Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies, 36705-36718 [2024-09468]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Rules and Regulations]
[Pages 36705-36718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09468]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 98-204; FCC 24-18; FR ID 216196]


Review of the Commission's Broadcast and Cable Equal Employment 
Opportunity Rules and Policies

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) adopted a Fourth Report and Order and Order on 
Reconsideration that reinstitutes the collection of workforce 
composition data for television and radio broadcasters on FCC Form 395-
B, as statutorily required.

DATES: This rule is effective June 3, 2024.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, please contact Radhika Karmarkar of the Media Bureau, 
Industry Analysis Division, [email protected], (202) 418-1523.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth 
Report and Order and Order on Reconsideration (``Fourth Report and 
Order'' and ``Order on Reconsideration''), FCC 24-18, in MB Docket No. 
98-204, adopted on February 7, 2024, and released on February 22, 2024. 
The complete text of this document is available electronically via the 
search function on the FCC's website at https://docs.fcc.gov/public/attachments/FCC-24-18A1.pdf.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] (mail to: 
[email protected]) or call the FCC's Consumer and Governmental Affairs 
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis

    1. By this Fourth Report and Order and Order on Reconsideration, we 
reinstate the collection of workforce composition data for television 
and radio broadcasters on FCC Form 395-B as statutorily required by the 
Communications Act of 1934, as amended (Act). The Commission suspended 
its requirement that broadcast licensees file Form 395-B, which 
collects race, ethnicity, and gender information about a broadcaster's 
employees within specified job categories, more than two decades ago. 
After a long period of inactivity, the Commission published in the 
Federal Register on August 31, 2021, at 86 FR 48610, a Further Notice 
of Proposed Rulemaking(MB Docket No. 98-204, FCC 21-88, 36 FCC Rcd 
12055) (FNPRM), seeking to refresh the public record regarding the 
manner in which the Form 395-B data should be collected and maintained. 
After careful consideration of the record, we reaffirm the Commission's 
authority to collect this critical information and conclude that 
broadcasters should resume filing Form 395-B on an annual basis. 
Section 73.3612 of the Commission's rules provides that ``[e]ach 
licensee or permittee of a commercially or noncommercially operated AM, 
FM, TV, Class A TV or International Broadcast station with five or more 
full-time employees shall file an annual employment report with the FCC 
on or before September 30 of each year on FCC Form 395-B.'' We note 
that the filing requirements of Sec.  73.3612 do not apply to Low Power 
FM Stations. Given the importance of this workforce information and 
Congress's expectation that such information would be collected and 
available, we reinstate this collection in a manner available to the 
public consistent with the Commission's previous, long-standing method 
of collecting this data.
    2. Our ability to collect and access Form 395-B data is critical 
because it will allow for analysis and understanding of the broadcast 
industry workforce, as well as the preparation of reports to Congress 
about the same. Collection, analysis, and availability of this 
information will support greater understanding of this important 
industry. We agree with broadcasters and other stakeholders that 
workforce diversity is critical to the ability of broadcast stations 
both to compete with one another and to effectively serve local 
communities across the country. Without objective and industry-wide 
data, it is impossible to assess changes, trends, or progress in the 
industry. Consistent with how these data have been collected 
historically, we will make broadcasters' Form 395-B filings available 
to the public because we

[[Page 36706]]

conclude that doing so will ensure maximum accuracy of the submitted 
data, is consistent with Congress's goal to maximize the utility of the 
data an agency collects for the benefit of the public, allows us to 
produce the most useful reports possible for the benefit of Congress 
and the public, and allows for third-party testing of the accuracy of 
our data analyses. Thus, with today's action, we restore the process of 
giving broadcasters, Congress, and ourselves the data needed to better 
understand the workforce composition in the broadcast sector. We find 
further that continuing to collect this information in a transparent 
manner is consistent with a broader shift towards greater openness 
regarding diversity, equity, and inclusion across both corporate 
America and government. Large media companies have begun to make 
publicly available copies of their EEO-1 forms, which are filed with 
the Equal Employment and Opportunity Commission, or variations thereof. 
There is also movement towards more open access to data collected by 
federal agencies, as shown in the Foundations for Evidence Based 
Policymaking Act, which directs agencies to account for their data 
collections and to make such data available in readable formats to 
support government transparency and evidence-based rulemaking. We also 
address a pending petition for reconsideration from 2004 regarding our 
use of Form 395-B data.

Background

    3. For more than 50 years, the Commission has administered 
regulations governing the EEO responsibilities of broadcast licensees. 
At their core, the Commission's EEO rules prohibit employment 
discrimination on the basis of race, color, religion, national origin, 
or sex, and require broadcasters to provide equal employment 
opportunities. In addition to broadly prohibiting employment 
discrimination, the Commission's rules also require that all but the 
smallest of broadcast licensees develop and maintain an EEO program. 
Specifically, the Commission requires each broadcast station that is 
part of an employment unit of five or more full-time employees to 
establish, maintain, and carry out a positive continuing program to 
ensure equal opportunity and nondiscrimination in employment policies 
and practices. In addition, the Commission historically collected 
workforce employment data from broadcasters through the annual 
submission of Form 395-B.
    4. Between 1970 and 1992, the Commission, pursuant to its public 
interest authority, required broadcasters to submit annual employment 
reports listing the composition of the broadcasters' workforce in terms 
of race, ethnicity, and gender. In 1992, after finding that, among 
other things, ``increased numbers of females and minorities in 
positions of management authority in the cable and broadcast television 
industries advances the Nation's policy favoring diversity in the 
expression of views in the electronic media,'' Congress amended the 
Act, affirming the Commission's authority in this area. Specifically, 
Congress added a new section 334, which required the Commission to 
maintain its existing EEO regulations and forms as applied to 
television stations. The forms included the Commission's collection of 
workforce diversity information from broadcasters on Form 395-B. 
Submission of Form 395-B, however, was subsequently suspended in 2001 
following two decisions by the U.S. Court of Appeals for the District 
of Columbia Circuit (D.C. Circuit) vacating certain aspects of the 
Commission's EEO rules.
    5. With its decision in 1998, the D.C. Circuit in Lutheran Church-
Missouri Synod v. FCC (Lutheran Church) reversed and remanded a 
Commission action finding that a broadcast licensee had failed to make 
adequate efforts to recruit minorities. The court found the 
Commission's EEO outreach rules, which required comparison of the race 
and sex of a station's full-time employees with the overall 
availability of minorities and women in the relevant labor force, to be 
unconstitutional. Specifically, the court concluded that the use of 
broadcaster employee data to assess EEO compliance in the context of a 
license renewal pressured broadcasters to engage in race-conscious 
hiring in violation of the equal protection component of the Due 
Process Clause of the Fifth Amendment of the Constitution. The court 
applied strict constitutional scrutiny in reaching its decision, 
finding that standard of review was applicable to racial 
classifications imposed by the federal government. And pursuant to that 
standard, it determined that the Commission's stated purpose of 
furthering programming diversity was not compelling, nor were its EEO 
rules narrowly tailored to further that interest. The court made clear, 
however, that ``[i]f the regulations merely required stations to 
implement racially neutral recruiting and hiring programs, the equal 
protection guarantee would not be implicated.'' In reaching its 
decision, the court referenced the Form 395-B only tangentially in its 
analysis.
    6. On remand, in the First Report and Order (MM Docket Nos. 98-204, 
96-16, FCC 00-20, 15 FCC Rcd 2329) (First Report and Order) the 
Commission crafted new EEO rules requiring that broadcast licensees 
undertake an outreach program to foster equal employment opportunities 
in the broadcasting industry. The Commission also reinstated the 
requirement that broadcasters annually file employment data on Form 
395-B with the Commission, which it had suspended after Lutheran 
Church. In adopting these revised rules and reinstating the information 
collection, the Commission vowed to no longer use workforce composition 
data when reviewing license renewal applications or assessing 
compliance with EEO program requirements. Rather, the Commission stated 
in the 2000 Reconsideration Order (MM Docket Nos. 98-204, 96-16, FCC 
00-338, 15 FCC Rcd 22548) (2000 Reconsideration Order) that going 
forward it would only use this information ``to monitor industry 
employment trends and report to Congress,'' and not to assess any 
aspect of the individual broadcast licensee's compliance with the Equal 
Employment Opportunity requirements of Sec.  73.2080 of the 
Commission's rules. The Commission codified that position in the 
governing regulations contained in Sec.  73.3612.
    7. Following adoption of the new EEO outreach rules, which offered 
licensees two ``Options'' for establishing an EEO program, several 
state broadcaster associations challenged the revised EEO rules. Upon 
review, the D.C. Circuit in MD/DC/DE Broadcasters Associations v. FCC 
(MD/DC/DE Broadcasters) found that one element of the new rule, namely 
Option B, which allowed broadcasters to design their own outreach 
programs but required reporting of the race and sex of each applicant, 
was constitutionally invalid. The court determined that Option B 
violated the equal protection component of the Due Process Clause of 
the Fifth Amendment because, by examining the number of applicants and 
investigating any broadcasters with ``few or no'' minority applicants, 
the Commission ``pressured'' broadcasters to focus resources on 
recruiting minorities. Because the court found that Option B was not 
severable from Option A of the rule, it vacated the entire EEO outreach 
rule.
    8. Although the D.C. Circuit in MD/DC/DE Broadcasters vacated and 
remanded the Commission's revised EEO outreach rules, it did not rule 
on

