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Separate Statement of Commissioner Susan Ness

Re: Applications of WQED Pittsburgh and Cornerstone Television, Inc. For Consent to the Assignment of License of Noncommercial Educational Station WQEX(TV), Channel *16, Pittsburgh, Pennsylvania

In considering the application of Cornerstone Television, Inc. ("Cornerstone"), to acquire the license to operate a Noncommercial Educational Television ("NCETV") Station on Channel *16 in Pittsburgh, Pennsylvania, we face the difficult task of balancing two cardinal principles at the heart of our regulation of public broadcasting: First, we seek to safeguard the reserved allocations for NCETV stations - an oasis for "the important contributions which noncommercial educational television can make in educating people both in school - at all levels - and also the adult public."(1) Second, we seek to respect the First Amendment rights of broadcasters, including broadcasters of programming with a religious orientation, to exercise their editorial discretion.(2)

Ultimately, I concur in granting Cornerstone's application. After applying our existing rules and precedent to the record in this proceeding, I cannot conclude that there is a substantial and material question of fact concerning the reasonableness of the applicant's judgment that its proposed programming will be "used primarily" to serve the "educational" needs of the station's community. My decision is based upon the application of our current overly general guidelines to Cornerstone's program showing and Cornerstone's apparent willingness to modify its programming to comply with the requirements of Section 73.621, which should include any clarification we provide.

Given the consequence of this decision, I write separately to explain why I cannot hold the applicant's judgment to be "arbitrary or unreasonable." As the recitation of our precedent in the decision we release today makes clear, "as in all matters relating to programming, we will defer to the judgment of the broadcaster unless [that] categorization appears to be arbitrary or unreasonable." Notice of Inquiry, Docket No. 78-164, 43 Fed. Reg. 30847, 30845 (1978) ("Guidelines"). We also have clearly stated that "some programs will properly be considered to be both instructional and religious or both general educational and religious." Id. But as to what constitutes a "general educational" program, our processing guidelines only state that a "general educational" program is "an educational program for which no formal credit is given." Id. at 30844-45.(3)

Cornerstone's Programming Showing Under Current Guidelines And Precedent

In the absence of clearer definitions and guidance, I am concerned that finding this broadcaster's judgment to be arbitrary or unreasonable would constitute an improvident review of the applicant's judgment, especially prior to any actual broadcast by Cornerstone of programs on the reserved channel. In its final amended showing, filed in April of this year, Cornerstone made a significant effort to demonstrate that approximately 100 hours of its current and proposed programs can be reasonably categorized, in its judgment, as "general educational" programs.(4) Some of these programs are clearly educational, even given the very general definitions and guidelines that we have provided, while the assessment of other programs becomes more problematic. See Decision, 41 & n.46. Looking at the record as a whole, in light of our current precedent, I cannot say that the Commission can establish a basis for delineating a "substantial and material question of fact" concerning the applicant's judgment, much less find that judgment to be "arbitrary or unreasonable."

My conclusion is based in significant part on the absence of clarity in our definition of "general educational" programming and our guidelines for determining what is "religious" but not "educational" pursuant to Section 73.621.(5) We have not previously given applicants sufficient guidance as to how we will assess the reasonableness of their judgment, so that absent the most abusive exercises of broadcaster discretion, our own judgment must be circumspect. As the Supreme Court has recognized for almost 50 years, the "lack of standards in the license-issuing 'practice' renders that 'practice' a prior restraint in contravention of" the First Amendment.(6) What Justice Frankfurter wrote in his concurring opinion in Neimotko nearly 50 years ago concerning the issuance of permits governing the right to hold meetings in public parks cannot be ignored by this Commission -- "the basis which guides licensing officials in granting or denying a permit must not give them a free hand, or a hand effectively free . . . ." Neimotko, 340 U.S. at 284-85 (Frankfurter, J., concurring). In this case, given the most general guidance provided for our review of the applicant's programming judgment, I cannot find "arbitrary or unreasonable" the applicant's judgment that its proposed programming will be "used primarily to serve the educational needs" of the Pittsburgh community.(7)

Additional Guidance

Nevertheless, having concluded that our guidelines currently are sufficiently vague to make me reluctant to disregard the broadcaster's judgment concerning its programming, I have joined two of my fellow Commissioners to clarify the guidelines for our review of NCETV proposals and programming. We have an obligation to provide additional guidance to FCC staff, as well as to applicants and existing licensees, if we are to be able to assess whether a broadcaster's judgment is reasonable.

