Text has been updated with a response from the NRB and more information about the court ruling.
Broadcasters won’t be required to report employee demographic data to the FCC after all.
A three-judge panel of a federal appeals court in Texas on Monday unanimously vacated last year’s order. The commission is not expected to appeal.
Starting in 1970 the FCC had used Form 395-B to collect race, ethnicity and gender data until the practice was suspended in 2001. Last year, under a Democratic majority, the FCC reinstated the form to collect employment data from most broadcasters, though collection never actually resumed.
The FCC argued last year that the data would give it a better understanding of workforce composition. It said collection was in the public interest and required under law and that the information would not be for enforcement but for analyzing broadcast industry trends.
Importantly, though, the data also would have been available to the public, an aspect of the vote that raised the stakes around this issue even higher.
The National Religious Broadcasters, with one of its members, and the Texas Association of Broadcasters then filed separate suits to block the mandate; those cases were later consolidated.
The petitioners said the order violated the First and Fifth Amendments and that the FCC lacked authority for this change. Religious broadcasters also were concerned about the inclusion of a “non-binary” gender option, saying it could force them to recognize genders outside of male and female.
In the 19-page ruling Monday, the panel of the Fifth Circuit Court of Appeals said the FCC had overstepped its bounds and lacked the statutory authority to require disclosure.
Chief Judge Jennifer Elrod wrote decision that “public-interest authority, though cast in broad terms, is not unlimited.” While public interest is a “touchstone” for FCC action, she said it does not grant freewheeling authority to act.
“The FCC may not act in the public interest if the agency does not otherwise have the authority to act,” the court stated.
The court also said it was “unpersuaded” by the FCC’s argument that a section of the 1992 Cable Act grants it authority to resume Form 395-B data collection. The judges said there was “no need to decide whether the 1992 Cable Act ratified the FCC’s authority to collect Form 395-B data because, to the extent that Congress ratified anything, it expressly tethered the FCC’s authority to collect Form 395-B to the equal employment opportunity regulations that are no longer in effect.”
Those regulations were later struck down by the D.C. Circuit Court in the Lutheran Church case. The D.C. Circuit Court at the time “held as unconstitutional some subsections that required broadcasters to adopt equal opportunity outreach programs for minority and women candidates.”
TAB, NRB react
Reacting to the outcome, Oscar Rodriguez, president of the Texas Association of Broadcasters, said TAB was pleased.
“The court’s action permits local broadcasters to focus anew on super-serving our communities of license. We will do so in part by continuing to recruit talented professionals from all walks of life who are dedicated to arming communities with the information needed to ensure their safety, advance their understanding of community concerns and fulfill the promise of our democracy,” Rodriquez said in a statement.
The NRB called it a significant legal victory.
“NRB has always fought to protect Christian communicators from baseless attempts to restrict their First Amendment liberties which hinder their work of proclaiming the Gospel. This ruling helps ensure that the government cannot create a backdoor to controlling broadcasters through public intimidation, misuse private data against them or interfere with the sacred and constitutionally protected mission of religious broadcasters,” said Troy A. Miller, NRB president and CEO.
Mike Farris, NRB general counsel, accused the Biden administration of “the desire to use the power of government to gather information for no other legitimate governmental purpose but to harm the political opponents of regulated entities is utterly un-American.”
The FCC is not expected to appeal the ruling. Chairman Brendan Carr was one of two Republican votes against the proposal last year. At the time he lamented that “the FCC will now post a race and gender scorecard for each and every TV and radio broadcast station in the country.”
He posted on social media Monday: “As I said in my dissent back then, the FCC’s 2024 decision was an unlawful effort to pressure businesses into discriminating based on race and gender.”
Commissioner Anna Gomez, a Democrat, reiterated her recent criticisms of the commission’s actions under Carr. She said in a statement: “It’s a shame the court struck down reasonable transparency measures designed to shed light on the media market. But its broader message was unmistakable; the current FCC has no right to weaponize its authority against lawful, merit-based hiring decisions by private companies or target them because of their use of terms like diversity, equity and inclusion.”