[[Page 36707]]

the validity or constitutionality of Form 395-B. Nor did the court 
specifically identify Form 395-B or the collection of workforce 
diversity data as a core part of the rule at issue in its analysis. The 
court's only mention of the collection of workforce data was in the 
Background section of its decision. Thus, notably, in neither Lutheran 
Church nor MD/DC/DE Broadcasters did the D.C. Circuit find the 
collection of workforce composition data itself to be invalid on 
constitutional or any other grounds. After the decision, the Commission 
suspended its EEO rules in 2001, including Form 395-B, in order to 
analyze the effects of MD/DC/DE Broadcasters on the Commission's rules.
    9. On November 20, 2002, the Commission released its Second Report 
and Order and Third NPRM (MM Docket No. 98-204, FCC 02-303, 17 FCC Rcd 
24018) (Second Report and Order and Third NPRM), establishing new race-
neutral EEO rules, eliminating the Option B rule previously invalidated 
by the court. The Commission's new EEO rules, which remain in place 
today, were divorced from any data concerning the composition of a 
broadcaster's workforce or applicant pool. The Commission explained 
that the annual employment report is ``unrelated to the implementation 
and enforcement of our EEO program'' and ``data concerning the entity's 
workforce is no longer pertinent to the administration of our EEO 
outreach requirements.'' The Commission, however, deferred action on 
issues relating to the annual employment report form, in part because 
it needed to incorporate new standards for classifying data on race and 
ethnicity adopted by the Office of Management and Budget (OMB) in 1997. 
The Commission's decision in January 2001 to suspend the filing of Form 
395-B remained in effect at the time of the Second Report and Order and 
Third NPRM.
    10. On June 4, 2004, the Commission released its Third Report and 
Order and Fourth NPRM (MM Docket No. 98-204, FCC 04-103, 19 FCC Rcd 
9973) (Third Report and Order and Fourth NPRM) readopting the 
requirement that broadcasters file Form 395-B. In addition, the 
Commission readopted the Note to Sec.  73.3612 of its rules that it had 
previously adopted in 2000, stating that the data collected would be 
used exclusively for the purpose of compiling industry employment 
trends and making reports to Congress, and not to assess any aspect of 
a broadcaster's compliance with the EEO rules. The Commission stated 
that it did not ``believe that the filing of annual employment reports 
will unconstitutionally pressure entities to adopt racial or gender 
preferences in hiring,'' but it acknowledged the concerns raised by 
broadcasters and sought comment on whether data reported on the Form 
395-B should be kept confidential. Accordingly, while the Commission 
acted at that time to adopt revised regulations regarding the filing of 
Form 395-B and updated the form, the requirement that broadcasters once 
again submit the form to the Commission remained suspended until the 
agency further explored the issue of whether employment data could, or 
should, remain confidential. Although the requirement to file the forms 
on an annual basis remained suspended after 2004, the Commission 
regularly sought approval from OMB for the collection of information on 
Form 395-B. OMB most recently approved the information collection for 
Form 395-B through August 31, 2026, pending the Commission's resolution 
of whether the data will be confidential.
    11. Given the passage of time since the Third Report and Order and 
Fourth NPRM, the Commission released a FNPRM on July 26, 2021, seeking 
to refresh the 2004 record with regard to Form 395-B. The FNPRM asked 
for additional input on relevant developments in the law relating to 
public disclosure of employment data, as well as the practical and 
technical limitations associated with implementing a system that could 
afford varying degrees of station-level anonymity. Interested parties 
filed comments, including public interest organizations and 
representatives of the broadcast industry. Their arguments range from 
asking that Form 395-B data be made publicly available to contending 
that reinstating the form would amount to an unconstitutional violation 
of race-based protections. Many of these assertions largely reiterate 
arguments addressed in the Commission's earlier orders, including 
whether the filing requirement constitutes unconstitutional pressure, 
the ramifications of the D.C. Circuit rulings, the directives of 
section 334, and the potential substitutability of the Equal Employment 
Opportunity Commission's (EEOC) EEO-1 form.

Discussion

    12. Consistent with the Commission's authority pursuant to section 
334, as well as the public interest provisions of the Act, we reinstate 
the collection of FCC Form 395-B. In doing so, we affirm the 
Commission's prior determination that the earlier court decisions in no 
way invalidated our authority to collect this data, which remains 
critical for analyzing industry trends and making reports to Congress. 
Further, we find that reinstatement of this information collection on a 
publicly available basis is consistent with the protections afforded to 
broadcasters by the Constitution and relevant case law, as detailed 
further below. The clear separation of this information collection from 
the Commission's long-standing EEO program requirements mitigates any 
concerns that might be raised by the broadcasters as to the collection 
of this workforce data. In addition, the Commission's unequivocal 
statement that it will not use station-specific employment data for the 
purpose of assessing a licensee's compliance with the EEO regulations 
and the codification of that same stricture further underscore the 
dissociation between the EEO requirements and the form's data.

B. Reinstatement of the Form 395-B Collection

    13. The Commission has a public interest in collecting Form 395-B 
in order to report on and analyze employment trends in the broadcast 
sector and also to compare trends across other sectors regulated by the 
Commission. In taking this action today, we note that Congress has long 
authorized the Commission to collect this data and that the Commission 
is uniquely positioned to undertake such a collection. While commenters 
have evinced an interest in improving the level of diversity in the 
broadcasting industry workforce, the lack of industry-wide employment 
data over the last 22 years makes it difficult to measure the extent of 
any such progress. While we do not anticipate that this more than two-
decade long gap in data can ever be filled, with the reinstatement of 
this information collection the Commission can ensure that the lack of 
data persists no further, thereby providing it, the industry, Congress, 
and the public with a better understanding of, or insight into, the 
full scope of the broadcast industry workforce. Accordingly, in this 
Order, we reinstate collection of Form 395-B in the manner described 
below and require the form to be submitted in an electronic format. 
Once submitted, the form will be accessible to the public via the 
Commission's website.
    14. Reinstating the collection of the Form 395-B data in a publicly 
available format, as they were collected prior to 2001, remains the 
best approach for achieving our ultimate goal of preparing meaningful 
and accurate analyses of workforce trends in the broadcast industry. 
First, public disclosure will increase the likelihood that erroneous 
data will be discovered and corrected,

[[Page 36708]]

and it will incentivize stations to file accurate data to avoid third-
party claims that submitted data is incorrect. Whether intentionally or 
inadvertently, a station might misreport its data or misidentify the 
racial, ethnic, or gender group for particular employees. Individuals 
or entities with a connection to the station will be in a position to 
correct such errors if the data are made public. Second, making the 
Form 395-B data publicly available is consistent with Congress's goal 
to maximize the utility of the data an agency collects for the benefit 
of the public. Third, making the data public bolsters our ability to 
conduct analyses of trends across different communications sectors, 
within individual sectors, and by region or market, without being 
unnecessarily hampered by concerns about inadvertent disclosures of 
identifiable information. We believe the utility of our reports is 
greatly enhanced by our ability to ``slice, dice, and display'' 
granular data about the broadcast sector. Our ability to produce the 
most meaningful reports possible for Congress rests, in turn, on the 
ability to produce the most granular reports possible (e.g., the number 
of employees in a particular demographic group in a specific job 
category among a certain class of stations [AM, FM, TV, etc.] in a 
specific geographic area). If we were required, however, to keep 
confidential the underlying station-specific data, we would feel 
compelled to report our findings at a more general, and thus less 
useful, level to avoid the risk of inadvertently facilitating any 
reverse engineering of station-specific information. This problem would 
be especially acute in smaller markets, where the identity of stations 
could be discerned more easily.
    15. In addition, allowing public access to datasets allows others 
to review the accuracy of an agency's data analyses and to question its 
methods for data collection with the benefit of actual datasets. We 
find this level of transparency to be consistent with the overall trend 
toward making government data more accessible, and we note that many 
government agencies collect and publish demographic data as part of 
their analysis of markets, trends, and other factors. The FNPRM sought 
comment on the logistics associated with collecting and maintaining the 
Form 395-B data completely anonymously, or where station specific 
information is available to the Commission, but not to the public. Only 
one commenter addressed this issue by stating that the Commission's 
Licensing and Management System (LMS) enables the shielding of certain 
exhibits attached forms. Irrespective of whether LMS can shield 
station-attributable data, we conclude for the reasons stated above 
that maintaining this data in a publicly available format is the most 
appropriate policy.
    16. While broadcasters have expressed concerns with how the form's 
data might be used if publicly disclosed, such concerns have been 
addressed by the Commission's repeated statements on the appropriate 
use of such data and its amendment of the rules to prohibit use of the 
data to assess a broadcaster's compliance with Commission EEO rules. 
Notwithstanding the Commission's statements and actions, broadcasters 
were troubled in 2004 by comments made at that time positing that 
public disclosure of employment data would enable ``citizens . . . to 
work closely with their local broadcaster to ensure that stations are 
meeting their needs and to resolve any problems with the companies in 
their communities.'' Broadcasters pointed to those comments as evidence 
that third parties would misuse Form 395-B data to pressure stations to 
engage in preferential hiring practices. As an initial matter, as the 
Commission has committed to previously and we reiterate here again, we 
will quickly and summarily dismiss any petition, complaint, or other 
filing submitted by a third party to the Commission based on Form 395-B 
employment data. We also note that any attempt by a non-governmental 
third party to use the publicly available Form 395-B data to pressure 
stations in a non-governmental forum would not implicate any 
constitutional rights of the station. In any event, we find such 
concerns to be speculative. Despite the public availability of Form 
395-B data for more than 20 years prior to 2001, the record contains no 
evidence of use of such data in this manner. Nonetheless, we encourage 
broadcasters to bring to the Commission's attention any evidence that a 
third party has misused or attempted to misuse Form 395-B employment 
data. If evidence of such misuse of the data emerges, the Commission 
can reconsider its approach to collection of the Form 395-B data. Based 
on the record before us, we find no basis to conclude that the 
demographic data on a station's annual Form 395-B filing would lead to 
undue public pressure. We find broadcasters' concerns with the public 
collection and availability of this workforce data to be overstated, 
outweighed by the promotion of data accuracy and other benefits of 
public disclosure noted above, and therefore not an impediment to our 
reinstatement of this collection.
    17. Consistent with the limitations placed on our use of the Form 
395-B data, we reject the commenter recommendation that the Enforcement 
Bureau use the data as evidence when investigating a discrimination 
claim against a station. We find that such use does not comport with 
the Commission's public interest goal behind collection of this data. 
The Commission has stated previously in the 2000 Reconsideration Order, 
and we reiterate here, that ``we will summarily dismiss any petition 
filed by a third party based on Form 395-B employment data'' and ``will 
not use this data as a basis for conducting audits or inquiries.''
    18. Some commenters have raised a concern that the Commission could 
decide at a later date to waive its rule regarding how the Form 395-B 
data can be used. We believe that the combination of the Commission's 
consistent position over two decades about how this data may be used, 
the established principle that ``an agency is bound by its own 
regulations,'' our rejection of a proposed contrary use, and our 
determination in the attached Order on Reconsideration should assuage 
concerns on this point. We will not further delay reinstatement of the 
form based on unfounded conjecture about what the Commission may or may 
not do in the future.
    19. Further, we reject the argument that we should retain Form 395-
B data on a confidential basis given the EEOC's confidential treatment 
of similar employment data collected on its EEO-1 form. Unlike the 
Commission, the EEOC's authorizing statute specifically limits its 
ability to make its collected data publicly available. In the Civil 
Rights Act of 1964, which created the EEOC, Congress included a 
provision making it unlawful for an EEOC officer or employee to 
disclose such information. However, when Congress adopted section 334 
in 1984, despite the fact that in the preceding 20 years Congress had 
not lifted the prohibition on public disclosure by the EEOC, Congress 
imposed no such limitation on publishing the broadcast workforce data 
collected by the Commission. Indeed, when Congress adopted section 334 
in 1984, the Commission had been collecting broadcast workforce data 
and making it available publicly for decades, a practice Congress 
endorsed in passing section 334 without any limitation on public 
disclosure. In addition, the manner in which the two agencies may use 
their data differs significantly. The

