Metro Broadcasting, Inc. v. Fcc 497 U.S. 547 (1990)

• Author: Kenneth L. Karst
• Pages: 1723-1724

Page 1723

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.

In Metro 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...