NEW ORLEANS, LA – A federal appeals court in New Orleans has sided with broadcasters, preventing the Federal Communications Commission (FCC) from reinstating the collection of annual employment data. A three-judge panel of the Fifth Circuit Court of Appeals ruled Monday that the FCC exceeded its legal authority when it voted in February 2024 to revive the Form 395-B filing requirement.
The forms would have required broadcasters to submit data on the race, ethnicity, and gender of their employees across various job categories. The FCC argued that this data collection was in the public interest and mandated by federal law, asserting it was “critical” for analyzing the broadcast industry workforce and tracking employee diversity.
However, the Fifth Circuit panel disagreed, stating that the FCC’s “public-interest authority, though cast in broad terms, is not unlimited” and does not grant “freewheeling authority.” The court’s 19-page decision noted the FCC failed to adequately explain how compiling this employment demographic data served any legitimate regulatory targets. “The FCC has not shown that it is authorized to require broadcasters to file employment-demographics data or to analyze industry employment trends, so it cannot fall back on ‘public interest’ to fill the gap,” the judges concluded.
The court did not rule on the FCC’s argument that the 1992 Cable Act, which permits employee data collection for cable television, extended to all broadcasting. This point was sidestepped due to a prior appeals court ruling that deemed broadcaster equal employment opportunity outreach programs unconstitutional.
Groups like the National Religious Broadcasters and the American Family Association, which sought to block the rule, argued that the FCC order violated their First and Fifth Amendment rights, particularly because it included a “non-binary” gender option in the new form. Religious broadcasters contended this would force them to recognize genders beyond male and female. While government attorneys had indicated this option would be removed under a recent executive order, the Fifth Circuit deemed these constitutional arguments moot due to the FCC’s lack of statutory authority.
Broadcasters beyond religious organizations also opposed the FCC’s move, with the Texas Association of Broadcasters accusing the agency of regulatory overreach.
“Texas broadcasters are immensely pleased with the outcome of this ruling,” said TAB President Oscar Rodriguez. “The court’s action permits us to return our focus to super-serving our communities of license.”
The FCC has indicated it will not appeal the decision. FCC Chair Brendan Carr, who voted against the reinstatement last year, echoed the court’s findings. “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 & gender,” Carr stated. He has also moved to end the FCC’s DEI efforts, citing concerns about discriminatory policies.
This ruling effectively maintains a status quo in place since 2001, when the FCC put data collections on hold following a previous court decision that struck down parts of its Equal Employment Opportunity (EEO) requirements for broadcasters. While the FCC had collected such data since 1970, this latest court decision prevents its immediate return.
