We disagree with the majority's decision not to designate Cornerstone's application for hearing. Under Section 73.621 of our rules, an applicant for a reserved channel must demonstrate that the station "will be used primarily to serve the educational needs of the community." If there is any substantial and material question of fact on that issue, the Commission must designate the application for hearing on the issue of whether the applicant's proposed programming is primarily educational. Here, even according all due deference under our precedent, the applicant has failed to carry its burden of proof. There are simply too many unresolved questions of fact regarding whether the proposed programming is primarily educational, or primarily something else.
Nor do we believe that the Commission's current standard is too vague to be applied to this applicant. The Commission established the general rule that reserved channels must be used primarily to serve the educational needs of the community and left the assessment of whether the standard has been met to case-by-case review. There is nothing unusual or improper about this. To the contrary, it is well-settled that "the decision whether to proceed by rulemaking or adjudication lies within the broad discretion of the agency."(1) In any event, even assuming that our standards needed to be clarified, the right solution would have been to give the administrative law judge further guidance, not to give this applicant a free pass. The people of Pittsburgh -- who are counting on the Commission to preserve the integrity of channels reserved for educational use -- deserve no less.
Instead, the majority has decided to grant the application. Standing alone, the majority's decision to grant this application would eliminate all eligibility standards for the reserved band.
To avoid this result, we join in that part of the order which sets forth clarified programming standards for broadcasters using reserved noncommercial channels. All broadcasters, including Cornerstone, are subject to this standard, which provides, among other things, that programming primarily devoted to religious exhortation (e.g., preaching), proselytizing, or statements of personally-held religious views and beliefs generally will not qualify as educational programming. While we regret the Commission's decision not to apply this standard to the facts before us, we believe that today's decision will permit the Commission to more effectively and expeditiously enforce its rules in future cases involving any broadcasters, including Cornerstone, alleged to be in violation of those rules.
1 Wisconsin Gas Co. v. FERC, 770 F.2d 1144, 1166 (D.C. Cir. 1985), citing SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1947).