The Federal Communications Commission has laid out its legal basis for resuming collection of workforce data from U.S. broadcasters.
It filed a 112-page document in response to broadcasters who are challenging its collection program. Data collection originally had been set to resume at the end of September but was pushed back by the FCC.
The commission’s decision to restart its longstanding collection of employment data from broadcast licensees drew criticism from the NAB and others. But it was the National Religious Broadcasters and the Texas Association of Broadcasters that mounted legal challenges. The organizations filed separate suits that were later combined into one court docket.
The FCC order, passed last winter, requires broadcasters with five or more full-time employees to report to the commission — and to make public — the gender, race and ethnicity of their workforces. The collection of Form 395-B had been suspended in 2001 amid questions of its constitutionality.
The FCC has stated that it uses the information collected from the reports to study broadcast industry employment trends. The agency contends that resuming the data collection is necessary to understanding whether “the level of diversity in the broadcasting industry workforce” has improved.
The commission said it rejects the notion that collection of employment statistics, and the public release of the findings, violates the First Amendment rights of broadcasters. The FCC says the Communications Act directs and grants a statutory mandate for its authority to collect the employment data from broadcasters.
The new Form 395-B will include two additional racial categories and a “non-binary” gender classification. Some religious broadcasters especially took issue with the additions, saying the inclusion of a non-binary category infringes on their First Amendment rights by forcing them to recognize genders beyond that of traditional male and female.
The FCC argues in its court filing that there is no constitutional problem with the order, whether under the equal protection guarantee of the Fifth Amendment or the protection of free speech in the First Amendment.
“The mere fact that a regulation takes account of race or sex does not make it suspect,” its lawyers argued.
Public release of the employment data has also been a point of contention; but the FCC says in its filing that workforce data has been publicly available since 1970.
“Adhering to the historical practice of making this data public is likely to result in more reliable and useful data,” it says, “and transparency outweighs the potential risks.”
The FCC rejected an argument from broadcasters that third parties would misuse Form 395-B data to pressure stations to engage in preferential hiring practices, calling this speculative.
“The benefits of making Form 395-B data publicly available — as it has been since the data collection originated in 1970 — would outweigh any harm to broadcasters,” it wrote.
In conclusion the FCC says nothing about the collection or disclosure of Form 395-B data interferes with a broadcaster’s ability to communicate its own message or to suggest the broadcaster agrees with the FCC’s views. “Form 395-B only requires reporting of factual information … to allow the commission to analyze trends.”
The commission believes that oral argument would assist the Fifth Circuit Court of Appeals in deciding this case. “Oral argument will enable counsel to answer any questions the court might have regarding the Federal Communications Commission’s decision to resume its longstanding collection of employment data from broadcast licensees.”
When the FCC issued its order last winter, Brendan Carr, its senior Republican, voted against it. He said the vote meant “the FCC will now post a race and gender scorecard for each and every TV and radio broadcast station in the country.” He said he would have gone along with reinstating the requirement to file EEO Form 395-B and would have been OK with releasing the data on an aggregated or anonymous basis. But he said the plan to publish data on a station-by-station basis violates the First and Fifth Amendments.
