Facts
- The FCC used race-conscious policies to increase minority ownership of broadcast stations to advance programming diversity.
- In one proceeding, Metro Broadcasting and Rainbow Broadcasting filed mutually exclusive applications for a new UHF television license in Orlando, Florida.
- The FCC awarded Rainbow a comparative “enhancement” based on minority ownership and minority participation in management, and granted Rainbow the license.
- In a second matter, Faith Center, Inc., facing potential loss of its Hartford, Connecticut station for qualification issues, sought to transfer the license through an FCC-approved “distress sale” to Astroline, a minority-controlled enterprise.
- Shurberg Broadcasting, a nonminority applicant interested in the same frequency, challenged the FCC’s approval of the distress sale.
- The D.C. Circuit upheld the FCC’s decision in the Metro licensing dispute but ruled against the FCC regarding the distress sale policy, producing inconsistent outcomes that prompted Supreme Court review.
Issues
- Whether the FCC’s minority ownership enhancement and minority-only distress sale policy violate the equal protection component of the Fifth Amendment.
- What level of constitutional scrutiny applies to federal race-conscious measures adopted to further broadcast diversity with congressional support.
- Whether the challenged FCC policies are sufficiently related to the asserted governmental interest in broadcast diversity.
Decision
- The Supreme Court upheld both FCC policies in a 5–4 decision.
- The Court applied intermediate scrutiny to the federal, congressionally supported, race-conscious measures, asking whether they were substantially related to important governmental objectives.
- The Court held that promoting broadcast diversity is an important governmental objective and that the FCC policies were substantially related to that objective.
- The Court emphasized congressional support for the FCC’s diversity-related minority ownership initiatives and treated that support as relevant to the constitutional analysis.
- The Court rejected the argument that the programs imposed impermissible burdens on nonminority applicants, describing the policies as limited and non-quota-based.
Legal Principles
- Federal race-conscious measures characterized as “benign” and supported by Congress may, under this decision, be reviewed under intermediate scrutiny rather than strict scrutiny.
- Under intermediate scrutiny, a racial classification is constitutional if it is substantially related to an important governmental objective.
- Broadcast diversity may qualify as an important governmental objective, and the government may rely on administrative and congressional findings that minority ownership is linked to viewpoint and programming diversity.
- Limited, factor-based preferences in comparative licensing and narrowly bounded transfer mechanisms may be upheld when structured as tools to advance the diversity objective rather than as rigid set-asides.
Conclusion
The Court held that the FCC’s minority ownership enhancement in comparative licensing and its minority-only distress sale policy satisfied the Fifth Amendment’s equal protection component because, with congressional support, they were substantially related to the important governmental objective of increasing broadcast diversity.