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Another FCC court loss

FCC chairman celebrates court loss in case over Biden-era diversity rule

5th Circuit: FCC can’t force broadcasters to report race and gender of employees.

Jon Brodkin – | 56
A judge's gavel with scales in the background.
Credit: Getty Images | SimpleImages
Credit: Getty Images | SimpleImages
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Federal Communications Commission Chairman Brendan Carr celebrated an FCC court loss yesterday after a ruling that struck down Biden-era diversity reporting requirements that Carr voted against while Democrats were in charge.

“An appellate court just struck down the Biden FCC’s 2024 decision to force broadcasters to post race and gender scorecards,” Carr wrote. “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.”

The FCC mandate was challenged in court by National Religious Broadcasters, a group for Christian TV and radio broadcasters and the American Family Association. They sued in the conservative-leaning US Court of Appeals for the 5th Circuit, where a three-judge panel yesterday ruled unanimously against the FCC.

The FCC order struck down by the court required broadcasters to file an annual form with race, ethnicity, and gender data for employees within specified job categories. “The Federal Communications Commission issued an order requiring most television and radio broadcasters to compile employment-demographics data and to disclose the data to the FCC, which the agency will then post on its website on a broadcaster-identifiable basis,” the 5th Circuit court said.

The FCC’s February 2024 order revived a data-collection requirement that was previously enforced from 1970 to 2001. The FCC suspended the data collection in 2001 after court rulings limiting how the commission could use the data, though the data collection itself had not been found to be unconstitutional.

FCC’s public interest authority not enough, court says

Led by then-Chairwoman Jessica Rosenworcel, the FCC last year said that reviving the data collection would serve the public interest by helping the agency “report on and analyze employment trends in the broadcast sector and also to compare trends across other sectors regulated by the Commission.”

But the FCC’s public-interest authority isn’t enough to justify the rule, the 5th Circuit judges found.

“The FCC undoubtedly has broad authority to act in the public interest,” the ruling said. “That authority, however, must be linked ‘to a distinct grant of authority’ contained in its statutes. The FCC has not shown that it is authorized to require broadcasters to file employment-demographics data or to analyze industry employment trends, so it cannot fall back on ‘public interest’ to fill the gap.”

The Biden-era FCC also cited Section 334(a) of the Communications Act, which was approved by Congress in 1992 and said that “except as specifically provided in this section, the Commission shall not revise the regulations concerning equal employment opportunity as in effect on September 1, 1992 as such regulations apply to television broadcast station licensees and permittees; or the forms used by such licensees and permittees to report pertinent employment data to the Commission.”

The 5th Circuit disagreed that this section gives the FCC authority to resume the data collection. “While § 334(a) explicitly mentions the collection of employment data, it is not an affirmative grant of authority; indeed, it is a restriction on the FCC’s power,” and does not “grant any authority to the FCC to collect this data,” the court said. Additionally, “to the extent that Congress ratified anything, it expressly tethered the FCC’s authority to collect Form 395-B to the equal employment opportunity regulations that are no longer in effect,” the ruling said.

US changed court position after Trump inauguration

The Biden-era FCC order said that “workforce diversity is critical to the ability of broadcast stations both to compete with one another and to effectively serve local communities across the country,” but that “the lack of industry-wide employment data over the last 22 years makes it difficult to measure the extent of any such progress” toward increasing diversity in the broadcasting industry workforce.

“Our ability to collect and access Form 395-B data is critical because it will allow for analysis and understanding of the broadcast industry workforce, as well as the preparation of reports to Congress about the same,” the FCC argued.

The Department of Justice informed the court in January that the US has a different position on the data collection now. The Trump DOJ said that “much of the Federal Communications Commission’s data collection through Form 395-B is mandated by statute,” but that other parts of the data collection are not statutorily required and are inconsistent with Trump’s executive orders.

The Carr-led FCC also filed a court brief saying it no longer defends a portion of the order that “updated Form 395-B to include the collection of non-binary gender information.” Carr ended the FCC’s promotion of DEI (Diversity, Equity, and Inclusion) initiatives immediately after Trump promoted him to the chairmanship. Carr has pushed companies regulated by the FCC to do the same, resulting in Verizon and T-Mobile dropping DEI programs in order to secure approval for mergers that required the FCC’s sign-off.

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Jon Brodkin Senior IT Reporter
Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry.
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