Case: 24-60219 Document: 105-1 Page: 1 Date Filed: 05/19/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 19, 2025
No. 24-60219
____________ Lyle W. Cayce
Clerk
National Religious Broadcasters; American Family
Association,

Petitioners,

versus

Federal Communications Commission; United States of

America,

Respondents,

consolidated with
_____________

No. 24-60226
_____________

Texas Association of Broadcasters,

Petitioner,

versus

Federal Communications Commission; United States of

America,

Respondents.
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______________________________

Petition for Review from an Order of the

Federal Communications Commission
Agency No. 24-18
______________________________

Before Elrod, Chief Judge, and Jones and Stewart, Circuit Judges.
Jennifer Walker Elrod, Chief Judge:
The Federal Communications Commission issued an order requiring
most television and radio broadcasters to compile employment-
demographics data and to disclose the data to the FCC, which the agency will
then post on its website on a broadcaster-identifiable basis. Petitioners, a
group of radio and television broadcasters and associations that represent
broadcasters, petitioned for review of the FCC’s order in this court under the
Hobbs Act, 28 U.S.C. § 2344. They contend that the FCC lacks statutory
authority to require these disclosures, that requiring disclosure and
publication violates Petitioners’ First and Fifth Amendment rights, and that
the order is arbitrary and capricious under the Administrative Procedure Act.
Because we agree with Petitioners that the FCC lacks statutory authority, we
GRANT the petition and VACATE the order.
I
In February 2024, the FCC reinstated the collection of employment-
demographics data for most television and radio broadcasters. Review of the
Commission’s Broadcast & Cable Equal Employment Opportunity Rules &
Policies, MB Docket No. 98-204, Fourth Report and Order and Order on
Reconsideration, FCC 24-18 (Feb. 22, 2024) [hereinafter Order]. Under the
Order, covered broadcasters must annually file a so-called Form 395-B,
which collects race, ethnicity, and gender data for each covered broadcaster’s
employees within specified job categories. Id. ¶ 1. The Order ends a 22-year
hiatus on the collection of Form 395-B, which the FCC collected periodically

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before 2002. See Review of the Commission’s Broadcast & Cable Equal
Employment Opportunity Rules & Policies, 17 FCC Rcd. 24018, 24024 (2002)
(suspending collection). Before addressing the contents of the Order, we first
provide a brief history of the FCC’s efforts to collect this data.
The FCC first required broadcasters to disclose employment-
demographics data in 1970 using a precursor to Form 395-B. Petition for
Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in Their
Employment Practices, 23 F.C.C.2d 430, 430, 436 (1970). The FCC
concurrently adopted regulations that prohibited broadcasters from engaging
in employment discrimination and that required broadcasters to implement
equal employment opportunity programs with recruiting efforts tailored to
minorities and women. Id. at 430–31, 435–38 (codified as amended in
scattered sections of 47 C.F.R.). The FCC stated that it would use collected
employment data both to “ensure that licensees focus on the best method of
assuring effective equal employment practices”—what the FCC calls an
“enforcement function”—and to monitor and report on industry trends. Id.
at 430–32. The FCC also required that broadcasters make available their
forms for public viewing at local stations. Id. at 436 (codified at 47 C.F.R.
§ 1.526 (1970)).
Two decades later, Congress passed the Cable Television Consumer
Protection and Competition Act (“1992 Cable Act”). Pub. L. No. 102-385,
106 Stat. 1460 (1992). In the 1992 Cable Act, Congress declared that
“despite the existence of regulations governing equal employment
opportunity, females and minorities are not employed in significant
numbers” in management in the broadcast industry. Id. § 22(a)(1). It found
also that “rigorous enforcement of equal employment opportunity rules and
regulations” was necessary to “deter racial and gender discrimination.” Id.
§ 22(a)(3). So, Congress directed the FCC not to amend its regulations that
required broadcasters to implement equal employment opportunity

