Life After Adarand: What Happened to the Metro Broadcasting Diversity Rationale for Affirmative Action in Telecommunications Ownership?

The United States Supreme Court severely restricted affirmative action policies in Adarand Constructors, Inc. v. Pena. In this opinion, a majority of the Court held that all state or federally mandated affirmative action programs are to be analyzed under strict scrutiny. This test requires affirmative action programs to meet a compelling governmental interest and be narrowly tailored. Adarand raised issues concerning the validity of the Federal Communications Commission's affirmative action ownership policies. Previously, the Court in Metro Broadcasting, Inc. v. FCC found the FCC minority ownership policies constitutional under a lower (intermediate) standard of review. In Adarand, the Court specifically overruled the use of intermediate scrutiny in Metro Broadcasting, casting into doubt the FCC's affirmative action policies. Adarand suggests that past discrimination may be the only constitutionally viable basis for affirmative action programs. Because many FCC affirmative action programs are based on diversity, this ruling calls those programs into question. Many constitutional law scholars, civil rights advocates, and industry leaders have speculated about what, if anything the FCC can do to deal with this complicated legal issue. This Article suggests a doctrinal and policy solution to this affirmative action dilemma. The Article identifies and describes the current status of each of the FCC's affirmative action programs; summarizes the current status of affirmative action law and how it generally applies to the FCC programs; and then suggests that the FCC conduct studies identifying instances of past (or present) discrimination that will help the FCC establish a compelling governmental interest, which may satisfy the first prong of the Supreme Court's current affirmative action test.