The Leadership Conference on Civil and Human Rights

Why You Should Care About Media Diversity

In the information age, the proliferation of new media and its anticipated convergence with traditional broadcast and cable should offer new opportunities for media diversity and minority ownership. Yet media diversity in all its interrelated forms - ownership, content and employment- remains an elusive goal for civil rights advocates.

Impact

The passage of the 1996 Telecommunications Act, together with significant regulatory rollbacks in the courts have led to unprecedented concentration in media ownership and a concomitant reduction in ownership by women and minorities. At the same time opportunity for employment in the industry has made little progress, whether in front of the camera or in influential positions behind it. Indeed, there is a persistent lack of minorities and women in the management ranks of broadcast and cable companies, narrowing professional and economic opportunity in one of the country's most dominant industries.

Media remains a critical element in achieving equal opportunity and full participation in civic life. Media shapes public views of minority communities as well as views on the causes and scope of social problems and the best solutions. Thus, access to the media by the broadest sector of society is crucial to ensuring that diverse viewpoints are presented to the American people, and that all sectors of society are accurately depicted.

Studies have, however, shown clear disparities in the treatment of people of color on local and national news and minority-oriented programming on so-called "mainstream media" is both scarce and shallow. By contrast, minority owned and managed stations include considerably more minority-oriented content and greater attention to community concerns. Moreover, the lack of minority-owned and -oriented media appears to have an impact on minority participation in civic life. For example, recent research suggests that minorities are more likely to vote if they have access to minority-targeted media.

Media diversity in broadcast and cable has been addressed nationally through legislation and regulation within the Federal Communications Commission (FCC). Since the late 1960s, the FCC has explicitly stated an anti-discrimination rationale in its licensing process, reasoning that it is not in the best interests of the public to issue scarce broadcast licenses to businesses that discriminate in employment. But recent changes in the political landscape have severely impacted the FCC's ability to regulate for media diversity. The Telecommunications Act of 1996 removed many ownership restrictions that previously limited a single company's ability to control multiple media licenses. The ensuing shakeout in the broadcast and cable industries has left minority and female broadcasters struggling to maintain an already low share of the industry. Similarly, judicial rollbacks in affirmative action programs have affected the FCC's ability to set equal employment opportunity (EEO) policies for broadcast licensees.

The consolidation of media companies, and the consequent lack of diversity in media ownership, does not seem to be slowing.

Background

Diversity in Programming: Low Power FM Radio

On January 21, 2000 the Federal Communications Commission (FCC) voted to create a new class of community-based, non-commercial Low Power FM (LPFM) radio stations to serve very small geographic areas (less than 3.5 miles).

The LPFM licenses would be available to non-commercial government or private educational organizations, associations, or entities, and government or non-profit entities providing local public safety or transportation services. The new service represented the best opportunity in years to further enhance diversity in radio broadcasting.

Even though the FCC decision provided more than ample protections for current broadcasters, both commercial and noncommercial broadcasters who already had licenses sought to prevent others from getting them. These broadcasters, led by the National Association of Broadcasters, claimed that the new LPFM stations will harm current broadcasts and sought congressional action to prevent LPFM from being implemented.

Diversity in Employment: The FCC's EEO Guidelines

Pursuant to the Communications Act of 1934, as amended ("Communications Act"), the Federal Communications Commission is charged with the responsibility of regulating "interstate and foreign communications services so that they are available, so far as possible, to all people of the United States, without discrimination on the basis of race, religion, national origin, or sex."

The Commission is also mandated to license individuals and companies to use the radio spectrum as the "public interest, convenience, and necessity" require. While the FCC has grappled over the years with the task of giving form and content to that statutory mandate, there is no doubt that it requires the FCC to deny licenses to those who would discriminate on the basis of race, ethnicity or gender.

In 1998. the FCC's Equal Employment Opportunity (EEO) regulations were held unconstitutional by the U.S. Court of Appeals for the District of Columbia. In January of 1999, the FCC proposed new rules were proposed and comments were filed throughout the spring of 1999.

It is noteworthy that the Institute for Justice submitted comments to the FCC in January that made two unprecedented arguments: 1)requiring broadcasters even to recruit women and people of color would unconstitutionally "pressure" broadcasters to hire women and people of color; and, requiring broadcasters even to enumerate female and people of color applicants, interviewees or employees violates the constitutional rights of white males because enumeration is race and gender-conscious.

