A New Orleans federal appeals court has all but squashed a Biden Administration effort to allow the FCC to reinstate “Form 395-B,” a document advocates said would assist in increasing employment in broadcast media of women and minorities but opponents claimed would improperly disclose detailed employee data to the general public.
In a ruling filed on Monday (5/19), the U.S. Court of Appeals for the Fifth Circuit effectively vacated the Commission’s 2024 order centered on mandatory employment-demographics disclosure. In doing so, the court ruled that the FCC lacked clear statutory authority to impose the mandate, calling the agency’s interpretation of its powers “freewheeling” and unsupported by congressional intent.
It also calls to mind the SEC v. Jarkesy Supreme Court ruling and the Loper Bright decision, both of which end “Chevron deference” and greatly neuter an agency’s ability to make final decisions on rulemakings.
With the end of a Form 395-B reinstatement effort pushed by former FCC Chairwoman Jessica Rosenworcel, the National Religious Broadcasters, American Family Association, and Texas Association of Broadcasters are the victors. The three groups joined together in an effort to halt the FCC’s plan to collect race, ethnicity, and gender data from most U.S. radio and television stations. At the heart of the dispute was the intention of the FCC under Rosenworcel to post the data online on a station-identifiable basis. Chief Judge Jennifer Walker Elrod wrote, “While its authority to act in the public interest is broad, the FCC cannot invoke public interest to expand the scope of its authority to act in ways Congress has not authorized it to act.”
The FCC had not collected Form 395-B since 2002, when previous efforts to enforce equal employment opportunity rules were struck down in federal court for violating the Fifth Amendment. At the time, the D.C. Circuit found that the agency’s scrutiny of minority recruitment data pressured stations into race-conscious hiring practices. In February 2024, the FCC attempted to revive the form under a new rationale: the information would not be for enforcement, but for analyzing industry trends to report to Congress. The updated form included non-binary gender options, ten job categories, and a “two or more races” classification.
The reinstatement had its fair share of critics, including the NAB, which filed a Petition for Partial Reconsideration with the FCC in June. The association argued that the public disclosure of this data could pressure broadcasters into adopting hiring practices that favor certain demographics to avoid public scrutiny or activist pressure, potentially leading to preferential hiring and undermining equal protection principles. The NAB also raised concerns about the safety and privacy of non-binary employees, who might face targeted harassment or unwanted attention due to the public disclosure of their gender information.
The court rejected the FCC’s justification under its general “public interest” authority, citing longstanding precedent requiring agencies to link actions to a specific statutory mandate. “Public interest is merely the ‘touchstone’ for FCC action, guiding the exercise of its discretion in carrying out its statutorily prescribed functions,” the court said. “This touchstone does not grant freewheeling authority … The FCC undoubtedly has broad authority to act in the public interest. That authority, however, must be linked to a distinct grant of authority contained in its statutes.”
The ruling vacates the FCC’s 2024 order in full and blocks the resumed collection and public release of broadcaster employment data unless Congress takes direct legislative action.
An immediate supporter of the court’s decision is current FCC Chairman Brendan Carr. Monday, Carr took to the X social media platform to say, “An appellate court just struck down the Biden FCC’s 2024 decision to force broadcasters to post race and gender scorecards. As I said in my dissent back then, the FCC’s 2024 decision was an unlawful effort to pressure businesses into discriminating based on race & gender.”
National Religious Broadcasters General Counsel Mike Farris told Streamline Publishing’s Radio Ink, “NRB is very encouraged by the Fifth Circuit’s strong defense of the First Amendment. The prior administration had elevated woke ideology over time-honored principles of freedom of speech and association. The desire to use the power of government to gather information for no other legitimate governmental purpose but to harm the political opponents of regulated entities is utterly un-American. That threat is now behind us thanks to this decision from the Fifth Circuit.”
In a statement, TAB President Oscar Rodriguez added, “We’re very pleased that, relying directly on arguments raised in the Texas Association of Broadcasters’ appeal filings, the Fifth Circuit unanimously found that the FCC lacks any statutory authority to collect broadcaster employment data, and therefore is not permitted to require broadcasters to file Form 395-B to provide such data, much less publish it as the FCC intended to do. Texas broadcasters are immensely pleased with the outcome of this ruling, and TAB’s Board of Directors is to be commended for undertaking the risk that any lawsuit against the federal government entails. The court’s action permits local broadcasters to focus anew on super-serving our communities of license.
Rodriguez concluded, “We will do so in part by continuing to recruit talented professionals from all walks of life who are dedicated to arming communities with the information needed to ensure their safety, advance their understanding of community concerns and fulfill the promise of our democracy.”
GOMEZ AGAIN ASSAILS AGENCY ‘WEAPONIZATION’
Among those lamenting the Fifth Circuit ruling is the woman who is poised to be the lone voting Democrat on the FCC: Anna M. Gomez. On Tuesday, she commented, “It’s a shame the court struck down reasonable transparency measures designed to shed light on the media market. But its broader message was unmistakable: the current FCC has no right to weaponize its authority against lawful, merit-based hiring decisions by private companies or target them because of their use of terms like diversity, equity, and inclusion.
“The FCC’s ideological crusade has never been about fairness—it’s about control,” she continued. “It’s a new and dangerous form of speech policing that has no place in a free society. We must continue to defend the First Amendment from those who use it as a weapon against the very freedoms it protects.”
