Victory over Biden's FCC

“We won the Form 395-B against the FCC [Federal Communications Commission],” wrote Abraham Hamilton III, AFA general counsel, in a celebratory email to his colleagues in mid-May. “The 5th U.S. Circuit [Court of Appeals] just issued a unanimous decision holding that the FCC lacked statutory authority to require Form 395-B disclosures.”

 But what exactly does this mean?

In February 2024, the Biden administration’s FCC reinstated a rule requiring broadcasters, such as American Family Radio (AFR), to collect and publicly disclose their employees’ demographic information, such as race, sex, ethnicity, and the like. The form, known as Form 395-B, included a new “nonbinary” gender category. The goal, according to the FCC, was to ensure diversity in hiring and recruitment.

The back and forth

Form 395-B was first imposed 55 years ago, in 1970, in a slightly different form to ensure “effective equal employment practices.” But in 1998, the District of Columbia Circuit Court struck down several other FCC equal employment opportunity regulations, and the FCC voluntarily suspended use of Form 395-B.

Two years later, in 2000, the FCC implemented new equal employment opportunity regulations and reinstated collection of Form 395-B. However, broadcasters immediately challenged the new rule, and the FCC once again suspended Form 395-B collection.

The FCC did not propose reinstating Form 395-B until 2021. Then, public comments prompted the Commission to impose a rule of reinstatement in 2024. At the same time, the Commission denied a petition for reconsideration that had requested the data be kept confidential. The FCC said it chose to publish the data on its website to “incentivize stations to file accurate data.”

The fight

In dissenting from the order imposing the new rule, FCC Commissioner Brendan Carr pointed out that it amounted to “a race and gender scorecard for each and every TV and radio broadcast station in the country,” which would be used “to ensure that individual businesses are targeted and pressured into making decisions based on race and gender.”

AFR and other Christian broadcasters would be required to post the race, ethnicity, and gender of every employee, and then face pressure from leftist groups questioning why they did not employ more nonbinary individuals, for example.

Therefore, AFA, National Religious Broadcasters (NRB), and the Texas Association of Broadcasters (TAB) filed suit in the 5th U.S. Circuit Court of Appeals to block implementation of the rule. AFA, NRB, and TAB argued that:

▶  The FCC lacked statutory authority to enact the rule.

▶  The rule was unconstitutional because it forced broadcasters to categorize employees based on race, ethnicity, and sex and to make hiring decisions on that basis.

▶ The rule was arbitrary and capricious, among other things.

The victory

On May 19, 2025, a three-judge panel of the 5th Circuit unanimously ruled in favor of AFA, NRB, and TAB. In National Religious Broadcasters, et al. v. FCC, the court found that the FCC “lacks statutory authority to require broadcasters to submit employment data under Form 395-B.” The court did not reach the constitutional claims or other claims.

“That sent a very strong message that the FCC overstepped,” Hamilton explained. “The significance of this victory is difficult to overstate.”

The Biden administration had aggressively advanced a diversity, equity, and inclusion (DEI) agenda. From allowing boys in girls’ bathrooms to letting biological males compete in women’s sports to encouraging genital mutilation surgeries in minors without parental consent, the administration’s positions were diametrically opposed to biblical morality.

Because the FCC exercises near total control over who owns and operates radio and television stations, the use of Form 395-B to open onerous and expensive investigations into Christian stations – and even shut them down for not hiring more transgender employees – was a very real possibility. The form effectively discriminated against Christians.

“The unanimous decision of the 5th Circuit panel should forever put to bed the pernicious threat of Form 395-B,” Hamilton concluded. “Praise God!”