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Testimony of Commissioner Harold W. Furchtgott-Roth Before the Subcommittee on Telecommunication, Trade, and Consumer Protection, Hearing on H.R. 3525, the Religious Broadcasting Freedom Act and H.R. 4201, the Noncommercial Broadcasting Freedom of Expression Act of 2000, Thursday, April 13, 2000, 2 p.m.

On December 29, 1999, the FCC released a decision approving the application for assignment of license of WQEX(TV) Channel 16, Pittsburgh, PA, from WQED Pittsburgh to Cornerstone TeleVision, Inc., and the application for assignment of license of WPCB-TV, Channel 40, Greensburg, PA, from Cornerstone to Paxson Pittsburgh License, Inc. Cornerstone sought, and was granted, authority to move from Channel 40 to Channel 16, and to sell Channel 40 to Paxson.

I voted to adopt this part of the Commission's decision, which found that Cornerstone - a religious broadcasting entity - met the legal standard for operating on the noncommercial, educational ("NCE") band. That standard requires that the "station[] . . . be used primarily to serve the educational needs of the community" and "for the advancement of educational programs."(1) In applying this standard, the Commission deferred, as it traditionally has done, to the good faith judgment of the broadcaster that its station would serve educational purposes.

The Commission did not stop there, however. In a further statement purportedly designed to provide broadcasters with "additional guidance," the Commission elaborated on the situations in which religious programming would be deemed "primarily educational" for purposes of licensing on the NCE band.

The Commission stated:

First, with respect to the overall weekly program schedule, more than half of the hours of programming aired on a reserved channel must primarily serve an educational, instructional or cultural purpose in the station's community of license. Second, in order to qualify as a program which is educational, instructional or cultural in character, and thus counted in determining compliance with the overall benchmark standard, a program must have as its primary purpose service to the educational, instructional or cultural needs of the community.(2)

On this second point, the Commission elaborated that:

not all programming, including programming about religious matters, qualifies as "general educational" programming. For example, programming primarily devoted to religious exhortation, proselytizing, or statements of personally-held religious views and beliefs generally would not qualify as "general educational" programming. . . . [T]he reserved television channels are intended "to serve the educational and cultural broadcast needs of the entire community to which they are assigned," and to be responsive to the overall public as opposed to the sway of particular political, economic, social or religious interests. (3)

I dissented vigorously from this discussion. To my mind, quantification of the educational programming obligation of noncommercial licensees was potentially unconstitutional. In Turner Broadcasting System, Inc. v. FCC, the Supreme Court went out of its way, in discussing the validity of our regulatory requirements for noncommercial educational broadcasters, to note that our rules did not require broadcasters to air any specific amount of such programming.(4) The clear implication of that discussion is that quantified programming obligations for NCE licensees would indeed raise First Amendment problems.

Worse, the Commission's "additional guidance" raised the specter of discrimination against certain broadcasters on the basis of their religious message. No other noncommercial, educational broadcasters, of course, were subject to the "no exhortation" or "no statement of personally-held views" standard announced in the Order. In Rosenberger v. University of Virginia, the Supreme Court made clear that once government opens up an avenue for expression, it may not deny access to those with religious editorial viewpoints simply because of those viewpoints.(5) Conversely - and contrary to the assertion of some in the WQED majority -- the Court also made clear that allowing such groups to speak on the same basis as others in order to avoid a violation of the Free Speech Clause does not, in turn, violate the Establishment Clause. (6)

On top of that, federal examination of the question whether a view expressed by an individual is personally held or not is an astonishingly invasive venture. It seems to be an obviously content-based - indeed, belief-based - inquiry. In essence, the standard enunciated in the Order meant that if you believe what you are saying about religion, you can not say it on the NCE band, but if you do not believe what you are saying, then you can. A "personal belief" test for designating those who may and may not operate on the reserved band is a clear infringement of core speech rights. (7)

At bottom, and as Commissioner Powell and I stated in our joint dissent, the more the Commission attempts to generically define which "educational, instructional and cultural" programming will count for regulatory purposes, the closer it will come to unacceptable and unconstitutional content regulation. The example of church services used in the Order illustrates the point. The Order indicated that church services generally would not qualify as "general educational" programming.(8) We asked however, why such programming might not qualify as "cultural" programming, just as a presentation of an opera might? It would be very hard to broad brush either type of programming as having no intrinsic cultural value. Moreover, depending upon the nature and content of the service, it might very well be properly educational. Certainly, millions of Americans attend church services, in part, for the educational value of the teachings embodied in a sermon.

