The Federal Communications Commission has reignited controversy with a 3-2 party-line decision to mandate yearly submission of Form 395-B by broadcasters, detailing the race, ethnicity, and gender data of their employees. The form had been defunct for twenty years.
FCC Chairwoman Jessica Rosenworcel again flexed her newfound partisan power in the vote, after the measure has been stuck in a deadlock since 2021.
The Commission’s Democrats argue that accessing and analyzing this hiring data is crucial for gaining insights into radio and television’s workforce diversity, which in turn will inform reports to Congress and enhance understanding of the sector. The commission insists on the public availability of Form 395-B filings to ensure data accuracy and fulfill Congressional expectations for public benefit and transparency.
With the ruling, the FCC has dismissed alternative data collection methods, like the Radio Television Digital News Association diversity study and form EEO-1, as insufficient substitutes for Form 395-B. The Commission also concluded that public disclosure of Form 395-B data does not conflict with CIPSEA or the Freedom of Information Act, and is in line with the Fifth Amendment’s equal protection guarantee.
However, this move has notably displeased Republican Commissioners Brendan Carr and Nathan Simington, who have voiced strong objections, particularly regarding the public disclosure of this data.
While Carr acknowledged the FCC’s authority to collect such information under Congressional direction, he condemned the choice to make these data publicly available on a station-by-station basis. He argued that this approach succumbs to activist pressures, aiming to influence hiring practices based on race and gender through public scrutiny – a stance he believes infringes on the First Amendment and the equal protection guarantees of the Fifth Amendment.
Simington shared Carr’s concerns, emphasizing that publicizing demographic employment data could unjustly coerce broadcasters into racially conscious hiring, contravening the Fifth Amendment. Simington also questioned the utility of this data for national policy, arguing that its publication serves no legitimate purpose and fails to offer meaningful insights for FCC EEO consideration.
Their dissent underscores a growing political divide within the FCC, highlighting concerns over privacy, constitutional rights, and the potential implications of making sensitive employment data publicly accessible.
