Metro Broadcasting, Inc. v. FCC

497 U.S. 547

Case Year: 1990

Case Ruling: 5-4, Remanded

Opinion Justice: Brennan

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Marshall, Stevens, White


1st Concurring Opinion

Author: Stevens


1st Dissenting Opinion

Author: Kennedy


2nd Concurring Opinion



2nd Dissenting Opinion

Author: O'Connor


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


The Federal Communications Commission has two policies designed to promote minority ownership of broadcasting stations. The first policy concerns the process by which the FCC grants licenses after comparing the merits of the various competing applicants. It identifies six clearly relevant criteria of judgment, but stipulates that the applications of minority-owned businesses are to be enhanced. The "plus" granted to such applications is considered along with the six regular factors.

The second policy concerns FCC distress sales. Under FCC regulations, the owner of a radio or television station whose qualifications to broadcast in the public interest have been formally questioned may not sell the station's broadcasting license until the FCC resolves the challenge. However, under its distress sale exception, the commission allows a challenged broadcasting company to sell its license before the FCC resolves the qualifications question if the sale is made to a qualified business that is minority owned and the sale price does not exceed 75 percent of fair market value. The policy, therefore, allows a reduced price, noncompetitive sale of a broadcasting license to a minority business.

This appeal involved two cases. In one, Metro Broadcasting challenged the minority preference policy. Metro was initially recommended among three competing firms to receive a license to operate a UHF television station in Orlando, Florida. Upon review, however, the license was granted to Hispanic-owned Rainbow Broadcasting, which had received minority enhancement. In the other case, Shurberg Broadcasting attacked the distress sale policy. Shurberg wanted to operate a television station in Hartford, Connecticut. Faith Center, the holder of a Hartford license, was under FCC review. Shurberg hoped to be granted Faith Center's license, but, with FCC approval, Faith sold its license to Astroline Communications, a minority-owned enterprise.



... We hold that the FCC minority ownership policies pass muster under the test we announce today. First, we find that they serve the important governmental objective of broadcast diversity. Second, we conclude that they are substantially related to the achievement of that objective.

Congress found that "the effects of past inequities stemming from racial and ethnic discrimination have resulted in a severe underrepresentation of minorities in the media of mass communications."... Congress and the Commission do not justify the minority ownership policies strictly as remedies for victims of this discrimination, however. Rather, Congress and the FCC have selected the minority ownership policies primarily to promote programming diversity, and they urge that such diversity is an important governmental objective that can serve as a constitutional basis for the preference policies. We agree.

We have long recognized that "[b]ecause of the scarcity of [electromagnetic] frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium." Red Lion Broadcasting Co. v. FCC (1969)....

Against this background, we conclude that the interest in enhancing broadcast diversity is, at the very least, an important governmental objective and is therefore a sufficient basis for the Commission's minority ownership policies. Just as a "diverse student body" contributing to a "`robust exchange of ideas'" is a "constitutionally permissible goal" on which a race-conscious university admissions program may be predicated, University of California Regents v. Bakke (1978) (opinion of Powell, J.), the diversity of views and information on the airwaves serves important First Amendment values.... The benefits of such diversity are not limited to the members of minority groups who gain access to the broadcasting industry by virtue of the ownership policies; rather, the benefits redound to all members of the viewing and listening audience. As Congress found, "the American public will benefit by having access to a wider diversity of information sources."...

We also find that the minority ownership policies are substantially related to the achievement of the Government's interest. One component of this inquiry concerns the relationship between expanded minority ownership and greater broadcast diversity....

The FCC has determined that increased minority participation in broadcasting promotes programming diversity.... Furthermore, the FCC's reasoning with respect to the minority ownership policies is consistent with longstanding practice under the Communications Act. From its inception, public regulation of broadcasting has been premised on the assumption that diversification of ownership will broaden the range of programming available to the broadcast audience. Thus, "it is upon ownership that public policy places primary reliance with respect to diversification of content, and that historically has proved to be significantly influential with respect to editorial comment and the presentation of news."...

