[ The rumor that the FCC has before it a proposal to not issue licenses to religious broadcasters still continues to circulate, more than 30 years after the Commission denied that request. The FCC's policy toward religious broadcasters remains unchanged in that no special provisions or restrictions are applied to religious stations or licensees, nor are any changes to that policy contemplated. ]
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entire Memorandum Opinion and Order is available as a PDF file (1.23 MB in size)
In the Matter of
Revision of the Rules Permitting Multiple
By the Commission: Commissioner Robinson Issuing a Separate Statement In Which Commissioner Hooks Joins.
1. The Commission has before it the above-captioned petition filed by Lorenzo Milam and Jeremy Lansman and the filings in response to it. As described below, the petition seeks a series of changes in the rules relating to the standards applicable to the licensing and and operation of educational stations on reserved FM or television channels. In particular, the petitioners seek the commencement of an inquiry leading toward changes in the rules to place certain limitations on which educational organizations might be considered eligible to hold station authorizations.
2. Although the number of filings in response to the petition has been rather small (footnote omitted listing the entities filing formal comments in this proceeding), the filing of the petition has generated a vast amount of letters to the Commission, likely in excess of 700,000. The Commission appreciates the time taken by these individuals to make their feelings known, however, the vast majority of these letters are not directed to a resolution of the issues raised by the petition, as most are based on an incorrect understanding of the nature of the relief petitioners seek. Many of them are form letters that are premised on the mistaken view that the petition was filed by Madalyn Murray O'Hare [O'Hair], when such was not the case. In addition, the vast majority of letters urge us to reject what they understand to be the proposal to ban the broadcast of all religious programs (including church services) from the air. However, no such proposal was advanced by the petitioners, nor was it raised by the Commission. Even with these misunderstandings which have intervened, it is nonetheless clear that those who have written to the Commission on behalf of the need for religious programming could not be expected to support that part of the proposal which was premised on a concern about how religiously affiliated educational organizations operate their stations. One final point requires mention before proceeding to an examination of the petition itself: Although various parties sought and were granted extensions of time to respond to the petition, not all of these parties have filed during the extended period allowed. Nonetheless, the time for commenting has passed, and the matter is ready for a decision on whether to proceed withthe issuance of a Notice of Proposed Rulemaking.
[ Paragraphs 3 through 20 generally deal with ownership issues and are not replicated here. See the PDF version for the full text. ]
21. The part of this proceeding which has evoked the greatest public response is that which is concerned with the eligibility of religious organizations for channels which are reserved for noncommercial educational use. Petitioners would have us disqualify all religiously-affiliated organizations and institutions from eligibility to operate on reserved channels. In effect, they would have us practice discrimination against a school or university simply by virtue of the fact that it is owned and operated by a sectarian organization. As a government agency, the Commission is enjoined by the First Amendment to observse a stance of neutrality toward religion, acting neither to promote nor inhibit religion. King's Garden, Inc. v. Federal Communications Commission, -- U.S. App. D.C. -- , 498 F.2d 51 (1974). Under principles of neutrality, a religious group, like any other, may become a broadcast licensee, and, like any other licensee, a religious group is subject to "enforceable public obligations." King's Garden, supra.
22. The FM and TV channels which have been reserved for noncommercial educational use have been made only to educational institutions and organizations. Under existing Commission policies, a religious organization which qualifies as educational because it operates a school or university is eligible to operate a broadcast station on a channel reserved for noncommercial educational use in the community where it operates the school. Keswick Foundation, Inc., 26 F.C.C. 2d 1025 (1970); Pensacola Christian School, Inc., 41 F.C.C 2d 74 (1973); see also Christ Church Foundation, FCC 68-732 (1968). In observing the principles of neutrality, we treat religious organizations and secular organizations alike in determining eligibility for operation on a reserved channel. Specifically, where an organization's central and primary purpose is religious it is held to be ineligible for a reserved channel, except as noted above, although its eligibility to operate on an unreserved channel is not proscribed. Bible Moravian Church, Inc., 28 F.C.C. 2d 1 (1971).
23. Taken in this context, we view Petitioners' proposals on religious applicants for reserved FM and TV channels as an impermissible proposition, which would violate our neutrality just as much as if we were to favor religious applicants over secular ones. The pleadings indicate Petitioners' personal distaste for most religious programming and espouse their own views for improving such programming. The Commission, even if were disposed to, cannot cater to personal views. Nor is it empowered to to enforce or enhance private rights. See REA Express, Inc. v. CAB, -- U.S. App. D.C. -- , 507 F.2d 42, 46 (1974). In its role of determining the public interest in licensing matters, the Commission has broad discretion to create and enforce channel allocations policy and rules. See Footnote 9. Coastal Bend Television Co. v. FCC, 98 U.S. App. D.C. 251, 234 F. 2d 686, 690 (1956). In addressing a matter of our discretion, Petitioners have not made a specific and concrete supportive showing which are called for to void established rules and policy and initiate Commission rulemaking proceedings. They have not given us specific instances of abuses, or of cognizable violations by incumbent licensees. TV Channel Assignment of Newark, New Jersey, 29 RR 2d 1473 (1974). Their general allegations, statements of preferences and general treaties on constitutional law are not legally sufficient to persuade us to undertake discretionary action to change the rules or to engage in rule making. Moreover, the law surrounding administrative rule making does not comprehend any rights in private parties to compel an agency to institute such proceedings or to promulgate rules. Rhode Island Television Corp. v. FCC, 116 U.S. App. D.C. 40, 42, 320 F.2d 762, 764 (1963).
24. Petitioners have suggested that the Commission undertake an inquiry into the programming practices of stations operated on reserved channels by "sectarian institutions" or all government supported institutions. We are not ersuaded that new policies or new investigations are necessary in this area. The ad hoc enforcement of existing Commission policies appears to be the preferable course of action. The broadcasters referred to by Petitioners are subject, just as all other broadcasters are, to the Fairness Doctrine and the principle that a broadcast station may not be used solely to promote the personal or partisan objectives of the broadcaster. The Commission will continue to take appropriate action in specific cases where a prima facie showing can be made that a broadcast station has violated these principles.
25. Accordingly, IT IS ORDERED, That the subject petition for rule making IS DENIED.