Metro Broadcasting, Inc. v. Federal Communications Commission 1990

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Metro Broadcasting, Inc. v. Federal Communications Commission 1990

Petitioner: Metro Broadcasting, Inc.

Respondent: Federal Communications Commission

Petitioner's Claim: That FCC programs designed to increase minority ownership of broadcast licenses violate the principle of equal protection.

Chief Lawyer for Petitioner: Gregory H. Guillot

Chief Lawyer for Respondent: Daniel M. Armstrong

Justices for the Court: Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens, Byron R. White

Justices Dissenting: Anthony M. Kennedy, Sandra Day O'Connor, Chief Justice William H. Rehnquist, Antonin Scalia

Date of Decision: June 27, 1990

Decision: Ruled in favor of the FCC by finding that its minority ownership policies did not violate equal protection.

Significance: For the first time the Court endorsed a federal program intended to promote increased minority participation, rather than merely remedy past racial discrimination. The opportunity to broadcast opinions of racial minorities benefits not only minorities, but the public in general.

H istorically in the United States, the broadcasting or media communications industry (newspapers, radio, television) reflected the white American's world. For example, little appreciation or understanding of black American culture, thought, or history was communicated. A 1968 report by the National Advisory Commission on Civil Disorders noted, "The world that television and newspapers offer to their black audience is almost totally white." Minorities, including not only black Americans but also Hispanics, Orientals, and Native Americans, rarely saw their viewpoints expressed over the airways.

Policies of the FCC

In the Communication Act of 1934, Congress assigned authority to the Federal Communication Commission (FCC) to grant licenses to persons wishing to construct and operate radio broadcast stations in the United States. The act also encouraged the FCC to promote diversification (a variety of viewpoints representing all citizens) of programming. The FCC used various strategies to attract minority participation but little broadcast diversity resulted. To try harder, the FCC in 1978 adopted a "Statement of Policy on Minority Ownership of Broadcast Facilities." Intended to increase minority ownership of broadcast licenses, the statement outlined two FCC policies, known as the minority preference or ownership policies. First, in selecting companies applying for licenses, the FCC would give special consideration to radio or television stations owned or managed by minority groups. Race would be one of several factors looked at. Secondly, the FCC would permit a broadcaster in danger of losing its license, known as a "distressed" broadcaster, to transfer that license through a "distress sale" to an FCC-approved minority company thereby avoiding a FCC hearing on their suitability. The license sale price could not exceed 75 percent of its fair market value. Despite these FCC's efforts, by 1986 minorities still only owned just over 2 percent of the more than 11,000 radio and television stations. Many of these served limited geographic areas with relatively small audiences.

The FCC's minority preference policies were considered affirmative action policies. Affirmative action means making a special effort or taking a specific action to promote opportunities in business or education for members of groups historically discriminated against. The FCC policies were intended to increase opportunities in the broadcasting industry for minorities. Two cases challenging the constitutionality of the FCC's minority preference policies reached the U.S. Supreme Court in 1990.

Metro Broadcasting

Metro Broadcasting, Inc. and Rainbow Broadcasting each applied for a license to construct and operate a new television station in Orlando, Florida. Metro was a non-minority business, but Rainbow was 90 percent Hispanic-owned. In 1983, the license was granted Metro. However, the FCC reviewed the decision the following year and awarded the license to Rainbow instead. Metro appealed to the U.S. Court of Appeals for the District of Columbia Circuit which agreed with the FCC decision. Metro, challenging FCC's policy awarding preferences to minority-owned businesses, appealed to the U.S. Supreme Court. The Court agreed to hear the case.

Shurberg Broadcasting—Second Case

In 1980, the Faith Center, Inc., a licensee in Hartford, Connecticut, sought permission to transfer its license under the distress-sale policy. After several attempts to transfer to minority-owned companies fell through, Faith Center finally sold its license to Astroline Communications Company, a minority-owned business. Shurberg Broadcasting was also seeking a license but because it was a non-minority business, Shurberg could not buy Faith Center's license. Shurberg challenged the transfer to Astroline on several grounds including that the FCC's distress-sale policy violated its constitutional right to equal protection. Equal protection is a constitutional guarantee that no person or group of persons will be denied the same treatment of the laws as another person or group under similar circumstances. The FCC rejected Shurberg's challenge, but the U.S. Court of Appeals for the District of Columbia agreed with Shurberg. The FCC had violated its right of equal protection under the Fifth Amendment.

The case was examined under equal protection of the Fifth Amendment instead of under the Equal Protection Clause of the Fourteenth Amendment because the Fourteenth applies only to questions involving laws of state government. The Fifth applies to federal government laws and policies. The decision was appealed to the U.S. Supreme Court which agreed to hear the case.

