Racial Preference in Granting TV, Radio Licenses May Be in Trouble in High Court : Judiciary: Conservative justices renew their attack on affirmative action, but decisions in two FCC cases may have little effect on existing stations.

The Supreme Court’s conservative leaders on Wednesday renewed their attack on the government’s use of racial preferences in awarding contracts.

For two hours, the justices vigorously debated the constitutionality of affirmative action in the awarding of radio and television licenses. Since 1973, the Federal Communications Commission has given special preference to applicants for new broadcast licenses if their stations are to be owned or managed by blacks, Latinos, Asians, Eskimos or Indians.

If Wednesday’s high court arguments are any indication, the FCC policies could be in deep trouble.

Justices Antonin Scalia and Anthony M. Kennedy hammered away at lawyers defending the FCC program.

“It’s blood that counts here, isn’t it?” Scalia said, noting that preference is based on applicants’ race or ethnic heritage, not whether they came from a poor or disadvantaged background.

“So who you are is your race?” Kennedy chimed in skeptically.

They were joined in the sharp questioning by their fellow conservatives, Chief Justice William H. Rehnquist and Justices Byron R. White and Sandra Day O’Connor. The four members of the court who have supported affirmative action said little during the two hours.

For 12 years, the justices have struggled with the question of when affirmative action becomes reverse discrimination.

Last year, in a Richmond, Va., case, the justices said that cities and states may not give contract preference to minority members except in “extreme” instances when a clear history of racial exclusion has been documented.

Under current law, blacks, Latinos and members of other minorities can get contract preference in federal aid programs for the construction of highways, mass transit systems and subsidized housing, among other activities.

However, the court’s eventual rulings in the two FCC cases probably will have no impact on existing radio and television stations. The high court is simultaneously examining FCC affirmative action provisions that come into play only when a new station is being licensed or in relatively rare situations in which a broadcast owner is about to lose his license.

In the latter case, under special “distress sale” rules, the FCC allows the owner to quickly recoup his investment by selling the station and its license to a minority-controlled firm.

Only about 3% of the nation’s broadcast outlets are controlled by minorities, an FCC lawyer told the court. The affirmative action policies are intended to foster a “diversity of viewpoints” on the air by increasing the number of minority broadcasters, FCC assistant general counsel Daniel Armstrong said.

Scalia quickly attacked that notion. “You are saying that, if you are a black owner, you will have black programming, whatever that means,” he said.

The government “can’t make these kinds of racial generalizations,” he added. “I thought that’s what we were trying to get away from.”

Armstrong countered that Latino or black broadcasters are likely to adopt editorial policies and programming different from that of white owners.

“Can’t non-minorities offer diverse programming?” asked O’Connor, who probably holds the key vote.

In earlier cases, O’Connor has voted for affirmative action programs designed to remedy blatant bias by employers. However, she has refused to uphold affirmative action as a way to make up for the nation’s history of societal discrimination.

Last year, two three-judge panels of the federal appeals court in the District of Columbia considered the FCC policies. One panel upheld the affirmative action rules because race was “only one factor” in awarding new licenses. But a second panel of the same court struck down the “distress sale” rules as an unconstitutional racial preference.

The justices agreed to consider both cases at once. (Metro Broadcasting vs. FCC, 89-453, and Astroline Communications vs. Shurberg Broadcasting, 89-700.)