Well-crafted FCC minority initiatives could survive courts


A panel comprised of academics testifying at an FCC investigation of ownership diversity believe that there are ways the Commission can craft rules to increase minority and female ownership that would stand up to court scrutiny. It involves carefully defined objectives tied to a solid factual basis.

It boils down to carefully identifying and defining a specific compelling governmental interest in diversity of ownership, narrowly crafting policy to address that interest and providing a thorough factual underpinning.
Part of the reason that witnesses felt some justification for optimism is that fact that current legal precedent is very limited and leaves plenty of room for maneuvering.

In their call for data, the professors came up with a number of policy recommendations that may well be music to the ears of Commissioner Michael Copps but will likely leave broadcasters cold, including spelled out public interest requirements, along with record keeping to demonstrate that they are being met; a return to three-year license renewals; it was even suggested that radio station formats be taken into account during renewal hearings.

The academics said that there were plenty of studies out there indicating the importance of station ownership diversity when it comes to serving a diverse population. One noted that ownership for most business types does break down into percentages more in line with actual population makeup, with broadcasting being a notable exception to the rule.

Two of the best tools for increasing diversity included comparative hearings and the minority tax certificate, reinstatement of which is out of the FCC’s hands and in that of the US Congress.

Panelists called on the FCC to enforce current relevant rules, such as the prohibition on no-Urban and no-Spanish dictates.

Ownership consolidation was seen as one cause for lack of diversity. In brief remarks, Commissioner Robert McDowell noted that many of the biggest broadcast groups are now seeking to deconsolidate, and expressed his hope that a silver lining from the current recession will be the result that many of these stations wind up under minority ownership.

Commissioner Mignon Clyburn also spoke, saying she supported any viable tool to increase diversity.
Testimony summaries:

* Leonard Baynes, Professor of Law and Inaugural Director of the Center for Civil Rights and Economic Development, St. John’s School of Law: Broadband and broadcast are not substitutes for one another. For one thing, still a digital divide, less minorities plugged into the internet. Internet costs, broadcast is free. Pew study showed that education is a key to effective internet use. On the other hand, broadcast is ubitquitous. Comparative hearing process produced 45% licenses for non-minorities, 44% for minorities in one year study (1990). Most licenses were not awarded in comparative hearing, resulting in low probability of minority getting a license. May have been tacit institutional discrimination. FCC must think of creative ways to get more minority involvement.

* Carolyn Byerly, Associate Professor, Howard University: Women/minorities and the news, social science perspective. Nation becoming more ethnically diverse, not reflected in media. How did deconsolidation affect ownership percentages? Studies show media ownership makes a difference, in voter participation, audience trust. Audience wants owners who understand their views. Loss of African American owners results in loss of community-oriented news and information. Research must be done on a number of fronts regarding audience relationship to ownership makeup. Good definition of public interest. FCC has abandoned public interest reporting requirements, and serving it has gone downhill with consolidation. Research needed into barriers to female/minority ownership. What few there are got there via inheritance or family relationships. Women’s programming interests are historically underserved.

* Angela Campbell, Professor of Law and Director of the Institute for Public Representation, Georgetown University: Paucity of case law directly addressing FCC station licensing, neither supply much guidance. We know that strict scrutiny will apply to race, intermediate to gender. Policy must be indentified and defined government interest, and narrowly tailored to achieve that interest. Must be based on a solid record, narrowly tailored, effective. FCC lacks power to reinstate formerly effective policies such as comparative hearings (Congress replaced with auctions) and tax certificates. Stress sales also modified to make it race neutral, instead focusing on small business. There a few policies in place directing licenses toward “eligible entities.” FCC must have better data to defend policies – there is nothing organized now to show if the few policies in place work or not. Will be tough to convince current judiciary that race-based policies are constitutional, but FCC should be working on that nonetheless.

* Allen Hammond, Professor of Law, Santa Clara University: In most business types, minority ownership is close to their proportion of the population; broadcast is a glaring exception. The views on minorities remain inadequately represented. FCC implemented ownership policies to try to address this problem. Has more optimistic view of constitutionality hurdles. Various cases offer precedents that can be used. FCC must be able to show that broadcast diversity is a compelling government interest. Court recognition of the benefits of an integrated student body holds hope for other arenas.

* LaVonda Reed-Huff, Associate Professor of Law, Syracuse University: Minority ownership closely tied to localism proceeding; and broadcasting is an important element to consider when dealing with broadband. Syracuse lacks minority broadcasters – those who tried it were successful, but couldn’t compete with consolidators and were forced to sell to non-minorities. Now city has but one station serving the African-American community. Syracuse has a two-TV SSA, with a shared, simulcast newscast, depriving audience of choice. No-Urban, No-Spanish dictates continue to exist. FCC must actively enforce rules prohibiting discriminatory practices. Federal judiciary has not been friendly to affirmative action. Unclear at this point whether courts will deem broadcast diversity a compelling government interest. Broadcast is a key to minority populations staying connected to the nation, broadband is not a substitute. Regulations with adequate factual justification could survive strict judicial scrutiny.