497 U.S. 547 (1990) argued 28 Mar. 1990, decided 27 June 1990 by vote of 5 to 4; Brennan for the Court, O’Connor, Kennedy, Scalia, and Rehnquist in dissent. In affirming the power of Congress to enact policies that favor African-Americans and other minorities, the Court upheld two federal affirmative action programs intended to increase minority ownership of broadcast licenses. One of the major issues in contention was whether the FCC's desire to promote diversification in programming is served by its policy to integrate broadcast ownership. The majority held that congressional and FCC findings supported a sufficiently strong likelihood that diversity will be promoted by enlarging the numbers of underrepresented groups among owners. The specific groups named by the FCC were persons of “black, Hispanic surnamed, American Eskimo, Aluet, American Indian, and Asiatic American extraction.”
For the majority, congressional findings were persuasive not alone because of their authority but because the legislature acts as the expression of the common national interest. The Court's opinion also gave consideration to the historical context in which issues relating to affirmative action arise. The dissents doubted the sufficiency of the expression of legislative intent and questioned the assumption that an individual minority station owner would structure programming differently than a nonminority owner.
Beyond upholding the two affirmative action programs in question, the ruling was significant because it declared following Fulli-love v. Klutznick (1980) and rejecting the contrary implications of Richmond v. J. A. Croson Co. (1989), that the federal government had greater authority than state and local governments to require affirmative action measures in the granting of licenses and other privileges. With this opinion the Court for the first time sustained an affirmative action program not intended as a remedy for past or present unlawful discrimination but as a means of promoting a policy for the future.
Yet the Court continues to demonstrate considerable ambiguity and uncertainty in matters of affirmative action. Hence, the Rehnquist Court in Adarand Constructors, Inc. v. Peña (1995) held that federal affirmative action programs, like state affirmative action programs, must meet a test of “strict scrutiny” in order to be constitutional.