In National Religious Broadcasters v. FCC, the Fifth Circuit struck down the FCC’s 2024 Rule requiring television and radio broadcasters to annually report employee demographic information using a form known as Form 395-B.  The case, brought by a coalition of broadcasters and industry associations, centered on whether the FCC had the statutory authority to mandate the collection and public disclosure of data on the race, ethnicity, and gender of broadcast employees.

The FCC first introduced employment data reporting in the 1970s, as part of its broader effort to support equal employment opportunity within the broadcasting industry.  These requirements were intended to ensure that broadcasters were making good-faith efforts to diversify their workforces and that the agency could monitor industry-wide trends.  Over time, Form 395-B became the central tool for gathering that information.  However, legal challenges emerged, especially in the late 1990s and early 2000s, with courts raising concerns about how such data collection might inadvertently pressure broadcasters into making employment decisions, even if unintentionally.  As a result, the use of Form 395-B was suspended in 2002.

More than two decades later, the FCC moved to reinstate the form.  In February 2024, the agency issued an order requiring broadcasters to file Form 395-B annually.  The updated version included revised job categories and additional gender options in response to public feedback.  The data collected would be published on the FCC’s website, allowing the public to see the demographic makeup of individual broadcast licensees’ workforces.  The FCC explained that the goal was not to enforce employment quotas or standards, but rather to provide transparency and insight into industry employment patterns.

However, several broadcasters and associations, including the National Religious Broadcasters, the Texas Association of Broadcasters, and the American Family Association, petitioned the Fifth Circuit to review the order.  They argued that the FCC did not have the legal authority to mandate such disclosures and expressed concern that public identification of demographic data could open stations to external pressure regarding their hiring practices.

Writing for the court, Chief Judge Elrod focused squarely on whether Congress had granted the FCC the authority to require broadcasters to submit such data.  While the Communications Act of 1934 gives the FCC broad discretion to act in the public interest, the court emphasized that such authority must be connected to specific congressional mandates.  The judges concluded that none of the provisions cited by the FCC—either in the original Communications Act or in later amendments like the 1992 Cable Act—gave the agency the express power to require the disclosure of demographic employment data in this way.

The court also examined the FCC’s argument that Congress had effectively ratified Form 395-B through the 1992 Cable Act, which included language referencing equal employment opportunity rules and reporting forms.  But the court pointed out that those rules were tied to a set of regulations that have since been either rescinded or struck down as unconstitutional.  Furthermore, the FCC itself had stated that the data collected through Form 395-B would not be used to assess broadcasters’ compliance with current nondiscrimination requirements, weakening the connection between the data and any active regulatory function. Rather than delve into the constitutional arguments raised by the petitioners—including concerns about free speech and equal protection—the court resolved the case by focusing solely on statutory authority.  Because it found that the FCC did not have the legal basis to mandate the disclosures, it granted the petition and vacated the order.

Damonta D. Morgan is an attorney at a law firm in Washington, D.C.