FCC Defends Most Broadcaster Demographic Reporting

WASHINGTON, Feb. 5, 2025 – A Federal Communications Commission lawyer faced sharp questioning from the U.S. Court of Appeals for the Fifth Circuit on Tuesday, while still defending the agency’s decision to collect demographic data from television broadcasters. 

At the heart of the case was Form 395-B, a longstanding but controversial Equal Employment Opportunity report that requires broadcasters to submit annual reports detailing the race, gender, and job classifications of their employees. 

The legal battle comes just days after the Department of Justice withdrew its support for the rule, citing concerns that the revised rule – which introduced a nonbinary gender category for the first time – conflicts with President Donald Trump’s executive order defining gender as strictly male or female.

During oral arguments on Tuesday, William Scher, attorney-advisor to the FCC, told the Fifth Circuit that the independent agency would no longer defend parts of the order that allowed employees to identify as non-binary.

However, Scher said, the FCC was standing by the rest of the order, arguing that it was statutorily authorized under Section 334(a) of the Communications Act and the demographic data was necessary for understanding employment trends in broadcasting.

First established in 1970, Form 395-B was suspended in 2001 after a federal court struck down the FCC’s EEO rules as unconstitutional. In Lutheran Church-Missouri Synod v. FCC (1998), the D.C. Circuit ruled that the FCC’s use of employment data to promote diversity hiring violated the First Amendment by pressuring broadcasters to make hiring decisions based on race and gender, arguing these practices could indirectly influence station programming. 

Despite this precedent, the FCC revived the form in 2024, claiming that the new version would be used strictly for statistical analysis. However, the FCC’s justification faced scrutiny from the Fifth Circuit.

One judge pressed the FCC on what specific part of the Communications Act allowed the agency to require demographic reporting: “What specifically in Section 334(a) says that this data collection can be used for this purpose?”

Scher responded that the agency has long understood diversity data collection as part of its public interest obligations: “Your Honor, Section 334(a) [of the Communications Act] directs the [FCC] not to revise the regulations concerning Equal Employment Opportunity that were in effect as of 1992,” Scher answered. 

A provision collecting demographic data dating to the 1970s

That includes a regulatory provision prohibiting discrimination, subsection 73.2080(a), Scher said, which the FCC has historically linked its authority to collect demographic data to, dating back to the 1970s. 

Scher further explained that, beyond compliance reviews, the data serves a broader purpose — allowing the FCC to analyze industry trends and assess whether existing anti-discrimination policies were effective in addressing bias in broadcasting.

Opponents, including the Texas Association of Broadcasters and the National Religious Broadcasters, represented by Jared Kelson, counsel at the law firm of Boyden Gray, argued that the rule violates the First and Fifth Amendments and that, even without the nonbinary gender category, the FCC has exceeded its authority by enforcing the rule. 

Kelson warned that public disclosure could expose stations to third-party pressure, including activist groups and outside scrutiny that extends beyond the FCC’s stated intent.

"The FCC can't have it both ways. Preventing discrimination is not the same as mandating diversity reporting. If the agency itself has previously said this rule does not justify enforcement, it should not be able to justify mandatory disclosures under the same section,” Kelson said.

After decades of legal uncertainty, Kelson urged the Fifth Circuit to bring finality to the issue: “The parties in this case have been whiplashed for decades. This [legal battle] started in 1998 and should come to an end.”

The case unfolds against a broader national debate over diversity, equity, and inclusion policies, with conservative-led efforts seeking to roll back federal DEI initiatives across multiple agencies.

New FCC chair Brendan Carr, who voted against reinstating Form 395-B, has called it a “race and gender scorecard” that could expose broadcasters to activist pressure and public scrutiny.

Carr has also moved to dismantle DEI programs within the FCC.

Legal experts have suggested the court was unlikely to uphold the EEO order. However, even if it does — or sends it back for further review — Carr could still overturn it by addressing pending reconsideration petitions at the FCC from Catholic groups and the National Association of Broadcasters.