[[Page 36709]]

EEOC may use its EEO-1 data for investigatory and enforcement purposes, 
but by contrast, we will not use Form 395-B data for enforcement 
purposes.
    20. Some commenters assert that the Commission should rely on other 
data sources, including the EEO-1 form, in lieu of Form 395-B. Yet, 
section 334(a) of the Act states that ``except as specifically provided 
in this section, the Commission shall not revise . . . the forms used 
by [television broadcast station] licensees and permittees to report 
pertinent employment data to the Commission.'' Pursuant to section 334 
of the Act, we may change the form's provisions only ``to make 
nonsubstantive technical or clerical revisions . . . as necessary to 
reflect changes in technology, terminology, or Commission 
organization.'' As we discuss further below, the alternative data 
sources suggested by commenters would both violate the section 334 
prohibition on changes to the form and impede our general public 
interest goal of providing useful reports about employment in the 
broadcast sector.
    21. In particular, we continue to reject the proposal, initially 
made nearly two decades ago and dismissed by the Commission at that 
time as being inadequate, to rely on the EEOC's EEO-1 form in lieu of 
Form 395-B. We reaffirm the Commission's prior conclusion that the EEO-
1 form is not an appropriate substitute for Form 395-B, as the two 
forms differ greatly in the data they collect. First, unlike the EEO-1, 
Form 395-B distinguishes between full and part-time employees, 
consistent with our other employment data collections, providing a more 
comprehensive picture of the broadcast industry workforce. Second, and 
more importantly, reliance on the EEO-1 form would significantly reduce 
the amount of employment data available to the Commission as the vast 
majority of broadcast licensees do not file an EEO-1 form. While the 
Form 395-B collection applies to all broadcast station employment units 
with five or more full-time employees, the submission of an EEO-1 form 
is required only for entities with 100 or more employees. In 2004, in 
response to the same proposal to substitute the EEO-1 form for Form 
395-B, the Commission calculated that the EEOC data ``would not include 
6,592 employment units (79%) out of a total of 8,395 units and would 
exclude 136,993 full-time employees (84%) out of the 163,868 full-time 
employees in broadcasting working at employment units employing five or 
more full-time employees.'' Consequently, we determine that replacing 
Form 395-B either partly or wholly with the EEO-1 form does not 
constitute a permitted non-substantive modification of the form itself 
under section 334. Nor would such a substitution meet our public 
interest goal of providing a comprehensive report of employment in the 
broadcast sector and comparing employment trends across our regulatees. 
For the reasons provided above, we conclude that the EEO-1 form is an 
unsatisfactory replacement for Form 395-B. So as to reduce filing 
burdens, we also reaffirm the procedural practice of permitting 
broadcasters to file only one Form 395-B for all commonly-owned 
stations in the same market that share at least one employee.
    22. Similarly, we find to be inapposite the suggestion to use the 
Radio Television Digital News Association (RTDNA) diversity survey as a 
substitute for the Form 395-B collection. As an initial matter, the 
RTDNA data pertains only to TV and radio newsrooms and not to the full 
spectrum of the broadcast industry workforce covered by Form 395-B. 
Moreover, the RTDNA survey ultimately is based on valid responses from 
those broadcasters that choose to participate in the survey, and, 
hence, the pool of participants is essentially a self-selected one. By 
contrast, all broadcast station employment units with five or more 
full-time employees must file the Form 395-B. Consequently, 
substituting Form 395-B with the RTDNA survey would be inconsistent 
with the section 334 prohibition on changes and would provide a less 
complete view of the broadcast sector.
    23. Since we have determined that the benefits of making these 
reports public outweigh the speculative harm from doing so in light of 
the clear policy of the Commission about how they may and may not be 
used, we see no reason to afford them confidentiality. We note, 
however, that there is a question whether they would in fact warrant 
confidential treatment under the Freedom of Information Act (FOIA) or 
whether the Commission could satisfy the requirements of the 
Confidential Information Protection and Statistical Efficiency Act of 
2002 (CIPSEA). The FNPRM sought comment on the potential applicability 
of the CIPSEA or the FOIA exemptions to the Form 395-B data collection. 
As discussed below, the record and our own analysis demonstrate that 
CIPSEA is ill-suited for an agency such as the Commission. Similarly, 
the Form 395-B data does not fit neatly within FOIA Exemption 4, and in 
any event Exemption 4 does not prevent the Commission from disclosing 
information after an appropriate balancing of the interests. 
Accordingly, for the reasons discussed below, we find neither CIPSEA 
nor FOIA affords an appropriate basis to collect Form 395-B information 
in a confidential manner.
1. CIPSEA Is Ill-Suited to the Commission's Collection of the Form 395-
B Data
    24. The Commission sought comment on CIPSEA in 2004 and again in 
2021, in particular, seeking to explore whether the confidentiality 
afforded by CIPSEA to government-collected data could apply to the Form 
395-B data. Commenters responding in 2004 disagreed regarding CIPSEA's 
applicability. Some commenters argued that CIPSEA authorizes the 
Commission to collect Form 395-B filings on a confidential basis and 
that doing so would be good public policy. Other commenters contended 
that neither CIPSEA nor the Communications Act permits the use of 
CIPSEA for Form 395-B filings. They further argued that confidential 
treatment would not serve CIPSEA's purpose of promoting public 
confidence in an agency's pledge of confidentiality, given that the 
Commission never made such a pledge with respect to Form 395-B, nor 
would it serve important policy objectives, such as ensuring the 
accuracy of Form 395-B data. When the Commission initially sought 
comment in 2004, the CIPSEA statute was barely two years old and 
relatively untested. Given the passage of time and the desire to obtain 
as complete a record as possible, the Commission sought comment anew on 
CIPSEA in 2021. The FNPRM sought input regarding the potential avenues 
under CIPSEA to collect and maintain data on a confidential basis, but 
the two comments in 2021 addressing CIPSEA provide insufficient 
discussion or analysis. As discussed further below, we find that CIPSEA 
is not an appropriate fit for the Commission's Form 395-B data 
collection.
    25. A commenter suggests that the Commission could utilize any one 
of CIPSEA's three approaches for confidential collection and retention 
of the Form 395-B data: (1) have the Commission's Office of Economics 
and Analytics (OEA) seek recognition as a ``Federal statistical agency 
or unit'' pursuant to CIPSEA and have OEA alone collect and analyze the 
Form 395-B data, which would then be released in conformance with the 
CIPSEA confidentiality protections; (2) have the Commission collect 
this data independently as a ``nonstatistical agency'' or ``unit;'' or 
(3) as a nonstatistical agency or unit, enter into an agreement with an 
already

