Legality of FCC's DEI Probe Uncertain; Companies Expected to Scrap DEI Anyway

Trump’s Jan. 21 executive order Ending Illegal Discrimination and Restoring Merit-Based Opportunity required federal agencies “to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” Carr’s letter to Comcast cited that order, along with the U.S. Supreme Court’s decision against affirmative action in college admissions, several civil rights court cases, and the FCC’s equal employment opportunity rules. “The Communications Act and Commission rules prohibit regulated entities -- like Comcast and NBCUniversal -- from discriminating on the basis of race, color, religion, national origin, age, or gender,” Carr wrote.

“The threats in this letter appear legally unfounded,” said United Church of Christ Media Justice Center attorney Cheryl Leanza. In one of the cited cases, Adarand Constructors v. Pena, SCOTUS ruled that racial classifications by government programs are discriminatory and violate the Fifth Amendment. However, that ruling applies only to governmental entities, not private ones, according to University of Minnesota media law professor Christopher Terry. “If that's what he's relying on here, that's overturning multiple decades of FCC interpretation of that decision without a rulemaking inquiry.”

The 2023 SCOTUS decision against affirmative action cited in the letter also narrowly applied to college admissions, attorneys told us. When it was issued, the chair of the Equal Employment Opportunity Commission said the decision didn’t affect the legality of employer DEI programs. “There are assumptions in this [Carr] letter that are certainly a reach,” said Common Cause Director-Media and Democracy Ishan Mehta.

Free State Foundation President Randolph May disagreed. “I think the FCC does have authority to investigate whether licensees are acting in compliance with the nondiscrimination requirements of the nation’s civil rights laws, and the FCC’s own regulations promulgated to enforce them,” he said. “DEI programs may assume different forms, but to the extent that, as implemented, they operate as mandates to treat persons differently based on race, gender, religion and so forth, they may violate anti-discrimination prohibitions in the FCC’s regulations and policies.” That is the case “whether or not Comcast initiated or carried out its DEI programs because it understood that’s what the Biden administration wanted,” May said.

NAB, the FCC, and the National Association of Black Owned Broadcasters didn’t respond to requests for comment. The Multicultural Media, Telecom and Internet Council declined to comment.

The DEI programs highlighted in Carr’s letter may actually have begun at Comcast in an attempt to please the FCC. In the run-up to the 2011 Comcast/NBC merger, the companies worked with civil rights organizations and promised diversity reforms, addressing concerns of deal opponents. “Comcast offered up many conditions to the [Chairman Julius] Genachowski-era FCC early in the process of reviewing its license transfer applications, before the term ‘DEI’ acquired the brand awareness it has today,” said former FCC Commissioner Robert McDowell, who voted to approve that deal. Those conditions included hiring and outreach programs, initiatives to have more inclusive programming and the designation of diversity officers. In the letter, Carr called out Comcast and NBCU initiatives for DEI training and “executives specifically dedicated to promoting DEI across the TV and programming side of the business.”

Carr’s letter said he is beginning the FCC’s DEI investigation with Comcast because of its public DEI promotion, but like many of his recent enforcement targets, Comcast has been a frequent focus of Trump’s ire. Trump has called Comcast CEO Brian Roberts “a slimeball,” and in a 2023 post on Truth Social, Trump said the company would be investigated when he won the presidency.

The legal underpinnings of the FCC’s investigation may not ultimately matter much, because the primary goal appears to be intimidation, broadcast attorneys told us. The letter seems to be aimed at getting Comcast and other FCC regulatees to scrap their DEI efforts to avoid future FCC investigations, which can last for years and involve burdensome document requests even before proceeding to forfeiture and other punishments. “The point is torture,” one attorney said. The record the FCC assembled could also be used as a basis for other agencies to go after Comcast for civil rights violations or by civil litigants to sue the company. The telecom industry is likely to act quickly to scrap DEI efforts that could draw FCC attention, the attorney added.

Legal challenges against corporate DEI programs have been on the rise since the 2023 SCOTUS decision against Harvard, said Michael Eastman, Center for Workplace Compliance senior vice president-policy. The Trump executive order doesn’t provide a clear definition of what unlawful DEI is, Eastman said, but the Carr letter seems to indicate the agency is casting a wide net. Companies with DEI programs or initiatives “should be prepared to show that they are lawful,” he added.

Legal challengers to private DEI programs often argue they violate Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex or national origin, Eastman said. Programs for specific races or genders could be seen as violating Title VII, while other common DEI initiatives, such as widely recruiting for jobs, would be harder to categorize as civil rights violations, he added.

Eastman said he expects other federal agencies to soon follow the FCC’s lead in prosecuting DEI efforts within their spheres of influence. “If you thought there was a honeymoon period or a transition period, you were wrong,” he said. “Employers really need to be assessing their DEI practices right now and be prepared to defend them.”

Said Nicol Turner Lee, a Brookings Institute senior fellow and former vice chair of the now-defunct FCC Communications Equity and Diversity Council: “The suggestion that companies that hire people of color are being contrary to the goals of the FCC is disturbing.” Carr terminated the council shortly after taking office. Companies have “worked hard so that their workforce reflects the diversity of their consumers, and in an industry like communications, it seems more than a reasonable idea to achieve those goals,” Turner Lee said.

Common Cause's Mehta said, “There is no end to this." Even if companies scrap their DEI programs, “anytime a person of color or anyone who's basically not a white male makes a decision that the administration doesn't like or their supporters don't like, it's going to be dismissed as DEI."