In 1960s, the Kerner report said that minorities were portrayed unfairly and underrepresented in broadcasting. In order to increase diverse and particularly minority- oriented programming, the FCC has developed several minority preference policies such as comparative hearing preference, distress sale, and tax certificates. The FCC defended its racial-conscious measures by saying that there is a nexus between minority ownership and programming diversity. It believes that granting minorities preference in broadcasting will not only help minorities but also serve the public interest.
Are the FCC’s minority preference policies constitutionally permissible? In 1989, the Court of Appeals of the D.C. Circuit ruled the constitutionality of the policies differently in Shurberg and Winter Park. One year later, both comparative hearing preference and distress sale policies were upheld by the Supreme Court in Metro Broadcasting. However, they were overruled by the Supreme Court in Adarand Constructors in 1995.
This paper discusses the rationale, the development, and the courts’ interpretation of the FCC’s minority preference policies. It concludes by recommending some possible solutions to match the changing society as time goes on.