[[Page 36710]]

recognized ``Federal statistical agency or unit'' and have that agency 
collect the data on behalf of the Commission. While the commenter 
asserts that these approaches are ``reasonable mechanism[s]'' for 
safeguarding Form 395-B data, it does not specify how its proposals 
could be satisfied under the requirements established in OMB's 2007 
Guidance. For example, the commenter does not discuss how the 
Commission, or even a subpart of the Commission, could qualify as a 
``statistical agency or unit'' given that OMB accords that designation 
only when the predominant activities of the agency or unit are the use 
of information for statistical purposes. The Commission plainly does 
not fit that description. Furthermore, the commenter does not address 
the costs and burdens involved with applying for and obtaining from OMB 
the designation needed for CIPSEA protection. Nor does it address the 
cost and burdens associated with adherence to CIPSEA and whether the 
benefit of retaining the Form 395-B data in conformance with CIPSEA 
outweighs these costs and burdens. Below, we address these points.
    26. Contrary to the commenter's suggestion, our detailed review of 
CIPSEA, OMB's 2007 Guidance, and examples of other agencies that have 
obtained designation as a ``statistical agency or unit'' demonstrates 
that neither the Commission nor OEA would qualify for such a 
designation. An agency, or agency unit, seeking such a designation must 
demonstrate to the OMB Chief Statistician that its activities are 
``predominantly the collection, compilation, processing, or analysis of 
information for statistical purposes.'' Although OEA conducts 
significant data analyses, its activities do not meet the 
``predominantly'' standard laid out by OMB. Rather, OEA's regular work 
also includes administrative, regulatory, and adjudicative functions, 
as well as the administration of the Commission's various spectrum 
auctions. For these reasons, we determine OEA could not satisfy the 
requirements for ``statistical agencies or units'' and, therefore, this 
approach is not a viable option.
    27. The commenter next suggests that the Commission could collect 
the Form 395-B data as a ``nonstatistical agency'' pursuant to CIPSEA, 
provided it complied with CIPSEA's restriction preventing 
nonstatistical agencies from using ``agents,'' including contractors, 
to collect or use the protected information, and if it ensured that 
only internal agency staff had access to the protected information. The 
commenter identifies no agency that has successfully invoked this 
provision of CIPSEA in the more than 20 years since the passage of the 
act. Nor have we been able to identify one. As discussed in the FNPRM, 
the Commission relies extensively on information technology (IT) 
contractors to develop and maintain electronic filing systems, assist 
filers with questions, and compile reports and other information based 
on data in Commission forms. The Commission has outsourced these tasks 
for decades consistent with a broader federal government initiative to 
ensure that those jobs that can be conducted in a more economically 
efficient manner by the private sector through competitive bidding. 
Moreover, the Commission currently relies on multiple IT contracts to 
maintain and operate its systems. Therefore, it would be extremely 
complex and burdensome from an administrative perspective to bring 
functions in-house solely for one form. For these reasons, we find that 
collecting Form 395-B data as a nonstatistical agency under CIPSEA is 
not a viable option.
    28. We similarly find that the final approach under CIPSEA, namely 
that the Commission, acting as a ``nonstatistical agency,'' partner 
with a ``statistical agency,'' which would collect the Form 395-B data 
on the Commission's behalf, is not a realistic--or even workable--one. 
Our detailed review of CIPSEA and OMB's 2007 Guidance shows that this 
is a complex process involving various logistical steps, as well as 
significant additional burdens and costs. Partnering with a 
``statistical agency'' involves identifying a possible partner agency, 
engaging in negotiations with that agency to establish an agreement for 
the collection of the data, negotiating and drafting an agreement 
stipulating the terms associated with collection, processing, and 
sharing of the Form 395-B data. Any such agreement would have to 
comport with OMB's requirements and might also necessitate OMB review. 
The Commission would also have to compensate any such partner agency 
for the costs of collecting and storing the data, educate the partner 
agency about the broadcast sector, and ensure that the information is 
collected in an appropriate manner. Under this approach, the Commission 
also would have to designate specific staff who would have permission 
to access the data and potentially restrict access to just those 
individuals. Moreover, broadcasters would have the additional burden of 
familiarizing themselves with a different agency's document filing 
system. As OMB has not yet issued guidance on such a partnership 
approach, however, the potential logistical problems going forward are 
not even fully known. In addition, pursuing the approach of partnering 
with a ``statistical agency'' would lead to further delay in 
reinstituting this collection, which has already lagged for far too 
long, while also unduly increasing the complexity and cost of the 
collection. Going forward, such an approach would lend complexity to 
the process and potentially hamper the Commission's ability to review, 
analyze, and report on the underlying data on an ongoing basis. 
Consequently, we conclude that the significant time, complexity, and 
cost associated with formulating a partnership with a statistical 
agency outweigh any speculative harm that might arise from public 
availability of this data.
2. Even if FOIA Exemption 4 Applies, the Strong Public Interest in 
Disclosure Outweighs Any Private Interest In Confidential Treatment
    29. The FNPRM sought comment on whether any Freedom of Information 
Act (FOIA) exemptions might apply to our collection of Form 395-B data. 
Commenters assert that Form 395-B data reported by broadcasters should 
not be publicly disclosed because doing so would reveal trade secrets 
and commercial information to competitors. While FOIA Exemption 4 
protects trade secrets and confidential commercial information from 
mandatory public disclosure by the Commission, its applicability to the 
information collected on Form 395-B is questionable. Further, even if 
we were to find FOIA Exemption 4 applicable, the Commission is not 
compelled to keep data covered by Exemption 4 confidential. The 
Commission has authority to make records that fall within Exemption 4 
public if it determines that the public interest in disclosure 
outweighs the private interests in preserving the data's 
confidentiality.
    30. FOIA Exemption 4 protects from mandatory disclosure information 
that is ``obtained from a person,'' as we recognize would be the case 
here, and that is both (1) ``commercial or financial'' in character and 
(2) ``privileged or confidential.'' Commenters assert that Form 395-B 
demographic data are ``commercial information.'' The case law, however, 
is not definitive on this question. Courts have sometimes defined 
commercial information broadly to include information submitted to an 
agency in which the submitter has a commercial interest, or to 
encompass information that has intrinsic commercial value, the

[[Page 36711]]

disclosure of which would jeopardize a submitter's commercial interests 
or ongoing operations. Those definitions might arguably apply to the 
demographic information of employees. However, in a recent case very 
closely on point, Center for Investigative Reporting v. U.S. Department 
of Labor (Center for Investigative Reporting v. DOL), the U.S. District 
Court for the Northern District of California held that the federal 
government failed to prove that EEO-1 Consolidated Report (Type 2) 
employee demographic data were ``commercial.'' Similar to Form 395-B 
data, the EEO-1 Type 2 Reports do not include ``salary information, 
sales figures, departmental staffing levels, or other identifying 
information.'' Although the Type 2 Reports ``require companies [that do 
business at two or more physical addresses] to report the total number 
of employees across all their establishments,'' whereas the Form 395-B 
breaks down this information by station employment units, neither form 
links job categories to specific departments; rather, both require 
information aggregated by type of job across all departments. 
Furthermore, the EEO-1 reports utilize the same job title, gender, and 
ethnicity categories as the information to be provided in Form 395-B. 
Given these similarities between the EEO-1 reports and information to 
be provided in Form 395-B, Center for Investigative Reporting suggests 
that the Form 395-B data is at least arguably not correctly considered 
to involve commercial information.
    31. It is likewise not entirely clear whether the data at issue 
here would be properly considered ``privileged or confidential.'' 
Information is confidential within the meaning of Exemption 4 
``whenever it is customarily kept private, or at least closely held, by 
the person imparting it.'' What matters is ``how [a] particular party 
customarily treats the information, not how the industry as a whole 
treats [it].'' Here, a commenter acknowledges that ``many employers 
choose to publicly disclose workforce demographic data'' in ``a variety 
of forms.'' And although the commenter distinguishes between Form 395-B 
data and the EEO-1 data that companies often elect to disclose, we see 
similarities between the two data sets, as discussed above.
    32. In addition, as discussed further below, we note that 
commenters have failed to show that competitive harm would result from 
the collection and public release of the information provided in Form 
395-B. While the Supreme Court held in Food Marketing Institute that a 
showing of competitive harm is not required to protect information from 
disclosure under Exemption 4, some courts have since declined to allow 
agencies to withhold information covered by Exemption 4 without showing 
an articulable harm from disclosure. These decisions rest on the theory 
that under the FOIA Improvement Act of 2016--which did not apply to the 
Food Marketing Institute case because it had not yet become effective 
at the time that case was filed--agencies must produce information 
otherwise covered by a FOIA exemption unless it is reasonably 
foreseeable that disclosure would harm an interest protected by the 
exemption (or disclosure is prohibited by law). However, the FOIA 
Improvement Act has alternatively been interpreted in the Exemption 4 
context to require no demonstration of harm beyond the loss of 
confidentiality itself, and therefore the relevance of competitive harm 
to the Exemption 4 analysis remains an unsettled issue.
    33. Ultimately, however, we need not decide whether Exemption 4 
covers the information collected on Form 395-B or assess the relevance 
of the FOIA Improvement Act. The Commission has well-established 
authority under section 4(j) of the Act to publicly disclose even trade 
secrets or confidential business information if, after balancing the 
public and private interests at stake, we determine that it is in the 
public interest to do so.
    34. In assessing the respective interests in the disclosure or non-
disclosure of Form 395-B data, we determine that the public interest in 
disclosing Form 395-B data outweighs broadcasters' claims that such 
disclosure might cause unspecified harm. As outlined above, there are 
significant public interest benefits from public disclosure of Form 
395-B data. Public disclosure of Form 395-B data promotes a more 
accurate collection and recordation process. It increases the 
likelihood that incomplete or inaccurate filings will be discovered and 
corrected, and it will incentivize stations to file accurate data to 
avoid third-party claims that submitted data are incorrect. It is also 
consistent with Congress's goal to maximize the utility of the data an 
agency collects for the benefit of the public. Public disclosure also 
allows us to produce the most granular reports possible for the benefit 
of Congress and the public, without being unnecessarily hampered by 
concerns about inadvertent disclosures of identifiable information. And 
public disclosure allows others to review the accuracy of our data 
analyses and to question our methods for data collection with the 
benefit of actual datasets.
    35. In contrast to these significant public benefits, commenters 
have failed to demonstrate that availability of the Form 395-B data 
would cause meaningful competitive harm. For example, a commenter 
asserts that if Form 395-B data were disclosed, a broadcaster's 
competitors could exploit such information to gain competitive insights 
into the broadcaster's business practices. Nothing in the record, 
however, realistically demonstrates how the public release of Form 395-
B data might afford a competitor tangible insights into another 
broadcaster's business practices that would lead to competitive harm. 
Commenters have not provided any actual instances of harm related to 
the Commission's previous collection and public disclosure of 
demographic data, but rather largely project a speculative, worst-case 
scenario. A commenter posits that competitors would be able to draw 
more detailed insights by comparing published data over a stretch of 
years; however, we fail to understand how any such result would have a 
negative commercial impact on broadcasters. Moreover, the fact that a 
number of broadcasters have begun to disclose workforce demographic 
data, albeit not at the level of detail as would be reported on Form 
395-B, also calls into question the extent of the competitive harm that 
would result if that information were to be publicly released. Further, 
guided in part by the court's analysis in Center for Investigative 
Reporting v. United States Department of Labor, we remain unconvinced 
that knowing the number of employees assigned to a particular job title 
or category in a company without knowing other details--for example, 
the duties of the employees, the structure of the company, salary 
information--can provide any significant information to a competitor 
that results in reasonably foreseeable or substantial competitive harm. 
As noted by various commenters in the instant proceeding, Form 395-B 
uses the same reporting methodology in terms of job categories as the 
EEO-1, rather than reporting ``demographic information by division, 
department, or `segment.' ''
    36. We conclude that the public benefits of releasing the 
information contained in Form 395-B are significant, while the harms 
would be slight. Thus, balancing the public interests in disclosure 
against the private interests at stake here, we find that there are 
strong public interests in favor of disclosure and that, accordingly, 
section 4(j) authorizes the

