TAB Wins Constitutional Challenge to FCC Employee Data Regulation
posted on 5.19.2025- Fifth Circuit Vacates Form 395-B Order
In response to a challenge by the Texas Association of Broadcasters, the U.S. Court of Appeals for the Fifth Circuit this week unanimously vacated the FCC’s order requiring collection and publication of individual station employee race, ethnicity and gender data using the FCC Form 395-B.
Relying directly on arguments raised in TAB’s appeal filings, the court found that the FCC lacks any statutory authority to collect broadcaster employment data, and therefore is not permitted to require broadcasters to file Form 395-B to provide such data, much less publish it as the FCC intended to do.
Because the court vacated the order based upon the FCC’s lack of statutory authority to collect the data, the court found no need to rule on broadcasters’ further arguments regarding the FCC order’s constitutionality under the First and Fifth Amendments, or under the Administrative Procedure Act.
As the court found the FCC lacks statutory authority to collect broadcaster employment data, future commissions are barred from attempting to reinstate the Form 395-B or any similar requirement absent congressional action to change the Communications Act.
The ruling suggests that the FCC’s EEO audits and annual employment reporting regulation may also be constitutionally questionable.
TAB’s FCC legal counsel, Pillsbury Winthrop Shaw Pittman LLP, represented TAB in the case, with attorneys Scott Flick, Jessica Nyman, Lauren Lynch Flick and Matthew MacLean contributing to the successful result.
TAB was joined in the lawsuit by the National Religious Broadcasters and American Family Association.
The regulation had been suspended by court order more than 20 years ago after a nearly 10-year battle waged by TAB and other state broadcast associations. It was reinstated in February 2024 by then-FCC Chair Jessica Rosenworcel, and TAB filed suit just a few months later.
Texas broadcasters are immensely pleased with the outcome of this ruling, and TAB’s Board of Directors is to be commended for undertaking the risk that any lawsuit against the federal government entails.
The court’s action permits local broadcasters to focus anew on super-serving our communities of license.
We will do so in part by continuing to recruit talented professionals from all walks of life who are dedicated to arming communities with the information needed to ensure their safety, advance their understanding of community concerns and fulfill the promise of our democracy.
With this hard-won victory on the books, TAB remains committed to protecting stations from excessive or improper regulatory and paperwork burdens and to promoting stations’ ability to compete against the growing number of unregulated competitors in the media marketplace.
Questions? Contact Oscar Rodriguez or call (512) 322-9944.
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