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programs or the forms that broadcasters used to report employment data

pertinent to those programs:
SEC. 334. Limitation on revision of equal employment
opportunity regulations.
(a) LIMITATION.—Except as specifically provided in this
section, the Commission shall not revise—
(1) the regulations concerning equal employment
opportunity as in effect on September 1, 1992 (47
C.F.R. 73.2080) as such regulations apply to television
broadcast station licensees and permittees; or
(2) the forms used by such licensees and permittees to
report pertinent employment data to the Commission.
Id. § 22(f) (codified at 47 U.S.C. § 334(a)).
Thereafter, the FCC continued to collect Form 395-B until the D.C.
Circuit held several of the Commission’s equal employment opportunity
regulations (but not the Form itself) unconstitutional. See Lutheran Church-
Mo. Synod v. Fed. Commc’ns Comm’n, 141 F.3d 344 (D.C. Cir. 1998). In that
case, the FCC fined a broadcaster after finding that its minority recruitment
efforts were inadequate. Id. at 346–48. The D.C. Circuit reversed the FCC.
Under the then-existing regulations, the court explained, the FCC undertook
“in-depth EEO review” of any broadcasters who reported poor minority
recruitment efforts on their Form 395-B. Id. at 352–53. Such scrutiny
improperly “pressure[d broadcasters] to engage in race-conscious hiring” in
violation of the equal protection component of the Fifth Amendment, even
though the regulations did not explicitly direct or require such decisions. Id.
at 352–56. After Lutheran Church, the FCC voluntarily suspended the use of
Form 395-B while it considered new equal employment opportunity rules.
Suspension of Requirement for Filing of Broadcast Station Annual Employment
Reports & Program Reports, 13 FCC Rcd. 21998, 21998 (1998).

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The FCC published its new regulations in 2000. Review of the

Commission’s Broadcast and Cable Equal Employment Opportunity Rules and
Policies, 15 FCC Rcd. 2329, 2332 (2000). The new equal employment
opportunity regulations, designed to achieve “broad outreach” to women
and minority candidates, gave broadcasters two choices: either implement
several of thirteen FCC-approved recruitment initiatives (Option A), or
report demographics for each applicant and face FCC investigation if a
broadcaster listed “few or no” women or minorities in its applicant pool
(Option B). Id. at 2364–65, 2378. The new regulations also reinstated the
collection of Form 395-B, which the Commission promised to use “only to
monitor industry employment trends and report to Congress,” not for any
enforcement function. Id. at 2332.
Broadcasters challenged the new rule. The D.C. Circuit concluded
that Option B’s requirement to report the race and sex of job applicants
unconstitutionally “create[d] pressure to recruit women and minorities.”
MD/DC/DE Broads. Ass’n v. Fed. Commc’ns Comm’n, 236 F.3d 13, 18 (D.C.
Cir. 2001). The “threat of being investigated” by the agency with “life and
death power” over broadcasters, the court reasoned, impermissibly
incentivized broadcasters to tailor their recruitment efforts to certain classes
of people in violation of the Fifth Amendment’s equal protection component.
Id. at 19, 22. As before, the FCC suspended Form 395-B collection while it
again drafted new regulations. Suspension of the Broadcast & Cable Equal
Employment Opportunity Outreach Program Requirements, 16 FCC Rcd. 2872,
2872 & n.1 (2001).
In 2002, the FCC adopted the “race and gender neutral” equal
employment opportunity regulations that are in place today. See Review of the
Commission’s Broadcast & Cable Equal Employment Opportunity Rules &
Policies, 17 F.C.C. Rcd. at 24018, 24074. The FCC, though, left suspended
Form 395-B collection after several commenters raised confidentiality and

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constitutional concerns over the FCC’s planned public disclosure of

