WASHINGTON (Legal Newsline) - A religious broadcasting group has sued to block a Federal Communications Commission rule requiring all broadcasters with five or more employees to publish information about the racial and ethnic makeup of their workforce.
The FCC revived the rule in a 3-2 vote more than 20 years after a federal court had declared it an unconstitutional attempt to pressure broadcasters into hiring more minority employees, saying it needs the information to “support greater understanding of this important industry.”
Two Republican appointees dissented, saying that while Congress had authorized the FCC to collect minority employment data, the agency should aggregate the information instead of making it public for each broadcaster. Many large companies already make such information available, Commissioner Nathan Simington said, but the FCC risks a constitutional violation by requiring them to do so.
“What policy good is left other than `name and shame’ for station owners?” Simington wrote in dissent.
The FCC announced it would reinstate Form 395-B in February on a party-line vote, with the rule scheduled to go into effect June 3. The National Religious Broadcasters and American Family Association filed a petition with the Fifth Circuit Court of Appeals this week seeking to halt enforcement, calling it an “unnecessary and unlawful action.”
Wilson Freeman, an attorney with the Pacific Legal Foundation, said PLF also is interested in representing broadcasters who want to challenge the FCC rule. With each company’s work force racial makeup available online, Freeman said, “you can use it to put pressure on radio stations you don’t like, you can bring legal threats, you can go after paperwork violations.”
PLF recently sued the Federal Trade Commission over its new rule targeting noncompete employment agreements, part of a growing list of Biden Administration rules that seem to usurp the authority of Congress to impose these regulations.
As for the FCC's new action, a federal appeals court in Washington D.C. had already curtailed the use of 395-B in 1998, when the FCC required broadcasters to report the minority composition of their work force with surrounding communities. The rule was an unconstitutional attempt to “pressure license holders to engage in race-conscious hiring,” the court ruled.
The FCC tried to retailor the rule to require only the racial composition of job applicants, but the court held that was also “a race-based classification that is not narrowly tailored to support a compelling governmental interest.”
By publishing company-specific data, dissenting Commissioner Brendan Carr wrote, broadcasters will encounter “undue public pressure” from large investors concerned about their own diversity, equity and inclusion (DEI) policies and other third parties.
“The FCC’s ostrich-like claim that the record is devoid of any evidence that this public scorecard will be used to pressure broadcasters into making race- and gender-based hiring decisions does not withstand even casual scrutiny; indeed, it only raises additional questions under the law,” he wrote.
The Democratic majority on the FCC defended the reporting rule as necessary to understand the broadcast industry workforce as well as to prepare reports for Congress.
“Workforce diversity is critical to the ability of broadcast stations both to compete with one another and to effectively serve local communities across the country,” the FCC said.