Broadcasters: Workforce Data Collection Outside FCC Authority

The FCC’s order on collecting broadcaster workforce diversity data is outside its authority and violates the Constitution, said a reply brief from the National Religious Broadcasters, the American Family Association and the Texas Association of Broadcasters filed Friday in the 5th U.S. Circuit Court of Appeals (see 2410070023). “The FCC fails to identify any statutory provision or delegated function furthered by the Order,” said the filing. “Noticeably absent is any quote from statutory text. That’s because none exists,” it added. The equal employment opportunity order is “unlawful because the government requires race- and sex-based classifications, and seeks to pressure broadcasters to treat applicants differently based on race and sex,” said the groups.

The FCC has argued that collecting diversity data is part of the agency’s public interest mandate and also authorized by the FCC’s broad authority to collect information and prepare reports, but no specific language in those provisions requires the collection of race and sex data, said the broadcast and religious groups. While the agency has also pointed to language allowing it to conduct inquiries for enforcement purposes, the EEO order explicitly says that the workforce diversity data won’t be used for EEO enforcement, the filing said.

FCC arguments that the data is relevant to the agency’s interests in reporting on employment trends to Congress aren’t valid because Congress hasn’t specifically requested such a report, the groups said. “Self-declared agency interests are not congressionally delegated functions,” said the filing. That Congress has requested such reports in the past doesn’t mean that the FCC “can preemptively collect data in perpetuity, just in case Congress requests another report in the future,” Friday’s brief said.

The EEO order’s addition of a category for nonbinary gender to workforce diversity Form 395-B is too big a change to fall within statutory provisions that allow the FCC to make “non-substantive technical or clerical revisions in such regulations as necessary” to reflect changes in terminology, the filing said. The FCC “did not merely replace an outdated term with a more contemporary one, it created a category that dives headlong into a controversial topic of contemporary debate,” said the broadcast and religious groups. “Such a shift in reporting is anything but ‘minor.’”

The courts should heighten scrutiny of the EEO order because it compels employee categorization by race and sex, the brief said. The FCC hasn’t adequately explained why the confidential EEO data collection that agencies such as the Equal Employment Opportunity Commission already perform isn’t sufficient, the filing said. The agency didn’t consider alternatives that might address broadcaster concerns about their demographic data being made public and possibly used for pressure campaigns against stations. “The FCC’s contention that it needs more information about race and sex demographics than the agency specifically tasked by Congress to monitor and enforce EEO requirements is mindboggling,” the brief said.