[[Page 36712]]

Commission to publicly disclose Form 395-B data.
    37. Timing of Form Submission. As directed by Sec.  73.3612 of the 
Commission's rules, broadcasters will be required to file Form 395-B 
annually on or before September 30 of each year, after the Order 
becomes effective. Authority is delegated to the Media Bureau to 
announce and provide filing instructions before the first window opens. 
The Commission established the September 30 deadline to align with the 
deadline for EEO-1 filings to enable licensees and permittees that also 
file similar data with the EEOC to conserve resources by using the same 
pay period record information for both filings. Broadcasters may report 
employment figures from any payroll period in July, August, or 
September of the relevant year, but that same payroll period must be 
used in each subsequent year's report by the licensee. Consistent with 
previous practice, the Form 395-B will be due on or before September 30 
of each calendar year. To provide broadcasters adequate notice 
regarding the details of the electronic filing process, the Media 
Bureau will issue a Public Notice with instructions about how to submit 
the filings, prior to the first filing after the Order becomes 
effective. This Public Notice will provide broadcasters ample time to 
put into place whatever data collection processes they require, 
including, for example, the development of employee surveys and 
instructions for employees regarding which job classification to 
report. It also will afford the Commission time to create and test an 
electronic version of Form 395-B.
    38. Identification of Non-Binary Gender Categories. Finally, in 
reinstating the collection of Form 395-B, some commenters urge us to 
incorporate into the form a mechanism that will enable identification 
of non-binary gender categories. While the EEOC has incorporated a 
comment box on the EEO-1 form allowing for submission of gender non-
binary information, both the EEOC and the Commission traditionally 
track the definitions and standards on race, ethnicity and gender set 
forth by OMB and used widely by the federal government. To date, OMB 
has not prescribed conclusive classifications to capture non-binary 
gender data. Federal guidance, however, recognizes the ``need to be 
flexible and adapt over time'' in developing measures to collect such 
data. Consistent with that guidance and our record, we believe it is 
appropriate that the Form 395-B include a mechanism to provide further 
specificity about broadcaster employees' gender identities.
    39. We find that such an update fits within the latitude granted to 
the Commission pursuant to section 334(c) of the Act to revise the 
forms ``to reflect changes in . . . terminology.'' We also find that 
the FNPRM provided sufficient public notice and opportunity for comment 
to allow us to incorporate this change to the form. The FNPRM 
encouraged commenters ``to provide any new, innovative, and different 
suggestions for collecting and handling employment information on Form 
395-B'' and asked if there were ``any other issues or developments that 
[the Commission] should consider.'' We conclude that the suggestion to 
include within the Form 395-B a mechanism to account for those who 
identify as gender non-binary is a logical outgrowth from the FNPRM's 
requests for comment. Accordingly, and after receiving only support for 
and no opposition to the idea, we will include such a mechanism in the 
reinstituted Form 395-B. We delegate to the Media Bureau the authority 
to implement this change to the Form.

C. Constitutional Issues

    40. Reinstatement of the Form 395-B data collection in a publicly 
available manner is wholly consistent with the equal protection 
guarantee contained in the Fifth Amendment of the Constitution. As 
discussed below, collection of workforce data from broadcast licensees 
on Form 395-B is race- and gender-neutral, and no race- or gender-based 
government action flows from collection of the data or its public 
availability. Accordingly, collection and publication of Form 395-B 
data need only be rationally related to a legitimate governmental 
interest to pass constitutional muster. Since the Commission has a 
legitimate public interest in collecting Form 395-B data and doing so 
on a transparent basis is rationally related to this interest, 
reinstatement of Form 395-B as we propose is constitutionally 
permissible. Finally, we find that the limitations the Commission has 
placed on its own use of the data obviate the concerns raised in the 
record about the potential for undue pressure being placed on, or 
``raised eyebrow'' regulation of, broadcasters.
    41. As the court in Lutheran Church acknowledged, the 
Constitution's equal protection guarantee is not implicated if the 
regulation at issue is neutral with respect to protected categories. 
This standard is satisfied here, because both on its face and in 
application, the collection of workforce data from broadcast licensees 
on Form 395-B is race- and gender-neutral. Regardless of the 
demographic makeup of a particular broadcast station employment unit, 
all units with five or more full-time employees are required to file 
their workforce data with the Commission. At no point does the 
Commission use race and gender categories to direct units on whether 
they must file the form; the number of employees within a given unit is 
the sole criterion. Further reflecting the neutrality of the 
application of the form, all units required to file with the Commission 
use an identical Form 395-B to report their respective demographic and 
job category data. By using employment size as the exclusive factor to 
direct units to file broadcast workforce data, the completion of the 
form in this regard is a neutral activity, ``devoid of ultimate 
preferences'' for hiring on the basis of race or gender.
    42. Furthermore, there is no race- or gender-based government 
action that flows from collection of the data or its public 
availability. Unlike the collection of this data 20 years ago, there is 
no connection between the Form 395-B collection at issue here and the 
EEO program requirements applicable to broadcasters. The court's 
finding in Lutheran Church that the Commission's rules impermissibly 
pressured broadcasters to engage in race-conscious hiring decisions 
stemmed from the set of criteria that the Commission had created in 
1980 to determine whether its review of a station's license renewal 
application should include a closer examination of the station's EEO 
program. Under those 1980 screening guidelines, the Commission would 
review the adequacy of a station's EEO program if minorities and/or 
women employed by the station were underrepresented as compared to the 
available workforce. That requirement to compare the racial composition 
of a station's workforce with that of the local population, and not the 
requirement to report employment data that we reinstate today, was the 
trigger for the court's strict scrutiny in that case.
    43. While the Commission revised the EEO program requirements after 
the Lutheran Church ruling, the use of race, ethnicity, and gender 
information (albeit not Form 395-B data) was still linked to the 
Commission's EEO program. The new EEO program allowed stations to 
choose between two options for their recruiting programs. In MD/DC/DE 
Broadcasters, the D.C. Circuit struck down the Commission's revised, 
two-option EEO program because it found that broadcasters proceeding 
under Option B of the program were pressured

[[Page 36713]]

