The FCC’s Public Interest in Your Personnel Files
The Federal Communications Commission (FCC) licenses television stations. Does that make it Disney’s human resources department? The agency seems to think so, invoking a “public interest” mandate to investigate the company’s diversity policies—a mandate whose meaning seems to change with whoever holds power.
Under the Communications Act of 1934, as amended, the FCC has initiated early license-renewal proceedings against eight television stations that American Broadcasting Cos. Inc. (ABC), a subsidiary of The Walt Disney Co., owns and operates. ABC sued to challenge those proceedings on First Amendment grounds in American Broadcasting Companies, Inc. v. Federal Communications Commission, now before the U.S. District Court for the District of Columbia.
The case also raises a foundational question of administrative law. Can an agency turn a broadly worded statute into a roving mandate to enforce rules beyond its jurisdiction?
The stated rationale for cutting short ABC’s standard eight-year license terms is an ongoing inquiry by the FCC’s Enforcement Bureau into Disney’s corporate diversity, equity, and inclusion (DEI) policies. The FCC contends that compliance with equal employment standards is an essential part of a licensee’s obligation to operate in the “public convenience, interest, or necessity.”
But a close reading of the agency’s motion to dismiss reveals its reliance on a public-interest standard for broadcast licensees that stretches beyond the statute’s text and seems unjustifiable in today’s media marketplace.