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Re: In Re Applications of WQED Pittsburgh and Cornerstone Television, Inc. (file number BALET-970602IA), et al.

Although we support most aspects of this order, we dissent from the portion of the decision that purports to give "additional guidance" to licensees using frequencies in reserved band to provide noncommercial television service. This guidance is, in fact, a significant departure from well-established Commission practice. As explained below, we object to its inclusion in this order on both procedural and policy grounds. This guidance may open a Pandora's Box of problems that will create confusion and litigation that noncommercial licensees can ill afford.

The guidance announced in this order does three significant things. First, it quantifies the obligation of noncommercial licensees to "primarily serve the educational needs of the community" by requiring that "more than half of the hours of programming aired on a reserve channel must primarily serve an educational, instructional or cultural purpose in the station's community of license." Order 43. Second, it concludes that "a program must have as its primary purpose service to the educational, instructional or cultural needs of the community" in order to count toward this new benchmark. Id. Third, it singles out religious programming and purports to draw a line between programming that teaches about religion - which would count toward the new benchmark - and programming "devoted to religious exhortation, proselytizing, or statements of personally-held religious views and beliefs" - which would not generally qualify. Order 44.

Initially, as a procedural matter, we object to this guidance because it makes a substantial change in the Commission policy toward noncommercial licensees without the benefit of input from the broad class of affected licensees. While it may be legal for the Commission to make policy statements in an adjudicatory proceeding, we do not believe that it is wise to make a broad change like this without considering the views of a wider cross-section of those affected, particularly where constitutional questions are implicated.

On a substantive level, quantification of the "educational" obligation of noncommercial licensees suggests a greater federal intrusion into the programming judgment of noncommercial licensees that is, to our thinking, unwarranted and may well be unconstitutional.(1) Nothing in this record suggests a general problem among noncommercial licensees that requires either quantification or more stringent definition of what is "educational" programming for the reserved bands. Although it might, in a theoretical sense, be desirable to define qualifying programming, one must realistically evaluate the difficulty of that task and fully consider the potential restraint it may impose on noncommercial licensees.

It is true that judging what programming will serve the "educational, instructional and cultural needs" of a given community necessarily is a subjective determination. In the past, the Commission has wisely left this determination almost entirely to the noncommercial licensee who is closest to the community, subject to government reversal only if that judgement is arbitrary or unreasonable, a determination necessarily dependent upon the facts of a specific case. To the extent that the guidance in this order suggests that instead of trusting the judgment of licensees, the Commission now will take a more active role in evaluating licensee programming decisions, we think it turns in the wrong direction. Such guidance invites unnecessary battles over the content of noncommercial programming.

Quite simply, 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 content regulation. The example of church services used in this order illustrates the point. The order indicates that church services generally would not qualify as "general educational" programming. Order 44 n.91. We ask 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. Additionally, we are concerned that any attempt to make a distinction based on religion alone raises grave constitutional concerns.(2) We therefore object to any distinction made on these grounds and we fail to see any other distinction that withstands scrutiny.

We further object to the suggestion in this order that qualifying programming must appeal to the broader community. The hallmark of noncommercial television has been service to the needs of smaller audiences. Indeed, the Commission regularly emphasizes the value of diverse niche programming to serve underserved and underrepresented populations. Thus, we see no basis for disqualifying a program simply because it appeals to only a segment of the population.

In sum, we cannot support the additional guidance portion of this order. While clarity in regulation may be a noble goal as a general matter, when treading this close to content regulation, we believe the traditional deference the Commission has given to broadcasters, murky though it may be, is the better course.

1    See, Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 651 (1994).

2    See, Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (denial of State funding for publications of student groups to those with religious editorial viewpoints is unconstitutional viewpoint discrimination; funding of such groups would not violate the Establishment Clause); see also Lamb's Chapel v. Center Moriches Free Union School Dist., 508 U.S. 384 (1993) (permitting school property to be used for the presentation of all views on an issue except those dealing with it from a religious standpoint constitutes prohibited viewpoint discrimination).