David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

On Friday (8/30), the FCC released a Public Notice confirming that the Form 395-B, reimposed by the FCC earlier this year (and the subject of several appeals), will not be due September 30, 2024, as we speculated earlier last week in our look ahead at September regulatory dates.  The Form 395-B is designed to collect information about the race, ethnicity, and gender of all broadcast employees in numerous categories of job responsibilities at broadcast stations (e.g., managers, sales employees, technical employees, “professionals,” clerical, etc.).    Last week’s Public Notice does not specifically say why the use of the form has been delayed, but it appears that the FCC has not determined that the reinstatement of the form must be approved under the Paperwork Reduction Act, or because the public nature of the filings or the addition of the “non-binary” gender category needs approval under the PRA.  In any event, the Public Notice explains that the FCC will provide notice to broadcasters at some future date as to when the filing will be required.

As we wrote in February when the FCC adopted its Fourth Report and Order reimposing the requirement for the filing of the form, it was to be submitted by September 30 each year, reporting on the make-up of station workforces for a consistently-used two week pay period from July, August, or September.  The use of the form has been on hold for more than 20 years because of constitutional concerns, as the FCC had used the form to impose penalties when a broadcaster’s workforce did not match the demographic profile of its community.  A court decision suggested that the FCC’s approach encouraged reverse discrimination – hiring based on racial or gender profiles rather than job qualifications.  Thus, the FCC put the use of the form on hold while it considered ways to collect demographic information about broadcast employees on an industry-wide basis, without tying that information to any specific stations.

Earlier this year, the FCC decided to reinstate the form, and abandoned a 20-year effort to anonymize the information.  The FCC’s February reinstatement was done with the promise that the Commission would not use the form for any enforcement purposes, though the information would be required to be posted publicly to each station’s online public inspection file.  The Republican Commissioners dissented from the reactivation of the form, fearing that the information would end up being used in some manner to penalize broadcasters for not hiring employees in certain demographic categories. These concerns have led to appeals of the FCC’s readoption of the form.

Those appeals, filed by the NRB (National Religious Broadcasters), the Texas Association of Broadcasters, and other groups, sought review of the FCC’s February decision to reimpose the form and tie the reported information to individual stations.  Petitions for reconsideration have also been filed with the FCC (along with requests to stay the effect of the reimposition of the filing requirement).  The FCC has not acted on any of these requests. The briefs in the court challenge are due this Fall, with a decision likely early next year.  Thus, as the form will not be due until at least September 30, 2025, the challenges to the reimposition of the form may well be resolved by then.

No matter the status of the challenges to the form, the fact is that the form does not need to be filed this September.  So this is one regulatory date that broadcasters can cross off their calendar for 2024.

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.