FCC Demands Racial/Gender Staff Demographics From Licensed Broadcasters

P. Gardner Goldsmith | February 27, 2024
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There’s something titanically ironic – or, more aptly described as hypocritical – in the left-dominated Federal Communications Commission (FCC) demanding that “licensed” broadcasters provide said “Commissars” with detailed information about the woke-or-not compositions of their office staffs.

Even if one overlooks the blindingly obvious breach of the First Amendment and of the constitutionally enumerated powers that the FCC represents, the new order embracing “inclusivity” runs counter to the very raison d’etre of the FCC itself.

For, of course, the FCC is a tax-funded bureaucracy that has as its reason for existence the political call to EXCLUDE and block people from being able to broadcast, and many of its current members and their political ilk would like overtly (it’s already been done covertly) to expand that domineering censorship paradigm to the online content we try to share with one another.

Now comes word from the lone conservative FCC dissenter, Brendan Carr, that the commission is demanding demographic staffing info from “federally licensed” broadcasters (i.e. the few people who are allowed to broadcast, who are given “permission” to exercise free speech on the radio-television spectrum).

Carr’s February 22 X post spells it out:

“The FCC just ordered every broadcaster to start posting a race & gender scorecard that breaks down the demographics of their workforce.

Activists lobbied for this b/c they want to see businesses pressured into hiring people based on their race & gender.

Courts have already overturned the FCC *twice* for pressuring broadcasters into making hiring decisions in violation of the Constitution.

I dissent.”

Carr also provided followers with his notice of dissent, observing in it that the FCC was reinstating its requirement that these license-holders annually file a “Form 395-B” that “lists the race and gender of their employees.” Curiously, Carr “would have had no objection here to an FCC decision limited to requiring broadcasters to file Form 395-B data with the agency—after all, Congress passed a statute that directs the FCC to collect this information.”

The problem, as he sees it, it that the FCC is going to make this information public in a site-specific manner, meaning that the FCC will make public the precise demographic composition of each broadcast business.

Nothing like privacy, eh?

Of course, Contrary to Carr’s stance, it wouldn’t matter if Congress had “directed” the FCC to do that or even a portion of it. The requirement of any report – be it kept secret, or anonymized, or made public, as Carr finds objectionable – is immoral and utterly unconstitutional.  

To Carr, the public revelation of the info is the key, because it will facilitate boycotts by people who dislike whatever the staff composition of particular broadcasters might be.

Related: The FCC Plans To Make Nearly Half of US Users Dial 10 Digits For Local Calls | MRCTV

And, in his eyes, a solution would have followed these lines:

“The FCC could also have made this data available on an anonymized or otherwise aggregated basis that does not disclose information about specific broadcast stations.”

And he adds:

“Indeed, the Civil Rights Act of 1964 expressly requires that the government keep this type of race and gender data confidential when it is collected by the Equal Opportunity Employment Commission. But 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. In particular, in the second part of today’s Order, the FCC decides that it will take the Form 395- B demographic data and publish it on a station-by-station basis—meaning that the FCC will now post a race and gender scorecard for each and every TV and radio broadcast station in the country. In doing so, the FCC caves to the demands of activist groups that have worked for years and across different industries to persuade the federal government to obtain—and most importantly publish—this type of data about individual businesses. This is no benign disclosure regime. The record makes clear that the FCC is choosing to publish these scorecard(s) for one and only one reason: to ensure that individual businesses are targeted and pressured into making decisions based on race and gender. This is the exact same type of pressure that the FCC created in at least two prior cases.”

What’s the legal background?

Writes Carr:

“In both instances, the D.C. Circuit invalided the FCC’s rules because they violated the equal protection guarantees of the Due Process Clause of the Fifth Amendment. The only difference this time around is that the FCC has violated the First Amendment as well.”

In pushing this private information into the public sphere, the FCC is demanding something that private market participants might ask for themselves, but it is engaging in the activity through two levels of force. First, it is forcing the broadcasters to do so, and, second, thought it is not as readily acknowledged, the US government is forcing us to pay for the strongman of the FCC.

If civilians want info on a broadcaster’s staffing policies, they are free to ask for it, and to respond with market support or opprobrium depending on how transparent the business is and what the business revelations might be.

But the FCC doesn’t want to see natural give and take between broadcast business owners and civilians in society. It wants to force the info to be displayed.

Writes Carr:

“So the FCC’s ostrich-like claim that the record is devoid of any evidence that this public scorecard will be used to pressure broadcasters into making race- and gender-based hiring decisions does not withstand even casual scrutiny; indeed, it only raises additional questions under the law. But even if the record were more opaque, the FCC would still not be in the clear. As the D.C. Circuit stated in MD/DC/DE Broadcasters Association, a “regulatory agency may be able to put pressure upon a regulated firm in a number of ways, some more subtle than others. The Commission in particular has a long history of employing: [‘]a variety of sub silentio pressures and ‘raised eyebrow’ regulation . . . all serv[ing] as means for communicating official pressures to the licensee.’”

And therein lies the heart of the problem: the very assumption that the federal government has any constitutional or moral power to “license” a broadcaster.

As I have written for MRCTV, a deep dive into the FCC history reveals that it began in the 1920s as the “Federal Radio Commission,” was excused or supposedly “justified” by DC politicians through their expansive misreading of the “Interstate Commerce Clause” of the US Constitution (Art.1, Sec 8 – which was written only to facilitate remedial Congressional action to handle State v. State trade disputes, not to allow for regulation of anything that travels over state borders) and has claimed for the feds the power to hold like a Sword of Damocles the “license” of any broadcaster granted “permission” to speak over the radio/television spectrum (which the FCC extends to cable television and cell-telephone carriers). This has seen various US administrations use the FCC to pressure broadcasters, threatening them with license revocation, has seen the FCC impose it’s now-dormant, but not dead, so-called “Fairness Doctrine” that forced radio and television broadcasters to provide “equal time” to anyone who had a political opinion different from something stated on a station (meaning it was a limitless open door and ended up inspiring broadcasters simply to stop broadcasting political opinions) and sees the FCC working towards trying to censor online speech.

Mr. Carr’s criticism about this FCC move is valid, to an extent. But it does not strike the root.

Thus, we can see that only by questioning the entire FCC paradigm can one start to talk about real free speech. None of the legal wrangling or citations of prior case law chip away at that stark stone wall of reality.