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   STATEMENT OF CHAIRMAN WILLIAM KENNARD AND COMMISSIONER
            GLORIA TRISTANI, DISSENTING IN PART
                              
  
       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."  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.