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America First Legal (AFL) secured a major victory when the U.S. Court of Appeals for the Fifth Circuit adopted AFL’s primary argument in National Religious Broadcasters et al v. U.S. Federal Communications Commission (FCC), ruling that the FCC lacks the statutory authority to require television and radio broadcasters to collect and report the race and sex of their employees.

“The Fifth Circuit agreed that the Biden FCC’s politicized interrogation of broadcasters to obtain race and sex data was wholly outside the agency’s authority. Worse, using the inquisitorial power of government to threaten workplaces to cave into political pressure is unconstitutional,” said Dan Epstein, America First Legal Vice President. “The current FCC and EEOC should take note of this decision and review their forms to ensure America’s workforce is free from government abuses that force unlawful discrimination.”

During the Biden Administration, on February 22, 2024, the FCC announced it would begin requiring television and radio broadcasters to annually file a Form 395-B, which collects race, ethnicity, and gender data for certain broadcasters’ employees within specified job categories.

On May 14, 2024, on behalf of National Religious Broadcasters and the American Family Association, AFL and Boyden Gray PLLC filed a petition for review with the U.S. Court of Appeals for the Fifth Circuit, challenging the FCC’s order as unlawfully requiring television and radio stations to publicly report the race, ethnicity, and sex of their employees.

In its filings, AFL argued that “the FCC lacked statutory authority to issue the Order under 47 U.S.C. § 334, or any other law,” saying, “here, there is no ambiguity. The FCC identifies no authority to collect and compel public disclosure of Form 395-B.” In today’s decision, the court agreed, holding that “the FCC lacks statutory authority to require broadcasters to submit employment data under Form 395-B.”