The Federal Communications Commission cannot enforce an order requiring conservative Christian broadcasters to disclose employee demographic data, an appeals court panel has ruled.
A three-judge panel of the 5th U.S. Circuit Court of Appeals issued a unanimous ruling Monday against the FCC in favor of the National Religious Broadcasters and the American Family Association.
The groups filed a lawsuit against the FCC over an order mandating the reporting of demographic data on employment. The litigation was combined with a separate complaint filed against the FCC by the Texas Association of Broadcasters.
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Chief Judge Jennifer Walker Elrod, a George W. Bush nominee, wrote in the panel opinion that the FCC was initially tasked with “regulating broadcast networks, protecting the public utility of those networks, issuing licenses to broadcasters, and other related tasks.”
“The FCC does not explain how compiling data on sex- and racial-employment trends in the broadcast industry serves any of those targets,” wrote Elrod. “FCC does not cite any provision authorizing it to collect employment data from broadcasters.”
“The FCC undoubtedly has broad authority to act in the public interest. That authority, however, must be linked ‘to a distinct grant of authority’ contained in its statutes.”
Elrod cited Lutheran Church-Missouri Synod v. Federal Communications Commission, et al., a 1998 ruling that had struck down requirements for broadcasters to enact equal employment opportunity outreach programs for women and minorities.
“While its authority to act in the public interest is broad, the FCC cannot invoke public interest to expand the scope of its authority to act in ways Congress has not authorized it to act,” Elrod continued.
“Further, even if the 1992 Cable Act ratified the FCC’s ability to collect this data, Congress expressly tied that authority to equal employment opportunity regulations that are no longer in effect.”
NRB President Troy A. Miller said in a statement released Wednesday that he believed the decision is a victory for First Amendment rights.
“NRB has always fought to protect Christian communicators from baseless attempts to restrict their First Amendment liberties, which hinder their work of proclaiming the Gospel,” stated Miller.
“This ruling helps ensure that the government cannot create a backdoor to control broadcasters through public intimidation, misuse private data against them, or interfere with the sacred and constitutionally protected mission of religious broadcasters.”
in a statement Tuesday, FCC Commissioner Anna M. Gomez called the rejected standards “reasonable transparency measures designed to shed light on the media market.”
“But [the court’s] broader message was unmistakable: the current FCC has no right to weaponize its authority against lawful, merit-based hiring decisions by private companies or target them because of their use of terms like diversity, equity, and inclusion,” Gomez stated.
“The FCC’s ideological crusade has never been about fairness — it’s about control. It’s a
new and dangerous form of speech policing that has no place in a free society. We must continue to defend the First Amendment from those who use it as a weapon against the very freedoms it protects.”
In February 2024, the FCC voted 3-2 to reinstate the requirement of broadcasters to fill out a document known as Form 395-B, which served to collect data on the race, ethnicity and gender of a broadcaster’s employees within various job categories.
The employment demographic collection order, which had been put aside 20 years earlier, argued that it was “critical because it will allow for analysis and understanding of the broadcast industry workforce, as well as the preparation of reports to Congress about the same.”
“Collection, analysis, and availability of this information will support greater understanding of this important industry,” stated the order. “Without objective and industry-wide data it is impossible to assess changes, trends, or progress in the industry.”
“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.”
The NRB asked the appeals court to review the FCC order in May 2024, expressing concerns that it “exceeds the FCC’s statutory authority, violates the equal protection component of the Fifth Amendment and the Free Speech Clause of the First Amendment, and is an abuse of the FCC’s discretion” and may lead to “third-party weaponization of the public file to target specific broadcast stations.”
