The Federal Communications Commission voted 3 to 2 this month to require U.S. broadcasters to record and publicly disclose the race, ethnicity, and sex of their employees.
The now-pending regulation was first introduced after Congress’ 1992 Cable Act. The U.S. Court of Appeals for the District of Columbia struck it down in 2001 as unconstitutionally enabling the hiring of Americans for their skin color. The policy remained suspended until President Joe Biden’s FCC nominee received Senate confirmation in 2023 and flipped control of the commission to Democrats.
The FCC argued reinstating the race policy is “critical” because “it will allow for
analysis and understanding of the broadcast industry workforce” and is “consistent with Congress’s goal to maximize the utility of the data an agency collects for the benefit of the public.” The commission claimed it could not generalize or aggregate racial and sexual data because it would be “less useful.”
“We find no basis to conclude that the demographic data on a station’s annual Form 395-B filing would lead to undue public pressure,” the commission claimed.
FCC member Brendan Carr, however, said the rule moving into place is not consistent with the Consitution nor employment confidentiality requirements in the Civil Rights Act of 1964.
“The FCC’s ostrich-like claim that the record is devoid of any evidence that this public scorecard will be used to pressure broadcasters into making race- and gender-based hiring decisions does not withstand even casual scrutiny; indeed, it only raises additional questions under the law,” Carr wrote.
