Appeals Court Strikes Down FCC Workplace Diversity Reporting Rule

The Federal Communications Commission went beyond its authority, the Fifth Circuit concluded.

The seal of the Federal Communications Commission (FCC) in Washington on Dec. 14, 2017. Jacquelyn Martin/AP Photo

A federal appeals court on May 19 struck down a Federal Communications Commission (FCC) rule that required broadcasters to report workplace diversity data to the agency, finding the FCC does not have the authority to compel the reporting of such information.

“While its authority to act in the public interest is broad, the FCC cannot invoke public interest to expand the scope of its authority to act in ways Congress has not authorized it to act,” Circuit Judge Jennifer Walker Elrod wrote for the unanimous U.S. Court of Appeals for the Fifth Circuit panel that ruled in favor of a broadcaster and broadcasting organizations that challenged the rule.

The FCC did not respond to a request for comment by publication time.

“NRB is very encouraged by the Fifth Circuit’s strong defense of the First Amendment,” Mike Farris, general counsel at the National Religious Broadcasters (NRB), told The Epoch Times in an email.

“The prior administration had elevated woke ideology over time-honored principles of freedom of speech and association. The desire to use the power of government to gather information for no other legitimate governmental purpose but to harm the political opponents of regulated entities is utterly un-American. That threat is now behind us thanks to this decision from the Fifth Circuit.”

The commission in 2024 mandated that many television and radio broadcasters must, on an annual basis, report the race, ethnicity, and gender data of employees. Broadcasters were required to report the data using a document called Form 395-B. The FCC had collected the form periodically until 2002, when it adopted regulations concerning equal employment that addressed court rulings that found commission rules were unconstitutionally pressuring broadcasters to recruit and hire women and minorities.

The FCC said in reinstating the requirement that it had examined the matter and determined that the commission has the authority to “collect this critical information” for the purpose of analyzing and understanding the industry’s workforce.

The American Family Association and other plaintiffs sued, arguing that the FCC did not have the legal authority to require the workplace data reporting and that requiring the disclosure and publication of the data violated their constitutional rights.

The FCC pointed the court to the 1992 Cable Television Consumer Protection and Competition Act, which it said authorized the commission to collect the data.

The cited law does let the FCC take actions to execute its functions, but the FCC did not show that collecting the data is one of the functions, the appeals court ruled. The law also authorizes the FCC to investigate broadcasters, but the FCC did not show that those powers include probes into employment demographics, the judges said.

“The FCC undoubtedly has broad authority to act in the public interest. That authority, however, must be linked ’to a distinct grant of authority' contained in its statutes,” the ruling states.

“The FCC has not shown that it is authorized to require broadcasters to file employment-demographics data or to analyze industry employment trends, so it cannot fall back on ‘public interest’ to fill the gap.”

The court vacated the commission’s order.