to engage in race-conscious recruiting practices, given that Option B 
required annual reporting of race, ethnicity, and gender information 
for each job applicant. The court found that such pressure would lead 
to outreach programs targeted at minority groups, to the potential 
disadvantage of non-minority groups, and thus constituted a racial 
classification that triggered strict scrutiny. Following the court's 
decision, the Commission suspended both its EEO outreach requirements 
and its Form 395-B filing requirement.
    44. When the Commission later adopted new EEO program requirements 
in the Second Report and Order and Third NPRM, it deferred action on 
requiring the collection of workforce data, and the Form 395-B data 
collection has been on hold ever since. Thus, these EEO program 
requirements have existed independently of Form 395-B for the past 20 
years. That the Commission's EEO program continued to operate even as 
the Form 395-B collection was held in abeyance highlights the 
separation of these two requirements. And we reiterate that going 
forward, these two requirements--the filing of annual workforce data 
and compliance with an EEO program--will continue to be divorced from 
one another. As the Commission has recognized consistently for more 
than 20 years, the Lutheran Church and MD/DC/DE Broadcasters decisions 
do not prohibit the collection of employment data for the purpose of 
analyzing industry trends. The Commission concluded more than two 
decades ago in the 2000 Reconsideration Order that collecting 
employment data solely for monitoring purposes would not violate 
Lutheran Church, and we affirm that conclusion. The D.C. Circuit never 
took issue with the Commission's collection of station-specific 
employment data from broadcasters and making this data publicly 
available. We continue to find the collection of this information to be 
consistent with the Constitution and the public interest. The 
Commission has stated unequivocally and emphatically that it will not 
use the Form 395-B for assessing a licensee's compliance with EEO 
program requirements. The agency even went so far as to codify that 
policy in the Code of Federal Regulations, amending Sec.  73.3612 of 
its rules in 2004 to prohibit explicitly the use of the Form 395-B data 
for EEO compliance purposes. We reaffirm the Commission's previous 
determination that workforce data collected on Form 395-B will be used 
only for purposes of analyzing industry trends and reports by the 
Commission, and that the use of such data to assess an individual 
broadcast licensee's compliance with our EEO requirements will be 
prohibited. Moreover, in the attached Order on Reconsideration, we 
grant a previous request filed by the State Associations asking that we 
modify the prohibition on our use of the form's data to explicitly bar 
the Commission from employing this data to assess compliance with the 
nondiscrimination requirement contained in Sec.  73.2080 of our rules. 
Our granting of the State Associations' request further demonstrates 
our commitment to use this data only for industry analysis and 
reporting.
    45. We disagree with commenters' assertion that collection or 
publication of the data on a licensee- or station-attributable basis 
will still somehow result in unconstitutional ``sub silentio'' 
pressures or ``raised-eyebrow'' regulation. We have stated repeatedly 
and unequivocally, and codified the proposition in our rules, that we 
will not use Form 395-B data for any purpose other than for analyzing 
and reporting trends in the broadcast industry. Nonetheless, commenters 
attempt to employ dicta from the D.C. Circuit in MD/DC/DE Broadcasters 
and Lutheran Church about implicit pressures by claiming that, despite 
the limitations the Commission has placed on its own use of the data, 
third parties may use the data to place improper pressure on a licensee 
to engage in preferential hiring practices to avoid having frivolous 
complaints filed against it with the Commission. As an example, one 
commenter claims that some loan agreements would require broadcasters 
to disclose even frivolous petitions to their lenders, thereby adding 
an element of risk to funding acquisitions. To address this concern, we 
will make every effort to dismiss as quickly as possible any petitions, 
complaints, or other filings that rely on a station's Form 395-B filing 
as the basis of the petition, complaint, or other filing. Moreover, 
broadcasters in that situation may apprise lenders of our intent to 
dismiss such complaints and point to our rule disallowing the use of 
the data for compliance purposes.
    46. Broadcaster groups mistakenly assert that reinstating a public 
collection of Form 395-B violates D.C. Circuit precedent, which the 
commenters argue effectively invalidated the use of the Form 395-B for 
all purposes. In arguing that the Lutheran Church decision invalidated 
Form 395-B, however, the commenters erroneously treat all the EEO 
requirements in effect at the time of Lutheran Church as one 
inseparable rule that the D.C. Circuit vacated. The commenters are 
incorrect in asserting that the court's finding of unconstitutional 
pressure when the collection was combined with the then-existing EEO 
program somehow invalidated the Form 395-B itself for any and all other 
purposes. In fact, as noted above, what the Lutheran Church court found 
to be problematic was the requirement to compare the racial composition 
of a station's workforce with that of the local population, and not the 
requirement to report employment data to the Commission. The court's 
finding of unconstitutionality did not reach the Commission's use of 
the form to gather data purely for statistical purposes and without 
regard to a station's EEO compliance. Indeed, the court did not even 
speak to the form's use in collecting employment data for the purpose 
of analyzing industry trends, let alone invalidate it for that purpose.
    47. Furthermore, we reject the suggestion that the finding in the 
MD/DC/DE Broadcasters case somehow casts doubt on the legitimate use of 
Form 395-B data for industry trend reporting, given that the Form 395-B 
was not even at issue in that case. The Form 395-B was only mentioned 
in the background section of that decision, as the collection of the 
employee diversity data was irrelevant to the data at issue in that 
case (i.e., applicant data). Rather, the court found the Commission's 
revised EEO program problematic because it determined that broadcasters 
proceeding under one aspect of the program (Option B) could feel 
pressured to engage in race-conscious recruiting practices, given that 
Option B required an annual reporting of the race, ethnicity, and 
gender information for each job applicant.
    48. Therefore, unlike applicant data required under Option B of the 
former EEO program, the Form 395-B workforce data played no role in 
assessing a broadcaster's compliance with the recruiting rules at issue 
in MD/DC/DE Broadcasters. In the current situation no unconstitutional 
use of racial or gender classifications arises from the Commission's 
collection of annual employee data because we will not use the 
collection of Form 395-B demographic data for purposes of assessing or 
enforcing a broadcaster's compliance with our EEO rules. Further, we 
find the commenter argument that the court in MD/DC/DE Broadcasters 
disparaged the use of ``outputs'' to measure ``inputs'' to be 
misplaced. First, as noted above, the court was referring to applicant 
data--i.e., those applying to open job positions at the station--as the 
output in that case, which was being

[[Page 36714]]

used to evaluate a broadcaster's outreach efforts and the success of 
its EEO program in recruiting potential job applicants. Employee data--
i.e., the composition of the station's workforce, which is captured by 
the Form 395-B--was not the ``output'' of concern. Second, to the 
extent that employee data might be considered an output, the Commission 
now explicitly prohibits the use of such data as a tool to measure a 
broadcaster's ``inputs'' to its EEO program. Furthermore, the court in 
MD/DC/DE Broadcasters never suggested that the collection of employee 
data for statistical purposes factored into its analysis regarding the 
unconstitutionality of the outreach rules.
    49. Based on the above, we conclude that reinstating collection of 
Form 395-B in a public manner, where the form's data can only be used 
for reporting and analyzing industry trends, is fully consistent with 
the determinations in Lutheran Church and MD/DC/DE Broadcasters. The 
proposed action is race- and gender-neutral and crucial to Congress's 
and the Commission's interest in understanding broadcast employment 
trends. Because the Commission is the only entity with the resources 
and expertise to expeditiously collect and compile this data, it is 
vital that the agency restart this collection. With current data, the 
Commission, Congress, and the general public can better understand 
developments in the broadcast sector.
    50. Although no commenter raised a First Amendment issue, we 
clarify that requiring stations to publicly disclose their workforce 
composition data does not constitute ``compelled speech'' on matters of 
race and gender, in violation of the First Amendment. A requirement to 
report information to the government fundamentally differs from the 
typical compelled speech case, which generally involves situations 
where ``the complaining speaker's own message [is] affected by the 
speech it [is] forced to accommodate.'' Conversely, the Form 395-B 
report requires reporting of factual information to the Commission--the 
station's own employment figures--to allow the Commission to analyze 
trends. There is no message being forced by the government.
    51. Even assuming, arguendo, that broadcaster's speech rights are 
implicated, our Form 395-B requirement is consistent with the First 
Amendment, as it entails disclosure of ``purely factual and 
uncontroversial'' information in a commercial context. The D.C. Circuit 
has ruled that government interests in addition to correcting deception 
can be invoked to sustain a mandate for disclosure of purely factual 
information in the commercial context. The Zauderer test is satisfied 
here because disclosure of workforce data is reasonably related to a 
substantial governmental interest (ensuring maximum accuracy and 
utility of the data on which the government relies for analysis and 
reporting purposes), which outweighs the ``minimal'' interest in not 
disclosing purely factual, uncontroversial information. In the 
alternative, even assuming, arguendo, that our requirement is subject 
to heightened First Amendment review, we find that our disclosure 
requirement satisfies even this higher standard. The government has a 
substantial interest in analyzing broadcast industry workforce 
information to support greater understanding of the broadcast industry 
and to report to Congress about the same. Collecting this data and 
making broadcasters' Form 395-B filings publicly available directly 
advance this governmental interest because without the data it would be 
impossible to assess changes, trends, or progress in the industry and 
making the information public ensures maximum accuracy of the submitted 
data by increasing the likelihood that erroneous data will be 
discovered and corrected and incentivizing stations to file accurate 
data and thereby maximizes the utility of the data. Moreover, the 
requirement is not more extensive than is necessary to serve that 
interest, because the data will be collected in a manner consistent 
with the Commission's previous, long-standing method of collecting the 
data and because, as this order has made clear, the data collected will 
be used exclusively for the purpose of compiling industry employment 
trends and making reports to Congress, and not to assess any aspect of 
a broadcaster's compliance with the EEO rules.

D. The Commission Has Broad Authority To Collect Form 395-B

    52. We find sufficient authority to reinstate the collection of 
Form 395-B, both pursuant to the public interest provisions of the Act 
and section 334. The Commission's adoption of Form 395-B preceded 
Congress's passage of section 334 by more than two decades. As 
discussed above in Section II, the form and the Commission's EEO rules 
were rooted firmly in the Commission's public interest mandate under 
sections 4(i), 303, 307, 308, 309, and 310 the Communications Act. By 
codifying the Commission's then existing EEO requirements, as well as 
the collection of Form 395-B, Congress, in 1992, ratified the 
Commission's pre-existing authority to adopt such rules and forms 
through congressional acquiescence in a long-standing agency policy. As 
the Commission discussed extensively in the Second Report and Order and 
Third NPRM in this proceeding, the limitation imposed by section 334 
regarding changes to the Commission's then-existing EEO rules and forms 
evidenced Congress's approval of the Commission's EEO approach 
(including the information collection) and its desire to ensure its 
continuance. Lawmakers' express endorsement of the rules 30 years ago 
did not in any way undermine the Commission's pre-existing public 
interest authority. Moreover, the Commission also has broad authority 
under the Communications Act to collect information and prepare 
reports.
    53. Despite this settled law, commenters challenge our authority to 
reinstate the form's collection, reviving arguments that the Commission 
rejected 20 years ago in the Second Report and Order and Third NPRM. 
First, they assert that, rather than a grant of EEO authority, section 
334 is a limitation on the Commission's authority to revise its EEO 
regulations and forms. They suggest that the Commission is constrained 
from reinstating Form 395-B because, in setting forth the permissible 
exceptions to its restriction on EEO changes, Congress did not include, 
or later add, the situation where some provisions of the EEO rules are 
deemed unenforceable, as occurred in Lutheran Church and MD/DC/DE 
Broadcasters. Second, commenters posit that the Commission is taking 
inconsistent positions on the current force of section 334. They argue 
that, if section 334 is still in force and dictates reinstatement of 
Form 395-B, then the Commission's current EEO outreach rules violate 
the statutory provision because those rules have undergone substantial 
revision. The commenters assert that the Commission ``cannot have it 
both ways'' by rejecting the constraints of section 334 when it 
previously revised its EEO rules, but now invoking the same provision 
to reinstate Form 395-B.
    54. We find commenters' assertions unsound as a matter of law and 
logic. They disregard the Commission's public interest authority under 
the Act, which was the underpinning of the Commission's EEO rules and 
Form 395-B long before the passage of section 334. Further, the 
commenters also misconstrue the impact of the court decisions on our 
section 334 authority. While the Lutheran Church court invalidated 
elements of the EEO

[[Page 36715]]

program requirements in effect in 1992, thereby terminating their 
enforceability, it did not address the constitutionality of section 334 
itself. Moreover, the subsequent decision in MD/DC/DE Broadcasters did 
not imply that the unconstitutionality of the previous regulations 
rendered section 334 inoperative.
    55. We therefore continue to reject the commenters' false premise 
that section 334 was somehow ``neutered'' by the D.C. Circuit 
decisions. Section 334 continues to provide authority for reinstating 
Form 395-B. Moreover, as discussed above, we find ample legal authority 
separate from section 334 to reinstate collection of the form.

