WASHINGTON, D.C.—The National Association of Broadcasters (NAB) has filed comments with the FCC regarding the commission’s order to reinstate the collection of radio and television stations’ workforce composition data on FCC Form 395-B. The filing says that the NAB “does not oppose reinstatement of the form” but seeks “reconsideration of the FCC’s decision in the Fourth Report and Order to make the Form 395-B data publicly available on a station-specific basis.”
The FCC noted in the Fourth Report and Order that reinstating Form 395-B would help it better track diversity in the broadcast industry. The rules went into effect on June 3 but the NAB and others have asked the FCC to reconsider the decision.
The NAB said that it opposes making the data public on a station by station basis “because, among other things, doing so violates both the Free Speech Clause of the First Amendment and the equal protection component of the Fifth Amendment.”
The NAB also argued against making the data public on a station by station basis because it might "deliberately unleash pressure on stations to engage in preferential hiring practices" and that the disclosure of data on non-binary employees might generate harassment.
“Given the Commission’s new categorization concerning non-binary employees, a number of broadcasters also have expressed concern on behalf of their employees who would be identified as such that they could be harassed due to the FCC’s decision to force broadcasters to place this information in their online public files,” the NAB argued.
In the filing, NAB also disputed recent statements by the commission that claim the FCC is “statutorily required to regulate the equal employment opportunity (EEO) practices of both TV and radio broadcast stations, when in fact, Congress has, at most, merely authorized the FCC to adopt and administer such rules. Moreover, even if Congress’s command that the FCC leave the TV rules as is was not mooted by subsequent court decisions, Congress has never suggested that the FCC should regulate radio in the same manner. Thus, under any reading of the statute, there is no Congressional mandate directing the FCC to impose EEO rules on radio stations, including the collection of Form 395-B.”
In arguing that the FCC’s choice to publicly disclose the Form 395-B data for individual broadcast stations contravenes the First Amendment. “The requirement to make the data public is subject to strict scrutiny as it compels speech about a controversial topic and cannot stand because the FCC fails to show that disclosing the data will further a compelling interest,” the NAB argued. “The FCC’s justifications for publicly disclosing the form data are empty on their face, and nothing more than pretextual administrative conveniences that do not justify public disclosure of the data even under lesser intermediate scrutiny. Moreover, the FCC makes no attempt to narrowly tailor its approach to its proffered purpose of the rule.”
NAB noted that the FCC has promised to use the data only to analyze industry trends and create reports to Congress, and not use the data to assess an individual station’s compliance with the EEO rules.
The NAB complained, however, that “disclosing the form data will deliberately unleash pressure on stations to engage in preferential hiring practices, thereby violating the equal protection clause. The FCC appears poised to repeat the same mistakes that led the D.C. Circuit Court of Appeals to reject two earlier versions of the EEO rules, including the collection of Form 395-B data.”
The NAB also raised “concerns that the Commission’s plan to modify Form 395-B to include a mechanism to account for those employees who identify as gender non-binary could harm such employees. We understand that some station employees who identify as gender non-binary may have concerns about being identifiable on Form 395-B as such due to potentially unwelcome attention from outside interests. NAB submits that it would be relatively simple for an interested external group to identify such an employee when the individual is identified on Form 395-B as gender non-binary, by job category, and works at a small station, or even a larger station in a small town. Essentially, the FCC’s choice to make the form publicly available could help facilitate the `doxxing' of such employees.”
“NAB strongly encourages the Commission to consider these concerns as further evidence that publicly disclosing the Form 395-B data on a station- specific basis is an ill-advised approach,” the filing argued.
“NAB respectfully requests partial reconsideration of the FCC’s decision in the Fourth Report and Order that requires making the workforce composition data on Form 395-B publicly available on a station-specific basis,” the NAB concluded.
The June 3 filing by the NAB is available here.
