As we previously noted, the FCC has reinstated its annual EEO Report 395B on a 3-2 party-line vote. This form was used in the 1980’s and 1909’s. However, after two court decisions challenged the constitutionality of using Form 395B, the FCC eschewed using the form in 1998. Basically, the courts found that by using the form, the FCC was forcing stations to hire based on race or gender, which it deemed to be unconstitutional.
Fearing a constitutional challenge, the FCC has not used the form in more than 20 years. It has now reversed course and will once again collect very specific employment data. To avoid a constitutional challenge, the FCC indicated it would not use the data against any individual station. However, it will make the data contained in each station’s Form 395 B public via a web portal.
“Consistent with how these data have been collected historically, we will make broadcasters’ Form 395-B filings available to the public because we conclude that doing so will ensure maximum accuracy of the submitted data, is consistent with Congress’s goal to maximize the utility of the data an agency collects for the benefit of the public, allows us to produce the most useful reports possible for the benefit of Congress and the public, and allows for third-party testing of the accuracy of our data analyses. Thus, with today’s action, we restore the process of giving broadcasters, Congress, and ourselves the data needed to better understand the workforce composition in the broadcast sector. We find further that continuing to collect this information in a transparent manner is consistent with a broader shift towards greater openness regarding diversity, equity, and inclusion across both corporate America9 and government.”
Many general managers do not remember having to file Form 395B. Needless to say, it requires a lot of work. Moreover, making the data public raises some significant concerns. We are examining the FCC’s decision closely.
You can see the FCC’s decision to reinstate Form 395B here.