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Violates Constitution's Equal Protection Guarantee

A demand by a federal agency that two companies agree to a race-based set aside as a condition to approval of their merger today drew a warning that the provision is unconstitutional from a western, nonprofit, public-interest law firm known for civil rights litigation. In a letter to the Federal Communications Commission (FCC), Mountain States Legal Foundation (MSLF) warned the agency that its demand that, as a condition to its approval of a proposed merger between XM and Sirius satellite radio companies, the companies set aside 8 percent, or 24 channels, for "educational and minority broadcasters" violates the Constitution's equal protection guarantee. MSLF advised the FCC that, although the agency's use of racial preferences to achieve "diversity" was upheld by the U.S. Supreme Court in 1990, that ruling was overturned in 1995. As a result, argues MSLF, the FCC has no legal basis to demand use of racial preferences or quotas.

"The Supreme Court has said, often enough, that the use of racial preferences and quotas is 'odious to a free people' and will not be allowed except in the most unusual of circumstances," said William Perry Pendley, president and chief legal officer of MSLF. "Obviously that the Court rejected the FCC's use of this mechanism is clear, even to the FCC and its attorneys."

MSLF's open letter to the FCC came in response to media reports that the agency had demanded that XM and Sirius set aside a portion of their channels for minority programming. Previously, the FCC engaged in similar racial preference practices by awarding enhancements for minority ownership in comparative proceedings for new licenses and by establishing a "distress sale" program permitting some radio and television stations to be transferred only to minorities. Metro Broadcasting, Inc. challenged those policies in a case finally resolved in the Supreme Court of the United States.

In Metro Broadcasting v. Federal Communications Commission, the Supreme Court upheld the use of racial preferences on the basis that they were benign and did not merit strict scrutiny. Therefore, held that Court, the policies need not be narrowly tailored to a compelling state interest -- such as remedying past or present discrimination by the government --- established by a strong basis in evidence. Rather, the policies must only "serve[] the 'important governmental objective' of enhancing broadcast diversity."

Metro Broadcasting was overruled, however, only five years later by a case brought by MSLF, Adarand Constructors, Inc. v. Pena, which held that intermediate scrutiny as used in Metro Broadcasting was not appropriate to racial classifications, however benignly intended, and that "diversity" did not satisfy strict scrutiny.

Mountain States Legal Foundation is a nonprofit, public interest law firm dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.

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