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EARTH TO FCC: “WHAT PART OF ‘UNCONSTITUTIONAL’ IS UNCLEAR?”

by William Perry Pendley

August 1, 2008

In 1990, the U.S. Supreme Court, in a 5-4 ruling, upheld the ability of the Federal Communications Commission (FCC) to award broadcast licenses based on race. The decision, in Metro Broadcasting v. Federal Communications Commission, came as a surprise; a year earlier, the Court, again by a 5-4 vote, had ruled against Richmond, Virginia’s plan to use racial preferences to award city construction contracts. Writing for the Court, Justice O’Connor had rejected Richmond’s claim that its program would redress societal discrimination that had prevented minorities from participating in the construction industry. In Metro Broadcasting, however, the FCC’s claim that it sought to ensure “diversity” in programming was sufficient to persuade Justice White to abandon O’Connor, whom he had joined in Richmond, and join with Justice Brennan, in support of the FCC.

In 1995, former Justice Brennan was in the Courtroom to hear arguments in another challenge to government racial preferences, this time as to federal highway construction. If Brennan were there to exert moral suasion over his former colleagues, he failed. Because, in Adarand Constructors v. Peña, Justice O’Connor, for the 5-4 majority, wrote, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people”; thus, “any person, of whatever race, has the right to demand that any governmental actor . . . justify any racial classification . . . under the strictest judicial scrutiny,” to “smoke out” “what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” The equal protection guarantee, ruled Justice O’Connor, is for “persons, not groups,” and is a “personal right to equal protection of the laws [that may not be] infringed.” In conclusion, the Court overruled Metro Broadcasting.

The Constitution is clear, declared the Court, the FCC may not use racial preferences!

Thirteen years later, it appears the FCC did not read Adarand, did not understand Justice O’Connor’s ruling—let alone Justice Scalia’s concurrence (“In the eyes of government, we are just one race here. It is American.”)—or deemed them irrelevant. Because, in the FCC’s consideration of the proposed merger of XM Satellite Radio Holdings Inc. and Sirius Satellite Radio Inc., the FCC demanded that the companies adopt race-based set asides like the ones struck down in Adarand.

The FCC had help. In May 2008, aides to members of the Congressional Black Caucus lectured a Sirius executive that their bosses wanted a 20 percent set-aside for minority owned companies, an idea that came from the head of a minority-run private equity firm. In June, in a “close[d] door” meeting, “angry” Black Caucus members repeated their demands to XM and Sirius executives. FCC Chairman Kevin J. Martin got the message and announced his support for the merger if XM-Sirius “voluntarily” agreed “to lease 4 percent of their radio spectrums, or 12 channels, for programming run by minorities and women.” Nonetheless, the Black Caucus found Martin’s scheme “completely unacceptable” “crumbs. . . off the table.”

Occasionally, the Black Caucus and FCC say that they seek “minority programming,” which is laughable given the diversity of programming long available on both XM and Sirius. XM’s channels, for example, include “hip-hop urban,” “jazz & blues,” “Latin,” “comedy,” and “talk and entertainment,” and feature artists, comedians, and performers of every hue.

Instead, the demand by the Congressional Black Caucus is reminiscent of Congress’s 1977 adoption, for the first time, of racial preferences in government contracting in response to the demand by former Maryland Congressman Parren Mitchell that “minority businesses” be given “a piece of the action.” Sadly, his tiny plan has expanded unabated for the last 31 years and, despite the Adarand ruling, is included today in nearly every government agency and its appropriation. The FCC’s final order on the XM-Sirius merger is pending; however, it appears that the FCC—the agency to which Adarand most directly applied—will resume the “odious” activity struck down in 1995.