The Massachusetts Broadcastesr Association, in combination with the state broadcasters associations from every other state, the District of Columbia, and Puerto Rico, filed extensive Joint Reply Comments urging the FCC to reject the proposed reinstatement of FCC Form 395-B, which requires broadcast stations to report annually to the FCC their employee workforce categorized by race, ethnicity, gender and job category.
The Joint Reply Comments noted that the FCC ceased use of the Form 395-B twenty years ago in response to two separate decisions by the U.S. Court of Appeals that found prior iterations of the FCC’s associated EEO rules to be unconstitutional, in part because the employee data collected through the Form 395-B was used by the FCC to effectively enforce racial and gender quotas on stations whose workforces did not adequately match the characteristics of the local labor force. The Associations noted that the FCC lacks an adequate government interest in collecting such data, and particularly given the history of the form and those prior court decisions, reinstating the Form 395-B would place impermissible pressure on broadcasters to make race- and gender-based hiring decisions in order to achieve FCC-favored outcomes. The Joint Reply Comments argued that the FCC lacks any statutory authority for such data collection, and that alternate sources of such information, such as the EEOC and RTDNA, can provide similar information without creating the constitutional and stautory issues raised by the Form 395-B. Finally, should the FCC nonetheless proceed with reinstatement of the Form 395-B, the Associations urged the FCC to maintain the confidentiality of the collected information, and to use it only in aggregate form for industry trend purposes rather than station-specific actions.