Justifying minority preferences in broadcasting

Abstract

In Metro Broadcasting v. FCC, the Supreme Court upheld two Federal Communications Commission ("FCC" or "Commission") policies designed to increase the number of broadcasting stations owned by racial and ethnic minorities and, to a lesser extent, women. The FCC, prodded by early decisions of the Circuit Court of Appeal for the District of Columbia, has claimed for almost two decades that by increasing the diversity of ownership of the airwaves it will increase the diversity of programming content. Hence, these policies--termed "minority preference policies"--are justified as a method of diversifying broadcasting content and not as a matter of remedying any past or present discrimination. In Metro Broadcasting the majority found more than enough evidence of a nexus between minority ownership of broadcasting stations and broadcast programming diversity to allow Congress and the FCC to adopt these policies. The dissent took a completely different view of the evidence (as well as everything else) and found that it was totally insufficient to justify the minority preference policies.