Order on Reconsideration

    56. In 2004, the State Associations filed a petition seeking 
reconsideration of the Third Report and Order and Fourth NPRM. The 
petition asks the Commission: (1) to amend the Note to Sec.  73.3612 of 
the Commission's rules to, in their view, clarify and strengthen the 
Commission's pledge to refrain from using Form 395-B data for 
compliance or enforcement purposes; (2) to address the issue of 
confidential treatment for Form 395-B; and (3) to issue a Fourth Report 
and Order resolving issues raised in the Third Report and Order and 
Fourth NPRM and in petitions for reconsideration filed in response to 
the Second Report and Order and Third NPRM. Numerous parties jointly 
filed an opposition to the petition. We hereby grant the State 
Associations' petition in part, deny it in part, dismiss it in part, 
and defer it in part.
    57. The State Associations seek an expansion of the Commission's 
pledge to not use Form 395-B data to assess an individual broadcast 
licensee's compliance with the EEO rules to read as follows, with their 
proposed changes shown in italics:

    Note to Sec.  73.3612: Data concerning the gender, race and 
ethnicity of a broadcast station's workforce collected in the annual 
employment report will be used only for purposes of analyzing 
industry trends and making reports to Congress. Such data will not 
be used for the purpose of assessing any aspect of an individual 
broadcast licensee's or permittee's compliance with the 
nondiscrimination or equal employment opportunity requirements of 
Sec.  73.2080. Accordingly, the Commission will not entertain any 
allegation or showing that a broadcast licensee or permittee has 
violated any aspect of Sec.  73.2080 on the basis that the station's 
workforce does not reflect a certain number of persons of a 
particular gender, race or ethnicity either overall or in any one or 
more job categories.

    58. Based on the record stemming from the State Associations' 2004 
petition for reconsideration and the determinations made in the Fourth 
Report and Order above, we find it appropriate to make certain changes 
to the language of Sec.  73.3612 of our rules. With regard to the first 
of the State Associations' proposed changes, the opposing parties do 
not object to adding the phrase ``or permittee's,'' and we agree to 
make that change because permittees also are required to file Form 395-
B. We also find that explicitly stating in the rule itself that we will 
not use Form 395-B data to assess compliance with both the equal 
employment opportunity requirements and nondiscrimination requirements 
of Sec.  73.2080 of our rules is consistent with our statements in the 
Fourth Report and Order above and with statements made by the 
Commission over the past two decades.
    59. While the opponents to this change argue that we should not 
categorically limit our discretion to use EEO data as one of many 
factors in assessing a complaint of discrimination, these same 
opponents also acknowledge that the ``Note itself, along with the text 
of [the] 3rd R&O, make it plain that the FCC will not use annual 
employment data to assess compliance with the EEO rules of any 
individual broadcast licensee.'' Hence, codifying the limitation is 
nothing more than memorializing in another form a prohibition that the 
Commission has had in place for more than 20 years. This approach 
minimizes confusion about our position. We do not, however, see any 
need to include the final sentence suggested by the State Associations, 
as we find that it is essentially a repetition of the preceding 
sentence now that we have added ``nondiscrimination or'' to the 
preceding sentence. Finally, to conform to the publishing conventions 
of the National Archives and Records Administration's Office of the 
Federal Register, we will now incorporate what currently appears as a 
Note to Sec.  73.3612 into the rule itself.
    60. With regard to the State Associations' petition on the issue of 
confidential treatment of the Form 395-B data, we respond by adopting 
the Fourth Report and Order above, which reinstates the Form 395-B data 
collection in a public manner. Most of the remaining issues raised in 
State Associations' petition for reconsideration of the Second Report 
and Order and Third NPRM are unrelated to the Form 395-B filing 
requirement and, hence, we defer action on them here because they are 
beyond the scope of this Order on Reconsideration. We dismiss as moot 
two specific issues raised in the petition: (1) the ability to recruit 
via the internet, which the Commission addressed in the intervening 
time period, and (2) a modification to the effective date of the then 
new rules.

Procedural Matters

    61. Regulatory Flexibility Act. The Regulatory Flexibility Act of 
1980, as amended (RFA) requires that an agency prepare a regulatory 
flexibility analysis for notice and comment rulemakings, unless the 
agency certifies that ``the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' Accordingly, we have prepared a Final Regulatory 
Flexibility Analysis (FRFA) concerning the potential impact of rule and 
policy changes adopted in the Fourth Report and Order on small 
entities. Additionally, we have prepared a Final Regulatory Flexibility 
Certification (FRFC) certifying that the rule and policy changes 
contained in the Order on Reconsideration will not have a significant 
economic impact on a substantial number of small entities.
    62. Paperwork Reduction Act. Final Paperwork Reduction Act Analysis 
for Fourth Report and Order and Order on Reconsideration in MB Docket 
No. 98-204. This Fourth Report and Order and Order on Reconsideration 
may contain new or modified information collection requirements subject 
to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. All 
such changes will be submitted to the Office of Management and Budget 
(OMB) for review under section 3507(d) of the PRA. OMB, the general 
public, and other Federal agencies will be invited to comment on any 
new or modified information collection requirements contained in this 
proceeding. In addition, we note that pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), we previously sought specific comment on how the Commission 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees. In this present 
document, we have assessed the effects of reinstating the collection of 
information on Form 395-B from broadcasters with five or more full-time 
employees and adding language to our rules clarifying that restrictions 
regarding the Commission's use of the collected data protect broadcast 
permittees as well as licensees. We find that, with respect to 
businesses with fewer than 25 employees, the paperwork burden 
associated with the completion and submission of Form 395-B will be 
minimal and the collection is necessary

[[Page 36716]]

to serve the purpose of obtaining complete information on employment 
trends in the broadcast industry. As it is customary for companies to 
routinely maintain employee information for various purposes, including 
payroll, broadcasters should not have to engage in extensive research 
to complete and submit their Form 395-B.
    63. Congressional Review Act. The Commission has determined, and 
the Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget, concurs, that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The 
Commission will send a copy of this Fourth Report and Order and Order 
on Reconsideration to Congress and the Government Accountability Office 
pursuant to 5 U.S.C. 801(a)(1)(A).

Final Regulatory Flexibility Act Analysis (Report & Order)

    64. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA) an Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the 2021 
Further Notice of Proposed Rulemaking (FNPRM) to this proceeding. The 
Federal Communications Commission (Commission) sought written public 
comment on the proposals in the FNPRM, including comment on the IRFA. 
The Commission received no comments on the IRFA. This present Final 
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Report and Order

    65. This Fourth Report and Order reinstates the Commission's annual 
collection of broadcast workforce composition data by race and gender 
on FCC Form 395-B. We will use the collected data to analyze industry 
trends and make reports to Congress. Before the form's prolonged 
suspension beginning in 2001, the Commission made the collected 
workforce data publicly available. As stated in the Fourth Report and 
Order, we will continue with the public collection and dissemination of 
the data, which is in alignment with the public interest. Other than 
the inclusion of a mechanism allowing broadcasters to account in the 
Form 395-B for those employees who identify as gender non-binary, the 
reinstated collection does not change the form's reporting 
requirements. The inclusion of this mechanism, which will allow for 
accurate data gathering, will incur only a minimal economic impact on a 
substantial number of small entities.
    66. The reinstatement arrives after a significant period of delay 
in collection, which created a material gap in workforce composition 
data to be collected and analyzed by the Commission. Without the data, 
the Commission is prevented from analyzing important industry trends 
and reporting to Congress its analyses on the broadcast sector. A 
reinstituted collection of Form 395-B will allow us to carry out the 
public interest authority of this agency, and to implement section 334 
of the Act, which instructs the Commission to collect broadcast 
workforce data.

B. Legal Basis

    67. The Fourth Report and Order is authorized under sections 1, 
4(i), 4(k), 303(r), 307, 308, 309, 310, 334, and 403 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(k), 
303(r), 307, 308, 309, 310, 334, and 403.

C. Summary of Significant Issues Raised by Public Comments in Response 
to IFRA

    68. There were no comments in response to IRFA notice.

D. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    69. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA), and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments. The Chief Counsel did not 
file any comments in response to the FNPRM in this proceeding.

E. Description and Estimate of the Number of Small Entities to Which 
the Rules Apply

    70. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small government 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA. Below, we 
provide a description of such small entities, as well as an estimate of 
the number of such small entities, where feasible.

