Pillsbury Wins Landmark Decision for Broadcasters Limiting Scope of FCC’s Public Interest Authority

On May 19, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit threw out a Federal Communications Commission rule that would have required TV and radio broadcasters to collect and submit to the FCC the race, ethnicity and gender of a station’s employees for publication on the FCC website. The decision was a major victory for Pillsbury’s client, the Texas Association of Broadcasters, which had argued that the rule was not only outside the FCC’s statutory reach but also violated broadcasters’ First and Fifth Amendment rights and was arbitrary and capricious under the Administrative Procedure Act.

The rule, implemented through the FCC’s Form 395-B, would have compelled broadcasters to collect detailed employee data or rely on “observer identification” where an employee refused to self-identify. That information would then be published on the FCC website on an individual station basis. The Form 395-B was suspended in the early 2000s after two D.C. Circuit decisions found a related FCC broadcast employment rule, and then a successor rule, unconstitutional. The Form 395-B rule was revived last year in a 3-2 partisan decision by the FCC.

For decades, broadcasters had warned that their employees’ data could be misused for the purposes of harassment—concerns that have only been amplified by the rise of social media and an increasingly polarized political environment. In response to the FCC’s latest efforts, the Texas Association of Broadcasters and co-petitioners National Religious Broadcasters and American Family Association argued that the FCC lacked legal authority to collect and publish such information.

In a unanimous decision, the Fifth Circuit ruled that “the FCC’s authority to act in the ‘public interest’ does not extend outside of the statutorily prescribed tasks that Congress has instructed the FCC to carry out.” The ruling could have far-reaching implications at the FCC, as the court explained: Where the agency lacks explicit statutory authority, it “cannot fall back on ‘the public interest’ to fill the gap.”

Pillsbury Communications partner Scott Flick and senior counsel Lauren Lynch Flick began representing the 50 state broadcasters associations in the underlying proceeding 30 years ago. Their efforts on behalf of the broadcasters associations and another client before the FCC and the D.C. Circuit led to a pair of court rulings finding that the FCC’s broadcast employment rule was unconstitutional, and that the FCC employment rule that replaced it was unconstitutional. These rulings, both of which were cited in this week’s Fifth Circuit decision, caused the FCC to suspend use of the Form 395-B for more than 20 years.

In addition to Scott Flick and Lauren Lynch Flick, the Pillsbury team included Litigation partner Matthew MacLean and Communications partner Jessica Nyman, who argued the case alongside Jared Kelson of Boyden Gray PLLC on behalf of the co-petitioners.

The case is National Religious Broadcasters et al. v. FCC, case number 24-60219.