I recognize that it is a difficult task to establish meaningful and valid guidelines, and that the guidance proffered in our decision will not clarify the categorization of every program, given the variety of programs that can be broadcast. It is axiomatic, however, that the reservation of allocations for noncommercial educational stations is more than simply a reservation for noncommercial stations.(8) Without adequate guidance, we effectively would eliminate the eligibility standards that preserve the "educational" mission of the reserved allocations.

We now clarify our guidelines to state that for an NCETV station to be "used primarily to serve the educational needs of the community," more than half of the hours of programming aired on that station must primarily serve an educational, instructional or cultural purpose. Decision, 43. Moreover, in order to qualify as a "general educational" program, a program must have as its primary purpose service to the educational, instructional or cultural needs of the community. Id. While some programs will properly be considered to be both general educational and religious, a program primarily devoted to religious exhortation, proselytizing or testimonials regarding personal religious faith generally will not qualify as a "general educational" program.(9)

Given this additional guidance, we will continue to defer to the judgment of an applicant or licensee concerning the educational nature of its programming, unless that judgment is arbitrary or unreasonable.(10) We also understand that the overall context of the broadcast is important to evaluating the reasonableness of the judgment of the broadcaster. While there may be additional guidance concerning the types of programming that would or would not qualify under Section 73.621(a), I do not believe that it would be appropriate to go beyond our elaboration today, absent public discussion and comment.

While we have the legal authority to do so,(11)(12) I also believe that it would be inequitable to apply our newly enumerated processing guidelines to judge the instant record, which was developed over more than two years without the benefit of such clarification. First, the fact that this Commission has never issued more than very general guidelines suggests that our new guidance, which may be viewed as significant, should be carefully applied. Applying the revised processing guidelines to a record developed without its benefit would not constitute a wise exercise of discretion.(13)

Second, the potential harm to Cornerstone and others from our application of new definitions and guidelines is significant. Cornerstone and other parties would face, at a minimum, additional delay in any action on their pending applications.(14) Moreover, a Commission action that questions Cornerstone's judgment regarding its own programming showing based upon clarified processing guidelines delineated after the submission of Cornerstone's showing raises issues of fundamental fairness.

Finally, the grant of Cornerstone's application should not create deleterious mischief to our rules for reserved NCETV channels. As even Cornerstone recognizes, it is obligated to comply with Section 73.621, and it will be obligated to comply with any clarifications to Section 73.621(a), including those that are evident from this decision. (15) As noted in our Decision, if Cornerstone's operation of an NCETV station is shown to violate Section 73.621, as clarified by our decision, after programming is actually broadcast on Channel *16 by Cornerstone, the Commission can take appropriate action at that time.(16)

Conclusion

By our decision today, we tread carefully to further our two cherished objectives - preserving the distinct public benefits of the reserved educational allotments and respecting the First Amendment programming deference broadcasters enjoy when seeking to operate on such frequencies. I expect that Cornerstone will honor its commitment to meet the requirements -- as clarified today -- for broadcasters operating on reserved channels. In turn, the Pittsburgh community will soon again be served by two distinct educational television stations.


1    Sixth Report and Order, Amendment of Section 3.606 of the Commission's Rules and Regulations, 41 F.C.C. 148, 165-66 (1952) ("Sixth Report"), quoting Third Notice of Further Proposed Rulemaking, 16 Fed. Reg. 3072 (1951).

2    Columbia Broadcasting System, Inc. v. National Democratic Committee, 412 U.S. 94, 120-21, 126-27 (1973). As the Commission stated, the First Amendment does not prevent us from establishing incidental restrictions on speech that are required for a broadcaster to maintain eligibility for a reserved allocation. See Decision, 29.

3   The Commission has not provided significant additional guidance in its decisions on applications for licenses for NCETV stations. As the discussion in the Decision we release today reveals, in the relevant past we have only designated applications for hearing where applicants provided inadequate descriptions of their programs. See Decision, 23-27. See, e.g., Way of the Cross, 101 F.C.C.2d 1368 (1985); Music Ministries, Inc., 9 FCC Rcd. 3628 (1994); Toccoa Falls College, 8 FCC Rcd. 3085 (1994); Holy Spirit Harvest Church, 7 FCC Rcd. 3043 (1992); Dry Prong Educational Broadcasting Foundation, 7 FCC Rcd. 496 (1992); Christian Family Cinema, 6 FCC Rcd. 7364 (1991). We have not had to determine whether the judgment of a broadcaster was "arbitrary or unreasonable."

