Testimony of Commissioner Harold W. Furchtgott-Roth Before the
Subcommittee on Telecommunication, Trade, and Consumer Protection,
Hearing on H.R. 3525, the Religious Broadcasting Freedom Act and H.R.
4201, the Noncommercial Broadcasting Freedom of Expression Act of 2000,
Thursday, April 13, 2000, 2 p.m.

On December 29, 1999, the FCC released a decision approving the
application for assignment of license of WQEX(TV) Channel 16,
Pittsburgh, PA, from WQED Pittsburgh to Cornerstone TeleVision, Inc.,
and the application for assignment of license of WPCB-TV, Channel 40,
Greensburg, PA, from Cornerstone to Paxson Pittsburgh License, Inc.
Cornerstone sought, and was granted, authority to move from Channel 40
to Channel 16, and to sell Channel 40 to Paxson.

I voted to adopt this part of the Commission's decision, which found
that Cornerstone -- a religious broadcasting entity -- met the legal
standard for operating on the noncommercial, educational ("NCE") band.
That standard requires that the "station\[\] . . . be used primarily to
serve the educational needs of the community" and "for the advancement
of educational programs."[^1] In applying this standard, the Commission
deferred, as it traditionally has done, to the good faith judgment of
the broadcaster that its station would serve educational purposes.

The Commission did not stop there, however. In a further statement
purportedly designed to provide broadcasters with "additional guidance,"
the Commission elaborated on the situations in which religious
programming would be deemed "primarily educational" for purposes of
licensing on the NCE band.

The Commission stated:

> First, with respect to the overall weekly program schedule, more than
> half of the hours of programming aired on a reserved channel must
> primarily serve an educational, instructional or cultural purpose in
> the station\'s community of license. Second, in order to qualify as a
> program which is educational, instructional or cultural in character,
> and thus counted in determining compliance with the overall benchmark
> standard, a program must have as its primary purpose service to the
> educational, instructional or cultural needs of the community.[^2]

On this second point, the Commission elaborated that:

> not all programming, including programming about religious matters,
> qualifies as \"general educational\" programming. For example,
> programming primarily devoted to religious exhortation, proselytizing,
> or statements of personally-held religious views and beliefs generally
> would not qualify as \"general educational\" programming. . . .
> \[T\]he reserved television channels are intended \"to serve the
> educational and cultural broadcast needs of the entire community to
> which they are assigned,\" and to be responsive to the overall public
> as opposed to the sway of particular political, economic, social or
> religious interests. [^3]

I dissented vigorously from this discussion. To my mind, quantification
of the educational programming obligation of noncommercial licensees was
potentially unconstitutional. In *Turner Broadcasting System, Inc. v.
FCC*, the Supreme Court went out of its way, in discussing the validity
of our regulatory requirements for noncommercial educational
broadcasters, to note that our rules did *not* require broadcasters to
air any specific amount of such programming.[^4] The clear implication
of that discussion is that quantified programming obligations for NCE
licensees would indeed raise First Amendment problems.

Worse, the Commission's "additional guidance" raised the specter of
discrimination against certain broadcasters on the basis of their
religious message. No other noncommercial, educational broadcasters, of
course, were subject to the "no exhortation" or "no statement of
personally-held views" standard announced in the Order. In *Rosenberger
v. University of Virginia*, the Supreme Court made clear that once
government opens up an avenue for expression, it may not deny access to
those with religious editorial viewpoints simply because of those
viewpoints.[^5] Conversely -- and contrary to the assertion of some in
the *WQED* majority \-- the Court also made clear that allowing such
groups to speak on the same basis as others in order to avoid a
violation of the Free Speech Clause does not, in turn, violate the
Establishment Clause. [^6]

On top of that, federal examination of the question whether a view
expressed by an individual is personally held or not is an astonishingly
invasive venture. It seems to be an obviously content-based -- indeed,
belief-based -- inquiry. In essence, the standard enunciated in the
Order meant that if you believe what you are saying about religion, you
can not say it on the NCE band, but if you do not believe what you are
saying, then you can. A "personal belief" test for designating those who
may and may not operate on the reserved band is a clear infringement of
core speech rights. [^7]

At bottom, and as Commissioner Powell and I stated in our joint dissent,
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 and
unconstitutional content regulation. The example of church services used
in the Order illustrates the point. The Order indicated that church
services generally would not qualify as \"general educational\"
programming.[^8] We asked 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.

