The US Court of Appeals for the Fifth Circuit has delivered a decisive blow to the FCC’s efforts under the Biden Administration to reinstate Form 395-B, vacating the Commission’s 2024 order around mandatory employment-demographics disclosure.
In a ruling filed May 19, the court concluded that the FCC lacked clear statutory authority to impose the mandate, calling the agency’s interpretation of its powers “freewheeling” and unsupported by congressional intent.
The ruling, brought about by appeals from the National Religious Broadcasters, American Family Association, and Texas Association of Broadcasters, halts the FCC’s plan to collect race, ethnicity, and gender data from most US radio and television stations, which the agency intended to post online on a station-identifiable basis. Chief Judge Jennifer Walker Elrod wrote, “While its authority to act in the public interest is broad, the FCC cannot invoke public interest to expand the scope of its authority to act in ways Congress has not authorized it to act.”
The FCC had not collected Form 395-B since 2002, when previous efforts to enforce equal employment opportunity rules were struck down in federal court for violating the Fifth Amendment. At the time, the DC Circuit found that the agency’s scrutiny of minority recruitment data pressured stations into race-conscious hiring practices.
In February 2024, the FCC attempted to revive the form under then-Chairwoman Jessica Rosenworcel using a new rationale: the information would not be for enforcement, but for analyzing industry trends to report to Congress. The updated form included non-binary gender options, ten job categories, and a “two or more races” classification.
The reinstatement had its fair share of critics, including the NAB, which filed a Petition for Partial Reconsideration with the FCC in June. The association argued that the public disclosure of this data could pressure broadcasters into adopting hiring practices that favor certain demographics to avoid public scrutiny or activist pressure, potentially leading to preferential hiring and undermining equal protection principles.
The NAB also raised concerns about the safety and privacy of non-binary employees, who might face targeted harassment or unwanted attention due to the public disclosure of their gender information.
The court rejected the FCC’s justification under its general “public interest” authority, citing longstanding precedent requiring agencies to link actions to a specific statutory mandate. “Public interest is merely the ‘touchstone’ for FCC action, guiding the exercise of its discretion in carrying out its statutorily prescribed functions,” the court said. “This touchstone does not grant freewheeling authority.”
“The FCC undoubtedly has broad authority to act in the public interest,” the court concluded. “That authority, however, must be linked to a distinct grant of authority contained in its statutes.”
The ruling vacates the FCC’s 2024 order in full and blocks the resumed collection and public release of broadcaster employment data unless Congress takes direct legislative action.
An immediate supporter of the court’s decision? Current FCC Chairman Brendan Carr, who took to X to say, “An appellate court just struck down the Biden FCC’s 2024 decision to force broadcasters to post race and gender scorecards. 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.”
National Religious Broadcasters General Counsel Mike Farris told Radio Ink, “NRB is very encouraged by the Fifth Circuit’s strong defense of the First Amendment. The prior administration had elevated woke ideology over time-honored principles of freedom of speech and association. The desire to use the power of government to gather information for no other legitimate governmental purpose but to harm the political opponents of regulated entities is utterly un-American. That threat is now behind us thanks to this decision from the Fifth Circuit.”
In a statement, TAB President Oscar Rodriguez added, “We’re very pleased that, relying directly on arguments raised in the Texas Association of Broadcasters’ appeal filings, the Fifth Circuit unanimously found that the FCC lacks any statutory authority to collect broadcaster employment data, and therefore is not permitted to require broadcasters to file Form 395-B to provide such data, much less publish it as the FCC intended to do.”
“Texas broadcasters are immensely pleased with the outcome of this ruling, and TAB’s Board of Directors is to be commended for undertaking the risk that any lawsuit against the federal government entails. The court’s action permits local broadcasters to focus anew on super-serving our communities of license.”
“We will do so in part by continuing to recruit talented professionals from all walks of life who are dedicated to arming communities with the information needed to ensure their safety, advance their understanding of community concerns and fulfill the promise of our democracy.”
