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Law Firm Tells Stations to Save EEO Data “Just In Case”

An FCC order reinstating the collection of Form 395-B went into effect June 3

This is excerpted from Hardy, Carey, Chautin & Balkin’s May issue of its monthly Broadcast Newsletter.

The FCC’s Media Bureau recently announced that the order reinstating the EEO Form 395-B filing requirement for broadcasters was published in the Federal Register to become effective today, June 3, 2024.

In the days just before that announcement, two petitions for reconsideration of the order were filed with the FCC, and separate petitions for review were filed in the US Court of Appeals (District of Columbia) by the National Religious Broadcasters and in the U.S. Fifth Circuit Court of Appeals by the Texas Association of Broadcasters.

While it is unlikely that the FCC’s 3-2 majority will overturn its decision on reconsideration, the court actions may provide a mechanism to stay the filing requirement until legal challenges are complete.

But that is certainly not a given. The FCC has filed a motion to consolidate the two legal proceedings.

The FCC’s “effective date” announcement noted that because the form, as adopted, may contain new or modified information collection requirements, compliance with the order’s filing requirements will not be required until the Office of Management and Budget (OMB) completes review of any information collections required under the Paperwork Reduction Act.

[Related: “Restart of FCC’s EEO Data Collection Plan Faces Legal Challenges“]

When that is complete, the Media Bureau will issue a notice announcing the date when broadcasters must begin complying with the filing requirement.

So, will stations have to file the form by September 30th of this year, as the rule requires? It’s not out of the question.

OMB review could go quickly, followed by the Media Bureau compliance notice. At that point, it would be up to a court action to halt the filing requirement, the likelihood of which depends upon several factors.

So, stations with five or more full-time employees, or in a station employment unit with five or more, should preserve payroll data for a pay period in July, August or September to be ready to report on the race, ethnicity and gender of employees in the unit — just in case all approvals are received and legal challenges fail.