|FEDERAL COMMUNICATIONS COMMISSION
The Honorable Michael G. Oxley
U.S. House of Representatives
2233 Rayburn House Office Building
Washington, D.C. 20515
Dear Congressman Oxley:
This responds to your letter of January 6, 2000, regarding the Commission's recent 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. (In short, Cornerstone sought and was granted authority to move from Channel 40 to Channel 16, and to sell Channel 40 to Paxson.)
Three salient points stand out in this decision:
This matter arose out of Cornerstone's application to acquire the license of Channel 16, one of two stations in Pittsburgh expressly reserved for NCE stations. Opponents of the transaction claimed that Cornerstone intended to use the channel for religious programming that did not qualify as educational. The FCC rejected these arguments and granted Cornerstone's application. The FCC stated that certain programming dealing with religious matters can also be deemed educational and thus satisfy the eligibility requirements for NCE channels.
The NCE Standards Apply Only When NCE Certification is Requested, and Do Not Apply to Most Religious Broadcasters
Since 1952, the Commission has reserved a limited number of television channels for educational broadcasters, including Channel 16 in Pittsburgh. Indeed, Congress has, from time to time, directed the Commission not to diminish the number of channels reserved for NCE use.1 In granting Cornerstone's application, the Commission clarified the requirements that apply to Cornerstone and any other broadcaster, religious or otherwise, seeking Commission certification as an educational television broadcaster eligible for a reserved NCE channel. The Commission thus did not single out religious broadcasters, but rather clarified standards applicable to all NCE broadcasters. In fact, the large majority of broadcasters offering religious-oriented programming are exempt from the NCE eligibility requirements described in the Cornerstone decision because they use commercial channels that are not reserved for NCE stations, and thus are not subject to the NCE eligibility requirements.
Cornerstone itself would remain exempt from the NCE requirements as long as it operates on Channel 40 or any other commercial channel. Cornerstone becomes subject to the NCE requirements only by virtue of its decision to move to NCE Channel 16. Cornerstone never contended that it was exempt from the NCE standards due to the religious nature of some of its programming. To the contrary, Cornerstone specifically acknowledged the applicability of, and its intention to abide by, the NCE eligibility requirements that apply to Channel 16.
The Cornerstone Decision Followed Well-Established FCC Policies
Applicants seeking to use NCE-reserved television channels have always been required to demonstrate that their programming will be "primarily educational" in nature and thus serve the educational purpose for which the channel was reserved. 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. See, e.g., Way of the Cross of Utah, Inc., 101 FCC2d 1368, 1372, n. 5 (1985).
The NCE Standards Never Prohibit Particular Programming From Being Aired Based On Its Religious Nature
Even under this long-established standard, there is no specific programming, religious or otherwise, that is barred from being aired on an NCE channel since the "primarily educational" benchmark applies to the overall program schedule in the aggregate. This means that religious programming of any nature may be aired on an NCE channel, although not all such programming will necessarily count towards the benchmark. Thus, a complaint alleging simply that an NCE broadcaster is airing some religious programming would be summarily dismissed by the FCC since noncommercial programming of any nature is permissible on an NCE channel, as long as more than half of the overall weekly program schedule serves "an educational, instructional or cultural purpose in the station's community of license."
I note that these applications are part of an ongoing restricted proceeding under the Commission's ex parte rules, 47 C. F. R. 1.1200, et seq. Pursuant to these rules, any presentation directly addressing the merits or outcome of these applications must be served on all parties to the proceeding in accordance with the Commission's ex parte rules. Therefore, in conformity with these rules, we are serving a copy of your letter and this response on the parties to this proceeding.
Text of Order
The text of the WQED/Cornerstone/Paxson decision is available via the Internet on the Commission's web site at: http://www.fcc.gov/Bureaus/Mass_Media/Orders/1999/fcc99393.doc.
William E. Kennard