FCC Says Licensing Policy Favoring Minorities Should Be Eliminated

The Federal Communications Commission, in an abrupt about-face, has told a federal court that its policy of granting preferences to minorities and women who seek television and radio licenses is unconstitutional and should be eliminated.

The FCC has granted such preferences since the 1970s, prompting a growing number of applicants for lucrative broadcast licenses to try to bolster their chances by recruiting minorities and women as owners. The program has been controversial because some of the beneficiaries have been wealthy minority investors.

In a brief filed with the U.S. Court of Appeals here and released Monday, the FCC switched sides, saying that the program violates the Constitution and exceeds the commission’s legal authority.

The case involves an FCC radio license awarded to a Georgia woman mainly because of her gender. FCC officials said they now believe the commission never had adequate reasons for adopting such preferences.

‘Fails to Pass Muster’

“The commission’s preference scheme . . . fails to pass constitutional muster” because “there is no evidence of past discrimination in licensing by the FCC,” the brief said. In addition, it said, “There is no factual basis to believe that such strong medicine as race- or gender-conscious licensing preferences are essential to achievement of the policy goal--in this case, increasing the diversity of broadcast programming.”

The brief brings the FCC in line with the Justice Department’s opposition to racial preference plans, but FCC general counsel Jack D. Smith said Justice officials played no role in the case beyond informal discussions. FCC Chairman Mark S. Fowler and the other four commissioners approved the brief Friday.

FCC general counsel Jack D. Smith said the shift was prompted by the court’s request that it address the legality of racial and gender preferences in its brief.