently with its ruling in Winter Park Communications, the D.C. Circuit decided a separate case that also related to minority preferences, but its ruling was opposite. The Shurberg Broadcasting of Hartford, Inc. case was a years-long challenge to the FCC's distress sale policies, which permitted minorities to buy stations facing hearing actions for below market value, and was decided in favor of Alan Shurberg, who had challenged the distress sale of WHCT in Hartford, Connecticut. The Supreme Court announced it would take up the cases on January 8, 1990. The news excited Metro's lawyer, who predicted that one of Winter Park or Shurberg Broadcasting of Hartford would be reversed, and came as a disappointment to Rainbow's legal counsel.[19]
Briefs by the FCC, in the Shurberg portion of the case, and the Department of Justice, in the Metro portion of the case, illustrated opposing views on affirmative action programs, which the FCC defended and the Department of Justice attacked.[20] The case was of interest to many court watchers due to its possible impact outside of broadcasting.[21] During oral argument, the justices hinted that the scarcity of mass media outlets, radio frequencies and TV channels and the regulated status of broadcasting might move them to allow preferential policies.[22]
On June 27, 1990, the last day of the court's term, the Supreme Court handed down its decision in Metro Broadcasting, Inc. v. FCC. In a 5–4 decision authored by liberal justice William J. Brennan Jr. and unusually joined by the conservative Byron White, the court upheld the FCC's policies giving preference to women and minorities and the distress sale policy.[23]
Press vs. Rainbow: Antenna battle
After the Supreme Court released the Metro Broadcasting decision, Joseph Rey told The Orlando Sentinel that he believed WRBW could get on the air within twelve months.[24] However, construction did not begin until October 1993, by which time work had started at a rental tower site in the tower farm in Bithlo,[25] ahead of a March 1994 deadline to complete construction.[26]
Rainbow Broadcasting's efforts to construct WRBW soon took another legal turn. In 1986, anticipating the construction of WRBW, Rey had leased space on a tower in Bithlo, whose owner later—in 1990—let some of that space be used by Press Communications, owner of Orlando-market independent station WKCF. At the time, WKCF was moving from channel 68 to channel 18, an action that Rainbow had previously protested. A judge upheld the tower owner's decision, finding that Rey's lease was nonexclusive. Press charged Rey with delaying the move of WKCF and thus reducing its revenues.[27]
