Court of Appeals: FCC Lacks Authority to Enact Annual EEO Report Form 395B

As we have reported on several occasions, more than 20 years ago, the Courts found that using data from the Annual EEO Form 395B was unconstitutional. The old form required detailed information regarding the race, gender and ethnicity of a station’s workforce. As a result, the FCC stopped requiring stations to report data on an annual basis.

Last year, the FCC reinstated EEO Form 395B and tried to get around the prior court decision. Instead of using the detailed workforce data for enforcement, the FCC created a new rule requiring a station to make its workforce data public.

The U.S. Fifth Circuit Court of Appeals just struck down the regulation, ruling that the FCC lacked the authority to enact these rules. Importantly, it concluded that the “public Interest standard” was not enough to give the FCC statutory authority to enact this rule:

"The FCC undoubtedly has broad authority to act in the public interest. 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. ... Accordingly, the FCC lacks statutory authority to require broadcasters to disclose Form 395-B in the public-interest provisions that it cites."

Form 395B would have imposed significant burdens on stations to collect the data. It also forced stations to make employment information, including sensitive gender information, public.

FCC Chairman Brendan Carr issued the following statement on “X.”

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

We do not expect the rule to be appealed or reinstated. Importantly, this decision applies only to the FCC’s data collection, publication requirements, and issues related to Form 395B. It did not strike down the FCC’s underlying EEO rules. Those rules remain in place.

You can see our previous stories on Form 395B here.

A copy of the court’s decision can be found here.