MEASURING THE NEXUS:

The Relationship Between Minority Ownership and Broadcast Diversity After Metro Broadcasting.
© 1998 by Allen S. Hammond, IV, Professor of Law, Santa Clara University School of Law

Introduction:
In Metro Broadcasting the Supreme Court found that the federal government had a compelling interest in promoting the diversity of viewpoints via broadcasting. In addition, the Court found that ownership of broadcast stations by minorities promoted the government's compelling interest. The decision of the Court in Adarand over-ruled the Metro Broadcasting's Court's use of intermediate scrutiny to analyze the constitutionality of the federal government's race based ownership programs but not Metro Broadcasting's finding of a nexus between minority ownership and diversity of viewpoint. However, the recent Lutheran Church decision dismissed the government's arguments that a nexus exists between minority employment in broadcast stations and greater diversity in broadcast programming, and that the government has an interest in fostering such diversity.        The Commission has consistently argued that a nexus exists between minority employment and viewpoint diversity, and that minority employment promotes minority ownership. Similarly, the Commission has consistently argued that a nexus exists between minority ownership and viewpoint diversity. Consequently, it is fair to say that the Lutheran Church opinion may be read to call into question the nexus between equal employment opportunity and diversity, and, by implication, the nexus between ownership and diversity as well.
The empirical data and findings upon which the Metro Broadcasting Court relied are found in the FCC initiated survey and the Congressional Research Service's (CRS) analysis thereof. Subsequent to Metro Broadcasting, there is little empirical data available to support the argument that a nexus exists. Thus, at present, the FCC survey data and the CRS findings constitute the primary data and analysis upon which the Metro Broadcasting Court's findings rest. However, given the challenge of the Lutheran Church opinion and potentially significant changes in the regulation and operation of the broadcast market, sole reliance on Metro Broadcasting's holdings may be ill advised and a new study documenting the continued existence of the nexus may be warranted.

I.    THE CASE LAW
       A. LUTHERAN CHURCH OPINION
In its Lutheran Church opinion, a unanimous circuit court panel expressed substantial skepticism that a nexus exists between minority employment and diversity of viewpoints. The circuit court specifically stated:
     The Commission has unequivocally stated that its EEO regulations rest solely on its desire to foster "diverse" programming content...The Commission never defines exactly what it means by `diverse programming'... The government's formulation of the interest seems too abstract to be meaningful...(emphasis added).

     Justice O'Connor's...dissent in Metro Broadcasting, which described the government's interest as "certainly amorphous," protested:

     The FCC and the majority of this Court understandably do not suggest how one would define or measure a particular viewpoint that might be associated with race, or even how one would assess the diversity of broadcast viewpoints..." (emphasis added).

     Regarding the argument that the Metro retains viability as precedent for the argument that the government has an interest in fostering diversity, the circuit court stated that    ...[A]lthough Metro Broadcasting's adoption of intermediate scrutiny was overruled in Adarand, its recognition of the government interest in "diverse" programming has not been disturbed by the Court. The government thus argues that we are bound by that determination.

     We do not think that proposition at all evident. Even if Metro Broadcasting remained good law in that respect, it held only that the diversity interest was "important." We do not think diversity can be elevated to the "compelling" level...It is true that the Court, denying that the supposed "link between expanded minority ownership and broadcast diversity rests on impermissible stereotyping," thought the Commission and Congress had produced adequate evidence of a nexus between minority ownership and programming that reflects a minority viewpoint. (citation omitted) Yet the Court never explained why it was in the government's interest to encourage the notion that minorities have racially based views. (emphasis added).

     The Commission has consistently argued that a nexus exists between minority employment and viewpoint diversity, and that minority employment promotes minority ownership. Similarly, the FCC and minority owners strenuously argue that a nexus exists between minority ownership and viewpoint diversity. Consequently, it is fair to say that the Lutheran Church opinion may be read to call into question the nexus between equal employment opportunity and diversity, and, by implication, the nexus between ownership and diversity as well.
     The empirical data and findings upon which the Metro Broadcasting Court relied are found in the FCC initiated survey and the Congressional Research Service's (CRS) analysis thereof. Subsequent to Metro Broadcasting, there is little empirical data available to support the argument that a nexus exists. Thus, at present, the FCC survey data and the CRS findings constitute the primary data and analysis upon which the Metro Broadcasting Court's findings rest.
     However, relying solely on the Metro Broadcasting's holdings which are based on the CRS findings rather than conducting new findings may be ill advised. First, as the Lutheran Church panel noted, the current Supreme Court majority's philosophy is more in line with that of the Metro Broadcasting dissent and the unanimous Lutheran Church opinion which found no credible nexus between minority broadcast participation and diversity. Second, substantial changes in market circumstances suggest that an updating of the Congressional Research Service's study is warranted. Third, a new study could expand upon the issues the CRS study and the studies which build upon its findings were unable to, or did not reach.