On January 28, 2000, the Commission hurriedly issued on its own motion an Order vacating the "additional guidance" of the first WQED decision. I concurred in that vacatur because, as I explained, that guidance was wrong on the merits.

I also stated that, as a result of the Commission's express rejection and vacatur of this guidance, there should be no doubt that the Mass Media Bureau is unauthorized to engage in any formal or informal practice of directly reviewing the substance of stations' programming or imposing a quantification requirement on educational programming. For instance, the Bureau can not suggest the addition of certain shows or the deletion of others from a programming schedule in order to obtain licensing approval. Instead, the Bureau's task is simply to assess whether the broadcaster's judgment that his station will be used chiefly to serve the educational needs of the relevant community is arbitrary or unreasonable. Anything more in the way of programming content review or programming quantification would be unwarranted, improper, and in derogation of the Order on Reconsideration.

Unfortunately, while this understanding of the Bureau's current authority is in my opinion the legally correct one, it is unclear whether this understanding prevails at the Commission. Chairman Kennard in defense of the original Order asserted that:

The Commission's decision in this case therefore does not establish new rules, but simply clarifies long-standing FCC policy applicable to any broadcaster seeking to use an NCE-reserved channel. The decision followed and cited prior Commission decisions in describing what kinds of religious programming would qualify as educational.

Letter from Chairman William E. Kennard to Representatives Oxley, Pickering, Stearns, and Largent, Jan. 20, 2000.(9) This characterization of the WQED Order as based entirely on past precedent was not rejected in the Order on Reconsideration, nor has it since been refuted.

Of course, I strongly disagree with the assertion that the Order established nothing new. If that were true, there would have been no need to write and adopt the "additional guidance" section of the Order. I doubt that the majority would have engaged in this work if it were in fact unnecessary.

Assuming, however, that one does believe the "nothing new" characterization to be correct - as the Chairman of the FCC apparently does -- then simple vacatur of the WQED Order is insufficient to protect religious broadcasters from the treatment heralded in the additional guidance section of that Order.

This uncertainty is a lingering problem for religious broadcasters operating with NCE licenses. It should be made clear that the underlying policies and interpretations of past precedent that animated the "additional guidance" majority at the Commission are themselves null and void. If this question is left open, the Commission is sure to go a second round on the specifics of when religious stations should be deemed to serve "educational" ends. All it would take is for a similar license transfer application to come along, and we receive many such applications: a renewed regulatory battle over this issue is likely just a question of time. I fear that, in the meanwhile, the speech of religious broadcasters operating on the NCE band will be chilled and that, when the issue again comes to a head at the Commission, their speech will be directly abridged.

Thank you again for inviting me to appear before you today.

1    47 C.F.R. section 73.621.

2     WQEX-WQED Order at para. 43.

3     Id. at para. 44.

4     See 512 U.S. 622, 651 (1994) (observing that "[w]hat is important for [First Amendment] purposes. . . is that noncommercial licensees are not required by statute to or regulation to carry any specific quantity of 'educational' programming or any particular 'educational' programs").

5    See 515 U.S. 819, 828-837 (1995) (holding that denial of State funding for publications of student groups to those with religious editorial viewpoints is unconstitutional viewpoint discrimination).

6    See id. at 837-846 (holding that funding of religious student publications, in context of general funding scheme for student publications, does not violate the Establishment Clause); id. at 846 (stating that "[t]here is no Establishment Clause violation in . . . honoring . . . duties under the Free Speech Clause").

7    Cf. FCC v. League of Women Voters, 468 U.S. 364 (1984) (striking down statute barring NCE stations receiving federal grants from engaging in editorializing).

8    WQEX-WQED Order at para. 44 n.91.

9    See http://www.fcc.gov/Speeches/Kennard/Statements/2000/stwek003.html.