With FCC Chairwoman Jessica Rosenworcel now emboldened by the presence of Anna Gómez as a third and decisive vote-maker on contentious proposals that will not get the support of the Commission’s two Democrats, another 3-2 party line victory has come.
This time, it involves the collection of workforce composition data for television and radio broadcasters.
A Fourth Report and Order, Order on Reconsideration, and Second Further Notice
of Proposed Rulemaking are all moving forward, thanks to the February 7 adoption by Democrats of the three EEO-related policy-making matters. The R&O and NPRM were not distributed until late Thursday afternoon.
Specifically, this action reinstates the collection of workforce composition information from broadcasters on Form 395-B. Additionally, addresses a 2004 Petition for Reconsideration — indeed, something filed 20 years ago. Furthermore, the FCC is now seeking comment to refresh the record regarding the reinstatement of collection of Form 395-A data.
A 62-page document outlining the specifics was shared by the FCC.
The actions by the Rosenworcel Commission come after the FCC suspended more than two decades ago its requirement that broadcast licensees file Form 395-B, which collects race, ethnicity, and gender information about a broadcaster’s employees within specified
job categories.
In July 2021, the Commission released a Further Notice of Proposed Rulemaking to refresh the record, a move designed to end the dormancy that with a 2-2 Commission could not move forward, as Republican Commissioners Nate Simington and Brendan Carr do not approve of the language in the FNPRM.
They still do not approve. Yet, “after careful consideration of the record,” Democrats moved forward to “reaffirm the Commission’s authority to collect this critical information,” putting the wheels in motion that broadcasters should resume filing Form 395-B on an annual basis.
“Given the importance of this workforce information and Congress’s expectation that such information would be collected and available, we reinstate this collection in a manner available to the public consistent with the Commission’s previous, long-standing method of collecting this data,” the FCC said.
For the Commission, the ability to collect and access data from Form 395-B is “critical,” as it will not only give the FCC information about the broadcast industry workforce but also empower them with insights and observations they can provide in reports to Congress. “Collection, analysis, and availability of this information will support greater
understanding of this important industry,” the Commission said.
The Commission added, “Without objective and industry-wide data it is impossible to assess changes, trends, or progress in the industry. Consistent with how these data have
been collected historically, we will make broadcasters’ Form 395-B filings available to the public because we conclude that doing so will ensure maximum accuracy of the submitted data, is consistent with Congress’s goal to maximize the utility of the data an agency collects for the benefit of the public, allows us to produce the most useful reports possible for the benefit of Congress and the public, and allows for third-party testing of the accuracy of our data analyses.”
With this move, the Commission is also addressing a pending petition for reconsideration from 2004 regarding the use of Form 395-B data from state broadcaster associations, while also deciding to seek to refresh the record on the reinstatement of the collection of FCC Form 395-A. This form concerns the workforce composition of multichannel video programming distributors (MVPDs).
In the document, the FCC explains that an idea to substitute Form 395-B with the Radio Television Digital News Association diversity study “would be inconsistent with the section 334 prohibition on changes and would provide a less complete view of the broadcast sector.” Also failing to serve as a suitable substitute is form EEO-1, the FCC determined.
Meanwhile, the the Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA) was brought into the spotlight, as concerns regarding the public availability of the data collected from Form 395-B arose. The conclusion from the Rosenworcel Commission? Neither CIPSEA nor the Freedom of Information Act affords an appropriate basis to collect Form 395-B information in a confidential manner. “Reinstatement of the Form 395-B data collection in a publicly available manner is wholly consistent with the equal protection guarantee contained in the Fifth Amendment of the Constitution,” the Commission added.
And, the FCC disagreed with a claim from the NAB and state broadcaster associations that the collection or publication of the data on a licensee- or station-attributable basis will still somehow result in unconstitutional “sub silentio” pressures or “raised-eyebrow” regulation, the Commission said.
