July 28, 2021

Van Hollen, Clarke Applaud FCC Decision to Move Forward on Workforce Diversity Initiative

Announcement follows Van Hollen, Clarke Push for Action

Today, U.S. Senator Chris Van Hollen (D-Md.) and U.S. Representative Yvette Clarke (D-N.Y.) applauded the Federal Communications Commission’s (FCC) decision to move forward on reinstating practices to collect data on broadcast workforce diversity. The FCC is required by law to collect this information, but failed to do so under the Trump Administration and former Chairman Ajit Pai. The decision to move forward follows a letter sent by Senator Van Hollen and Representative Clarke to Chairman Pai and continued urging by the lawmakers’ offices.

“Increasing the diversity of the media workforce is key to ensuring a wide range of views and experiences are represented. By collecting this data, we can get an accurate picture of today’s broadcast media companies and better encourage them to improve their hiring practices to bring more voices to the table. This decision by the FCC and Chairwoman Rosenworcel is an important first step in creating a more inclusive media that better reflects the diversity of our country, and I appreciate their efforts to work with us to move the ball forward,” said Senator Van Hollen.   

“I look forward to restarting the collection of data from broadcasters and cable companies about the race and gender composition of their workforce.  This is not a new idea, nor is it a revolutionary one.  In fact, we had already begun it some decades ago but as most things causing good trouble go, we precluded from its usage thanks to a Supreme Court decision”, said Clarke. “For many years, despite a collective effort to amass this information, we failed to truly utilize it in a way to ensure that the broadcast and cable industries become more equitable.  Thanks to the hard work of Senator Van Hollen, FCC Chairwoman Rosenworcel, and myself we can now change the way address discriminatory practices through these industries.  I am truly excited to see what this new change will bring and how we can revolutionize these industries to better reflect our America,” said Representative Clarke. 

The full text of the letter is available here and below:

Dear Chairman Pai:

Earlier this year, the Commission decided to review certain of its equal employment opportunity (EEO) rules for the broadcasting sector. We are writing to express concern that this review has thus far failed to address the status of FCC Form 395-B. Any conversation regarding the FCC’s EEO practices is incomplete if it does not contemplate the full reinstatement of Form 395-B, which is essential to allow the Commission to fulfill a long-ignored statutory mandate to collect data about broadcast workforce diversity.

Discrimination has no place in our society, including at broadcast stations subject to FCC jurisdiction. However, the FCC’s ability to evaluate such discrimination is limited if the Commission does not have access to the information it needs to identify potential EEO shortcomings. In the early 1990s, Congress specifically mandated that the FCC conduct annual assessments of racial, ethnic, and gender diversity at regulated broadcasters using Form 395-B. The collection of such data and the use of Form 395-B are not optional; they are statutory requirements under Section 334(a) of the Communications Act.

In 2001, a series of court rulings led the FCC to temporarily suspend the use of Form 395-B. In 2004, the Commission adopted a slightly revised form and sought comment in a further notice of proposed rulemaking on the narrow issue of whether the Commission should break with precedent and keep the data collected from broadcasters confidential. To date, that issue remains unresolved and the data collection remains suspended. Despite this, the Commission continues to regularly submit Form 395-B to the Office of Management and Budget (OMB) for approval. OMB most recently conditionally approved Form 395-B in 2017 pending the completion of the 2004 further notice, acting on a submission made under your leadership.  For 15 years, Form 395-B has languished in bureaucratic limbo, with no clear path toward reinstatement.

When Congress codified Form 395-B collection, our hope was that this data could empower the FCC to better evaluate its EEO rules, while also providing policymakers and researchers with valuable insights regarding diversity in broadcasting. Over time, the importance of these objectives has only increased. Non-governmental assessments confirm that discrimination and underrepresentation in broadcasting persist, and yet, we still lack the comprehensive dataset which would enable us to effectively analyze these problems and pursue solutions. The Commission has an opportunity to tackle this issue now, without allowing yet another 15 years to pass before this statutorily-mandated statistical collection resumes. 

We understand that you agreed to issue a further notice of proposed rulemaking to evaluate EEO enforcement and compliance efforts at the Commission. Congress is monitoring this new proceeding with interest. However, we also understand that you declined to pursue Commissioner Starks’ request to use this further notice to refresh the long-dormant record regarding Form 395-B. Doing so is an essential step toward providing the Commission with a path towards compliance with the statute. Refreshing the record in such a manner would also allow the FCC to take advantage of the expertise of its stakeholders to appropriately resolve an issue that the Commission has thus far been unable to resolve on its own. 

We are aware, based on the “items on circulation” listed on the FCC’s website, that the draft further notice is currently being considered by the Commission. Accordingly, it is imperative that the Commission promptly include questions in this further notice to refresh the record of the 2004 Further Notice of Proposed Rulemaking by seeking comment in that docket (98-204) to address the outstanding Form 395-B confidentiality questions. Moreover, until such time as this situation is resolved, we also believe the FCC can and should assert its authority to collect racial, ethnic, and gender data from broadcasters using Form 395-B, internally aggregate this data without attribution to particular broadcasters, and publish reports that offer industry-wide diversity assessments. If you opt to not undertake either of these actions, we respectfully request a detailed summary of your reasoning, as well as an explanation regarding why you chose to not refresh the record with respect to Form 395-B in the first place.

Thank you for your attention to this important issue. We similarly appreciate your willingness to provide the community with an opportunity to review EEO compliance and enforcement at the Commission. As Members of Congress committed to combatting discrimination in the broadcasting sector, we sincerely hope that this review will result in the full reinstatement of Form 395-B.