The legendary British philosopher G.K. Chesterton used to warn institutions against enacting solutions before they knew what their problems were. The Federal Communications Commission (FCC) would have been wise to listen to Chesterton’s sage advice.
Instead, the FCC has waded unnecessarily into the cultural chaos of this era with a bureaucratic order that is merely a proposed “solution” in search of a problem.
The FCC has installed an order that all broadcast stations must annually file a report that discloses the “race, ethnicity, and gender” of all employees. The FCC will then make the content of these Form 395-B filings available to Congress and the public. This move was approved in a 3-2 vote along the commissioners’ party lines, of course.
It is interesting to note that the FCC collected such data from radio and television broadcasters in the 1990s before the D.C. Court of Appeals suspended the practice on constitutional grounds. The commission seems to think this reinstatement can circumvent those constitutional concerns by promising the collected data will not be used in assessing equal employment opportunity compliance or license renewal proceedings.
This is a classic case of rearranging deck chairs.
If, indeed, the data will not be used for formal FCC action, then there is no point to making broadcasters fill out more government forms — except for the FCC wanting to do some sociocultural posturing. The commission argues the information “will allow for analysis and understanding of the broadcast industry workforce.” One would think, however, that similar information could be collected through survey sampling of random and voluntary broadcast respondents.
Twenty-seven members of Congress prodded the FCC into this decision with a recent letter to FCC Chair Jessica Rosenworcel. They touted the importance of broadcast programming that “is responsive to the needs and interests of their community of license,” asserting that employees must “reflect the diversity of that community.”
But broadcasters hardly need to be jawboned into serving the interests of their communities. They do that necessarily every day in the normal course of operating a media organization. Broadcasters know that a radio or television station that fails to respond to its own community will be soon be out of business.
Commissioner Brendan Carr voted against the new order and issued a scorching dissent statement. He said the order was designed only “to pressure broadcasters into making race- and gender-based hiring decisions,” and that the order’s rationale was “constitutionally offensive” on both Fifth Amendment and First Amendment grounds. Carr warned that the order sets broadcasters up to be targeted by “activist groups, media campaigns, and conceivably the government itself” if the “right mix” of employees is not hired.
Broadcasters will certainly sue the FCC in federal court to stop enforcement of the order. The National Association of Broadcasters has long opposed this kind of regulation, writing in a 2021 filing to the FCC that reinstituting Form 395-B requirements would “exceed the FCC’s authority,” as well as increasing bureaucratic demands on the broadcast industry. The NAB also said there would be no “corresponding value” to such data demands beyond the EEOC reports that broadcasters already submit.
This kind of overregulation and cultural posturing is basically a waste of the FCC’s time, not to mention the valuable time of broadcasters. And it’s not as though the FCC doesn’t have plenty of real work to do. There is the need to make broadband more affordable and accessible for all Americans, especially in rural areas. Work needs to be done on privacy and data protection for consumers. The commission can be working on fighting robocalls and caller ID spoofing, as well as shutting down pirate broadcasters — and the list goes on.
Odds are that the order regarding Form 395-B will be short-lived. Even if it should shockingly survive judicial review, it will certainly be tossed to the curb should the White House change hands and a new FCC be seated. A Republican majority FCC would reverse this order in a heartbeat.
Apparently the current FCC majority doesn’t care about the impracticality or nonexistent utility of this kind of regulation, as long as it can preen about its cultural crusaderism.
Jeffrey M. McCall is a media critic and professor of communication at DePauw University. He has worked as a radio news director, a newspaper reporter and as a political media consultant. Follow him on Twitter @Prof_McCall.
