FCC Drops Defense of Nonbinary Gender Form at Last Minute

The 5th Circuit panel responded to the last-minute change by noting that another agency recently declined to defend a matter at oral argument because of ongoing leadership changes, and the judges expressed concern about ruling on a matter that could still be in flux. Several attorneys who heard the argument noted that the panel asked few questions of the parties after the FCC’s announcement. “It would be a shame to crank out an immediate opinion, only to have the FCC suddenly withdraw,” said Chief Judge Jennifer Elrod.

FCC attorney William Scher defended portions of the order Tuesday, but only those on the collection and publication of workforce diversity data. There's little chance the court would uphold the existing order -- if it rules at all -- after the FCC and DOJ backed off defending it (see 2501310056), attorneys told us.

Though the 5th Circuit’s audio stream Tuesday didn’t capture it, the agency informed the court verbally before oral argument that it wouldn’t defend portions of the February 2024 order that required the inclusion of a nonbinary category on Form 395-B; the FCC cited recent White House executive orders, attorneys told us. DOJ filed a letter with the court last week declining to defend portions of the order, but the FCC didn’t sign onto it. The commission didn’t comment Tuesday.

Scher said Tuesday that the FCC “hasn't made any determination about the effect of the recent executive orders on the portions of the order other than the two paragraphs” creating a nonbinary gender category on Form 395-B. However, Scher said the agency had to defend the order because it “represents the last word of the full commission, until a quorum of commissioners withdraws the order or decides otherwise.”

It’s unclear how the agency’s position that an FCC vote is required to change direction on the order is in keeping with the decision not to defend the nonbinary portions of it. “The agency acted as a full commission,” Scher said. “In order to withdraw the order, the agency would again have to act as a full commission. Right now, we don't have a full commission, and a quorum of commissioners hasn’t acted to withdraw the order.” The FCC currently has four commissioners, and the Communications Act defines an FCC quorum as three. The order’s two paragraphs on nonbinary gender are “discrete” and could be vacated by the court without affecting the other provisions of the order, Scher said.

Elrod admonished Scher for “springing” the change on opposing attorneys from the Texas Association of Broadcasters (TAB), the National Religious Broadcasters, and the American Family Association.

“It seems like just civility and collegiality that you would have given them a heads-up that you were canceling the nonbinary part of this before the argument started,” she said. Scher apologized, saying he “wasn't in a position to file a letter with the court” between last week’s filing of the DOJ letter and “my getting permission and direction from my leadership about what position we were going to take today.” Pillsbury attorney Jessica Nyman, representing TAB, said that even without the nonbinary category, the petitioners opposed submitting the data to the FCC and the agency's plan to publicize the data.

The court appeared skeptical of FCC arguments Tuesday that Congress authorized the data collection and that the diversity data needed to be publicized to prevent erroneous submissions. “What the heck does that mean?” asked Elrod. “Are you encouraging whistleblowers and stations to say ‘Oh my God, we don’t have 5% Asian Pacific Islanders, we have 2%?’” Scher conceded that some of the language in the order was “in tension” with provisions that prevent the FCC from using the collected data as the basis of action against broadcasters or their licenses. Nyman said, “I don't see any way practically [that] the FCC could dismiss a complaint” in enough time “for a broadcaster to avoid having to hire counsel or respond.”

The three-judge panel declining to issue a ruling on the FCC’s order would be a blow to broadcasters, multiple attorneys told us. The 5th Circuit is widely seen as unfavorable to federal regulations, and broadcasters had sought a ruling that would keep the FCC from reviving Form 395-B data collection in the future. The data collection had previously been suspended in 2001 and nearly revived in 2004 before the FCC brought it back last year. “In the end, the parties in this case have been whiplashed for decades,” said Boyden Gray’s Jared Kelson, representing NRB and AFA. “The saga should come to an end,” he said, urging the court to vacate the FCC’s order. The court “seemed to be prepared to rule quickly,” said Cheryl Leanza of the United Church of Christ Media Justice office. UCC filed an amicus brief supporting the order. Broadcast attorneys told us that a quick turnaround would likely mean that the court declined to rule on the order.

If the court doesn’t vacate the order, the FCC still has a path to rescind it, broadcast attorneys told us. The agency would likely take up one of the outstanding petitions for reconsideration against it filed by Catholic groups and the NAB (see 2406060069), attorneys told us.