collected data. See id. at 24024–25, 24025 n.36, 24074.
Two years later, the FCC considered reinstating Form 395-B data
collection. Review of the Commission’s Broadcast & Cable Equal Employment
Opportunity Rules & Policies, 19 FCC Rcd. 9973, 9974 (2004). Ultimately, in
response to further concerns over disclosing the data on a station-identifiable
basis, the FCC granted a “one-time filing grace period until a date to be
determined” while it sought further comments. Id. at 9978.
For the next 20 years, the FCC took no further action to require Form
395-B disclosure. Finally, in 2021, the FCC proposed resuming Form 395-B
collection and invited public comment to refresh the administrative record.
Review of the Commission’s Broadcast & Cable Equal Employment Opportunity
Rules & Policies, 36 FCC Rcd. 12055, 12055 (2021).
Then, in 2024, the Commission issued the Order challenged here. In
addition to reinstating Form 395-B collection, the FCC simultaneously
denied-in-part a petition for reconsideration that it had left pending for nearly
two decades, which requested, among other things, that Form 395-B data
remain confidential. Order ¶¶ 14, 57, 61. As the FCC explained, it chose to
publish the data on its website, on a non-confidential, broadcaster-
identifiable basis, to “incentivize stations to file accurate data,” remain
“consistent with Congress’s goal to maximize the utility” of the data for
public benefit, and alleviate “concerns about inadvertent disclosures of
identifiable information.” Id. ¶¶ 14–15.
In denying the petition, the FCC dismissed as speculative
broadcasters’ concerns that third parties would misuse this data to de facto
pressure stations to engage in preferential hiring practices as the agency had
unconstitutionally done de jure. Id. ¶ 17. It also guaranteed to “quickly and
summarily dismiss” any third-party filings challenging broadcasters’ license

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renewals based on Form 395-B data, but it reserved the right to reevaluate its
decision to publicly post the data should misuse occur. Id.
In the Order, the FCC also amended three portions of Form 395-B.
First, it amended Form 395-B to include “non-binary gender categories” at
the request of some commenters. Id. ¶¶ 39–40. 1 Second, the FCC expanded
Form 395-B to include ten job categories instead of nine. Id. ¶ 14 n.57. And
third, it added “two or more races” as one of the race categories that
broadcasters may select when categorizing their employees. Id.
The FCC published the Order in the Federal Register on May 3, 2024,
and it took effect one month later. Review of the Commission’s Broadcast
and Cable Equal Employment Opportunity Rules and Policies, 89 Fed. Reg.
36705, 36705 (May 3, 2024). The National Religious Broadcasters, Texas
Association of Broadcasters, and American Family Association (Petitioners)
then timely sought review in the Fifth Circuit under the Hobbs Act, 28
U.S.C. § 2344.
II
The FCC does not contest Petitioners’ theories of Article III standing.
Nevertheless, the court has an “obligation to assure itself of its own
jurisdiction, sua sponte if necessary.” Elldakli v. Garland, 64 F.4th 666, 669
(5th Cir. 2023).
“To establish Article III standing, an injury must be ‘concrete,
particularized, and actual or imminent; fairly traceable to the challenged
action; and redressable by a favorable ruling.’” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 409 (2013) (citation omitted). To establish associational
_____________________
1
After oral argument, the FCC submitted a letter to the court that retracted its
arguments in support of these two paragraphs, citing recent Executive Orders from
President Trump.

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standing, an association must show that “(a) its members would otherwise
have standing to sue in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual members in the
lawsuit.” United Food & Com. Workers Union Local 751 v. Brown Grp., Inc.,
517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert. Comm’n,
432 U.S. 333, 343 (1977)).
Because American Family Association is a broadcaster now required
to annually file a Form 395-B, it is “an object of the [FCC’s] action,” which
ordinarily means that the standing requirements are met. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992). Preparing and submitting Form 395-B will
increase the “regulatory burden” on the Association, satisfying “the injury
in fact requirement.” Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779
F.3d 258, 266 (5th Cir. 2015). Causation and redressability “flow naturally”
from this injury because the Association will not face its injury if we vacate
the Order, as Petitioners request. Id. at 266–67; see also Lujan, 504 U.S. at
561–62 (explaining that when the “plaintiff is himself an object of the action
(or forgone action) at issue . . . there is ordinarily little question that the action
or inaction has caused him injury, and that a judgment preventing or
requiring the action will redress it”).
Similarly, the two associations of broadcasters, National Religious
Broadcasters and Texas Association of Broadcasters, meet the first prong of
associational standing because they represent broadcasters who, like
American Family Association, are objects of the Order. Nat’l Ass’n of Priv.
Fund Managers v. Sec. & Exch. Comm’n, 103 F.4th 1097, 1109 (5th Cir. 2024).
Further, the purposes of these associations—providing broadcasters
“strategic representation in important legislative, legal, and regulatory
arenas”—are germane to the broadcasters’ interests sought to be protected
here. United Food & Com. Workers Union Local 751, 517 U.S. at 555–56, 556

