Measuring the Nexus: The Relationship Between Minority Ownership and Broadcast Diversity After Metro Broadcasting

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. …