FCC Reinstates Enhanced EEO Disclosure Requirements for Broadcasters

NRB | March 1, 2024 | Advocacy, Industry News

Just hours after an expert panel at NRB 2024 discussed the likelihood of the Federal Communications Commission (FCC) resurrecting the long-dormant data collection form 395-B, the FCC released an order to reinstate that form, the “Broadcast Station Annual Employment Report,” which would compel commercial and non-commercial television and radio broadcasters to annually report information on the race, ethnicity, and gender (or “nonbinary” status) of each of their employees. Broadcasters are already required to submit other reports on their equal employment opportunity (EEO) programs and practices. 

Discussing Form 395-B at the NRB Convention, panelists Joseph Chautin III, Managing Partner at Hardy, Carey, Chautin & Balkin, LLP and David Oxenford, Partner at Wilkinson Barker Knauer LLP, noted that a version of this disclosure was required by the FCC in the 1980s and 1990s, but was suspended after court rulings found that the form unconstitutionally placed undue regulatory burden on broadcasters. In Oxenford’s words, “One of the courts looked at it and said, this is reverse discrimination, because if you didn’t meet certain quotas, you didn’t match the number of women or minorities in your service area, in your numbers, at your station, you’d get pulled out of line at renewal time and be subject to more scrutiny.” 

While the form was suspended for over two decades, its return raises significant concerns for broadcasters.

The FCC says that the information collected will not be used to evaluate broadcasters’ compliance with nondiscrimination and EEO guidelines, but will only be used to compile industry data and reports to Congress. However, the information provided to the FCC in the form will not be de-identified or kept private by the Commission, opening the door to third-party weaponization of the online public inspection file (OPIF) to target specific broadcast stations. 

In his dissent, Commissioner Carr asserted that “This is no benign disclosure regime. The record makes clear that the FCC is choosing to publish these scorecards for one and only one reason: to ensure that individual businesses are targeted and pressured into making decisions based on race and gender.” 

In Commissioner Simington’s assessment, “Little or no new information appropriate for national policy consideration by this agency will be revealed by its implementation,” but the new filing requirement will pile onto the administrative burdens on stations to meticulously process all necessary paperwork on time or face huge financial penalties. In one recent case, Cumulus was fined $26,000 for failing to timely file an annual EEO report. At the NRB panel, Chautin described this decision as a signal from the FCC: “‘Be on notice. If you miss a file, It is a factor we consider as to whether or not you are monitoring and periodically evaluating your EEO program.’ That’s something to be concerned about.”

The information collection requirements contained in the form must be approved by the Office of Management and Budget (OMB), and the Media Bureau must determine a filing window before the requirements take effect. In the meantime, the FCC’s move is bound to face legal challenges as well.

Read more about the reinstatement of FCC Form 395-B at Broadcast Law Blog.

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