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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

  • FCC Chairman Carr sent a letter to NPR and PBS announcing that he has asked the FCC’s Enforcement Bureau to
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On Friday, the FCC released a Public Notice confirming that the Form 395-B, reimposed by the FCC earlier this year (and the subject of several appeals), will not be due September 30, 2024, as we speculated earlier last week in our look ahead at September regulatory dates.  The Form 395-B is designed to collect information about the race, ethnicity, and gender of all broadcast employees in numerous categories of job responsibilities at broadcast stations (e.g., managers, sales employees, technical employees, “professionals,” clerical, etc.).    Last week’s Public Notice does not specifically say why the use of the form has been delayed, but it appears that the FCC has not determined that the reinstatement of the form must be approved under the Paperwork Reduction Act, or because the public nature of the filings or the addition of the “non-binary” gender category needs approval under the PRA.  In any event, the Public Notice explains that the FCC will provide notice to broadcasters at some future date as to when the filing will be required. 

As we wrote in February when the FCC adopted its Fourth Report and Order reimposing the requirement for the filing of the form, it was to be submitted by September 30 each year, reporting on the make-up of station workforces for a consistently-used two week pay period from July, August, or September.  The use of the form has been on hold for more than 20 years because of constitutional concerns, as the FCC had used the form to impose penalties when a broadcaster’s workforce did not match the demographic profile of its community.  A court decision suggested that the FCC’s approach encouraged reverse discrimination – hiring based on racial or gender profiles rather than job qualifications.  Thus, the FCC put the use of the form on hold while it considered ways to collect demographic information about broadcast employees on an industry-wide basis, without tying that information to any specific stations. Continue Reading FCC Announces Form 395-B EEO Report Will Not Be Due September 30, 2024