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.
In his dissenting statement, Carr dubbed the proposed rule a product of activists who want “to see businesses pressured into hiring people based on their race & gender.”
“This is no benign disclosure regime. The record makes clear that the FCC is choosing to publish these scorecard[s] for one and only one reason: to ensure that individual businesses are
targeted and pressured into making decisions based on race and gender,” Carr wrote.
Not only did Carr confirm the new plan violates the 2001 DC court’s decision on MD/DC/DE Broadcasters Association v. FCC, but he also said it rejects the 1998 D.C. Circuit Court of Appeals decision in Lutheran Church–Missouri Synod v. FCC, which found that race and sex scorecards “pressure license holders to engage in race-conscious hiring.”
“By requiring public disclosure of these race and gender scorecards, the FCC is ensuring that broadcast stations will be targeted by activist groups, media campaigns, and conceivably the government itself—unless those broadcasters hire the right (if unspecified) mix and type of employees. In other words, the FCC is standing up the same type of race and gender-based pressure campaign that the D.C. Circuit invalidated twice before. It is just doing so in a
more roundabout way,” Carr continued.
Carr expects the rule to once again end up in court because the FCC did not “establish a government interest sufficient to survive Fifth Amendment review” and the rule “runs afoul of the First Amendment.” Likely the FCC majority expects that this time the court has been stacked with far-left judges and therefore will ignore the Constitution in its ruling.
“Narrowly tailoring what is made public would have avoided the FCC playing a part in pressuring broadcasters into making hiring decisions on the basis of race and gender in violation of the Fifth Amendment. And it would have sidestepped a compelled disclosure that runs afoul of the First Amendment,” Carr concluded. “My suggestions were ultimately rejected, and we are now left with an item that runs headlong into the Constitution.”
