Biden's FCC to force broadcasters to report employees' race and gender

"The FCC's history of unconstitutional conduct is not a trivial matter."


On Thursday, the Federal Communications Commission (FCC) voted 3-2 to reinstate a requirement for broadcasters to report the race and gender of their employees to the agency using Form 395-B.

FCC commissioner Brendan Carr revealed in a post why he dissented from the decision to enact the rule. He said, "Courts have already overturned the FCC *twice* for pressuring broadcasters into making hiring decisions in violation of the Constitution."

"The Civil Rights Act of 1964 requires that the government keep this type of data confidential when it is collected by the Equal Opportunity Employment Commission," Carr added. "But the FCC goes another way—one that violates the Constitution, as courts already found in two prior FCC cases."

In his decent on FCC 24-18 Carr noted that the FCC decided that it would take the demographic data and publish it "on a station-by-station basis" so that the public could see a diversity scorecard for individual stations instead of posting overall data.

Carr claimed that the FCC's reason to publish such a scorecard would be to pressure organizations into using race and gender as a decision-making criteria, and notes that is a "violation of the equal protection guarantees of the Due Process Clause of the Fifth Amendment to the U.S. Constitution."

"The FCC's history of unconstitutional conduct is not a trivial matter," Carr said. "The Supreme Court has stated that '[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.'"

Likewise, the Supreme Court has written that racial classifications “threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility,” he added.

According to the Colorado Springs Gazette, Form 395-B was first proposed for use in the 1990s but the US District Court for the District of Columbia ruled in 2001 to suspend the use of the document over confidentiality concerns. After Biden's nominee for commissioner Anna Gomez was confirmed by the Senate in September, that gave the FCC the votes to reinstate the policy.

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