FCC Reinstates Rule Requiring Stations to Post Sensitive Employee Data

posted on 2.26.2024

- Previous Version Ruled Unconstitutional Attempt at Hiring Quotas

As anticipated, the FCC last week proceeded with its reinstatement of a rule requiring local Radio and TV broadcasters to collect detailed information on the gender, race and ethnicity of all employees and – for the first time – to post that information online within a station’s public FCC file that includes the station’s physical location.

While employee names would not be reported or posted, TAB and its counterparts have previously argued that only aggregate information should be posted online.

The rule reinstating the Annual Employment Report and Form 395-B applies to commercial and non-commercial Radio and Television stations with five or more employees in a “station employment unit” and to cable/satellite TV services.

The previous version of this data collection practice was suspended more than 20 years ago by court order because it appeared the FCC was using the practice to penalize stations for failing to meet racial or gender quotas in their workforce.

SEE PREVIOUS FORM 395-B & INSTRUCTIONS

TAB led the pushback on the previous rule and is closely studying the latest effort for potential harm to stations in concert with TAB’s FCC legal counsel Scott Flick and Lauren Lynch Flick with Pillsbury Winthrop Shaw Pittman.

Lauren Lynch Flick notes the FCC made a couple changes to Form 395-B which could factor into any effort moving forward.

“Since the FCC suspended use of the form in 2001 following adverse court decisions, it has been updated to require stations to first sort employees into ten job categories (Executive/Senior Level Officials and Managers, First/Mid-Level Officials and Managers, Professionals, Technicians, Sales Workers, Administrative Support Workers, Craft Workers, Operatives, Laborers and Helpers, and Service Workers), then indicate the number of employees in each of those job categories who are Male/Female; Hispanic/Latino; or Non-Hispanic White, Black/African American, Native Hawaiian/Other Pacific Islander; Asian, American Indian/Alaska Native, or Two or More Races,” she reports.

“In addition, the FCC will modify the Form 395-B to add ‘a mechanism to account for those who identify as gender non-binary,’” Flick says.

“As a result, the form will require a new approval by the Office of Management and Budget before its use can resume.  The report will be due each year on September 30.  The data is to be taken from one payroll period between July and September, with the same payroll period used each year.  The Order indicates that the Media Bureau will announce filing procedures by a separate Public Notice when OMB clearance is received.”

Read the Full Pillsbury Advisory on FCC Form 395-B

Questions? Contact Oscar Rodriguez or call (512) 322-9944.

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