A court hearing on Tuesday gathered oral arguments from plaintiffs asking the Fifth Circuit Court of Appeals to set aside the FCC’s latest employee data collection plans. Meanwhile, an attorney for the FCC also appeared in a New Orleans courtroom asserting that the commission has the statutory standing to reinstate Form 395-B filings.
In February 2024, the FCC revived a requirement for broadcasters to provide data that reveals the composition of their workforces. The rule change requires radio and television stations to collect data on the gender, race, ethnicity and job function of each station employee, a filing requirement that was suspended more than 20 years ago by court order.
The steps taken by the FCC to reinstate Form 395-B have since proved controversial on multiple fronts.
Religious broadcasters took issue with a change in Form 395-B that would have given broadcasters the option of selecting “non-binary” as a category when identifying gender. Previously the form required broadcasters to categorize employees only as “male” or “female.”
While the FCC now asserts that “non-binary” will not appear on the employee data forms filled out by broadcasters, recent action by the current administration has muddied the regulatory waters. The Department of Justice has withdrawn its support for the FCC rule, according to several media reports. The DOJ says it now conflicts with President Trump’s executive order which defines gender as male or female only.
[Related: “FCC Revives Annual Station Employment Reports“]
According to reporting in Broadband Breakfast, Jared Kelson, counsel at the law firm of Boyden Gray, argued for the plaintiffs on Tuesday that the rule violates the First and Fifth Amendments and that, even without the nonbinary gender category, the FCC has exceeded its authority by enforcing the rule.
The report said Kelson warned that public disclosure of employment data could expose stations to third-party pressure, including activist groups and outside scrutiny that extends beyond the FCC’s stated intent.
“The FCC can’t have it both ways,” said Kelson in court. “Preventing discrimination is not the same as mandating diversity reporting. If the agency itself has previously said this rule does not justify enforcement, it should not be able to justify mandatory disclosures under the same section.”
According to the Washington-based news organization, Kelson also referenced recent court decisions that said regulatory agencies must point to explicit congressional authority to justify their decisions. The attorney emphasized that such authority is lacking in the FCC’s argument to reimplement the employee data collection form.
Collection of Form 395-B was suspended in 2001 based on arguments from the National Association of Broadcasters and others that the practice was unconstitutional and ran afoul of the First Amendment. More recently, the Texas Association of Broadcasters and National Religious Broadcasters filed separate legal challenges in 2024 asking the court of appeals to reject the FCC’s rule. TAB said in its appeal at the time that “the commission’s order is an attempt to go around limits set by federal courts in how race can be used in hiring practices.”
[Related: “Restart of FCC’s EEO Data Collection Plan Faces Legal Challenges“]
The new employee data collection rules are expected to remain in place until the FCC has a third Republican commissioner to launch a new rulemaking. Broadcasters for now do not need to collect and submit employment data. New FCC Chair Brendan Carr voted against reinstating the form and called it a “race and gender scorecard” at the time.
