FCC Pushes Broadcasters to Publish DEI Scorecards of Employees

By Jason Lee

The Diversity, Equity, and Inclusion agenda is losing ground by the day. More corporations are cutting their DEI departments, and it is generating backlash. The FCC joined in last month when it voted 3- 2 to force broadcasters to produce scorecards on the race and gender of their employees. 

Back in 1998, the DC Court of Appeals ruled against the FCC doing just this:  

The Federal Communications Commission had failed to explain how its equal employment opportunities regulations served the public interest–the standard the FCC used when it adopted the rules in the late 1960s. 

The DC Court of Appeals issued another ruling with the same outcome in 2001, deciding that it is unconstitutional for the FCC to police broadcaster demographics.  

Now that the Biden Administration has its fifth FCC commissioner, Anna Gomez, in place, the FCC has moved far to the left. Other than imposing this unconstitutional rule pushing broadcasters to produce their employment data based on skin color and gender, the FCC is also trying to implement a digital discrimination rule under which Internet Service Providers could get sued if there is any discrepancy in the treatment of white and non-white areas regarding broadband access. 

Chairwoman Jessica Rosenworcel’s FCC claimed it is reasonable to have the scorecards because it “restores the process of giving broadcasters, Congress, and ourselves the data needed to better understand the workforce composition in the broadcast sector.” She continued: 

We find further that continuing to collect this information in a transparent manner is consistent with a broader shift towards greater openness regarding diversity, equity, and inclusion across both corporate America and government [emphasis added]. 

Commissioner Brendan Carr, one of the two Republican Commissioners who dissented on the scorecard rule, stated, “…Instead of confining today’s decision to lawful agency action, the FCC chooses a different course—one that violates the Constitution, as the D.C. Circuit has already determined in not one but two separate FCC cases.” 

He added:  

This is no benign disclosure regime. The record makes clear that the FCC is choosing to publish these scorecards for one and only one reason: to ensure that individual businesses are targeted and pressured into making decisions based on race and gender.

In Carr’s six-page dissenting statement, he argued, “…This argument Ignores both the Commission’s own history with Form 395-B and the rulemaking record here. Indeed, the FCC Order goes so far as to assert that, “[b]ased on the record before us, we find no basis to conclude that the demographic data on a station’s annual Form 395-B filing would lead to undue public pressure.” 

This is not the end of the rule, as broadcasters still could challenge it in court. If the rule stands, every year, broadcasters will have to submit their employment report on or before September 30th to the FCC. This adds yet another federal overreach by the FCC to a long list of recent policies.