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Applications of WQED Pittsburgh and Cornerstone Television, Inc.

This is a sad and shameful day for the FCC. In vacating last month's "additional guidance" on its own motion, without even waiting for reconsideration petitions to be filed, this supposedly independent agency has capitulated to an organized campaign of distortion and demagoguery.

At bottom, the additional guidance provided in last month's decision stood for one simple proposition: not all religious-oriented programming will count toward the requirement that reserved television channels be devoted primarily to "educational" use. This is nothing new. For over twenty years, the Commission's precedent has held that "[w]hile not all religious programs are educational in nature, it is clear that those programs which involve the teaching of matters relating to religion would qualify."(1) What was new was that the Commission attempted to give some clarity to its precedent in order to assist its licensees and the public, and, more importantly, to ensure that the reserved channels are used for their intended purpose.(2)

Then the pressure campaign began. It was alleged that the Commission was barring certain religious programming from the reserved channels. Not true - the Commission simply held that not all religious programming would count toward the "primarily educational" requirement. Then it was alleged that the Commission was somehow restricting religious speech, or engaging in a prior restraint. Again, not true - the decision only dealt with the small number of television channels set aside for noncommercial educational use. Religious broadcasters are free to broadcast whatever they wish on commercial channels. Indeed, Cornerstone has been broadcasting unimpeded on a commercial television channel in Pittsburgh since 1978. In this case, Cornerstone was seeking a special privilege from the government - the right to broadcast on a channel reserved primarily for public education. The government may selectively promote certain speech (e.g., public educational speech) without thereby abridging other types of speech (e.g., religious speech).(3)

Perhaps the most disturbing charge leveled against the Commission is that its decision reflects an "anti-religion bias" at the agency. I reject and resent this type of attack, reminiscent of a witch-hunt. It is precisely because of my deep respect for religion, and my deep appreciation for the religious diversity of America, that I supported our additional guidance. Religion is not merely an educational "interest" like cooking or computers that may appeal to only a subset of the population. Religion is much more than that. The freedom to believe, and the freedom to believe in nothing at all, is one of our most precious freedoms. In order to preserve that freedom, the Establishment Clause of the First Amendment precludes the government from aiding, endorsing or opposing a particular religious belief, or from promoting belief versus non-belief. As Justice O'Connor recognized: "[T]he endorsement standard recognizes that the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others."(4) Moreover, government endorsement of a particular set of religious beliefs sends a powerful message of exclusion to non-adherents. Again, Justice O'Connor:

Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community(5).

Here, the government reserves a small number of TV channels in a community for educating the public. These channels are quite valuable - Cornerstone planned to move to the noncommercial channel free of charge while selling its commercial channel for $35 million. Because of their scarcity, the reserved channels are expressly intended "to serve the entire community to which they are assigned," (6) and to be "responsive to the overall public as opposed to the sway of particular political, economic, social or religious interests." (7) Thus, a prospective licensee cannot operate on a reserved channel unless and until the government concludes that its programming is primarily "educational" for the broader public.

In a religiously diverse society, sectarian religious programming, by its very nature, does not serve the "entire community" and is not "educational" to non-adherents. From a constitutional perspective, a government policy that endorses certain sectarian programming as "educational," and awards exclusive use of a scarce public resource to permit those views to be expressed, would run afoul of the Establishment Clause. Indeed, programming that promotes adherence to a particular set of religious beliefs "inevitably ha[s] a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal. The Establishment Clause does not allow public bodies to foment such disagreement."(8) It is no answer to say that non-adherents need not watch those channels. That is like saying that the government can provide direct aid to the religious mission of sectarian schools because non-adherents can enroll elsewhere. Nor is it an answer to say that all religious programming is "educational." First, the scarcity of reserved channels means that, as a practical matter, the government would be aiding and endorsing certain religious beliefs and not others. Second, the Establishment Clause not only prohibits government from aiding or endorsing a particular set of religious beliefs, it also prohibits government from aiding or endorsing religion over non-religion (or vice versa).

The majority clearly wishes that this entire subject would just go away. That has been the Commission's unspoken policy through the years, and would have remained the policy had the people of Pittsburgh not pressed the issue. Now, having stuck their head out of their foxhole and drawing fire, the majority is burrowing back in as quickly and deeply as they can. The excuse for vacating the additional guidance - that our actions "have created less certainty rather than more" - would be laughable were the stakes not so high. The problem was not a lack of clarity, but that we were too clear. We actually tried to give meaning to our rule. What the majority really means is that they prefer a murky and unenforceable rule to a clear and enforceable one. Indeed, if our decision created uncertainty, the answer would be further clarification, not to vacate. The majority insists that it would like to have "the benefit of broad comment." But where, one may ask, is the notice of rulemaking? The seriousness of the majority's rulemaking argument can be judged by how quickly it begins a proceeding. I doubt that a rulemaking on this subject will ever see the light of day.

In the end, the majority's decision takes us back to where we were before this case began. Programming on the reserved channels still must be primarily educational. Programming about religion may still qualify as educational, but not all religious programming will qualify. The only difference now is that neither licensees nor the public will have the benefit of specific guidance. The majority's mantra that we will defer to the licensee's judgment unless that judgment is "arbitrary or unreasonable" simply begs the question - when does a licensee's judgment cross the line and become arbitrary or unreasonable? The majority provides no clue. I cannot see how anyone is better off, other than those who oppose any enforceable rules in this area. I, for one, will continue to cast my vote in accordance with the views expressed in the additional guidance and in this statement.

1    See Notice of Inquiry, Docket No. 78-164, 43 Fed. Reg. at 30845 (1978) (setting forth processing standards for reserved channels).

2    For example, the Commission stated that a program analyzing the role of religion in connection with historical or current events, various cultures, or the development of the arts generally would qualify as educational, while church services generally would not.

3    See, e.g., National Endowment for the Arts v. Finley, 524 U.S. 569, 118 S.Ct. 2168, 2179 (1998) ("Congress may 'selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.'") (citing Rust v. Sullivan, 500 U.S. 173, 193 (1991)). See also Finley, 118 S.Ct. at 2183 (Scalia, J., concurring) ("It is preposterous to equate the denial of taxpayer subsidy with measures 'aimed at the suppression of dangerous ideas") (citations omitted).

4    County of Allegheny v. ACLU, 492 U.S. 573, 631 (1989) (O'Connor, J., concurring). See also Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 747 (1976) ("the state must confine itself to secular objectives and neither advance nor impede religious activity").

5    Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring).

6    Fostering Expanded Use of the UHF Channels, 2 FCC 2d 527, 542 (1965) (emphasis added).

7    Noncommercial Nature of Educational Broadcast Stations, 90 FCC 2d 895, 900 (1982).

8    County of Allegheny, 492 U.S. at 651 (O'Connor, J., concurring).