In 1983, Perry Atkinson took a leap of faith, selling his house to buy a 1,000-watt radio station in Medford, Oregon. His bold move paid off as he grew his nonprofit media company, theDove, Inc., from a single low-power radio station into a network of nearly three dozen faith-based radio and television stations, cable channels, and streaming services. Today, his in-house team produces and broadcasts news daily to more than six million people.
Perry’s 40-plus years of experience helped him navigate changing technologies, cultural shifts, and the regulatory landscape. Now, everything he’s built faces a new obstacle: a federal agency’s campaign to publicly shame companies that don’t follow its preferred discriminatory employment practices.
In February 2024, the FCC resurrected a rule that’s been dormant for nearly 30 years. The rule requires broadcasters with five or more employees to annually collect and publicly report information about their employees’ race and sex.
The FCC claims the rule aims to satisfy its own equal employment opportunity (EEO) reporting requirements. But the Equal Employment Opportunity Commission already maintains those records and is required to keep the information confidential.
In reality, the FCC rule is a thinly veiled attempt to do indirectly what it may not do directly: pressure stations into race- and sex-conscious hiring practices.
As noted by FCC commissioners who voted against reimposing the rule, publication will encourage private third parties to sue broadcasters for perceived race or sex imbalances and force targeted radio stations to defend against bet-the-company lawsuits.
Besides being a blatant end-run around the Equal Protection Clause, the rule also violates the nondelegation doctrine. The Communications Act of 1934 gave the FCC authority to regulate broadcasting, not to enforce what amounts to race and gender quotas.
Worse still, Congress included broad language in the Act that essentially allows the FCC to issue broadcasting licenses “in the public interest.” But this vague standard amounts to handing lawmaking power to the FCC, which violates the nondelegation doctrine. Under our Constitution, only Congress may make the law.
Only the people’s representatives in Congress can create laws. When Congress gives that power to agencies—effectively allowing the executive branch to write the law—it erodes democracy and self-government.
Even if the reporting requirement were lawful, the FCC’s attempt to impose race- or sex-based hiring quotas runs afoul of the Constitution’s Equal Protection guarantee, which forbids government discrimination on the basis of immutable characteristics such as race and sex. Broadcasters’ employment decisions are no exception.
Represented at no charge by Pacific Legal Foundation, Perry is fighting back with a federal lawsuit challenging the FCC’s race-and-sex-reporting rule to help restore the separation of powers in government and protect the Constitution’s guarantee of equal protection of the laws.
What’s At Stake?
- The Constitution forbids the government from requiring businesses to make hiring decisions on the basis of immutable characteristics such as race, sex, or ethnicity. Government agencies cannot weaponize public pressure to skirt this constitutional mandate. Doing so runs afoul of the Constitution’s guarantee of equal protection under the law.
- Only our representatives in Congress have the power to make law. Congress cannot give that power to a federal agency. The Communications Act of 1934 created the Federal Communications Commission (FCC) and charged it with regulating the communications industry “in the public interest,” with virtually no direction as to how it should do so. This delegation is so broad that it essentially cedes vast swaths of lawmaking power to the FCC in violation of the separation of powers and nondelegation doctrine.
