A government policy giving preference to women in granting licenses for FM radio stations was struck down yesterday as an unjustified exercise in "stereotyping" by the U.S. Court of Appeals for the District of Columbia.
By a 2-to-1 vote, a panel of appeals court judges ruled that the Federal Communications Commission exceeded its authority in adopting the policy, which the court said was based on the "offensive . . . presumption" that women as a group have a "distinctly female" point of view.
The decision, written by Judge Edward A. Tamm, does note that previous appeals court rulings have upheld the right of the FCC to give preference to blacks, Hispanics, and other minorities in granting broadcast licenses. But a dissent by Judge Patricia M. Wald said the majority view violates these precedents since the logic for favoring all "underrepresented groups" is the same.
"The point of increasing ownership and participation of underrepresented groups, such as minorities and women, is not to get some specific preordained women's programming or black programming," Wald declared, "but to ensure that the varying viewpoints, perspectives, and issues of distinct relevance to these groups are fairly represented in the media. . . . "
"Women having ownership interests and policy-making roles in the media are likely to enhance the probability that the varying perspectives and viewpoints of women will be fairly represented in the broadcast media," Wald wrote.
The court ruled in a case involving an appeal by James U. Steele, a man with 20 years of broadcast experience who was denied a license for an FM station at St. Simon's Island, Ga. The FCC awarded the license to Dale Bell, a woman who the court said has had only four months of broadcast experience at a radio station owned by her father. It said Bell's husband, Dwayne, owns the transmitter site for the new station and will be its assistant general manager while his wife heads the operation as general manager.
The FCC said its preference for women as the owners of FM radio stations was "decisively important" in granting the license to Bell as part of its policy of encouraging diversity. FM radio stations are the only broadcast properties for which the FCC gives preference to women, a policy first adopted in 1978.
The court opinion, concurred in by Judge Antonin Scalia, said the FCC has "been unable to offer any evidence other than statistical underrepresentation to support its bald assertion that more women station owners would increase programming diversity."
"Presumably, the Board thought that it was a Good Idea and would lead to a Better World," the appeals court opinion continued. But it said the commission's mandate to serve the public interest "is not a license to conduct experiments in social engineering conceived seemingly by whim and rationalized by conclusory dicta."
The court's opinion said, "The constitutional prohibition of discrimination on the basis of race or sex is founded on the presumption that a person should be judged as an individual rather than as a member of a particular group, and that no assumptions can or should be made about an individual's bent of mind merely because of a birth characteristic."
For example, the appeals court said, there is "no reason to assume . . . that an Italian station owner would primarily program Italian operas" or that "a black station owner would program soul rather than classical music," particularly since broadcasters seek a profit and are likely to be more influenced by listeners' tastes than by any perspective "perhaps attributable to their own ethnic backgrounds."
The idea that women have a uniform point of view is "not reasonable," it said, because "women transcend ethnic, religious, and other cultural barriers. In their social and political opinions and beliefs, for example, women in fact appear to be just as divided among themselves as are men."
Tamm's majority opinion continued that the "editorial perspectives of The Washington Post and The New York Times, for example, seem close to identical, yet the former is published by a woman and the latter is not."
The court said that perhaps the FCC "means to suggest . . . that if more women owned FM stations, they would program softer, more 'feminine' music," but it added: "It is not clear which stereotype of women the Commission meant to indulge in adopting the female preference."
Yesterday's ruling is subject to appeal either to the full 10-member court of appeals or directly to the U.S. Supreme Court.