On February 22, the U.S. Federal Communications Commission (FCC) released an Order reinstating the collection of broadcast industry workforce diversity data on FCC Form 395-B and seeking comment on a similar proposal for multichannel video programming distributors (MVPDs), such as cable companies and satellite television providers.  The FCC indicates that collecting this data “will allow for analysis and understanding of the broadcast industry workforce, as well as the preparation of reports to Congress about the same.” 

This is not a brand new data collection.  From 1970 to 2001 the FCC collected this data concerning the composition of the broadcast workforce in terms of race, ethnicity, and gender on Form 395-B.  However, in the wake of two separate decisions from the U.S. Court of Appeals for the D.C. Circuit—Lutheran Church-Missouri Synod v. FCC in September 1998 and MD/DC/DE Broadcasters Associations v. FCC in January 2001—concerning the constitutionally permissible uses of this data, the Commission suspended collection of Form 395-B.  Although the FCC technically readopted the requirement to file the Form 395-B in a June 2004 decision, it further suspended filing of the form until the FCC could resolve policy questions surrounding the public availability of the data.  After seventeen years of inaction on this matter, in July 2021 the FCC released a Further Notice of Proposed Rulemaking seeking to refresh the record in the docket.

Permissible Uses of the Data.  The FCC asserts in the Order that this data collection will not be used in any manner to assess compliance with the Commission’s long-standing equal employment opportunity (EEO) recruitment requirements.  Rather the data will be made publicly available principally for the purpose of analyzing industry workforce trends.  The emphasis on the planned use of this data is likely due to the fact that the D.C. Circuit concluded that using this data to assess compliance with the EEO recruitment programs would pressure broadcasters to engage in race-conscious hiring in violation of the equal protection principles in the Due Process Clause of the Fifth Amendment to the Constitution. Indeed, the FCC went so far as to incorporate this policy in a clear statement into the revised rule, in part in response to a 2004 petition for reconsideration filed jointly by the state broadcasters associations.

The two Republican commissioners dissented from the Order, taking the position that the public disclosure of this data violates both First and Fifth Amendment rights, despite the FCC’s stated intent to limit the official uses of this data.  Commissioner Brendan Carr provided an especially detailed dissent concerning these legal and policy critiques. 

Filing Logistics.  The Order will not be able to go into effect until it clears a review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act.  Once that process is complete and the Order goes into effect, broadcasters will be required to file Form 395-B on an annual basis by no later than September 30 of each year.  The FCC has delegated authority to the Media Bureau to create an electronic version of the form.  While that form is expected to closely resemble the existing Form 395-B, the FCC has directed the Bureau to update the form to include the ability to submit non-binary gender data.  Broadcasters will have the option of using employment figures from any payroll period from July, August, or September of the year for which they are reporting, but after the first filing they will be expected to use the same payroll period each year for reporting purposes.

Second Further Notice of Proposed Rulemaking.  In addition to reinstituting the collection of broadcast industry workforce data on Form 395-B, the FCC also seeks comment in this item on reinstituting the collection of workforce composition data from MVPDs on FCC Form 395-A.  The FCC proposes to align the requirements for Form 395-A with the changes adopted for Form 395-B in this action.  Comments on the MVPD workforce diversity data collection will be due in MB Docket No. 98-204 30 days after the date of publication in the Federal Register, and reply comments will be due 15 days thereafter.

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Photo of Matthew DelNero Matthew DelNero

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy…

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy challenges.

Matt serves as co-chair of Covington’s Technology & Communications Regulation (“TechComm”) Practice Group and co-chair of the firm’s Diversity & Inclusion initiative.

Matt advises clients on the full range of issues impacting telecommunications, technology and media providers today, including:

  • Structuring and securing FCC and other regulatory approvals for media and telecommunications transactions.
  • Conducting regulatory due diligence for transactions in the telecommunications, media, and technology sectors.
  • Obtaining approval for foreign investment in broadcasters and telecommunications providers.
  • Universal Service Fund (USF) programs, including the FCC’s Rural Digital Opportunities Fund (RDOF).
  • FCC enforcement actions and inquiries.
  • Online video accessibility, including under the Communications and Video Accessibility Act (CVAA) and Americans with Disabilities Act (ADA).
  • Equipment authorizations for IoT and other devices.
  • Spectrum policy and auctions, including for 5G.
  • Privacy and data protection, with a focus on telecommunications and broadband providers.

Matt also maintains an active pro bono practice representing LGBTQ+ asylum seekers, as well as veterans petitioning for discharge upgrades—including discharges under ‘Don’t Ask, Don’t Tell’ and predecessor policies that targeted LGBTQ+ servicemembers.

Prior to rejoining Covington in January 2017, Matt served as Chief of the FCC’s Wireline Competition Bureau. He played a leading role in development of policies around net neutrality, broadband privacy, and broadband deployment and affordability under the federal Universal Service Fund (USF).

Chambers USA has recognized Matt as a “go-to attorney for complex matters before the FCC and other federal agencies, drawing on impressive former government experience.”

Photo of John Cobb John Cobb

John Cobb is an associate in the firm’s Washington, DC office and a member of the Technology and Communications Regulation Practice Group. Prior to joining Covington, John served as the Legal Advisor to the FCC’s Broadband Data Task Force where he provided legal…

John Cobb is an associate in the firm’s Washington, DC office and a member of the Technology and Communications Regulation Practice Group. Prior to joining Covington, John served as the Legal Advisor to the FCC’s Broadband Data Task Force where he provided legal guidance to the Task Force on matters related to implementation of the Broadband DATA Act and the FCC’s Broadband Data Collection. Before that, John served as an Honors Attorney in the Policy Division of the FCC’s Media Bureau where he worked on matters affecting the media industry, including multiple administrative rulemakings in the Modernization of Media Regulation Initiative.