Race Rules the Air.

Quotas and the FCC.

Mr. Berry is a staff attorney with the Institute for Justice in Washington, D.C.

If you were trying to dramatize the plight of minorities in the broadcasting industry, you probably wouldn't choose Stevie Wonder as your poster boy. After all, he is one of the most successful entertainers of all time. But when Federal Communications Commission chairman William Kennard needed a witness last February to testify about the difficulties facing black radio- and TV-station owners, he called on . . . Stevie, of course, who owns an FM radio station in Compton, Calif.

The multimillionaire singer-songwriter complained that black station owners are "an endangered species pursued by large corporate predators," and he portrayed himself as one of the masses whose concerns are "not dominated by the Dow Jones but by Mary Jones." Kennard praised Wonder's testimony as "very, very compelling."

Of all the officials in this administration, the Justice Department's Bill Lann Lee and the Education Department's Norma Cantu have drawn the most attention for their zeal in employing racial quotas and preferences, often in defiance of federal courts. Undeservedly left out of the limelight, however, has been Kennard (pronounced "canard"). His tenure as the nation's top telecommunications regulator has been marked by a dogged pursuit of racial preferences. Indeed, he has stated that his "biggest challenge" is to ensure that the ongoing telecommunications revolution is an "inclusive" one.

Kennard's bid for such "inclusiveness" seemed to suffer last year when the D.C. circuit court struck down the FCC's affirmative-action regulations for radio- and TV-station employment as unconstitutional. In the wake of this ruling, however, the FCC quickly proposed new affirmative-action rules. Although the court had rejected the commission's previous regulations as encouraging stations to hire by quota, the new rules would do exactly the same thing, if by a more indirect route.

As written, the rules require stations to institute recruitment quotas. When filling job vacancies, broadcasters must use a specified number of "recruitment sources" (such as newspapers) targeted to minorities, with the required number of such sources determined by the percentage of minorities in the local labor market. Stations must also keep track of the racial and gender breakdown of applicants generated by each recruitment source. For example, an ad in the Washington Post might draw 14 applications: from six white men, four black men, three Hispanic women, and one Aleut man.

Broadcasters are then supposed to assess the "productivity" of their recruitment sources and can be fined for failing to drum up a sufficient number of minority applicants. In other words, they are expected to create an applicant pool that looks like the local labor force.

It would be bad enough if the FCC sought only to require broadcasters to recruit by quota; but its interests obviously run beyond that. Once a station produces a proportional applicant pool, you can bet the FCC won't rest easy until the station hires minorities on at least a proportional basis. As Reps. Michael Oxley and Ralph Hall noted in response to the FCC's proposed rules, the commission's contention that it has no interest in whether stations actually hire certain numbers from this or that group "stretches credulity." Chances are, any station that fails to hire by quota once it has recruited by quota will put itself at severe risk of sanctions, including fines and the loss of its license.

Kennard, of course, realizes that such practices face tough sledding in the courts. Under current jurisprudence, documented evidence of persisting discrimination is crucial to any hope that preferences will survive judicial review. The chairman has therefore announced that the commission will conduct a series of studies to document racial and gender bias in the telecommunications industry, studies that will go on to be used in the legal defense of affirmative action.

Earlier this year, the commission released its first report, purporting to document the discrimination faced by minority owners in competition for advertising revenues. While funded by the FCC, the study was actually produced by the Civil Rights Forum on Communications Policy, a liberal group that describes itself as working "to bring civil rights organizations and community groups into the current debate over the future of our media environment." One FCC staffer likened the arrangement to a contract between the Bureau of Alcohol, Tobacco and Firearms and the NRA for a study on gun control.

The FCC's report is a shockingly shoddy piece of research that proves almost nothing. Its central finding is that stations aimed at minority listeners earn less advertising revenue per listener than stations aimed at the general population. Advertisers, the report's author concludes, therefore undervalue minority consumers in a discriminatory fashion.

There is, however, one gigantic flaw in the report. As the study's author acknowledges, the average listener of a general-format station has an income approximately 20 percent greater than that of the average listener to a minority-geared station. As these customers have more disposable income, it makes sense that advertisers would be willing to pay more to reach them. The phenomenon is also common in television, where companies cough up top dollar to reach affluent professionals irrespective of race: For example, you have to pay more to advertise on Fox's Ally McBeal than on CBS's Everybody Loves Raymond, even though the latter has attracted more Monday-night viewers.

As he girds for further courtroom battles over preferences, Kennard is moving forward on other fronts as well. Early in his tenure, he signaled that he would condition FCC approval of mergers and acquisitions on "a company's willingness to help diversify the ownership in the marketplace." His stance recently paid off in a big way for Chester C. Davenport, one of the nation's wealthiest black entrepreneurs.

SBC Communications, Inc., a "Baby Bell," is now trying to win FCC approval for its acquisition of Ameritech, another Baby Bell. So in April, in what SBC executives openly described as a bid to appease Kennard, Ameritech announced that it was selling half of its wireless- telephone business to GTE and a company owned by Davenport, who is reported to have a net worth of as much as $100 million.

Speaking of ways to make the wealthy even wealthier, Kennard has asked Congress to reinstitute the program that gave tax breaks to corporations that sold radio and television stations to minorities. That program is the only racial preference eliminated by the Republicans since their takeover of Congress and was widely regarded to represent affirmative action at its worst: Among other problems, companies often used wealthy minorities as fronts to acquire stations on the cheap. As a result, a few lucky black Americans ended up making a bundle for little or no work.

Over the last couple of years, William Kennard has turned the FCC into a hotbed of race-conscious activism. While his agenda may benefit a Stevie Wonder or two, dividing Americans by race, in the telecommunications industry or elsewhere, will do little to aid the truly disadvantaged. Nor will it bring us closer to the day when, to paraphrase one of songs with which Stevie is associated, ebony and ivory will live together in perfect harmony.