The FCC issued an Order last Friday reinstating the collection of workforce composition data for television and radio broadcasters, requiring broadcast licensees to file Form 395-B, which collects race, ethnicity, and gender information about the licensee’s employees, on an annual basis. The requirement to file Form 395-B had been suspended for almost 20 years, but in July of 2021, the FCC issued a Further Notice of Proposed Rulemaking in an effort to refresh the public record regarding the form and determine whether the requirement should be implemented again. The Commission’s stated goal in reestablishing this requirement is to facilitate analysis and understanding of the broadcast industry’s workforce and changes and trends occurring in the industry.
The FCC’s EEO rules prohibit employment discrimination on the basis of race, color, religion, national origin, or sex and require almost all broadcast licensees to develop and maintain an EEO program to ensure equal opportunity and nondiscrimination in employment policies. Between 1970 and 2001, the FCC required the submission of Form 395-B, listing the composition of broadcasters’ workforce in terms of race, ethnicity, and gender. After a series of court rulings which determined that aspects of the FCC’s EEO rules at that time were unconstitutional, and called into question the legitimacy of the Form 395-B requirements, the FCC suspended the Form 395-B filing requirement in 2001. According to the FCC, these decisions did not directly implicate Form 395-B—they implicated how the data collected by the form was to be used. Accordingly, the Commission claims to maintain the authority to require broadcast licensees to submit Form 395-B.
In reinstating the Form 395-B requirement, the FCC restates that diversity in media organizations is critical for successfully serving viewers, listeners, and readers, but the Commission also noted that station-specific employment data would not be used for the purpose of assessing compliance with EEO regulations. The data collected with Form 395-B will be published publicly on a station-by-station basis. Commenters have expressed concerns with how this publicly-disclosed information may be used, claiming it could stir third parties to place pressure on hiring processes. In response, the Commission stated that it may reconsider its approach to such data collection if such issues arise, but it also stated that such concerns were overstated and outweighed by the FCC’s overarching goals in this proceeding. If, however, the Commission views diversity of employees is key to a broadcaster’s public service, it would seem that Form 395-B records would necessarily be considered at license renewal time. Dissents by Commissioners Carr and Simington echoed concerns regarding the value of the data collected and the potential for improper outside use of the publicly-disclosed data to pressure licensees’ hiring decisions.
The FCC also concurrently issued a Second Further Notice of Proposed Rulemaking on the establishment of a similar data collection requirement for multichannel video programming distributors on Form 395-A. The FCC tentatively concluded that the collection of Form 395-A should be reinstated along with Form 395-B and that the data collected by this form should also be made available for public review.
Broadcast licensees should make preparations to comply with this revived filing requirement and may want to review the status of their EEO programs. It is anticipated that the first filing of the revived Form 395-B will be due by September 30, 2024. If you have questions about Form 395-B, Form 395-A or any EEO requirements, please contact your FHH attorney.