WASHINGTON — A federal appeals court today struck down the Federal Communications Commission's policy of giving a special preference to women seeking to own FM radio stations.
By a 2-1 vote in a case from Georgia, a U.S. Circuit Court of Appeals panel ruled that the preferential policy used by the commission since 1978 exceeds the FCC's legal authority.
"A mandate to serve the public interest is not a license to conduct experiments in social engineering conceived seemingly by whim," Judge Edward A. Tamm wrote for the court.
He said the commission's policy presumably was considered a "good idea" that would lead to "a better world," but that there is no reason to give ownership preferences to statistically under-represented groups unless it will increase diversity of programming content.
The FCC's policy of giving various special preferences to increase ethnic and racial minority ownership of radio and television stations was not affected by today's ruling. A major rationale for that policy is an effort to increase the diversity of programming.
Women have received preferential treatment only when applying for FM ownerships.
Writing for the majority, Tamm said, " . . . It simply is not reasonable to expect that granting preferences to women will increase programming diversity. Women transcend ethnic, religious and other cultural barriers."
Tamm's 16-page opinion was joined by Judge Antonin Scalia, but it sparked a 27-page dissent by Judge Patricia M. Wald.
"The point of increasing ownership and participation of under-represented groups . . . is not to get some specific preordained women's programming or black programming but to ensure the varying viewpoints, perspectives and issues of distinct relevance to these groups are fairly represented in the media," Wald said.