Measuring the Nexus: The Relationship between Minority Ownership and Broadcast Diversity after Metro Broadcasting

Hammond, Allen S., IV, Federal Communications Law Journal

I. INTRODUCTION

In Metro Broadcasting, Inc. v. FCC,(1) the Supreme Court found that the federal government had a compelling interest in promoting the diversity of viewpoints via broadcasting. In addition, the Court found that ownership of broadcast stations by minorities promoted the government's compelling interest. The decision of the Court in Adarand Constructors, Inc. v. Pena(2) overruled the Metro Broadcasting Court's use of intermediate scrutiny to analyze the constitutionality of the federal government's race-based ownership programs but not Metro Broadcasting's finding of a nexus between minority ownership and diversity of viewpoint.(3) However, the recent Lutheran Church-Missouri Synod v. FCC(4) decision dismissed the government's arguments that a nexus exists between minority employment in broadcast stations and greater diversity in broadcast programming, and that the government has an interest in fostering such diversity.(5) The Federal Communications Commission (FCC or Commission) has consistently argued that a nexus exists between minority employment and viewpoint diversity, and that minority employment promotes minority ownership. Similarly, the Commission has argued that a nexus exists between minority ownership and viewpoint diversity.(6) Consequently, it is fair to say that the Lutheran Church opinion may be read to call into question the nexus between equal employment opportunity and diversity and, by implication, the nexus between ownership and diversity as well.

The empirical data and findings upon which the Metro Broadcasting Court relied are found in the FCC-initiated survey and the Congressional Research Service's (CRS) analysis thereof. Subsequent to Metro Broadcasting, little research has been conducted to ascertain whether a nexus exists. Thus, at present, the FCC survey data and the CRS findings constitute the primary data and analysis upon which the Metro Broadcasting Court's findings rest. However, given the challenge of the Lutheran Church opinion and potentially significant changes in the regulation and operation of the broadcast market, sole reliance on Metro Broadcasting's holdings may be ill advised, and a new study documenting the continued existence of the nexus may be warranted. Moreover, a new study could expand upon the issue that the CRS study and the studies that build upon its findings were unable to reach.

II. THE CASE LAW

A. Lutheran Church Opinion

In its Lutheran Church opinion, a unanimous circuit court panel expressed substantial skepticism that a nexus exists between minority employment and viewpoint diversity. The circuit court specifically stated:

   The Commission has unequivocally stated that its EEO regulations rest
   solely on its desire to foster "diverse" programming content.... The
   Commission never defines exactly what it means by "diverse programming."
   ... The government's formulation of the interest seems too abstract to be
   meaningful.(7)

      ....

      Justice O'Connor's ... dissent in Metro Broadcasting, which described
   the government's interest as "certainly amorphous," protested: "The FCC and
   the majority of this Court understandably do not suggest how one would
   define or measure a particular viewpoint that might be associated with
   race, or even how one would assess the diversity of broadcast
   viewpoints."(8)

Regarding the argument that Metro Broadcasting retains viability as precedent for the assertion that the government has an interest in fostering diversity, the circuit court stated that:

   [A]lthough Metro Broadcasting's adoption of intermediate scrutiny was
   overruled in Adarand, its recognition of the government interest in
   "diverse" programming has not been disturbed by the Court. The government
   thus argues that we are bound by that determination.

      We do not think that proposition at all evident. Even if Metro
   Broadcasting remained good law in that respect, it held only that the
   diversity interest was "important." We do not think diversity can be
   elevated to the "compelling" level.... It is true that the Court, denying
   that the supposed "link between expanded minority ownership and broadcast
   diversity rest[s] on impermissible stereotyping," thought the Commission
   and Congress had produced adequate evidence of a nexus between minority
   ownership and programming that reflects a minority viewpoint. Yet the Court
   never explained why it was in the government's interest to … 

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Publication information: Article title: Measuring the Nexus: The Relationship between Minority Ownership and Broadcast Diversity after Metro Broadcasting. Contributors: Hammond, Allen S., IV - Author. Journal title: Federal Communications Law Journal. Volume: 51. Issue: 3 Publication date: May 1999. Page number: 627. © 1999 University of California at Los Angeles, School of Law. COPYRIGHT 1999 Gale Group.

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