FCC Reinstates Collection of Broadcast Employment Data on Form 395-B

Lerman Senter PLLC

After a hiatus of more than 20 years, the FCC will again require radio and television broadcasters to submit information about the race, ethnicity, and gender of their employees. The information, to be filed on FCC Form 395-B, will be made available to the public on a station-by-station basis, as it was before the requirement to file the form was suspended in 2001 based on legal challenges. However, the information will be easier to review than it was 20 years ago because it will be included in FCC online databases.

In the Report and Order announcing the reinstatement of Form 395-B, the FCC repeatedly emphasized that the employment data collected on the form will not be used to assess a station’s compliance with the FCC’s EEO rules; instead, it will be used “to report on and analyze employment trends in the broadcast sector and also to compare trends across other sectors regulated by the Commission.”

On two previous occasions, federal courts struck down the FCC’s use of Form 395-B data, finding that the way the FCC used the information pressured stations to grant hiring preferences to minorities and women, which the courts found violated the Constitution. The FCC believes the new data collection is constitutional because “[u]nlike the collection of this data 20 years ago, there is no connection between the Form 395-B collection . . . and the EEO program requirements applicable to broadcasters.”

Two FCC Commissioners strongly dissented from the decision and called into question the FCC’s authority to publicize the Form 395-B employment data on a station-by-station basis. Commissioner Brendan Carr stated that “the FCC is choosing to publish these [race and gender] scorecard[s] for one and only one reason: to ensure that individual businesses are targeted and pressured into making decisions based on race and gender.”

The FCC’s decision to reinstate the filing of Form 395-B is almost certain to face legal challenges. If the decision survives court challenges, broadcasters will file the form each year by September 30.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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