Back in July of 2008, Sirius XM agreed to lease out four percent of its combined full time audio channels—a minimum of twelve channels all told—to “qualified entities,” which everyone presumes means minority broadcasters. A whole lot of candidates have offered to take these channels, but there’s a problem. The FCC has to come up with a process that doesn’t get it sued for establishing an unconstitutional ethnic quota system, or something like that.
So the Commission has been kicking this little monster down the road for almost two years. But a new filing in the Sirius docket suggests the agency may finally be getting its act together (hope springs eternal).
During a phone conversation, one channel candidate reports in his ex parte statement, an agency staffer “stated [that] the FCC had been working through several issues regarding whom, what and or how the Qualified Entity or Entities would be granted the proposed channels. She also hinted that the FCC had been working through several of the issues including Adarand and an application process that is being devised to be implemented.”
You’re probably wondering what that italicized word means. In the Supreme Court case Adarand vs. Pena (1995) the court ruled that Federal affirmative action minority contractor programs must be based on “strict scrutiny.” That is, if they employ racial and ethnic criteria, they have to demonstrate that the racial/ethnic group receiving favor has historically and/or presently faced a disadvantaged situation. The program can’t just be based on race alone.
So, generally speaking, government agencies now do what are called “Adarand Studies” to justify their affirmative action programs. Perhaps that or something like it is being planned here. It should be noted that that summary of this conversation did not come from the FCC but from a channel applicant. But it does seem like the Commission is still trying to get this program going, and may even succeed prior to Howard Stern’s 95th birthday.
