FCC Moves Ahead with Reinstating EEO Form 395-B for Broadcast Stations

By a 3-2 vote, the FCC adopted a Report & Order reinstating EEO Form 395-B to collect race, gender and ethnicity of broadcast station employees.  The form was thrown out as unconstitutional over 20 years ago when the data was used to enforce hiring quotas, and then suspended after another court rejected the FCC’s attempt to reinstate it as part of its new EEO broad outreach rules.  The FCC majority reinstating the form this time noted that it would not be used to enforce the FCC’s employment nondiscrimination and EEO requirements, but only to analyze industry trends and report to Congress.

The two dissenting Commissioners did so because the data being collected was being made public, essentially creating a “scorecard” of a station’s employee makeup that would put pressure on stations to make diverse hires.  Commissioner Carr’s dissent offers a synopsis of the Constitutional law issues that could form the basis for a legal challenge to the reinstated rule.  Commissioner Simington’s dissent focuses on his position that the FCC’s mandate goes beyond its authority.

We would not be surprised to see a legal challenge to the FCC’s decision, but even if that occurs, the likelihood of the new filing requirement being stayed is very dependent upon the judge appointed to hear the case.  Broadcast stations or station employment units with five or more full-time employees (30 hours/week) should, therefore, add September 30, 2024 to their calendars as a filing deadline.  The form is being revised, and the Media Bureau will issue a public notice when the form is available in LMS for preparation and filing.  Stations must use a payroll period in the months preceding the filing deadline.