David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

On February 22, the FCC released an Order reinstating the requirement for radio and television broadcasters, commercial and noncommercial, to annually file an FCC Form 395-B.  All station employment groups with 5 or more full-time employees would need to classify all station employees, both full-time and part-time, by race or ethnicity and gender, as well as by the type of job they perform at the station (see the most current version of the form here).  The form, which will be amended to allow employees to be classified as “non-binary” as well as male and female, will likely need approval of the Office of Management and Budget under the Paperwork Reduction Act before broadcasters will be required to comply.  The Form would be filed by September 30 of each year after the effective date, reporting on the employment profile of the station in a pay period in July, August, or September (the same pay period to be used each year).

The Form is not new, though its use has been on hold for over 20 years.  A version of this form had been used by the FCC in the 1980s and 1990s, but its use was put on hold in 1998 as the result of court decisions finding unconstitutional the FCC’s use of this information to impose additional regulatory burdens on broadcasters whose employment profile did not reflect the demographics of its service area.  The court’s concern was that these additional regulatory actions forced broadcasters to make hiring decisions based on race or gender, a form of prohibited discrimination.

For more than twenty years, the use of FCC Form 395-B has remained suspended.  During this period, the FCC has stated that it believed that federal law requires the collection of industry-wide data about diversity in the broadcast workplace, but the FCC struggled with ways to collect the information and making sure that broadcasters were diligent in providing it, while avoiding its use for any discriminatory purpose.  It has been consistently said that the best way to do that was to not reveal the information filed by any individual station so, during this period, the Commission was looking for a way to collect the data from stations, while keeping it anonymous.

In last week’s decision, the FCC decided to again collect this employee information from each broadcaster and, over the strong objections of Commissioners Carr and Simington, it decided not to keep the information anonymous.  Instead, broadcasters will need to upload a copy of their completed Form 395-B to their FCC-hosted online public inspection file by September 30 each year.  The majority of the Commissioners said that the FCC’s rules already prohibit the use of Form 395-B information for any finding that a broadcaster has not complied “with the nondiscrimination or equal employment opportunity requirements of Section 73.2080.”  That protection was deemed sufficient by the majority to demonstrate that this information would not be used against a broadcaster in a way that was prohibited by the courts. Section 73.2080 is the FCC rule that requires broadcasters to provide equal opportunities in their hiring practices.  The decision also promises that any attempt by any third party to use the information to attack a broadcaster’s compliance with these antidiscrimination policies would be expeditiously dismissed.

In dissent, the Republican commissioners suggested that the public posting of this data could lead to the impermissible result feared by the courts – either through “raised eyebrow” regulation by the FCC or other agencies, or by private parties who would have access to this information which would again cause the broadcaster to make hiring decisions based on race and gender of applicants for job openings, rather than based on the applicant’s qualifications.  Thus, they argued, the requirement for the public disclosure of this information by each station employment unit was still unconstitutional.

One can easily imagine the potential for mischief if this information is in fact made public for each station.  The majority opinion claimed that making the information public was important not only for the preparation of reports to Congress, but also so that the public could check on the data provided by the broadcaster to ensure its accuracy.  The potential for problems with the accuracy of the data is certainly there, as broadcasters, if they have not otherwise legally  collected information about the race, ethnicity, and gender of each employee (information which would have to be collected after hiring to avoid potential claims of discrimination in the initial employment process), are allowed to classify information based on a “visual survey” classifying the employee based on “the minority group to which he or she appears to belong, or is regarded in the community as belonging.”

Given the potential for error in such visual identifications, what would happen if an outside group decided to challenge the broadcaster’s classification of its employees and complain that the broadcaster was not filing accurate reports at the FCC?  You could see a challenge that a broadcaster was misrepresenting its employment profile to enhance its reputation in the community or for some other reason.  If it could be shown that a broadcaster had in fact made mistakes in its classification of its employees, could that be used for a challenge to a broadcaster’s qualifications?  It would not be a challenge based on Section 73.2080 (which the FCC said was prohibited), but instead one based on the accuracy of the reporting, which was not part of the FCC’s promise to not use the form’s information to penalize a broadcaster.

In what is perhaps an even more likely situation, broadcasters have been known, from time to time, to miss regulatory paperwork filing deadlines.  In recent months, we noted on our Blog large fines for the failure to timely file just one annual EEO public inspection file report.  Not timely filing a required ownership report, or the failure to upload to a station’s public file Quarterly Issues Programs Lists or political broadcasting information by FCC-imposed deadlines, have also led to enforcement actions.  Like any of those documents, the Form 395-B is one more paperwork requirement that can be forgotten and can lead to a station being penalized.

We would not be surprised to see appeals or requests for reconsideration of this ruling.  Reconsideration requests would be due 30 days after the order is published in the Federal Register.  We will see what happens when that time comes.  But as the requirement may still become effective even if it is being reviewed, stations should start making compliance plans in the event that the form has received all necessary approvals in time for a September 30, 2024 filing deadline.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.