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n.6; Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547,
550 n.2 (5th Cir. 2010) (explaining that the germaneness requirement is an
“undemanding” standard). Finally, the participation of individual
association members is “not normally necessary when an association seeks
prospective or injunctive relief for its members,” as Petitioners do here.
United Food & Com. Workers Union Local 751, 517 U.S. at 546.
Each of the three Petitioners has submitted affidavits to the court
substantiating their claims for standing, as they must do at this stage.
Shrimpers & Fishermen of RGV v. Tex. Comm’n on Env’t Quality, 968 F.3d
419, 423 (5th Cir. 2020) (explaining that in direct review of agency action,
petitioners must support their claims for standing with record evidence).
Accordingly, Petitioners have Article III standing to challenge the Order.
III
Petitioners ask the court to enjoin and set aside the Order for four
independent reasons: (1) the FCC lacks statutory authority to require
broadcasters to submit Form 395-B, (2) the Order violates the Fifth
Amendment’s equal protection component, (3) the Order violates the First
Amendment by compelling speech, and (4) the Order is arbitrary and
capricious under the Administrative Procedure Act. We begin, and end, with
Petitioners’ first argument.
In the Order, the FCC claimed statutory authority to require
broadcasters to file Form 395-B pursuant to its mandate to act in the “public
interest” under the Communications Act of 1934. Order ¶ 13. It also
contended that Congress “ratified” Form 395-B collection in 1992 when it
passed the Cable Act. Order ¶ 5 & n.19. The FCC’s brief re-urges each of
these arguments. We first address the public-interest provisions, and then
turn to the Cable Act.

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A
Before Congress created the FCC, “the allocation of [radio]
frequencies was left entirely to the private sector, and the result was chaos.”
Red Lion Broad. Co. v. Fed. Commc’ns Comm’n, 395 U.S. 367, 375 (1969).
Individuals jostled for finite space on the airwaves, resulting in a “cacophony
of competing voices” and revealing a clear need for regulation to protect the
utility of radio and the public’s access to it. Id. at 376–77. So, Congress acted,
and vested the FCC with the authority to grant licenses to broadcasters,
regulate wired connections between carriers, and take several other actions
related to the furnishing of broadcast services, all “in the public interest.”
Communications Act of 1934, Pub. L. No. 73-416, §§ 201(a), 309(a), 48 Stat.
1064, 1070, 1085 (codified in scattered sections of Title 47). Since then,
Congress has authorized the FCC to take several additional actions in the
public interest. See, e.g., 47 U.S.C. §§ 201(a), 254(b)(7), 303, 319(d); see also
Fed. Commc’ns Comm’n v. Prometheus Radio Project, 592 U.S. 414, 418 (2021).
Public-interest authority, though cast in broad terms, is not
“unlimited.” Nat’l Broad. Co. v. United States, 319 U.S. 190, 216 (1943).
Public interest is merely the “touchstone” for FCC action, guiding the
exercise of its discretion in carrying out its statutorily prescribed functions.
Fed. Commc’ns Comm’n v. Pottsville Broad. Co., 309 U.S. 134, 137–38 (1940).
This touchstone does not grant freewheeling authority: the FCC may not act
in the public interest “if the agency does not otherwise have the authority”
to act. Motion Picture Ass’n of Am., Inc. v. Fed. Commc’ns Comm’n, 309 F.3d
796, 806 (D.C. Cir. 2002). Put another way, “the Commission may not rely”
on its “public-interest provisions without mooring its action to a distinct
grant of authority” from Congress. Cellco P’ship v. Fed. Commc’ns Comm’n,
700 F.3d 534, 542 (D.C. Cir. 2012).

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Indeed, we recently explained, in the context of the Securities and

