FCC Republicans and Public Interest Groups Disagree on EEO Legal Challenges

The court decisions that resulted in the pause of the collection of the FCC’s Form 395-B concerned the FCC’s consideration of the data in enforcement actions and license renewals. However, in this recent order, the agency explicitly barred the data from being considered in enforcement cases or petitions to deny. “The data is only for public use,” said United Church of Christ Media Justice Ministry attorney Cheryl Leanza. “Public data is not unconstitutional,” she said. “Activists lobbied for this b/c they want to see businesses pressured into hiring people based on their race & gender,” Commissioner Brendan Carr posted on X Thursday evening.

Released late Thursday, the order requires broadcasters with five or more employees to complete Form 395-B and upload it to their online public file by Sept. 30 each year. The form asks broadcasters for the race and gender of their employees and for demographic information on each job category. The reinstated form will include a mechanism to account for nonbinary genders, the order said. The item also includes a Further NPRM that seeks comment on collecting the same data from the cable industry, using Form 395-A.

“Our ability to collect and access Form 395-B data is critical because it will allow for analysis and understanding of the broadcast industry workforce, as well as the preparation of reports to Congress about the same,” said Thursday’s order. “This long-overdue order will help the FCC, Congress and the American public better understand how the broadcast sector is serving the public interest -- or failing to serve it -- in viewpoint diversity and racial equity,” said Free Press Co-CEO Jessica Gonzalez in a release.

“We know how critical it is to have diversity in our media organizations,” said Commissioner Geoffrey Starks, who for several years has been a vocal proponent of bringing back Form 395-B. A successful media organization best serves its audience “by ensuring that its employees, its decisionmakers, reflect those viewers, listeners, and readers, and can speak for and to them,” he said in his statement accompanying the order.

Although the Communications Act requires data collection, the forms have been on pause for decades after a pair of court rulings against the FCC by the U.S. Court of Appeals for the D.C. Circuit: Lutheran Church–Missouri Synod v. FCC in 1998, and MD/DC/DE Broadcasters Association v. FCC in 2001. The court ruled both times that the FCC’s policies violated the Fifth Amendment because they encouraged broadcasters to consider race in hiring, saying the data could be used against them in FCC proceedings.

In Thursday’s order, the FCC repeatedly says that won’t be the case with the reinstated data collection. “We will quickly and summarily dismiss any petition, complaint, or other filing submitted by a third party to the Commission based on Form 395-B employment data.” Because the FCC won’t take action against broadcasters based on the data, the D.C. Circuit’s previous objections won’t apply, said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. “These are simply disclosure rules that have no teeth.” The data collection is race neutral and can’t be used to create a quota system, said the Multicultural Media, Telecom and Internet Council in a release.

The previous cases against the FCC show a history of unconstitutional conduct and the record shows that groups will use the data to pressure broadcasters' on hiring, Carr said. Filings in docket 98-204 calling for the data to be made public say it will be used to “assess whether companies stand by their public commitments to pursue diversity, equity and inclusion.” The FCC’s “ostrich-like claim” that there's no evidence that Form 395B will be used to put pressure on broadcaster hiring practices “does not withstand even casual scrutiny,” Carr said.

Making the demographic data public “will ensure maximum accuracy of the submitted data” because third parties will be able to check whether it's “consistent with Congress’s goal to maximize the utility of the data an agency collects for the benefit of the public,” said the order. “We find broadcasters’ concerns with the public collection and availability of this workforce data to be overstated” and “outweighed by the promotion of data accuracy.”

The Form 395-B data collection “is race- and gender-neutral, and no race- or gender-based government action flows from collection of the data or its public availability,” and that keeps the order from violating the Fifth Amendment, the FCC said. Yet Carr argued that the item also violates the First Amendment because it compels speech from the broadcasters, though the order disagreed. “There is no message being forced by the government,” in collecting Form 395-B because it simply involves a station reporting its employment figures, the order said.

There's no reason to make the data public other than to induce public pressure, which means the order is as constitutionally vulnerable as the previous data collections, wrote Commissioner Nathan Simington in dissent. “The public inarguably pressures every large firm for which employment data are available (and, indeed, even for those firms electing not to publicly disclose employment data) as it relates to ‘equity’ in staffing decisions,” Simington said. Carr and Simington said they proposed edits to the order to keep the data anonymous and non-attributable but were rejected.

The additional data collection will likely be burdensome for many broadcasters, said one broadcast attorney. The order suggests companies develop processes to gather the required information, the attorney pointed out.

It’s not yet clear if broadcasters will challenge the order in court, he said, and doing so is likely to be expensive and drawn out. Companies are still digesting the item's implications, the attorney said. NAB declined to comment.

“No court has seriously questioned the constitutionality of demographic employment data collection,” said a United Church of Christ Media Justice Ministry news release Thursday. “Collection and monitoring of employment data is a best practice and widely sought by shareholders and experts as a means to achieve diversity and equity goals,” it said.