METRO BROADCASTING, INC. v. FCC 497 U.S. 547 (1990)

In this decision the Supreme Court, 5–4, upheld two aspects of an affirmative action program approved by Congress in the area of broadcasting. In 1986 members of racial and ethnic minorities, who constitute about onefifth of the nation's population, owned just over two percent of the radio and television broadcasting stations licensed by the Federal Communications Commission (FCC). Two FCC policies aim to bring a greater racial and ethnic diversity to broadcast ownership. First, the FCC considers minority ownership as one factor among many in making comparative judgments among applicants for new licenses. Second, the FCC seeks to increase minority ownership through a "distress sale" policy. Normally, a licensee cannot transfer its license during the time when the FCC is considering whether the license should be revoked. As an exception to this policy, such a broadcaster may sell its license before the revocation hearing to a minority-controlled broadcaster that meets the FCC's qualifications, provided that the price does not exceed seventy-five percent of the station's value. Congress, in appropriating money for the FCC, ordered that these programs be continued.

inMetro Broadcasting both of these policies were challenged as denials of the guarantee of equal protection that the Court has recognized in the Fifth Amendment's due process clause. Writing for the majority, Justice william j. brennan strongly emphasized Congress's adoption of the two minority ownership policies. The proper standard of review for congressional affirmative action was not strict scrutiny but the intermediate standard that the Court has previously used, for example, in cases of sex discrimination. This standard requires that Congress have an "important" purpose for its legislation and that the racial classification be "substantially related" to achieving that purpose.

For the majority of the Court, the FCC's policies easily satisfied this test. The interest in diversifying broadcast programming accorded with the long-recognized policy of the Federal Communications Act to ensure the presentation of a wide variety of views. The Supreme Court had recognized this need in the context of the scarcity of electronic frequencies in red lion broadcasting co. v. fcc (1969), sustaining the FCC's "fairness doctrine." The FCC had quite reasonably determined that racial and ethnic diversity in broadcast ownership would promote diversity in programming, and Congress had repeatedly endorsed this view by rejecting proposals that would arguably reduce opportunities for minority ownership, such as a proposal to deregulate broadcasting. The Court, said Justice Brennan, must give great weight to the joint administrative-congressional determination of a connection between minority ownership and programming diversity. The minority ownership policies did not rest on impermissible stereotyping, but on the need to diversify programming. The FCC had considered other means of achieving this diversification and had reasonably concluded that these means were relatively ineffective. The burden imposed by these two policies on nonminority applicants for broadcast licenses was not impermissibly great.

justice sandra day o'connor wrote for the four dissenters. Arguing that any race-conscious program must pass the test of strict scrutiny, she rejected the claim that broadcasting diversity was a compelling state interest or even an important one. Furthermore, the policies were not narrowly tailored; they assumed a connection between minority ownership and program content, and they ignored other race-neutral means of assuring programming to serve a diversity of audiences, such as direct regulation of programming.

The importance of Metro Broadcasting as a precedent remains to be seen. Justice Brennan's retirement from the Court may lead to a resurgence of the rhetoric of strict scrutiny, even for congressional programs of affirmative action. However, as Justice O'Connor noted in her concurrence in wygant v. jackson board of education (1986), the practical difference between compelling and important purposes, or between necessary and substantially related means, may be less than a surface reading of opinions suggests.

Kenneth L. Karst
(1992)

Bibliography

Eule, Julian N. 1990 Promoting Speaker Diversity: Austin and Metro Broadcasting. Supreme Court Review 1990:105–132.