Exchange Commission’s public-interest provision, that public-interest
provisions must be interpreted against the backdrop of the broader statutory
scheme in which that provision is placed. All. for Fair Bd. Recruitment v. Sec.
& Exch. Comm’n, 125 F.4th 159, 178 (5th Cir. 2024) (en banc). Under
Alliance for Fair Board Recruitment, a public-interest provision authorizes an
agency to protect the public from the kinds of harms that the agency’s
statutory scheme “explicitly lists as its targets.” Id. (“[A securities]
exchange could not enact a rule designed to protect investors or the public
from the perils of tobacco.”).
Invoking public interest, the FCC here cites an array of statutory
provisions that, in its view, grant it public-interest authority to reinstate Form
395-B collection: 47 U.S.C. §§ 151, 154(i), 154(k), 303(r), 307, 308, 309, 310,
403. Order ¶ 13 n.53.
At the outset, we note that, under Alliance for Fair Board Recruitment,
the FCC’s public-interest authority must be interpreted in light of the
“targets” of the Communications Act of 1934. 125 F.4th at 178. That Act,
as subsequently amended, created the FCC and directed it to undertake
several actions touching on regulating broadcast networks, protecting the
public utility of those networks, issuing licenses to broadcasters, and other
related tasks. See, e.g., 47 U.S.C. §§ 151, 303, 307. The FCC does not explain
how compiling data on sex- and racial-employment trends in the broadcast
industry serves any of those targets. See All. for Fair Bd. Recruitment, 125
F.4th at 179–80; see also Cellco P’ship, 700 F.3d at 542 (explaining that the
FCC must “moor[] its action to a distinct grant of authority” from
Congress). Nevertheless, we proceed through each of the FCC’s cited
statutory provisions.

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Two of the FCC’s cited provisions allow it to take “necessary” acts

“in the execution of its functions.” 47 U.S.C. § 154(i); accord id. § 303(r).
As we have explained previously, § 154(i) grants “ancillary authority” for the
FCC to “fulfill its primary directives contained elsewhere in the statute.”
Tex. Off. of Pub. Util. Counsel v. Fed. Commc’ns Comm’n, 183 F.3d 393, 444
(5th Cir. 1999) (citation omitted). Similarly, § 303(r) grants the FCC the
authority to carry out its statutorily delegated tasks contained within the
“provisions of this chapter.” See Motion Picture Ass’n of Am., Inc., 309 F.3d
at 806. The FCC, however, does not cite any statutory provisions showing
that collecting this data is one of its functions, as it must. See Gulf Fishermens
Ass’n v. Nat’l Marine Fisheries Serv., 968 F.3d 454, 465 (5th Cir. 2020) (“The
grant of authority to promulgate ‘necessary’ regulations cannot expand the
scope of the provisions the agency is tasked with ‘carry[ing] out.’”).
Two of the FCC’s cited provisions provide for certain investigatory
powers. Section 154(k), for example, directs the FCC to retain records of
investigations into licensees and broadcasters. But it does not grant the FCC
a freewheeling investigatory power. The other provision, § 403, does
authorize “inquir[ies],” but only into “case[s]” or “matter[s] or thing[s]”
permissible under “this chapter.”
Assuming that Form 395-B collection qualifies as an investigation or
inquiry, the FCC cannot show that investigations into employment
demographics are permissible under “this chapter.” See id. As noted above,
the FCC does not cite any provision authorizing it to collect employment data
from broadcasters. This case is thus unlike the cases involving § 403 that the
FCC cites favorably in its brief, which concern the procedures of
investigations undertaken pursuant to the FCC’s statutorily prescribed
licensing function. See Fed. Commc’ns Comm’n v. Schreiber, 381 U.S. 279,
280–82, 282 n.4, 291–92 (1965) (affirming rule concerning the confidentiality
of information on “acquisition, ownership, production, distribution,

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selection, sale and licensing of programs for television”); Stahlman v. Fed.

Commc’ns Comm’n, 126 F.2d 124, 126–27 (D.C. Cir. 1942) (similar).
Here, unlike in Schreiber and Stahlman, the FCC does not appear to
assert that Form 395-B collection will help it carry out its licensing function.
Instead, it states that collection of this data “will allow for analysis and
understanding of the broadcast industry workforce, as well as the preparation
of reports to Congress about the same.” Order ¶ 2. Insofar as the FCC does
assert that Form 395-B collection will serve its licensing function, the
applicable licensing statutes do not direct the FCC to condition the issuance
of licenses on the submission of employment-demographics data. See 47
U.S.C. §§ 307 (“Licenses”), 308 (“Requirements for license”), 309
(“Application for license”), 310 (“License ownership restrictions”). And
although those licensing statutes (with the exception of § 308) do permit the
FCC to issue licenses in the public interest, 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. See All. for Fair Bd.
Recruitment, 125 F.4th at 178–80. Accordingly, the licensing statutes cannot
support the FCC’s authority to collect Form 395-B.
The Order, but not the FCC’s brief, also claims statutory authority
from 47 U.S.C. § 151, Congress’s general statement of purpose for creating
the FCC. There, Congress charged the FCC with several duties, one of
which is to “make available” communications services to all Americans
“without discrimination on the basis of race, color, religion, national origin,
or sex.” The FCC, however, has historically employed Form 395-B to help
it eradicate employment discrimination, not the discriminatory provision of
communications services to Americans. And in any event, the Order
disclaims any present intent to use Form 395-B data for this historical
purpose. Order ¶ 18. Having parsed the remainder of § 151, we see no other
language to which the FCC may moor its Order.