To Promote Diversity

The Supreme Court combined the two cases and heard them at the same time since both considered whether or not the minority preference policies of the FCC were constitutional under the equal protection guarantee of the Fifth Amendment. Justice William J. Brennan, Jr. delivered the 5-4 decision of the Court ruling in favor of FCC in both cases. In making its decision, the Court considered several key factors.

First, the Court examined whether the policies were designed to make up for past specific acts of discrimination. Previous Court decisions on affirmative action policies strongly emphasized that preferential treatment had to remedy (make up for) specific past discrimination. For example, in United Steelworkers of America v. Weber (1979) Kaiser Aluminum's affirmative action policy was upheld. Kaiser's program specifically made up for the fact that throughout the company's history black Americans had been denied opportunities to become highly paid skilled workers. Kaiser's policy was designed to remedy or fix its past discrimination against blacks. The policy was "remedial." However, in a far-reaching conclusion, Brennan wrote in the FCC case,

Congress and the Commission [FCC] do not justify the minority ownership policies strictly as remedies for victims of this discrimination [under representation of minorities in broadcasting], however. Rather, Congress and the FCC have selected the minority ownership policies primarily to promote programming diversity, and they urge that such diversity is an important governmental objective [goal] that can serve as a constitutional basis for the preference policies. We agree.

The key phrase is "to promote . . . diversity." With this statement, the Court for the first time upheld an affirmative action policy designed not to remedy specific past discrimination but to promote diversity.

An Important Governmental Objective

The Court found that program diversity is an important governmental objective because underrepresentation of minorities in broadcasting not only hurts minority audiences but also the entire viewing and listening public. The public has a right to receive a diversity of views and information over the airwaves, therefore the FCC had to encourage minorities to enter broadcasting. Justice Brennan wrote, "Minority viewpoint in programming serves not only needs and interests of minority but enriches and educates the non-minority audience." Justice Brennan concluded, " . . . the interest in enhancing broadcast diversity is, at the very least, an important governmental objective, and is therefore a sufficient basis for the Commission's [FCC's] minority ownership policies."

FEDERAL COMMUNICATIONS COMMISSION

T he Federal Communications Commission (FCC) is an independent U.S. government agency, established by the Communication Act of 1934. The FCC is directly responsible to Congress. It is charged with regulating interstate and international communication by radio, television, wire, satellite, and cable in the United States. The FCC's seven operating bureaus are Cable Services, Common Carrier, Consumer Information, Enforcement, International, Mass Media, and Wireless Communications. These bureaus are responsible for regulatory programs, processing licenses, aiding in emergency alerts, national defense, analyzing complaints, conducting investigations, and taking part in FCC hearings. As the United States entered the digital age, the FCC is committed to creating a competitive marketplace in Internet connections, phone service, and assuring choices in video entertainment.

The FCC is dedicated to making certain the "Information Age" technologies reach all Americans from business districts to the poorest neighborhoods. While controlling the access and flow of information has become increasingly vital to business success, only approximately 3 percent of commercial broadcast stations has minority ownership. In early 2000 the FCC announced one thousand new low-power non-commercial FM radio stations for community groups, churches, and educational organizations to aid in broadening the range of interests and ideas.

Will FCC's Policies Achieve the Objective?

If diversity of programming is the objective of the government, will increased minority ownership opportunities be, in fact, a good way to achieve diversity? First, Justice Brennan examined in detail the "historical evolution of current federal policy" regarding the broadcasting industry. Congress had required diversity since 1934 and the FCC had developed policies to carry out the requirement. But, previous approaches had not produced adequate diversity. Both Congress and the FCC after "long study, painstaking consideration of all available alternatives [programs tried] came to the conclusion that "minority ownership policies [best] advance the goal of diverse programming." The FCC's minority preference policies take direct aim "at the barriers that minorities face in entering the broadcasting industry." Similarly, the distress-sale policy addresses a common minority company problem of too little capital (money) with which to purchase licenses. It effectively lowers the sale price of existing stations plus provides an incentive for distressed stations to seek out minority buyers.

Turning Point

Justice Brennan summarized:

FCC policies do not violate equal protection . . . since they [the policies] bear the imprimatur [mark] of longstanding Congressional support and direction and are substantially related to the achievement of important governmental objectives [directly work to achieve the goal] of broadcasting diversity.

More importantly, the ruling marked a turning point in American social history. With this decision the Court for the first time approved the constitutionality of affirmative action policies designed to promote minority diversity, rather than to just remedy past discrimination.