The FCC had help. In May 2008, aides to members of the Congressional Black Caucus lectured a Sirius executive that their bosses wanted a 20 percent set-aside for minority owned companies, an idea that came from the head of a minority-run private equity firm. In June, in a “close[d] door” meeting, “angry” Black Caucus members repeated their demands to XM and Sirius executives. FCC Chairman Kevin J. Martin got the message and announced his support for the merger if XM-Sirius “voluntarily” agreed “to lease 4 percent of their radio spectrums, or 12 channels, for programming run by minorities and women.” Nonetheless, the Black Caucus found Martin’s scheme “completely unacceptable” “crumbs. . . off the table.”
Occasionally, the Black Caucus and FCC say that they seek “minority programming,” which is laughable given the diversity of programming long available on both XM and Sirius. XM’s channels, for example, include “hip-hop urban,” “jazz & blues,” “Latin,” “comedy,” and “talk and entertainment,” and feature artists, comedians, and performers of every hue.
Instead, the demand by the Congressional Black Caucus is reminiscent of Congress’s 1977 adoption, for the first time, of racial preferences in government contracting in response to the demand by former Maryland Congressman Parren Mitchell that “minority businesses” be given “a piece of the action.” Sadly, his tiny plan has expanded unabated for the last 31 years and, despite the Adarand ruling, is included today in nearly every government agency and its appropriation. The FCC’s final order on the XM-Sirius merger is pending; however, it appears that the FCC—the agency to which Adarand most directly applied—will resume the “odious” activity struck down in 1995.