Broadcaster sues FCC to block discriminatory hiring disclosure scheme

San Francisco; July 24, 2024: Perry Atkinson and theDove Media have filed a lawsuit against the Federal Communications Commission (FCC), seeking to block a rule that would force broadcasters to choose between hiring based on race or sex, or the risk of ruinous lawsuits.

In 1983, Perry Atkinson sold his house to buy a 1,000-watt radio station in Medford, Oregon. His bold move led to the growth of his nonprofit, theDove, into a network of nearly three dozen faith-based radio stations, cable TV channels, and streaming services. Today, his team produces and broadcasts news daily to over six million people.

However, in February 2024, the FCC reinstated a rule requiring annual reporting of employment demographic data, putting companies like Perry’s at risk of being sued by third parties over perceived disparities in the race or gender makeup of their workforce. This danger forces employers either to risk the entire company’s future by fighting lawsuits or make hiring decisions based on immutable characteristics rather than merit.

“The Constitution gives Congress alone the power to make laws and, therefore, Congress cannot give that power away to agencies,” said Oliver Dunford, senior attorney at Pacific Legal Foundation. “Nor can these agencies accomplish indirectly what they are precluded from doing directly. The FCC therefore cannot use its reporting rule to publicly shame companies into adopting race- and sex-conscious hiring practices in violation of the Constitution’s guarantee of equal protection.”

The case is theDove Media v. FCC, filed in the United States Court of Appeals for the Ninth Circuit.