This morning, the Federal Communications Commission appeared in a federal appellate court in New Orleans to defend its decision to adopt and enforce its long-standing but long-dormant workforce data collection rules for the broadcast industry. UCC Media Justice is particularly interested in this case because Everett Parker originally asked for the collection and release of this data in the 1960s to help ensure that our country’s media fully reflects the diversity of our nation and because we took the lead in a civil rights coalition pressing for this rule at the FCC and joined with our civil rights colleagues in court to file an amicus brief in support of the FCC’s decision.
As a result, UCC Media Justice was monitoring this morning’s argument. It was particularly dramatic in light of the recent Executive Orders adopted by President Trump attacking Diversity, Equity, and Inclusion and trans people. Last week, the Department of Justice (not the FCC) filed to say it was withdrawing its position in light of those EOs but also acknowledging that Congress had directed the FCC to collect this data.
Disappointingly, the FCC announced in open court this morning for the first time that it would no longer defend two paragraphs of the FCC’s order, which authorized the use of a non-binary category to collect gender data.
Thankfully, this morning, the FCC’s lawyer indicated that the only way for the FCC to officially change its determination is for the Commission to abide by the legal process to do so — which means to issue a notice, solicit public comment, and for the FCC commissioners to vote. This is the ordinary operation of law, and it should continue to be followed.
The court argument focused on the FCC’s authority to issue the rules, which was remarkable given that the Trump DOJ also acknowledged the FCC’s statutory authority. Little time was spent discussing the constitutional challenge to the rules.
Nonetheless, it was disappointing to hear the FCC’s counsel claim there was no evidence of a problem in employment before the agency when the civil rights community submitted evidence of problems in workforce participation, including a 2003 study by academics based on FCC data before the FCC stopped collecting it in the early 2000s. As we explained in our FCC filing:
The findings of existing research indicate there are large issues of diversity in newsrooms, further justifying our call to make FCC employment data publicly available. Research by Pew Research Center reveals that newsroom employees are less diverse than U.S. workers across sectors, as 77 percent of newsroom employees are non-Hispanic whites and 61 percent are men. Smaller news outlets are even less diverse, as ethnic minorities only make up 22 percent of the local television news workforce and only 13 percent of daily newspaper employees….
These alarming statistics reflect biases within the newsrooms’ hiring process that inhibit newsrooms from reflecting the diversity of our nation, as minorities with undergraduate degrees in journalism and communications are 17 percent less likely to find a full-time newsroom position within a year of graduation.
The case was heard in the conservative 5th Circuit by a panel of judges appointed by Presidents George W. Bush, Reagan, and Clinton.
UCC Media Justice will continue to press for transparency and equity in broadcasting and media. To ensure our work for communications and media justice remains strong in the coming months, please consider making a generous contribution to UCC Media Justice today.