Congress also has made clear its view that the minority ownership policies advance the goal of diverse programming. In recent years, Congress has specifically required the Commission, through appropriations legislation, to maintain the minority ownership policies without alteration.... We would be remiss, however, if we ignored the long history of congressional support for those policies prior to the passage of the appropriations acts because, for the past two decades, Congress has consistently recognized the barriers encountered by minorities in entering the broadcast industry and has expressed emphatic support for the Commission's attempts to promote programming diversity by increasing minority ownership....

As revealed by the historical evolution of current federal policy, both Congress and the Commission have concluded that the minority ownership programs are critical means of promoting broadcast diversity. We must give great weight to their joint determination.

The judgment that there is a link between expanded minority ownership and broadcast diversity does not rest on impermissible stereotyping. Congressional policy does not assume that in every case minority ownership and management will lead to more minority-oriented programming or to the expression of a discrete "minority viewpoint" on the airwaves. Neither does it pretend that all programming that appeals to minority audiences can be labeled "minority programming" or that programming that might be described as "minority" does not appeal to nonminorities. Rather, both Congress and the FCC maintain simply that expanded minority ownership of broadcast outlets will, in the aggregate, result in greater broadcast diversity....

Although all station owners are guided to some extent by market demand in their programming decisions, Congress and the Commission have determined that there may be important differences between the broadcasting practices of minority owners and those of their nonminority counterparts. This judgment--and the conclusion that there is a nexus between minority ownership and broadcasting diversity--is corroborated by a host of empirical evidence. Evidence suggests that an owner's minority status influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities. "[M]inority ownership does appear to have specific impact on the presentation of minority images in local news," inasmuch as minority-owned stations tend to devote more news time to topics of minority interest and to avoid racial and ethnic stereotypes in portraying minorities. In addition, studies show that a minority owner is more likely to employ minorities in managerial and other important roles where they can have an impact on station policies.... ... [T]he Commission established minority ownership preferences only after long experience demonstrated that race-neutral means could not produce adequate broadcasting diversity. The FCC did not act precipitately in devising the programs we uphold today; to the contrary, the Commission undertook thorough evaluations of its policies three times--in 1960, 1971, and 1978--before adopting the minority ownership programs. In endorsing the minority ownership preferences, Congress agreed with the Commission's assessment that race-neutral alternatives had failed to achieve the necessary programming diversity....

The minority ownership policies are "appropriately limited in extent and duration, and subject to reassessment and reevaluation by the Congress prior to any extension or reenactment."... Although it has underscored emphatically its support for the minority ownership policies, Congress has manifested that support through a series of appropriations acts of finite duration, thereby ensuring future reevaluations of the need for the minority ownership program as the number of minority broadcasters increases. In addition, Congress has continued to hold hearings on the subject of minority ownership....

Finally, we do not believe that the minority ownership policies at issue impose impermissible burdens on nonminorities. Although the nonminority challengers in these cases concede that they have not suffered the loss of an already-awarded broadcast license, they claim that they have been handicapped in their ability to obtain one in the first instance. But just as we have determined that "[a]s part of this Nation's dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy," ... we similarly find that a congressionally mandated benign race-conscious program that is substantially related to the achievement of an important governmental interest is consistent with equal protection principles so long as it does not impose undue burdens on nonminorities....

In the context of broadcasting licenses, the burden on nonminorities is slight. The FCC's responsibility is to grant licenses in the "public interest, convenience, or necessity," ... and the limited number of frequencies on the electromagnetic spectrum means that "[n]o one has a First Amendment right to a license."... Applicants have no settled expectation that their applications will be granted without consideration of public interest factors such as minority ownership. Award of a preference in a comparative hearing or transfer of a station in a distress sale thus contravenes "no legitimate firmly rooted expectation[s]" of competing applicants....