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The FCC undoubtedly has broad authority to act in the public

interest. That authority, however, must be linked “to a distinct grant of
authority” contained in its statutes. Cellco P’ship, 700 F.3d at 542; see also
All. for Fair Bd. Recruitment, 125 F.4th at 178–80. The FCC has not shown
that it is authorized to require broadcasters to file employment-demographics
data or to analyze industry employment trends, so it cannot fall back on
“public interest” to fill the gap. See NAACP v. Fed. Power Comm’n, 425 U.S.
662, 670 (1976) (“The use of the words ‘public interest’ in the Gas and
Power Acts is not a directive to the Commission to seek to eradicate
discrimination . . . .”); see also All. for Fair Bd. Recruitment, 125 F.4th at 178–
80 (concluding that the Security and Exchange Commission’s public-interest
provision did not support a rule requiring board-diversity disclosures).
Accordingly, the FCC lacks statutory authority to require
broadcasters to disclose Form 395-B in the public-interest provisions that it
cites.
B
We next turn to 47 U.S.C. § 334(a), which Congress passed as part of
the 1992 Cable Act. The FCC contends that § 334(a) grants it the authority
to resume Form 395-B data collection. Order ¶ 13. It also argues that, even
if the FCC was not previously authorized to collect Form 395-B, Congress
“ratified” its authority by passing the 1992 Cable Act. Order ¶ 53 & n.174.
We are unpersuaded. While § 334(a) explicitly mentions the
collection of employment data, it is not an affirmative grant of authority;
indeed, it is a restriction on the FCC’s power. Titled a “Limitation,”
§ 334(a) mandates that “the Commission shall not revise . . . the forms used
by” broadcasters to submit employment data. It does not otherwise grant
any authority to the FCC to collect this data. When Congress’s language is
plain, we must enforce it. United States v. Lauderdale County, 914 F.3d 960,

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964 (5th Cir. 2019); BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183
(2004) (plurality opinion) (“The preeminent canon of statutory
interpretation requires us to ‘presume that [the] legislature says in a statute
what it means and means in a statute what it says there.’” (citation omitted)).
The FCC’s ratification argument, however, warrants closer
inspection. Congressional action can ratify or “give the force of law to official
action unauthorized when taken.” Kovac v. Wray, 109 F.4th 331, 340 (5th
Cir. 2024) (citation omitted), cert. denied sub nom. Kovac v. Patel, 145 S. Ct.
1181 (2025). Ratification may occur, for example, when “Congress has not
just kept its silence by refusing to overturn the administrative construction,
but has ratified it with positive legislation.” Commodity Futures Trading
Comm’n v. Schor, 478 U.S. 833, 846 (1986); see also Hikvision USA, Inc. v.
Fed. Commc’ns Comm’n, 97 F.4th 938, 946 (D.C. Cir. 2024).
According to the FCC, Congress was aware of its “longstanding
assertion of authority to collect and disclose Form 395-B data.” The FCC
cites the legislative history of the 1992 Cable Act, which reveals that
Congress reviewed Form 395-B data, concluded that women and minorities
were not employed in the broadcast industry at a sufficient level, and, in
passing § 334(a), instructed the FCC to continue its data collection and
reporting functions. Thus, the FCC asserts, § 334(a) constitutes positive
legislation that ratified its authority to collect Form 395-B data.
We need not decide whether the 1992 Cable Act ratified the FCC’s
authority to collect Form 395-B data because, to the extent that Congress
ratified anything, it expressly tethered the FCC’s authority to collect Form
395-B to the equal employment opportunity regulations that are no longer in
effect. Consider first § 334(a)(1), which instructs the FCC not to revise the
equal employment opportunity regulations, codified at 47 C.F.R. § 73.2080,
“in effect on September 1, 1992.” Section 334(a)(2) expresses a similar