       B.  THE METRO DISSENT AND THE CURRENT SUPREME COURT
     The dissent in Metro found no "credible" nexus between ownership and diversity. It also explicitly challenged the assertion that either the FCC or Congress ever had successfully established the existence of a nexus. Finally, the dissent argued that the Market controls ownership expression even if a minority owner might prefer to program differently.
     Regardless of whether the current majority would view an FCC initiative to create a revised minority ownership policy as exclusively raising Fifth Amendment due process concerns or both due process and First Amendment concerns, the establishment of a demonstrable, quantifiable nexus is critical to FCC and/or Congressional efforts to justify the policies. First, the members of the Metro dissent are now part of the Majority of the Court. Second, reliance on the prior studies leaves the policies' advocates with little empirical evidence addressing the actual impact of market and regulatory changes on minority broadcasters.

II. BROADCASTING MARKET CHANGES
There have been significant changes in the broadcast market since Metro Broadcasting was decided based on inter alia the CRS study in the late 1980's. It has been forcefully asserted that the FCC authored deregulatory policies, including relaxation of the multiple ownership and the duopoly rules, as well as creation of the Local Market Agreements (LMA) policy have affected the ability of minority and majority broadcasters to compete. These changed circumstances are problematic in that we do not know how they may have affected programming decisions and the diversity of available programming choices. We do know that there is concern that service to minority communities may have suffered as a result. This lack of currency on the part of the CRS would be one of the first vulnerabilities exploited by opponents of any reformulated minority ownership policies.

III. THE STUDIES
       A.  CRS STUDY
     While the CRS study was a very good effort, it is limited as a survey results document. For instance, it did not survey broadcasters for any demographic data about their communities of license. It's questionnaire contains some potentially open ended questions - such as what those broadcasters surveyed defined as minority programming. The study also relies heavily on broadcast entertainment program format data. In this regard, sole reliance on the CRS study may unwittingly favor the "marketplace control" model of diversity espoused by the dissenters in Metro Broadcasting. It also misses a critical opportunity to document the distinction between entertainment and informational [news, public affairs and community service] programming which some minority owners and others assert is at the heart of service to communities.
       B. THE DUBIN/SPITZER STUDY
     The Dubin/Spitzer study builds upon the CRS study and supports conclusions that a nexus exists, the data upon which both CRS and Dubin/Spitzer rest is over a decade old. The data predates two deregulations of the multiple ownership limits; deregulation of duopoly regulations; the development of Local Market Agreements (LMAs); the development of UPN and WB with their minority oriented programming; and the increase in majority-owned, minority-oriented radio formatted stations at a time of decreasing minority ownership. The latter format related developments directly underscore the necessity to determine whether minority ownership [and employment] makes a difference in format, particularly in news, public affairs and community service programming. All of these developments must be acknowledged and accounted for if new minority ownership policies are to find support. For these reasons, a new study is urgently needed.

       C.  THE NEW SURVEY
     Through a telephone survey administered to news directors at radio and television stations around the country, the researchers seek to identify differences in news and public affairs programming that may exist between minority-owned and majority-owned broadcast stations. Because there are only 205 news directors (or persons with an equivalent position) employed at minority-owned stations, the researchers are attempting to interview all of them. Given the difficulties which attend the administration of questionnaires, it is anticipated that between 150 to 160 interviews will be completed. The researchers will also survey a sample of the population of news directors at majority-owned stations to obtain a number of cases corresponding to sample obtained for the minority population. To eliminate extraneous confounds to the data set, the researchers will sample a member of the majority-owned station population within each market that produces a completed minority-station interview. The researchers are seeking to achieve a final minimum sample size of 300 (150 minority and 150 non-minority).
     The new survey, seeks to ascertain inter-alia: what news and public affairs programming the broadcasters provide; what issues they believe are important; what audiences they see themselves as serving; what programming stories broadcasters believe their audiences want; what distinctions broadcasters make in news and public affairs programming provided by themselves and other comparable stations; the ethnicity of the broadcast ownership and decision making staff; and broadcast station revenues. It is anticipated that the survey will uncover differences in the presentation of programming by minority and majority owned broadcasters to minority and majority audiences.
     The survey will focus on the two values (minority-ownership and majority-ownership) manifested by the independent variable of ownership. Statistical analysis will center on the use of the chi-square for discrete dependent data and the paired-comparison t-test for occasions where dependent data are continuous. It is believed that these statistics are most useful when analyzing data from equally sized groups.

CONCLUSION
     The data is in the process of being collected. At present it is too early to know with any certainty what will ultimately be uncovered by the survey. It probable that many minority broadcasters and federal officials anticipate that the new study will bear out their assertions that a strong nexus exists between minority broadcast ownership and diversity. Given the express skepticism of members of the Supreme Court and D.C. Circuit, a study documenting such a result would be a welcome addition.