A recent decision by the Fifth Circuit Court of Appeals has effectively terminated the Biden Administration's initiative to empower the Federal Communications Commission (FCC) to reintroduce "Form 395-B." This document, initially designed to enhance employment opportunities for women and minorities in broadcast media, faced significant opposition due to concerns over disclosing sensitive employee information. In its ruling on May 19, the court invalidated the FCC's 2024 directive mandating the disclosure of employment demographics. The judges ruled that the FCC lacked clear legal authority to enforce such a requirement, labeling the agency's interpretation of its powers as overly broad and unsupported by legislative intent.

The Fifth Circuit’s verdict draws parallels with past landmark cases like SEC v. Jarkesy and Loper Bright, both of which curtailed agencies' discretion under Chevron deference. These rulings have significantly limited the FCC's ability to autonomously implement regulations without explicit congressional approval. Chief Judge Jennifer Walker Elrod emphasized that while the FCC possesses broad authority to act in the public interest, it cannot extend this mandate beyond what Congress has explicitly authorized.

This development marks a victory for organizations such as the National Religious Broadcasters, American Family Association, and Texas Association of Broadcasters, who opposed the FCC's plan to collect detailed demographic data from U.S. radio and television stations. At stake was the FCC's intention, led by former Chairwoman Jessica Rosenworcel, to publish this data online in a station-identifiable format. Notably, the FCC had ceased collecting Form 395-B since 2002 after earlier efforts were deemed unconstitutional due to violations of the Fifth Amendment.

In February 2024, the FCC proposed reviving the form under a revised rationale: the collected information would serve analytical purposes rather than enforcement actions. The updated form introduced non-binary gender options, expanded job categories, and included classifications for multiple races. Despite these changes, critics, including the National Association of Broadcasters (NAB), expressed concerns about potential repercussions from publicly disclosed data. They argued that such transparency could pressure broadcasters into adopting hiring practices favoring specific demographics, thereby undermining principles of equal protection.

Furthermore, privacy advocates highlighted risks associated with revealing sensitive details about non-binary employees, who might become targets for harassment or unwanted attention. The court ultimately rejected the FCC's justification, citing the necessity for regulatory actions to align with specific statutory mandates rather than relying solely on general public interest claims.

The ruling not only nullifies the FCC's 2024 order but also prohibits the resumed collection and publication of broadcaster employment data unless Congress enacts direct legislative measures. Current FCC Chairman Brendan Carr voiced support for the court's decision, asserting that the previous administration's efforts constituted an unlawful attempt to coerce businesses into discriminatory practices based on race and gender.

National Religious Broadcasters General Counsel Mike Farris praised the Fifth Circuit's defense of the First Amendment, criticizing prior attempts to leverage governmental power for ideological purposes detrimental to freedom of speech and association. Similarly, TAB President Oscar Rodriguez celebrated the unanimous decision, affirming that the FCC lacks statutory authority to collect or disclose broadcaster employment data.

This outcome enables local broadcasters to refocus their efforts on serving their communities effectively. By continuing to recruit diverse talent committed to providing essential information, broadcasters aim to strengthen community safety, foster understanding, and uphold democratic ideals.