Used in Awarding FM Radio Licenses : FCC Women’s Preference Rule Barred

The Federal Communications Commission has no authority to give women extra points when deciding which applicant should be awarded an FM radio license, a federal appeals court ruled Friday.

Since 1978, women who have agreed to be part of the day-to-day management team of an FM station have received extra credit in determining which competing applicant should be given permission to operate a station.

The commission gives weight to whether a person owns other stations, has experience in broadcasting, can afford to operate a station and other factors, including the race of an applicant.

The women’s preference, which originated in a 1978 case before the FCC’s review board, applies only to FM licenses. The court said the review board never explained the preferential policy.

“A mandate to serve the public interest is not a license to conduct experiments in social engineering conceived seemingly by whim,” Judge Edward A. Tamm wrote for the court.

He said that the commission’s policy presumably was considered a “good idea” that would lead to “a better world” but that there is no reason to give ownership preferences to statistically under-represented groups unless it will increase the diversity of programming content.

Tamm’s 16-page opinion was joined by Judge Antonin Scalia, but it sparked a 27-page dissent by Judge Patricia M. Wald.

“The point of increasing ownership and participation of under-represented groups . . . is not to get some specific, preordained women’s programming or black programming but to ensure the varying viewpoints, perspectives and issues of distinct relevance to these groups are fairly represented in the media,” Wald said.

Earlier this month, the commission decided not to have a women’s preference in the awarding of licenses to operate low-power television stations and multichannel, multipoint TV distribution systems.

Mimi Weyforth Dawson, the only woman on the commission, said at the time that she was “not a fan of preferences of any type.” However, she said that, as long as preferences exist, she believes that women should qualify because they, too, are under-represented in media ownership. FCC Chairman Mark S. Fowler also has spoken against preferences on several occasions.

Commissioner Henry M. Rivera, a strong supporter of racial preferences, has resigned effective Sept. 15 and probably won’t take part in deciding whether the 2-1 decision by the U.S. Circuit Court of Appeals of the District of Columbia should be appealed.

Although the women’s preference has stood for close to seven years, FCC General Counsel Jack D. Smith said that you can “count on one or two hands” the number of times that it has tipped the balance in the awarding of a license.

The court ordered the commission to reopen the case of James U. Steele, who had sought to build a station at St. Simon’s Island, Ga., but lost to Dale Bell, a woman who promised to be full-time general manager of the station.

Smith said that, on reconsideration, the license will be awarded “on the basis of the comparative factors that are still left.” He said it was unlikely that other licenses already granted to women would be jeopardized by the decision.