Broadcasters that have been in the industry long enough will recall that for many years stations had to file FCC Form 395-B (Annual Employment Report), reporting each year on the racial, ethnic and gender breakdown of the station’s staff by job category. The FCC would then use that information to assess whether the station had complied with the FCC’s EEO Rule, basing its review in part on the assumption that a station with nondiscriminatory hiring practices would naturally have a staff whose demographics matched that of its market’s labor force.
This results-oriented approach was then relied upon by petitioners to challenge the license renewal applications of hundreds of broadcast stations based upon no claim other than that the station was a discriminator because its staff did not match the racial, ethnic, and gender breakdown of the local labor force across the various job categories. Stations challenged in this manner had no choice but to defend themselves at great effort and expense while the FCC spent years assessing whether license renewal was merited. Stations that could not satisfy the FCC were subject to fines and, in extreme cases, loss of license.
While the FCC Form 395-B filing requirement began in 1970, its use was suspended in 2001 following a successful court challenge of the FCC’s EEO Rule by a coalition of the state broadcasters associations, which included the VAB. The court found that the FCC’s results-oriented EEO review in which the Form 395-B played a key role was improper, as a station might be sanctioned not for discriminatory conduct or practices, but for merely having a staff that didn’t mirror the local labor force. The court found the FCC’s approach to be an unconstitutional application of racial quotas.
When the court overturned the EEO Rule, the FCC announced a temporary suspension of the FCC Form 395-B requirement while the FCC assessed whether and how to revise its EEO Rule to pass Constitutional review. While the FCC did adopt a new EEO Rule, the new rule (still in place today) focuses on a stations’ EEO outreach efforts rather than on the race, ethnicity and gender of its staff, eliminating much of the point of Form 395-B.
As a result, the Form 395-B has remained out of use for nearly 20 years, with the state broadcasters associations (including VAB) joining together when needed to remind the FCC of the constitutional harm caused by the Form 395-B and urging that if use of the form is ever resumed, that it should be filed with a reputable third party acting as a clearinghouse for the aggregation of such data on a nationwide anonymous, non-attributable basis. This would deprive the FCC and activists of the temptation to improperly use station staffing information to draw inferences about a station’s compliance with the EEO Rule, and avoid the “chilling effect” on station employment decisions that concerned the court under the FCC’s prior rule.
Recently, however, some in Washington have been calling for the FCC to reinstate Form 395-B specifically as a tool for increasing minority employment in broadcasting. In that regard, FCC Chairman Pai recently received a congressional letter from Senator Chris Van Hollen and Representative Yvette Clarke demanding the reinstatement of Form 395-B, insisting that “the collection of such data and the use of Form 395-B are not optional; they are statutory requirements under Section 334(a) of the Communications Act.” (The letter can be found here: https://docs.fcc.gov/public/attachments/DOC-357897A2.pdf).
Chairman Pai sent a response to the Van Hollen/Clarke letter (https://docs.fcc.gov/public/attachments/DOC-357897A1.pdf) which notes that “with respect to the approach to Form 395-B you suggest, I have serious constitutional and statutory concerns. These concerns have been shared by Commission leadership under both Democratic and Republican Administrations, which is why the Commission has not adopted these reforms over the past decade and a half.”
As broadcasters begin what will be their third license renewal cycle without the overhanging shadow of the Form 395-B and the associated threats to license renewal it brought, those two sentences from Chairman Pai relay a lot. Pragmatically, they mean that the state broadcasters associations have collectively been successful in not only eliminating an unconstitutional rule, but in informing and reminding subsequent regulators of the harms involved in results-oriented EEO hiring requirements, lest they be tempted to return to that unconstitutional path.
Broadcasters and their state broadcasters associations have been strong supporters of equal employment opportunity in all industries, including broadcasting, and it’s important to remember that all stations are required by the FCC to be equal opportunity employers. However, thanks to the collective efforts of the state broadcasters associations, stations are now judged on the quality of their EEO efforts rather than on the demographics of their station staff.
Read the recent Inside Radio article on Chairman Pai’s response.