Opponents Invoke Loper Bright and Bill of Rights in EEO Order Challenge

The FCC’s order on broadcasters' collection of workforce diversity data exceeds the agency’s authority, violates the First and Fifth Amendments, and runs afoul of the U.S. Supreme Court’s recent ruling ending judicial deference to regulatory agencies, said a brief from the National Religious Broadcasters, the American Family Association and the Texas Association of Broadcasters. The groups filed the brief Wednesday in the 5th U.S. Circuit Court of Appeals. The order’s requirement that broadcasters make their workforce diversity data available online is intended “to pressure broadcasters to engage in race- or sex-based hiring practices,” it said, concluding that the order “is fatally flawed in multiple respects and should be vacated.” The FCC didn’t comment.

The FCC lacks authority to collect and publish workforce diversity information because no statute gives it that power, the brief said. The order argued that statutes giving the FCC power to take specific actions in the public interest and statutes allowing it to collect information authorize the agency to take steps such as data collection. The religious broadcasters disagreed, saying agencies have only the power Congress has explicitly given them. “Courts do not defer to agency interpretations of even ambiguous statutes about the scope of their authority,” said the brief, citing the recent SCOTUS Chevron decision Loper Bright v. Raimondo. Congress, the brief said, authorized the FCC to collect information specifically on cable's employment practices but “has conspicuously not done so for broadcasters. This further reaffirms that the FCC lacks such power here.”

The order violates the Fifth Amendment because it forces broadcasters to categorize employees by race, ethnicity and sex, the groups said. In addition, it will cause broadcasters to use race- and sex-based hiring practices, the brief said. “By forcing each broadcaster to publicly disclose its Form 395-B responses, the FCC invites third parties -- whether located in a station’s market or elsewhere -- to file complaints against disfavored broadcasters,” the brief said. The groups point to statements by FCC Commissioner Geoffrey Starks, a vocal advocate for the order, as signaling that the agency would pressure broadcasters who lack diverse workforces. “Any rational broadcaster knows what the FCC expects and the price of noncompliance,” said the brief, pointing to quotes from Starks on “how critical it is to have diversity in our media organizations.” The brief also argued that the order violates the groups' First Amendment rights, because it doesn’t show that the FCC has a compelling interest to force broadcasters to disclose their diversity information. The FCC’s plan to update Form 395-B to include options to record non-binary gender categories compels broadcasters “to take a stance on contentious social issues.”

The groups also argued that the data collection order is arbitrary and capricious because the Equal Employment Opportunity Commission already collects some broadcaster workforce demographic data and the agency hasn’t shown why it needs the information. The FCC has argued that the data could be used for a report to Congress, but lawmakers haven’t requested such a report, the brief said. “Nothing in the record indicates that employment discrimination is unique to or more prevalent in the broadcasting industry, and the Order points to no legitimate basis warranting additional scrutiny or regulation,” the brief said. The agency also doesn’t adequately justify publishing the data, the brief said. The FCC “provides no reason why the public is better able to audit Form 395-B responses than broadcasters or the FCC,” and the record doesn’t show a history of broadcasters submitting false Form 395-B data. “The implausibility of these justifications undermines the Order and exposes the true motivation for collecting and compelling public disclosure of station-attributable Form 395-B responses -- to pressure broadcasters into race and sex-conscious decision-making.”

The groups behind the 5th Circuit brief have also asked the FCC for a stay of data collection using Form 395-B, which hasn’t yet begun (see 2406280049). The FCC is awaiting Paperwork Reduction Act approval from the Office of Management and the Budget. The agency has said it will issue a public notice when OMB approval is complete and an updated version of Form 395-B is available.