Challenge Likely Today on FCC Race-Preference Plan

The Bush Administration plans a Supreme Court challenge today to the constitutionality of a Federal Communications Commission plan that gives preference to minorities and women in awarding broadcast licenses, it was learned Thursday.

The Administration brief concerns one of two cases that involve FCC minority-preference plans. The two cases mark the justices’ first look at the legality of affirmative-action plans since they struck down a Richmond set-aside plan for minority contractors last year.

A brief in the second case, involving an FCC policy giving minority firms first chance to obtain the licenses of broadcasters who face revocation of their permits, is not due until next month, but the Administration also is expected to challenge the constitutionality of that plan, according to sources familiar with the case.

The Administration had contended that Supreme Court review of the FCC cases was “not warranted at this time” because appeals courts have barely started to consider the application of the Richmond ruling to federally sponsored racial preference programs.

However, the justices agreed in January to hear the cases, and civil rights groups have been waiting to learn the Administration’s position.

The case in which the brief is due today, Metro Broadcasting Inc. vs. FCC, concerns the FCC’s denial of a license to Metro Broadcasting for a television station in Orlando, Fla., in favor of a competitor that received “enhancement credits” because it was owned by three Latinos. The federal appeals court here ruled that the FCC action was justified.

The FCC adopted the preference policy in 1978 following a ruling by the federal appeals court here directing the commission to give “favorable consideration” to minority-owned applicants. When the FCC sought to reconsider its policy during the Reagan Administration, Congress enacted an appropriations rider that forbids any changes.

The Administration brief is expected to argue that, although Congress has more leeway in adopting racial preference policies than do states or local governments, that power does not justify the FCC policy because it was adopted by the agency rather than Congress.