The FCC’s 2024 decision to reinstate Form 395-B, after its use had been paused for over 20 years, was invalidated this week by a decision of the US Court of Appeals for the Fifth Circuit.  In yet another instance of courts limiting the authority of administrative agencies, the Fifth Circuit judges found that the FCC has no statutory authority to require the filing and public posting of the form requiring broadcasters to report on the race and gender of all of their employees.  In reaching this decision, the Court made clear that the FCC’s authority to regulate “in the public interest” is not an authority that is unlimited, but instead is one that must be grounded in specific duties that the FCC has been given by Congress in the Communications Act.  The Commission cannot impose obligations on broadcasters under the public interest standard simply because a majority of the Commissioners believe that new rules would somehow make broadcast service better – they can only act in areas that Congress specifically said that they can act.  That aspect of the Court’s decision may have a significant impact in assessing the validity of current and future obligations imposed by the FCC on broadcasters.

The FCC’s decision to reinstate the Form 395-B was very controversial.  In the late 1990s and early 2000s, the FCC’s EEO policies were twice struck down by the courts as unconstitutional as they forced hiring based on racial or gender.  The Form 395-B provided the information used by the FCC to make the decisions that the courts found to be discriminatory.  Given the form’s direct relationship with the FCC actions that had been found unconstitutional, after these court decisions, the FCC suspended the use of the form. Continue Reading Court Finds FCC Has No Authority to Require EEO Form 395-B – And Narrows Scope of the Public Interest Standard