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Volume 2, Number 1
FEDERAL COMMUNICATIONS COMMISSION REVERSES POSITION
ON AFFIRMATIVE ACTION
The Federal Communications Commission (FCC) has abandoned its policy of granting preferences to women and minorities in the awarding of television and radio licenses. In a case pending before the full U.S. Court of Appeals for the District of Columbia that challenged the agency's grant of a license to a woman to construct a new FM radio station on St. Simons Island, Georgia (Steele v. FCC, 248 U.S. App. D.C. 279, 770 F.2d 1192 (1985)), the FCC filed a brief that did not defend its action. Instead, the agency's brief announced a policy reversal that placed it on the side of the plaintiff who went to court after losing to a woman in a license competition:
The racial and gender preference policies employed by the FCC in comparative licensing proceedings since 1978 are discriminatory classifications by government that are inherently suspect, presumptively invalid and subject to stringent scrutiny under the equal protection guarantee implicit in the due process clause of the Fifth Amendment.
Along with the brief, the FCC filed a motion asking the court to send the case back "for further consideration" in light of its new view "that race, sex or national origin per se should not be a basis for licensing determinations" and its new conclusion that there were "constitutional and statutory deficiencies" in its decision granting the license. On October 9, 1986, the Court of Appeals issued an order returning the case to the FCC.
Background
The Communications Act of 1934 gives the FCC authority to award television and radio broadcast licenses pursuant to the "public interest, convenience and necessity." The Commission's Policy Statement governing evaluation of applicants sets forth two primary objectives (1) to provide the best practicable service to the public, and (2) to maximize diffusion of control of the media of mass communications, in order to maximize diversity of programming (See September 12, 1986 Brief for Federal Communications Commission, Steele v. Federal Communications Commission).
In conformity with the "best practicable service" objective, an applicant's integration of ownership and management is evaluated. In measuring the extent of the owner's active participation in the day-to-day management of the proposed station, the FCC considers the owner's residence in the community, participation in community activities, and prior broadcast experience.
The FCC did not initially consider an applicant's race or gender in the application process. In 1973, the Court of Appeals for the District of Columbia reasoned that increased minority ownership and management of radio and television stations was in the public interest (TV 9, Inc. v. FCC, 495 F.2d 929 (1973), cert. denied, U.S. 986 (1974)). The court found that it was reasonable to expect that denied, 419 minority ownership would increase diversity, and thus credit should be accorded for that factor in the applicant process.
  
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