Comments are due on September 30 on the FCC’s Further Notice of Proposed Rulemaking looking to bring back some form of the old FCC Form 395B, the Annual Employment Report.  That form required broadcasters to report on the racial and gender make-up of their workforce in various employment categories.  The use of the form has been on hold for almost two decades after two rulings from the US Court of Appeals that found it was unconstitutional for the FCC to use the information collected from the Form 395B to determine if a broadcaster’s license renewal application deserved extra scrutiny.  In effect, the court found using the reports in this way compelled broadcasters to make hiring decisions based on the race and gender of employment candidates, which was discriminatory and thus could not be compelled by the FCC.

This created a tension between a law requiring that the FCC gather information on the racial and gender make-up of the broadcast workforce to determine if affirmative action efforts should be made on an industry-wide basis, versus  the prohibition on gathering this information on a station-specific basis where the temptation would always be to look at a specific station’s data and make assumptions about whether it had been  in making employment decisions in color blind manner.  While the FCC has over the last two decades repeatedly considered bringing back the form to collect information on an industry-wide basis, questions have always arisen as to how the accuracy and completeness of that information could be assured if the information gathered did not identify the station providing it.  And, once that information was in hand, would it be subject to Freedom of Information Act (FOIA) obligations that could force its disclosure which could lead to it potentially being used in an enforcement context?
Continue Reading The Return of FCC Form 395B?  – The FCC Looks at Reviving Reports on the Race and Gender of Broadcast Employees