DOJ Tells 5th Circuit It Won't Defend Entire EEO Order
Five days before a scheduled oral argument on the FCC’s Form 395-B collection of diversity data from broadcasters, DOJ told the court Thursday that it no longer supports aspects of the equal employment opportunity (EEO) rule, citing the recent White House executive orders on diversity and gender terminology in a letter filed with the 5th U.S. Circuit Court of Appeals in docket 24-60219.
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The letter likely means the court will rule against the order, and it’s not clear what will happen with Tuesday’s oral argument in New Orleans, attorneys told us. The U.S. “no longer subscribes to the views” laid out in FCC court briefs defending the EEO order to the extent that they conflict with the executive orders, DOJ said.
“This turn of events is another blow in the ongoing campaign against civil liberties, equality, fairness and transparency from this administration,” said Cheryl Leanza, who represents the United Church of Christ Media Justice Office, which supported the EEO rule.
The FCC’s EEO order revived Form 395-B, which broadcasters used for reporting employees' race and gender and the demographics of each job category. The collection of data is required by the Communications Act but was suspended in 2001 over constitutional issues; an FCC attempt to bring it back in 2004 also stalled. The 2024 order revived the form and required broadcasters to make the data publicly available and attributable to individual companies. Moreover, it added a gender category for nonbinary people.
The National Religious Broadcasters, Texas Association of Broadcasters and American Family Association challenged the order in the 5th Circuit, arguing that it exceeds the FCC’s authority and violates the Constitution. The FCC has previously argued that collecting the data and making it public will improve broadcaster diversity.
The DOJ letter was filed in response to one from the petitioners citing the White House orders as pertinent to the case. The FCC isn’t a signatory to the DOJ letter, and how the agency will proceed in the case is unclear. Some attorneys told us it's unlikely that the FCC will defend aspects of the order that the DOJ won’t. Others said the chairman’s authority to shift the agency’s position on a court case isn’t clear and could require a vote. The commission is currently tied, having two Democratic commissioners and two Republicans. The agency didn't comment. FCC Commissioner Geoffrey Starks and Rep. Yvette Clarke, D-N.Y., who together called for the FCC to reinstate Form 395-B in a 2023 press conference, also didn't comment.
FCC Chairman Brendan Carr voted against the EEO order when it was approved in February 2024, primarily in opposition to its planned publication of broadcaster workplace diversity results, which he called “a race and gender scorecard.” Along with citing the orders, the DOJ letter also concedes that “much of the [FCC's] data collection through Form 395-B is mandated by statute.”
The letter likely means the court won’t uphold the EEO order, said Jack Goodman, a broadcast attorney and former NAB general counsel. Other attorneys told us the letter could lead to the order being remanded back to the FCC, meaning oral argument won’t happen. “Many independent communications and appellate lawyers had observed that the FCC’s case was wobbly to begin with,” said Robert McDowell, a former commissioner who represents broadcasters as a partner at Cooley. “So this may be another nail in the coffin for the rules that are being appealed.” If the court were to uphold the EEO order or remand it, Carr could likely still overturn it by taking up outstanding petitions for reconsideration against it filed by Catholic groups and the NAB (see 2406060069), broadcast attorneys told us.