RETHINKING ADARAND AFTER PROMETHEUS: A RATIONAL (BASIS) SOLUTION TO FCC MINORITY OWNERSHIP POLICY.

For the last several decades, the FCC has been in a stalemate with media activist organizations about the lack of diversity in broadcast media ownership. Women own less than 10 percent of broadcast television and AM/FM radio stations, and racial minorities own less than six percent. We argue that this inequity is due to the Commission's misperception that policies that put stations in the hands of historically underrepresented groups must pass strict scrutiny. In 1990, the Supreme Court ruled in Adarand Contractors, Inc. v. Pena that any laws or regulations that showed preferential treatment to people based solely on their race would subsequently need to withstand strict scrutiny. This prompted the FCC to avoid embedding race (or gender) based preferences into media ownership regulations, despite repeated instructions from the Third Circuit Court of appeals to address the racial and gender imbalance in broadcast ownership. In FCC v. Prometheus Radio (2021), the Supreme Court had an opportunity to address the question of whether strict scrutiny was an appropriate level of review for broadcast regulatory decisions. Rather than tackling the issue of ownership headon, the Court concentrated its decision on how much discretion administrative agencies have regarding changes to their initiatives. Had the Court focused exclusively on the ownership question, we believe it would have come to the same conclusion that we do here: a rational basis of review should be used for regulatory decisions. We believe this shift is needed to break the nearly two decades-long legal, policy, and regulatory deadlock over media ownership policy.