Carr Rips FCC Over Race/Gender Scorecard

Federal Communications Commission commissioner Brendan Carr has blasted the decision of his colleagues to move forward with an initiative that would require broadcasters to make public a race and gender scorecard of their employees, a directive he says runs afoul of the Constitution.

Newsmax reports Carr, the senior Republican commissioner on the FCC and former general counsel, wrote a six-page dissenting statement over the agency's decision to "post a race and gender scorecard for each and every TV and radio broadcast station in the country."

Brendan Carr

"In doing so, the FCC caves to the demands of activist groups that have worked for years and across different industries to persuade the federal government to obtain — and most importantly publish — this type of data about individual businesses," Carr wrote. "This is no benign disclosure regime."

He added: "The record makes clear that the FCC is choosing to publish these scorecard for one and only one reason: to ensure that individual businesses are targeted and pressured into making decisions based on race and gender."

Congress requires the FCC to collect race and gender data from broadcasters, via Form 395-B, but it's the decision to publish the data "about specific broadcast stations" over which Carr takes umbrage.

"Instead of confining today's decision to lawful agency action, the FCC chooses a different course — one that violates the Constitution, as the D.C. Circuit has already determined in not one but two separate FCC cases," Carr wrote.

Of the five members on the FCC commission, Carr is one of two Republicans. Democrats took majority control of the commission in September when Anna Gomez was sworn in.

"Today, for at least the third time now, the FCC once again seeks to pressure broadcasters into making hiring decisions on the basis of race and gender. It does so, as noted above, by requiring broadcasters to publicly disclose, on a station by station basis, a scorecard that lists the racial and gender breakdown of every employee," Carr wrote.

He added: "We are thus left with one of two possibilities. At worst, the Order pretextually seeks to force broadcasters into making race- and gender-based hiring decisions, a constitutionally offensive rationale that cannot justify any rules. Or at best, Order pursues disclosure for disclosure's sake, which violates the First Amendment."

Carr said he would have been fine with a decision to make the data public "on an anonymized" or "aggregated basis." But the commission took it too far, he wrote.

"Narrowly tailoring what is made public would have avoided the FCC playing a part in pressuring broadcasters into making hiring decisions on the basis of race and gender in violation of the Fifth Amendment. And it would have sidestepped a compelled disclosure that runs afoul of the First Amendment. My suggestions were ultimately rejected, and we are now left with an item that runs headlong into the Constitution," he concluded.