On January 28, 2000, the Commission hurriedly issued on its own motion
an Order vacating the \"additional guidance\" of the first *WQED*
decision. I concurred in that vacatur because, as I explained, that
guidance was wrong on the merits.

I also stated that, as a result of the Commission\'s express rejection
and vacatur of this guidance, there should be no doubt that the Mass
Media Bureau is unauthorized to engage in any formal or informal
practice of directly reviewing the substance of stations\'

programming or imposing a quantification requirement on educational
programming. For instance, the Bureau can not suggest the addition of
certain shows or the deletion of others from a programming schedule in
order to obtain licensing approval. Instead, the Bureau\'s task is
simply to assess whether the broadcaster\'s judgment that his station
will be used chiefly to serve the educational needs of the relevant
community is arbitrary or unreasonable. Anything more in the way of
programming content review or programming quantification would be
unwarranted, improper, and in derogation of the Order on
Reconsideration.

Unfortunately, while this understanding of the Bureau's current
authority is in my opinion the legally correct one, it is unclear
whether this understanding prevails at the Commission. Chairman Kennard
in defense of the original Order asserted that:

The Commission\'s decision in this case therefore does not establish new
rules, but simply clarifies long-standing FCC policy applicable to any
broadcaster seeking to use an NCE-reserved channel. The decision
followed and cited prior Commission decisions in describing what kinds
of religious programming would qualify as educational.

Letter from Chairman William E. Kennard to Representatives Oxley,
Pickering, Stearns, and Largent, Jan. 20, 2000.[^9] This
characterization of the *WQED* Order as based entirely on past precedent
was not rejected in the Order on Reconsideration, nor has it since been
refuted.

Of course, I strongly disagree with the assertion that the Order
established nothing new. If that were true, there would have been no
need to write and adopt the "additional guidance" section of the Order.
I doubt that the majority would have engaged in this work if it were in
fact unnecessary.

Assuming, however, that one *does* believe the "nothing new"
characterization to be correct -- as the Chairman of the FCC apparently
does \-- then simple vacatur of the *WQED* Order is insufficient to
protect religious broadcasters from the treatment heralded in the
additional guidance section of that Order.

This uncertainty is a lingering problem for religious broadcasters
operating with NCE licenses. It should be made clear that the underlying
policies and interpretations of past precedent that animated the
"additional guidance" majority at the Commission are themselves null and
void. If this question is left open, the Commission is sure to go a
second round on the specifics of when religious stations should be
deemed to serve "educational" ends. All it would take is for a similar
license transfer application to come along, and we receive many such
applications: a renewed regulatory battle over this issue is likely just
a question of time. I fear that, in the meanwhile, the speech of
religious broadcasters operating on the NCE band will be chilled and
that, when the issue again comes to a head at the Commission, their
speech will be directly abridged.

Thank you again for inviting me to appear before you today.

[^1]: 47 C.F.R. section 73.621.

[^2]: *WQEX-WQED Order* at para. 43.

[^3]: *Id.* at para. 44.

[^4]: *See* 512 U.S. 622, 651 (1994) (observing that "\[w\]hat is
    important for \[First Amendment\] purposes. . . is that
    noncommercial licensees are not required by statute to or regulation
    to carry any specific quantity of 'educational' programming or any
    particular 'educational' programs").

[^5]: *See* 515 U.S. 819, 828-837 (1995) (holding that denial of State
    funding for publications of student groups to those with religious
    editorial viewpoints is unconstitutional viewpoint discrimination).

[^6]: *See id.* at 837-846 (holding that funding of religious student
    publications, in context of general funding scheme for student
    publications, does not violate the Establishment Clause); *id.* at
    846 (stating that "\[t\]here is no Establishment Clause violation in
    . . . honoring . . . duties under the Free Speech Clause").

[^7]: *Cf. FCC v. League of Women Voters*, 468 U.S. 364 (1984) (striking
    down statute barring NCE stations receiving federal grants from
    engaging in editorializing).

[^8]: *WQEX-WQED* Order at para. 44 n.91.

[^9]: *See*
    http://www.fcc.gov/Speeches/Kennard/Statements/2000/stwek003.html.