An Update on the Minority Preference at the Federal Communications Commission

AN UPDATE ON THE MINORITY PREFERENCE AT THE FEDERAL COMMUNICATIONS COMMISSION Laurence B. Alexander* I. INTRODUCTION In National Black Media Coalition v. FCC,' a federal appeals court was faced with a challenge to the Federal Communications Commission's newly- created AM Daytimer preference. The preference gave an advantage to day- time-only radio stations which compete in comparative proceedings for FM licenses. The gravamen of the complaint was that such a preference tended to undermine the preference for minority ownership that was established by the Commission in 1978. The court left undisturbed the Commission's decision to implement the daytimer preference. This Article will review both preferences. With respect to the minority ownership preference, the Article will trace its developments over the last dec- ade and review any challenges to its constitutionality. Additionally, it will illustrate the conflict between the policy choices presented by the two prefer- ences. To resolve the conflict, this Article proposes that the Commission and Congress make sure the minority preference and the laudable goals behind it have a chance at success. II. COMPARATIVE HEARINGS In the Federal Communications Act of 1934, Congress established the Federal Communications Commission and -charged it with regulating the air- waves to reduce the amount of interference. 2 Pursuant to this obligation, the Commission was empowered by Congress to grant licenses to applicants for radio stations for periods of up to three years 3 if public convenience, interest, or necessity will be served thereby . . . . ' Accordingly, if two or more appli- cants file for use of the same or interfering facilities the Commission must proceed by way of comparative hearing among all qualified applicants. 5 The Commission's 1965 Policy Statement on Comparative Hearings 6 established the criteria for choosing among qualified new applicants for the same broad- cast facility. These criteria include: (1) diversification of control of the media * Assistant Professor of Communications, Temple University. B.A. 1981, University of New Orleans; M.A. 1983 University of Florida; J.D. 1987, Tulane Law School. Mr. Alexander is a mem- ber of the Louisiana State Bar Association. 1. 822 F.2d 277 (2nd Cir. 1987). 2. Communications Act of 1934, Pub. L. No. 73-416, § 307(a), 48 Stat. 1064, 1083-84 (1934). (codified at 47 3. Id. 47 sion and seven 4. Id. at U.S.C. § 307(a) (1982)). U.S.C. at § 307(d). In 1981, Congress changed license terms to five years for televi- years for radio. § 307(a) (1982). 5. T. B. CARTER, M. A. FRANKLIN and J. B. WRIGHT, THE FIRST AMENDMENT, (1986). 6. 1 F.C.C. 2d 393 (1965).