By Cameron Coats
The NAB has filed a Petition for Partial Reconsideration with the FCC around the reinstatement of staff diversity data collection, calling into question whether some aspects infringe on broadcasters’ First and Fifth Amendment rights.
This data collection, known as Form 395-B, involves gathering information about race, ethnicity, and gender from licensees – a practice that was paused for 20 years but has now been resumed. Now the NAB argues that forcing broadcasters to disclose employee demographic data to the public is a form of compelled speech that does not meet the strict scrutiny standard required by the First Amendment.
They assert that the FCC’s reasons for public disclosure, such as improving data accuracy, adhering to open data policies, and increasing data usefulness, are inadequate and possibly pretextual.
The petition also raises Fifth Amendment concerns, suggesting that the FCC disclosing such data to the public could unfairly pressure broadcasters into adopting hiring practices that favor certain demographics to avoid public scrutiny or activist pressure. This could, in essence, lead to preferential hiring, undermining the equal protection principles.
Furthermore, the NAB is worried 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 NAB specifically questions the FCC’s statutory authority to impose these rules on radio stations. They argue that the Communications Act does not explicitly mandate the FCC to regulate the EEO practices of radio stations as it does with television stations. This misinterpretation of authority, according to the NAB, could lead to unjustified regulatory burdens on radio broadcasters.
In light of these concerns, the NAB is urging the FCC to find alternative methods for collecting and utilizing this data that would not require public disclosure, thereby safeguarding broadcasters’ rights and protecting individual privacy.
While first set to take effect on June 3, the enforcement of any new or revised data collection requirements by the FCC’s Media Bureau is currently delayed until the Office of Management and Budget completes a review under the Paperwork Reduction Act. The Media Bureau plans to announce the specific compliance dates through a future Public Notice once they are determined.
