Reinstatement of EEO Form 395-B Appears Imminent

Posted on December 29th, 2023 by

In mid-December, the FCC issued a news release that Commissioner Starks had joined with 27 members of Congress who wrote to the FCC urging reinstatement of collection of broadcast workforce diversity data.  On the heels of that release, FCC Chairwoman Rosenworcel began circulation of a proposed Report & Order and Further Rulemaking in the FCC’s proceeding considering whether to reinstate the FCC’s Form 395-B, suspended over two decades ago.  That form previously collected gender and ethnicity information for broadcast station employees.

The FCC’s updated rulemaking proceeding about the form considered a wide-ranging number of topics, to include whether or not submitted data using the form should be kept confidential given that it cannot be used for enforcement purposes.  Whether the information would be submitted anonymously or just held confidentially by the FCC staff was a specific item on which the FCC sought comment. We note that given the evolution of employment laws in the last two decades, the content and instructions to the April 2000 form version are dated, but the rulemaking considered statutory language that may significantly limit the ability to modify the data being collected or whether the data needs to be station specific. The FCC also contemplated updating racial classifications on the form.

One unknown is whether or to what extent a revised form will need to be approved by the Office of Management and Budget.  A footnote in the rulemaking stated that OMB has approved the information collection, subject to the Commission’s decision resolving the data confidentiality issues, but also acknowledged that the FCC must consult again with OMB on that and potentially other issues.  It will be interesting to see whether there is a consensus of the Commissioners in reinstituting the data collection, what is in the “further rulemaking” and how quickly submission of the data will be required.