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command, instructing the FCC not to revise its equal employment

opportunity forms like Form 395-B. Crucially, though, § 334(a)(2) explains
that those forms are to be used to report data “pertinent” to the equal
employment opportunity regulations that were in effect on September 1,
1992. 47 U.S.C. § 334(a)(2) (emphasis added). In other words, ratification
exists only insofar as Form 395-B is supportable under (or “pertinent” to)
those regulations. The FCC does not dispute this reading of § 334(a)(2).
The problem for the FCC is that 47 C.F.R. § 73.2080—the equal
employment opportunity regulation that was in effect on September 1,
1992—can no longer support this authority. In Lutheran Church, the D.C.
Circuit held unconstitutional subsections (b) and (c) of § 73.2080, which
required broadcasters to adopt equal employment opportunity outreach
programs for minority and women candidates. 2 141 F.3d at 346. The FCC
agrees that these subsections cannot support ratification. It instead maintains
that Form 395-B collection is “pertinent” to subsection (a) of § 73.2080,
sometimes called the FCC’s “nondiscrimination” requirement, which
demands equal opportunity in employment and prohibits broadcasters from
discriminating in employment decisions on the basis of race, color, religion,

_____________________
2
Subsection (b), for example, required that, “Each broadcast station shall
establish, maintain, and carry out a positive continuing program of specific practices
designed to ensure equal opportunity in every aspect of station employment policy and
practice.” 47 C.F.R. § 73.2080(b) (1992). Subsection (c) provided specific program
requirements, such as using “minority organizations, organizations for women, media,
educational institutions, and other potential sources of minority and female applicants, to
supply referrals” for job vacancies; evaluating a broadcaster’s “employment profile”
against “the availability of minorities and women in its recruitment area”; and offering
“promotions of qualified minorities and women in a nondiscriminatory fashion to positions
of greater responsibility.” Id. § 73.2080(c)(2)–(4) (1992).

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24-60219
c/w No. 24-60226

national origin, or sex. 47 C.F.R. § 73.2080(a). 3 Lutheran Church declined

to address that provision. 141 F.3d at 356.
Subsection (a) cannot support ratification for two reasons. First,
§ 334(a) speaks only to the “regulations concerning equal employment
opportunity,” meaning subsections (b) and (c). When discussing § 73.2080,
the FCC has consistently distinguished between subsections (b) and (c) and
subsection (a) by referring to them as the “equal employment opportunity
requirements” and the “nondiscrimination requirement,” respectively. See
Order ¶ 59; Review of the Commission’s Broadcast & Cable Equal Employment
Opportunity Rules & Policies, 17 FCC Rcd. at 24027 (discussing “the
nondiscrimination requirement in Section 73.2080(a) of the rules”).
Congress applied this distinction, as well, and referred only to the “equal
employment opportunity” regulations contained in § 73.2080, meaning
subsections (b) and (c). Indeed, Congress made clear that the 1992 Cable Act
was tailored towards improving the efficacy of the regulations that
“promot[ed] equality of employment opportunity” and, specifically, the
programs to increase “employment opportunity for women and
minorities”—i.e., subsections (b) and (c). See 1992 Cable Act, § 22(g), 106
Stat. 1500. Congress thus linked Form 395-B data collection only to those
now-unconstitutional subsections, and not to subsection (a)’s
nondiscrimination requirement.

_____________________
3
In full, subsection (a) stated, “Equal opportunity in employment shall be afforded
by all licensees or permittees of commercially or noncommercially operated AM, FM, TV,
or international broadcast stations (as defined in this part) to all qualified persons, and no
person shall be discriminated against in employment by such stations because of race, color,
religion, national origin, or sex.” 47 C.F.R. § 73.2080(a) (1992). The current version of
this subsection is largely identical but adds that religious broadcasters “may establish
religious belief or affiliation as a job qualification for all station employees.” 47 C.F.R.
§ 73.2080(a) (2024).