4     Cornerstone's initial showing made in its June 1997 application and the supplemental showing first made in its April 1998 amendment to its application may well have been insufficient for a NCETV proposal as discussed in Way of the Cross, given the cursory nature of Cornerstone's descriptions of its programs.

5   In this respect, I find myself expressing sentiments similar to those of Chairman Wiley and Commissioners Hooks and White in Moody Bible Institute. See Decision, 19.

6    Neimotko v. Maryland, 340 U.S. 268, 269 (1951) (exercise of discretion in denying permit based on vague ordinance governing issuance of authorization for speaking events in community park violates First Amendment as applied to states by Fourteenth Amendment); see Saia v. New York, 334 U.S. 558, 560 (denial of permit unconstitutional where "there are no standards prescribed for the exercise of discretion").

7    Distinguishing primarily religious programs from general educational programs, unlike the case with identifying "commercial speech," does not appear to be an instance where "the ordinary person exercising ordinary common sense can sufficiently understand and comply . . . without sacrificing the public interest." CSC v. Letter Carriers, 413 U.S. 548, 579 (1974). See also Policy on NCE Stations, 43 R.R.2d 731, 740-41 (1978). For example, would the performance of Handel's Messiah be primarily educational if it were performed at the Kennedy Center, but not be primarily educational if it were performed in a church? Similarly, would not some sermons be educational, depending upon their context?

8    See Decision, 16-17 (discussing establishment of reserved noncommercial educational allocations for educational purposes and Congressional support for funding development of educational, instructional and cultural programming).

9   Programs primarily devoted to exhortation and proselytizing, and other types of incitement and recruitment, should not qualify as general educational programming regardless of whether they are religiously oriented, or are oriented toward other social or cultural issues.

10    We have continued to stress that "we will not disqualify any program simply because the subject matter of the teaching or instruction is religious in nature. While not all religious programs are educational in nature, it is clear that those programs which involve the teaching of matters related to religion would qualify." See id. 44 citing Way of the Cross, 102 F.C.C.2d at 1372 n.8; Guidelines, 43 Fed Reg. at 30844-45. Additionally, while stations operating on reserved educational channels are intended to serve the educational and cultural broadcast needs of their entire community, particular programs may meet the educational and cultural needs of different segments of the population.

11     The Supreme Court has recognized that administrative agencies have the discretion to deal with problems on an ad hoc, case-by-case basis through adjudication. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). In proceeding by ad hoc adjudication, the Court acknowledged that "such action might have a retroactive effect" that was "not necessarily fatal" to the case-by-case procedure's validity. Id. The Court indicated, however, that "such retroactive effect must be balanced against the mischief of producing a result which is contrary to statutory design or to legal and equitable principles." Id.; see Retail, Wholesale and Department Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972) ("Retail Union"). In Retail Union, the D.C. Circuit indicated that agencies should resolve the balance by addressing five considerations, the essence of which involves balancing the extent of any clarification, the harm to a party from applying the clarification, and the interest served by applying the clarification. Retail Union, 466 F.2d at 390.

111    I do not believe that the public interest would be served by taking yet another round of supplemental showings and pleadings to address Cornerstone's proposed programming, or by designating the application for hearing to permit an administrative law judge to apply our clarified guidelines to the programming proposed by Cornerstone.

1111     While I do not believe that the financial difficulty of WQED Pittsburgh ("WQED"), the current licensee of Channel*16, necessitates a grant of the assignment application, we are obligated to act expeditiously, since we committed to do so at the time we declined to dereserve Channel*16.

11111    The Commission has in the past granted applications that did not initially comply with the Commission's rules as clarified in the proceeding at issue, with the express recognition that the licensee would be obligated to comply with the rules as clarified. See, e.g., NextWave Personal Communications, Inc., 12 FCC Rcd. 2030, 2071 (1997) (application granted with licensee permitted to restructure ownership to comply with foreign ownership restrictions).

111111    While I have not maintained that we are required to exercise our discretion in this manner, there is some precedent suggesting that this approach should be adopted. "Courts have not infrequently declined to enforce administrative orders when in their view the inequity of retroactive application has not been counterbalanced by sufficient significant statutory interests." See Retail Union, 466 F.2d at 390. Regardless of the extent to which our application of clarified guidelines to Cornerstone's programming showing would be "retroactive," a review of the factors discussed in Retail Union still supports the exercise of discretion militating against an aggressive application of new guidelines to programming that has yet to be broadcast.