On February 22, 2024, the FCC reinstated the FCC Form 395-B in its Fourth Report & Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking. As you may recall, the 395-B collects information on the race, ethnicity and gender composition of each television and radio station’s complement of full- and part-time employees. Those with fewer than five full-time employees need only certify that fact, without filing the data. The requirement to file this form was suspended in 2001. In the Report & Order, the FCC takes steps to reinstate the Form 395-B filing obligation, and in the Further Notice of Proposed Rulemaking, the FCC seeks comment on the reinstatement of government collection of similar Form 395-A, which applies to Multichannel Video Programing Distributors.
The Report & Order states that collection of this data is critical because it facilitates analysis and understanding of the broadcast industry workforce, and assessment of changes, trends, or progress in the industry. As further justification, the FCC acknowledges that the “lack of industry-wide data” over the last 22 years has made it difficult to assess progress in the industry towards greater diversity, and that by reinstating the collection of the data, the Commission can provide the “industry, Congress, and the public” with a better understanding of the broadcast industry workforce.
To further these goals, the 395-B filings will be made available to the public to “ensure maximum accuracy of the submitted data.” The FCC states that collected and public data will allow “meaningful and accurate analyses of workforce trends” in the industry. In the FCC’s view, incorrect data will be more easily found and corrected, serving Congress’s goal of maximizing the use of data an agency collects for the benefit of the public and allowing a trend analysis across “different communications sectors, within individual sectors, and by region or market.”
Addressing concerns that third parties would misuse Form 395-B data to “pressure stations to engage in preferential hiring practices,” the Commission states it will “quickly and summarily dismiss any petition, complaint, or other filing submitted by a third party to the Commission based on the Form’s employment data.” It rejected recommendations that the Enforcement Bureau use the data as evidence when investigating a discrimination claim against a station and states it will not use Form 395-B data for enforcement purposes.
The Commission rejected confidential treatment of the collected data stating that neither the Confidential Information Protection and Statistical Efficiency Act of 2022 (CIPSEA) nor the FOIA afforded protection. In addition, the Commission rejected various Constitutional arguments in reinstating the collection requirement. Adoption of this item was not without controversy, as two of the five Commissioners dissented. It remains subject to reconsideration and appeal.
Timing of Form Submission: Once the Report & Order becomes effective, the Form 395-B will be required to be filed annually on or before September 30 of each year. Filers may report employment figures from any payroll period in July, August, or September of the relevant year, but the same payroll period must be used in each subsequent report. Prior to the first filing deadline, the Media Bureau will issue a Public Notice with instructions about how to submit the filings.
If you would like further information on the FCC’s full legal arguments justifying the reinstatement of the Form 395-B or would like to submit comments, please contact us as soon as possible.
Comments on the Further Notice will be due 30 days after date of publication in the Federal Register.
Reply Comments on the Further Notice will be due 45 days after date of publication in the Federal Register.
Please Contact Us if you have any questions.