Perry Atkinson and theDove Media have filed a lawsuit against the Federal Communications Commission after the agency revived a rule that would require broadcasters to submit annual station employment reports. The nonprofit Christian media company, founded and owned by Atkinson, consists of radio and low-power television stations scattered across California, Oregon and Boise, Idaho.
The mandatory collection of diversity data, known as Form 395-B, is set to resume this fall after a more than 20-year pause brought on by a court order. The FCC voted to reinstate the requirement earlier this year, saying the collection of the employment data gives it a better understanding of workforce composition in the broadcast sector.
In a press release announcing its lawsuit, theDove says the rule “would force broadcasters to choose between hiring based on race or sex, or the risk of ruinous lawsuits.”
Pacific Legal Foundation, the law firm representing theDove pro bono, says a rule requiring annual reporting of employment demographic data would put companies like Atkinson’s at risk of being sued by third parties over perceived disparities in the race or gender makeup of their workforce.
“This danger forces employers either to risk the entire company’s future by fighting lawsuits or make hiring decisions based on immutable characteristics rather than merit,” wrote Pacific Legal Foundation in the release.
The reinstated rule has garnered heavy criticism in recent days, with the National Association of Broadcasters saying the public release of EEO data violates both the Free Speech Clause of the First Amendment and the equal protection component of the Fifth Amendment. The group filed a Petition for Partial Reconsideration with the FCC in early June. Collection of Form 395-B was suspended in 2001 based on arguments from the NAB and others that the practice was unconstitutional.
The FCC previously wrote that “continuing to collect this information in a transparent manner is consistent with a broader shift towards greater openness regarding diversity, equity and inclusion across both corporate America and governments.”
FCC Commissioner Geoffrey Starks, who voted in favor of the rule’s reinstatement, said in a statement, “This data will enable the commission to monitor employment trends in the industry — as we know, a dynamic and fast-changing one — and report to Congress on its learnings. It will give researchers new workforce composition information to explore. And it will grant members of the public transparency — a window into their local broadcast station, not just as a programmer, but as an employer.”
Representatives at Pacific Legal Foundation disagree, saying the agency’s EEO collection plan is not only in violation of the constitution, but also an opportunity to publicly shame companies.
“The Constitution gives Congress alone the power to make laws and, therefore, Congress cannot give that power away to agencies,” said Oliver Dunford, senior attorney at Pacific Legal Foundation. “Nor can these agencies accomplish indirectly what they are precluded from doing directly. The FCC therefore cannot use its reporting rule to publicly shame companies into adopting race- and sex-conscious hiring practices in violation of the Constitution’s guarantee of equal protection.”
[Related: “Law Firm Tells Stations to Save EEO Data ‘Just In Case‘”]