F. Description and Estimate of the Number of Small Entities to Which 
the Rules Apply

    71. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small government 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA. Below, we 
provide a description of such small entities, as well as an estimate of 
the number of such small entities, where feasible.
    72. Television Broadcasting. This industry is comprised of 
``establishments primarily engaged in broadcasting images together with 
sound.'' These establishments operate television broadcast studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in turn 
broadcast the programs to the public on a predetermined schedule. 
Programming may originate in their own studio, from an affiliated 
network, or from external sources. The SBA small business standard for 
this industry classifies businesses having $41.5 million or less in 
annual receipts as small. 2017 U.S. Census Bureau data indicate that 
744 firms in this industry operated for the entire year. Of that 
number, 657 firms had revenue of less than $25,000,000. Based on this 
data we estimate that the majority of television broadcasters are small 
entities under the SBA small business size standard.
    73. As of September 30, 2023, there were 1,377 licensed commercial 
television stations. Of this total, 1,258 stations (or 91.4%) had 
revenues of $41.5 million or less in 2022, according to Commission 
staff review of the BIA Kelsey Inc. Media Access Pro Television 
Database (BIA) on October 4, 2023, and therefore these licensees 
qualify as small entities under the SBA definition. In addition, the 
Commission estimates

[[Page 36717]]

as of September 30, 2023, there were 383 licensed noncommercial 
educational (NCE) television stations, 380 Class A TV stations, 1,889 
LPTV stations and 3,127 TV translator stations. The Commission, 
however, does not compile and otherwise does not have access to 
financial information for these television broadcast stations that 
would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of these television station licensees, we 
presume that all of these entities qualify as small entities under the 
above SBA small business size standard.
    74. Radio Stations. This industry is comprised of ``establishments 
primarily engaged in broadcasting aural programs by radio to the 
public.'' Programming may originate in their studio, from an affiliated 
network, or from external sources. The SBA small business size standard 
for this industry classifies firms having $41.5 million or less in 
annual receipts as small. U.S. Census Bureau data for 2017 show that 
2,963 firms operated in this industry during that year. Of this number, 
1,879 firms operated with revenue of less than $25 million per year. 
Based on this data and the SBA's small business size standard, we 
estimate a majority of such entities are small entities.
    75. The Commission estimates that as of September 30, 2023, there 
were 4,452 licensed commercial AM radio stations and 6,670 licensed 
commercial FM radio stations, for a combined total of 11,122 commercial 
radio stations. Of this total, 11,120 stations (or 99.98%) had revenues 
of $41.5 million or less in 2022, according to Commission staff review 
of the BIA Kelsey Inc. Media Access Pro Database (BIA) on October 4, 
2023, and therefore these licensees qualify as small entities under the 
SBA definition. In addition, the Commission estimates that as of 
September 30, 2023, there were 4,263 licensed noncommercial (NCE) FM 
radio stations. The Commission however does not compile, and otherwise 
does not have access to financial information for these radio stations 
that would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of radio station licensees, we presume that all 
of these entities qualify as small entities under the above SBA small 
business size standard.
    76. We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations must be included. Our estimate, therefore, likely 
overstates the number of small entities that might be affected by our 
action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. In addition, 
another element of the definition of ``small business'' requires that 
an entity not be dominant in its field of operation. We are unable at 
this time to define or quantify the criteria that would establish 
whether a specific radio or television broadcast station is dominant in 
its field of operation. Accordingly, the estimate of small businesses 
to which the rules may apply does not exclude any radio or television 
station from the definition of a small business on this basis and is 
therefore possibly over-inclusive. An additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. Because it is difficult to assess 
these criteria in the context of media entities, the estimate of small 
businesses to which the rules may apply does not exclude any radio or 
television station from the definition of a small business on this 
basis and similarly may be over-inclusive.

G. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    77. In this section, we identify the reporting, recordkeeping and 
other compliance requirements contained in the Fourth Report and Order 
and consider whether small entities are affected disproportionately by 
any such requirements. By this Fourth Report and Order, broadcasters 
are required to resume filing Form 395-B, which will be available to 
the public. The annual filing of Form 395-B will require employment 
units to upload the form onto the Commission's website. As recognized 
by the Office of Management and Budget (OMB), the Commission has 
estimated in the instructions to Form 395-B that the form's paperwork 
burden is minimal, taking each response, or form, approximately one 
hour to complete. This estimate includes the time to read the 
instructions, look through existing records, gather and maintain the 
required data, and actually complete and review the form or response. 
Because this Fourth Report and Order contains no new reporting or 
recordkeeping requirements, other than the incorporation of a mechanism 
to enable identification of gender non-binary categories, and only 
resumes the filing of an existing form, the reporting, recordkeeping 
and other compliance requirements of small entities will be no greater 
than under the current rules. Additionally, broadcast employment units 
with less than five full-time employees are exempt from filing 
statistical data. Because of this minimal reporting burden and due to 
the fact that smaller station employment units are exempt, we conclude 
that small entities will not be disproportionately affected by the 
Fourth Report and Order.

H. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    78. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    79. This Fourth Report and Order reinstates the collection of 
broadcaster employment data on Form 395-B. Collection of the Form 395-B 
was suspended in 2001 following two decisions by the U.S. Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit) vacating 
certain aspects of the Commission's equal employment opportunity rules. 
This suspension had no relation to the impact of the collection on 
small entities. As noted above, the filing requirement of Form 395-B 
importantly does not apply to broadcast employment units with less than 
five full-time employees, thereby exempting a large group of smaller 
entities from the filing requirements. The Fourth Report and Order only 
leads to a resumption of data collection efforts and imposes no new 
requirements for which the Commission can find alternatives that would 
minimize the economic burden on small entities.

I. Report to Congress

    80. The Commission has determined, and the Administrator of the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, concurs, that this rule is ``non-major'' under the 
Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a 
copy of this Report & Order and Order on Reconsideration to Congress

[[Page 36718]]

and the Government Accountability Office pursuant to 5 U.S.C. 
801(a)(1)(A).

Final Regulatory Flexibility Certification Analysis (Order on 
Reconsideration)

    81. For the reasons described below, we now certify that the 
policies and rules adopted in the Order on Reconsideration will not 
have a significant economic impact on a substantial number of small 
entities. The RFA generally defines the term ``small entity'' as having 
the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' In addition, 
the term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. A ``small business 
concern'' is one which: (1) is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA.
    82. In this Order on Reconsideration, we make certain changes to 
the language of Sec.  73.3612 to clarify our collection and use of Form 
395-B data. We add language to the rule confirming that the collection 
of Form 395-B data, and restrictions on the use of the data, also 
applies to broadcast permittees. The Order on Reconsideration adds an 
explicit statement to its rules that it will not use Form 395-B data to 
assess compliance with both the equal employment opportunity 
requirements and nondiscrimination requirements of Sec.  73.2080. We 
find that this statement is consistent with our statements in the 
Fourth Report and Order and other previous statements made by the 
Commission over the past two decades.
    83. The changes from the Order on Reconsideration will not have a 
significant economic impact on a substantial number of small entities 
because such changes do not alter the type or extent of information 
collected under Form 395-B. Rather, the Order on Reconsideration does 
nothing more than memorialize in another form a prohibition that the 
Commission has had in place for more than 20 years. Therefore, we 
certify that the changes provided in the Order on Reconsideration will 
not have a significant economic impact on a substantial number of small 
entities. The Commission will send a copy of this Order on 
Reconsideration, including a copy of this Final Regulatory Flexibility 
Certification, in a report to Congress and the Government 
Accountability Office pursuant to the Small Business Regulatory 
Fairness Act of 1996.

Ordering Clauses

    84. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 4(i), 4(k), 303(r), 307, 308, 309, 310, 334, 
403, and 634 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i), 154(k), 303(r), 307, 308, 309, 310, 334, 403, and 554, 
this Fourth Report and Order and Order on Reconsideration is adopted.
    85. It is further ordered that this Fourth Report and Order and 
Order on Reconsideration shall be effective 30 days after publication 
in the Federal Register. Compliance with Sec.  73.3612 of the 
Commission's rules, 47 CFR 73.3612, which may contain new or modified 
information collection requirements, will not be required until the 
Office of Management and Budget completes review of any information 
collection requirements that the Office of Management and Budget 
determines is required under the Paperwork Reduction Act. The 
Commission directs the Media Bureau to announce the compliance date for 
the Fourth Report and Order and Order on Reconsideration by subsequent 
Public Notice.
    86. It is further ordered that the Joint Petition of the State 
Broadcasters Associations for Reconsideration and/or Clarification of 
the Third Report and Order and Fourth NPRM, MM Docket No. 98-204 (filed 
July 23, 2004), is granted in part, denied in part, dismissed in part, 
and deferred in part.
    87. It is further ordered that the Media Bureau is hereby directed 
to make the necessary changes to Form 395-B to provide for inclusion of 
gender non-binary information.
    88. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the Fourth Report and Order and Order on Reconsideration, 
including the Final Regulatory Flexibility Analysis and the Initial 
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy 
of the Small Business Administration.
    89. It is further ordered that the Office of the Managing Director, 
Performance Program Management, shall send a copy of this Fourth Report 
and Order and Order on Reconsideration in a report to be sent to 
Congress and the Government Accountability Office pursuant to the 
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

Federal Communications Commission.

List of Subjects in 47 CFR Part 73

    Radio, Reporting and recordkeeping requirements, Television.

Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 
336, 339.


0
2. Revise Sec.  73.3612 to read as follows:


Sec.  73.3612  Annual employment report.

    Each licensee or permittee of a commercially or noncommercially 
operated AM, FM, TV, Class A TV or International Broadcast station with 
five or more full-time employees shall file an annual employment report 
with the FCC on or before September 30 of each year on FCC Form 395-B. 
Data concerning the gender, race and ethnicity of a broadcast station's 
workforce collected in the annual employment report will be used only 
for purposes of analyzing industry trends and making reports to 
Congress. Such data will not be used for the purpose of assessing any 
aspect of an individual broadcast licensee's or permittee's compliance 
with the nondiscrimination or equal employment opportunity requirements 
of Sec.  73.2080. Compliance with this section will not be required 
until this sentence is removed or contains a compliance date, which 
will not occur until after the Office of Management and Budget 
completes review of any information collection requirements pursuant to 
the Paperwork Reduction Act or until after the Office of Management and 
Budget determines that such review is not required.

[FR Doc. 2024-09468 Filed 5-2-24; 8:45 am]
BILLING CODE 6712-01-P