Metro Broadcasting, Inc. v. FCC
497 U.S. 547 (1990)
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Rule of Law:
Benign race-conscious measures mandated by Congress, even if not strictly remedial for past discrimination, are constitutionally permissible under the Fifth Amendment's equal protection component if they serve important governmental objectives and are substantially related to the achievement of those objectives.
Facts:
- Historically, minority groups were severely underrepresented in the ownership of broadcast radio and television stations in the United States.
- In 1978, to promote diversity in broadcast programming, the Federal Communications Commission (FCC) adopted two minority preference policies.
- The first policy awarded an 'enhancement' or 'plus' factor for minority ownership in comparative hearings for new broadcast station licenses.
- The second policy, the 'distress sale' program, allowed a broadcast licensee facing a license revocation hearing to sell the station to a minority-controlled enterprise at up to 75% of its market value, thereby avoiding the hearing.
- Metro Broadcasting, Inc., a non-minority-owned company, applied for a new TV station license in Orlando, Florida, competing with Rainbow Broadcasting, a 90% Hispanic-owned applicant.
- The FCC awarded the license to Rainbow Broadcasting, finding that the substantial enhancement for its minority ownership outweighed Metro's other advantages.
- In a separate case, Faith Center, Inc., a licensee in Hartford, Connecticut, faced a renewal hearing and sought to use the distress sale policy to transfer its license to Astroline Communications, a minority-owned firm.
- Shurberg Broadcasting of Hartford, Inc., a non-minority company that had filed a competing application for a new station, was precluded from competing for Faith Center's license because of the distress sale.
Procedural Posture:
- In the first case, Metro Broadcasting, Inc. and Rainbow Broadcasting applied for a new TV license. An FCC Administrative Law Judge (ALJ) awarded the license to Metro.
- The FCC Review Board reversed the ALJ and granted the license to Rainbow, citing the minority enhancement policy. The full Commission denied review.
- Metro Broadcasting (appellant) appealed to the U.S. Court of Appeals for the D.C. Circuit, which affirmed the FCC's decision.
- In the second case, the FCC approved a 'distress sale' of a TV station license from Faith Center, Inc. to Astroline Communications, a minority-owned firm. Shurberg Broadcasting of Hartford, Inc. challenged the sale.
- Shurberg Broadcasting (appellant) appealed the FCC's approval to the D.C. Circuit.
- The D.C. Circuit Court of Appeals invalidated the FCC's distress sale policy as a violation of equal protection.
- The Supreme Court granted certiorari in both cases to resolve the conflict and address the constitutionality of the FCC's policies.
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Issue:
Do the Federal Communications Commission's policies that give preference to minority-owned firms in broadcast licensing proceedings violate the equal protection component of the Fifth Amendment?
Opinions:
Majority - Justice Brennan
No. The FCC's minority preference policies do not violate the equal protection component of the Fifth Amendment. Congressionally mandated, benign race-conscious measures are subject to intermediate scrutiny, not strict scrutiny. These policies serve the important governmental objective of enhancing broadcast diversity, which is a legitimate goal rooted in the First Amendment's purpose of promoting a marketplace of ideas. The policies are substantially related to achieving this objective because there is a sufficient nexus between minority ownership and programming diversity, a judgment made by both the FCC and Congress that deserves deference. The Court found that these policies were adopted after race-neutral alternatives proved insufficient and that the burden they impose on non-minorities is slight, as no applicant has a guaranteed right to a broadcast license.
Dissenting - Justice O'Connor
Yes. The FCC's policies violate the equal protection component of the Fifth Amendment. All governmental classifications based on race, whether federal or state, must be subjected to strict scrutiny. The Court's creation of a more lenient, intermediate standard of review for federal programs is a departure from precedent. The asserted interest in 'broadcast diversity' is not a compelling interest; it is an amorphous concept that could justify limitless racial balancing. Furthermore, the policies are not narrowly tailored because they rely on the impermissible stereotype that an individual's race determines their viewpoint. The government failed to seriously consider or implement available race-neutral alternatives to achieve its goal.
Dissenting - Justice Kennedy
Yes. The policies are unconstitutional. The majority's approval of 'benign' racial classifications is a disturbing echo of the flawed logic in Plessy v. Ferguson. The Constitution forbids the government from discriminating on the basis of race, and the standard of review should be strict scrutiny for all racial classifications. The policies are based on the 'demeaning notion' that individuals of a certain race adhere to a monolithic 'minority view.' This approach stigmatizes both the favored and disfavored groups and moves the law from 'separate but equal' to 'unequal but benign,' which is not constitutional progress.
Concurring - Justice Stevens
No. The policies are constitutional. Governmental decisions resting on racial classifications are permissible when they are not based on a remedial justification for past wrongs, but rather on a forward-looking, future benefit. The public interest in broadcast diversity is an unquestionably legitimate government objective, similar to the interest in diversity in a police force or a university student body. The classification here does not stigmatize any group and is a rational means of achieving a legitimate public purpose.
Analysis:
This case established a temporary, two-tiered approach to equal protection analysis for affirmative action programs, applying intermediate scrutiny to federal programs but retaining strict scrutiny for state and local programs. By validating a non-remedial justification—broadcast diversity—it represented a significant, albeit short-lived, expansion of the permissible grounds for federal race-conscious policies. The decision was highly controversial and was expressly overruled five years later in Adarand Constructors, Inc. v. Peña (1995), which held that all racial classifications imposed by any government entity must withstand strict scrutiny. Consequently, Metro Broadcasting's primary significance today is historical, illustrating a brief deviation in the Court's equal protection jurisprudence.
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