FCC Loses Legal Challenge to Reinstated EEO Form 395-B

In a May 19^th decision that may well have other repercussions for FCC authority, the US Fifth Circuit Court of Appeals has overturned the FCC’s decision to reinstate the EEO Form 395-B to collect gender, race and ethnicity information about broadcast station workforces. The FCC will not appeal the decision.  As a result, the prospect of having to complete and file the form to publicize employment workforce information is something stations no longer have to plan for or worry about.

When the case was briefed during the prior FCC administration, five different arguments were made to defend reinstatement of the form.  The Court only dealt with the first one, where the FCC argued that it had statutory authority to collect the employment data but cited legislation tied to earlier legal actions overruling sections of the FCC’s EEO rules.  Because the Form 395-B data collection derived from those previously overturned rules, the Court found here that the EEO 395-B data collection was unlawful because it was beyond the FCC’s statutorily granted authority.

In tossing out the Form 395-B, the Court clarified that the FCC’s “public interest” standard was not some unfettered right for the FCC to set policy and rules but could only properly be employed in executing actions based on specific granted Congressional authority. The impact of that finding could have far-reaching implications for many FCC actions and cause the agency to examine its ability to continue enforcing some rules or policies.

While not focused on gathering the same data, other FCC EEO rules requiring the public reporting of job vacancy outreach, recruiting and hiring might also be scrutinized as being beyond the FCC’s scope of authority in the EEO arena. Further legal challenges an action by the FCC on its own motion could put other EEO requirements into a permanent trash bin.  We note that the current EEO rules and employment information gathering are the subjects of the FCC’s “Delete, Delete, Delete” proceeding and many licensees have called for their elimination.