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Texas and Religious Broadcasters Ask Appeals Court to “Stay” FCC’s Implementation of EEO Form 395B


As we reported previously, the FCC voted to reinstate its EEO Form 395B reporting requirement. Fearing a constitutional challenge, the FCC has not used the form in more than 20 years. Nonetheless, the Commission reversed course and will once again collect very specific employment data. The new form 395B will require broadcasters to annually report their employees’ race, ethnicity, and gender while classifying the employees by job categories.

 

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. Data collection could begin as early as September 30th.

 

The Texas Association of Broadcasters, the American Family Association, and the National Religious Broadcaster filed a petition for review with the U.S. Court of Appeals. The litigation challenges the constitutionality of the rule. Most recently, these parties filed a motion with the court to “stay” the implementation of the rule while the case is pending in court. The parties noted that the 395B report is unconstitutional because it unlawfully pressures broadcasters to engage in race- and sex-conscious employment practices. Moreover, because the data will be made public, third parties will use the form to force broadcasters to make certain hiring decisions.  

 

You can see a copy of the FCC’s 395B decision here.

 

You can see the joint request for "stay" filed by the Texas Association of Broadcasters, American Family Association, and National Religious Broadcasters here.

 

An in-depth analysis by noted communications attorney David Oxenford can be found here.

 

Our previous NewStream story on the FCC’s decision can be found here.

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