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24-60219
c/w No. 24-60226

Second, the Order itself specifically disclaims any connection between

the nondiscrimination requirement contained in subsection (a) and the
FCC’s decision to reinstitute Form 395-B collection. The Order explains:
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 Section 73.2080.
Order ¶ 60 (emphasis added). The FCC also revised its regulations on Form
395-B to include this language, formally severing any connection between
Form 395-B collection and the nondiscrimination requirement found in
§ 73.2080(a). See 47 C.F.R. § 73.3612.
“Agency actions must be assessed according to the statutes and
regulations in effect at the time of the relevant activity.” Texas v. Env’t Prot.
Agency, 829 F.3d 405, 430 (5th Cir. 2016). Currently, subsections (b) and (c)
are not in effect. And although subsection (a) still is, both Congress, in the
text of § 334(a), and the FCC, in the Order, have severed Form 395-B data
collection from that subsection. Thus, assuming arguendo that Congress
ratified anything, it ratified only the FCC’s power to collect Form 395-B
under the regulations in place on September 1, 1992, which cannot now
support the FCC’s claimed authority.
* * *
The FCC lacks statutory authority to require broadcasters to submit
employment data under Form 395-B. While its authority to act in the public
interest is broad, the FCC cannot invoke public interest to expand the scope
of its authority to act in ways Congress has not authorized it to act. Further,

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24-60219
c/w No. 24-60226

even if the 1992 Cable Act ratified the FCC’s ability to collect this data,
Congress expressly tied that authority to equal employment opportunity
regulations that are no longer in effect. Because we conclude that the FCC
lacks statutory authority, we do not reach the Petitioners’ alternative
constitutional arguments, or the argument that the FCC’s action was
arbitrary and capricious under the Administrative Procedure Act.
We GRANT the petition and VACATE the Order.

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 Case: 24-60219 Document: 105-2 Page: 1 Date Filed: 05/19/2025

United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130

May 19, 2025

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 24-60219 Consolidated with No. 24-60226
National Relig Broadcasters v. FCC
USDC No. 24-18

Enclosed is a copy of the court’s decision. The court has entered

judgment under Fed. R. App. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
Fed. R. App. P. 39 through 41, and Fed. R. App. P. 39, 40, and 41
govern costs, rehearings, and mandates. Fed. R. App. P. 40 require
you to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court’s opinion or order. Please
read carefully the Internal Operating Procedures (IOP’s) following
Fed. R. App. P. 40 for a discussion of when a rehearing may be
appropriate, the legal standards applied and sanctions which may
be imposed if you make a nonmeritorious petition for rehearing en
banc.
Direct Criminal Appeals. Fed. R. App. P. 41 provides that a motion
for a stay of mandate under Fed. R. App. P. 41 will not be granted
simply upon request. The petition must set forth good cause for
a stay or clearly demonstrate that a substantial question will be
presented to the Supreme Court. Otherwise, this court may deny
the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under Fed. R. App. P. 41. The
issuance of the mandate does not affect the time, or your right,
to file with the Supreme Court.
Court Appointed Counsel. Court appointed counsel is responsible
for filing petition(s) for rehearing(s) (panel and/or en banc) and
writ(s) of certiorari to the U.S. Supreme Court, unless relieved
of your obligation by court order. If it is your intention to
file a motion to withdraw as counsel, you should notify your client
promptly, and advise them of the time limits for filing for
rehearing and certiorari. Additionally, you MUST confirm that
 Case: 24-60219 Document: 105-2 Page: 2 Date Filed: 05/19/2025

this information was given to your client, within the body of your
motion to withdraw as counsel.
The judgment entered provides that each party bear its own costs
on appeal pay to the costs on appeal. A bill of cost form is
available on the court’s website [Link].

Sincerely,
LYLE W. CAYCE, Clerk

By:_________________________
Mary Frances Yeager, Deputy Clerk
Enclosure(s)
Mr. Noah Baron
Ms. P. Michele Ellison
Mr. Jared Kelson
Mr. Jacob Matthew Lewis
Mr. Rachel Proctor May
Mr. R. Trent McCotter
Mr. Robert B. Nicholson
Ms. Jessica Thi Nyman
Mr. William Scher
Ms. Michaele N. Turnage Young
Mr. Robert J. Wiggers