In January of 2000, the Commission voted to adopt the new rules in a bipartisan 4-1 vote (Chairman Kennard, Commissioners Ness and Powell; Commissioner Tristani approving in part, dissenting in part; Commissioner Furchtgott-Roth dissenting.) They were challenged in March 2000 by state broadcasters and the National Association of Broadcasters, but were not stayed, and accordingly went into effect April 21, 2000.

On September 29, 2000, the broadcasters' case was argued before the U.S. Court of Appeals for the District of Columbia Circuit, and on January 16, 2001, the court struck down the FCC's new rules. The court's ruling in Maryland, District of Columbia and Delaware Broadcasters Association v. FCC held that the FCC's equal employment opportunity rules created a race-based classification "that is not narrowly tailored to support a compelling government interest and is therefore unconstitutional."

Since the MD/DC/DE Broadcasters Association decision, the FCC has once again issued new recruitment rules, while retaining the nondiscrimination rules. However, the new rules do not require reporting of the race or sex of the candidate, thus providing no means for determining whether broadcasters are complying with the rules or whether licensees have considered minority applicants for the open position. As of yet, there has been no challenge to the latest rules, although based on history, such a challenge is likely.

Diversity in Ownership

Restraining media concentration is central to the mission of the FCC, the federal agency that regulates interstate and international communications by radio, television, wire, satellite and cable; and media ownership, including how many stations one company can own in each market and the cross-ownership of different sectors, such as broadcast stations and daily newspapers.

Under the Communications Act of 1934, the FCC is charged with promoting “localism” in broadcast media and enhancing democracy by insuring that broadcasters “present those views and voices which are representative of [their] community and which would otherwise…be barred from the airwaves.”

The Communications Act of 1996 substantially deregulated national radio ownership rules and eased national TV ownership limits. The law also forced the FCC to consider whether to revise local rules on how many media properties one company can operate in any one community. The 1996 Act also included a directive requiring the FCC to conduct biennial (now quadrennial) reviews of all remaining broadcast ownership rules “to determine whether any of such rules are necessary in the public interest as a result of competition.” These reviews have become the battleground for intense fights at the FCC, Congress, and the courts for the last several years.

For the biennial review in 2002, the FCC consolidated all of its pending broadcast ownership proceedings so that it could review every single broadcast ownership rule. Despite broad public opposition, in June 2003, the FCC voted 3-2 to lift broadcast cross-ownership restrictions, loosen limits on local broadcast ownership, and permit one company to own stations reaching 45 percent of the national audience.

In response to the public outcry, a bipartisan majority in the Senate voted to overturn the rule changes. Congress eventually reached a compromise -- limiting the number of stations one company could own to 39 percent of the national audience.
Then in June 2004, the U.S. Court of Appeals for the Third Circuit overturned the other changes to the media ownership limits and directed the FCC to conduct a new review. Among other things, the court directed the FCC to address the specific proposals for promoting diversity in ownership that had been presented to, but not considered by, the agency.

In June 2006, the FCC initiated a new media ownership proceeding. Many civil rights and public interest groups believe the agency is not being specific enough in its inquiry to generate relevant comments, nor is it devoting adequate resources to create a full record on the issue of minority and female ownership. Some members of Congress have requested that the Commission complete a consideration of the issues of minority and small business ownership before taking up the wider media ownership issue, but the FCC has not yet agreed to do so.

If the cross-ownership ban is removed, along with other FCC-proposed rule changes, a single company could potentially own the major daily newspaper, eight radio stations and three television stations, as well as the cable television system -- all within the same town.
The FCC may also change the local ownership caps that limit a company from owning more than one television station in most markets. Currently, a company can own two in larger markets as long as there are at least eight other competitors. The FCC may change the rule to allow a single company to own two TV stations in smaller markets (those areas with only 5 stations). And the FCC may allow a single owner to control three stations in the country's largest markets.
The struggle for a media that presents the breadth and diversity of the experience of all Americans is one of extremely high stakes: 

• If a company can buy a wide variety of media in the same community, it essentially provides one voice, not many. This means less diversity of viewpoints. 
• If minorities, women, seniors, people with disabilities, are not employed at news operations at all levels of management, there is no one who can speak with some authority about their condition and the people who are like them in the community. This means less coverage of issues of importance to these constituencies. 
• And if there isn’t local integration in the management of a local news operation, issues important to local communities can be ignored. This means the public interest isn’t being served.