Respondent Shurberg insists that because the minority distress sale policy operates to exclude nonminority firms completely from consideration in the transfer of certain stations, it is a greater burden than the comparative hearing preference for minorities, which is simply a "plus" factor considered together with other characteristics of the applicants.... We disagree that the distress sale policy imposes an undue burden on nonminorities. By its terms, the policy may be invoked at the Commission's discretion only with respect to a small fraction of broadcast licenses--those designated for revocation or renewal hearings to examine basic qualification issues--and only when the licensee chooses to sell out at a distress price rather than to go through with the hearing. The distress sale policy is not a quota or fixed quantity set-aside. Indeed, the nonminority firm exercises control over whether a distress sale will ever occur at all, because the policy operates only where the qualifications of an existing licensee to continue broadcasting have been designated for hearing and no other applications for the station in question have been filed with the Commission at the time of the designation.... Thus, a nonminority can prevent the distress sale procedures from ever being invoked by filing a competing application in a timely manner....

The Commission's minority ownership policies bear the imprimatur of longstanding congressional support and direction and are substantially related to the achievement of the important governmental objective of broadcast diversity. The ... cases are remanded for proceedings consistent with this opinion.

It is so ordered.


At the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens "as individuals, not `as simply components of a racial, religious, sexual or national class.'"... Social scientists may debate how peoples' thoughts and behavior reflect their background, but the Constitution provides that the Government may not allocate benefits and burdens among individuals based on the assumption that race or ethnicity determines how they act or think. To uphold the challenged programs, the Court departs from these fundamental principles and from our traditional requirement that racial classifications are permissible only if necessary and narrowly tailored to achieve a compelling interest. This departure marks a renewed toleration of racial classifications and a repudiation of our recent affirmation that the Constitution's equal protection guarantees extend equally to all citizens. The Court's application of a lessened equal protection standard to congressional actions finds no support in our cases or in the Constitution. I respectfully dissent....


Almost 100 years ago in Plessy v. Ferguson (1896), this Court upheld a government-sponsored race-conscious measure, a Louisiana law that required "equal but separate accommodations" for "white" and "colored" railroad passengers. The Court asked whether the measures were "reasonable," and it stated that "[i]n determining the question of reasonableness, [the legislature] is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort."... The Plessy Court concluded that the "race-conscious measures" it reviewed were reasonable because they served the governmental interest of increasing the riding pleasure of railroad passengers. The fundamental errors in Plessy, its standard of review and its validation of rank racial insult by the State, distorted the law for six decades before the Court announced its apparent demise in Brown v. Board of Education (1954). Plessy's standard of review and its explication have disturbing parallels to today's majority opinion that should warn us something is amiss here.

Today the Court grants Congress latitude to employ "benign race-conscious measures ... [that] are not ... designed to compensate victims of past governmental or societal discrimination," but that "serve important governmental objectives ... and are substantially related to achievement of those objectives."... The interest the Court accepts to uphold the Commission's race-conscious measures is "broadcast diversity." Furthering that interest, we are told, is worth the cost of discriminating among citizens on the basis of race because it will increase the listening pleasure of media audiences. In upholding this preference, the majority exhumes Plessy's deferential approach to racial classifications....

Once the Government takes the step, which itself should be forbidden, of enacting into law the stereotypical assumption that the race of owners is linked to broadcast content, it follows a path that becomes ever more tortuous. It must decide which races to favor. While the Court repeatedly refers to the preferences as favoring "minorities," ... and purports to evaluate the burdens imposed on "nonminorities," ... it must be emphasized that the discriminatory policies upheld today operate to exclude the many racial and ethnic minorities that have not made the Commission's list. The enumeration of the races to be protected is borrowed from a remedial statute, but since the remedial rationale must be disavowed in order to sustain the policy, the race classifications bear scant relation to the asserted governmental interest. The Court's reasoning provides little justification for welcoming the return of racial classifications to our Nation's laws.

I cannot agree with the Court that the Constitution permits the Government to discriminate among its citizens on the basis of race in order to serve interests so trivial as "broadcast diversity."...

The Court insists that the programs under review are "benign."...

... Policies of racial separation and preference are almost always justified as benign, even when it is clear to any sensible observer that they are not....

Though the racial composition of this Nation is far more diverse than the first Justice Harlan foresaw, his warning in dissent is now all the more apposite: "The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law." Plessy (dissenting opinion). Perhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin. Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored escape condescension. But history suggests much peril in this enterprise, and so the Constitution forbids us to undertake it. I regret that after a century of judicial opinions we interpret the Constitution to do no more than move us from "separate but equal" to "unequal but benign."