####  Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Applications of )

)

**WQED PITTSBURGH** )

(Assignor) )

)

and ) File No. BALET-970602IA

) Facility ID Number 41314

**CORNERSTONE TELEVISION, INC.** )

(Assignee) )

)

For Consent to the Assignment of License )

of Noncommercial Educational Station )

WQEX(TV), Channel \*16, Pittsburgh, )

Pennsylvania )

)

**CORNERSTONE TELEVISION, INC.** )

(Assignor) )

)

and ) File No. BALCT-970530IA

) Facility ID Number 13924

**PAXSON PITTSBURGH** )

**LICENSE, INC.** )

(Assignee) )

)

For Consent to the Assignment of License )

of Station WPCB-TV, Channel 40, )

Greensburg, Pennsylvania )

##### MEMORANDUM OPINION AND ORDER

**Adopted: December 15, 1999 Released: December 29, 1999**

By the Commission: Chairman Kennard and Commissioner Tristani affirming
in part, dissenting in part, and issuing a joint statement;
Commissioners Furchtgott-Roth and Powell affirming in part, dissenting
in part, and issuing a joint statement; Commissioner Ness issuing a
separate statement.

1.  The Commission has before it for consideration: (1) the
    above-captioned application for consent to assign the license of
    noncommercial educational television (NCETV) station WQEX(TV),
    Channel \*16, Pittsburgh, Pennsylvania, from WQED Pittsburgh (WQED)
    to Cornerstone TeleVision, Inc. (Cornerstone), licensee of station
    WPCB-TV, Channel 40 (IND), Greensburg, Pennsylvania, and the
    contingent application for consent to assign the license of station
    WPCB-TV from Cornerstone to Paxson Pittsburgh License, Inc.
    (Paxson); (2) a petition to deny both assignment applications filed
    by The Alliance for Progressive Action and the QED Accountability
    Project (Alliance);[^1] (3) an informal objection from Robert W.
    McChesney, an associate professor at the University of
    Wisconsin-Madison; (4) an \"Emergency Petition to Direct Immediate
    Filing of Renewal Applications\" filed by Alliance, requesting that
    the Commission institute an early renewal proceeding against WQED to
    investigate its qualifications to remain a Commission
    licensee;[^2] (5) over three hundred letters from WQEX(TV) viewers
    and others, the majority of whom oppose the assignment of WQEX(TV)
    to Cornerstone, but a minority of which support the grant of the
    application for consent to that assignment; (6) thousands of form
    letters from individuals who state that they are supporters of
    commercial-free public television and oppose \"the loss of one of
    Pittsburgh\'s two public television stations\" and the acquisition
    of a station in the Pittsburgh market by \"Paxson Communications, a
    leading broadcaster of infomercials;\"[^3] (7) a letter issued by
    the Video Services Division on March 27, 1998, informing Cornerstone
    that, based upon the showing made in the assignment application and
    in Cornerstone\'s response to Alliance\'s petition to deny, the
    staff required further information regarding Cornerstone\'s
    qualifications to operate on a reserved channel, as well as its
    proposed noncommercial educational service; (8) the parties\'
    responses to the staff letter; and (9) an amended showing regarding
    Cornerstone\'s planned programming for Channel \*16, filed March 31,
    1999 (and supplemented on April 1 and May 12, 1999), Alliance\'s
    comments on the supplemental showing, and responses filed by
    Cornerstone and WQED. For the reasons discussed below, we conclude
    that Alliance and the objectors have failed to raise a substantial
    and material question of fact regarding the qualifications of WQED,
    Cornerstone and Paxson.

##### BACKGROUND

2.  WQED is the licensee of two noncommercial educational television
    stations in Pittsburgh, WQEX(TV), Channel \*16 and WQED(TV), Channel
    \*13. In June, 1996, WQED requested that the Commission dereserve
    the Channel \*16 allotment and permit WQED to assign WQEX(TV) to a
    commercial entity and use the net proceeds to pay down debt and fund
    the future operations of WQED(TV).[^4] The Commission denied the
    dereservation request on July 24, 1996, concluding that WQED had not
    made a compelling showing that would support its proposed departure
    from the Commission\'s strongly held policy disfavoring
    dereservation. *See Deletion of Noncommercial Reservation of Channel
    \*16, Pittsburgh, Pennsylvania*, 11 FCC Rcd 11700 (1996). The
    Commission\'s conclusion was based, in part, on the fact that a
    possible alternative solution to WQED\'s financial problems existed.
    In this regard, WQED disclosed in connection with its dereservation
    petition that it had entered into an agreement with Cornerstone,
    whereby Cornerstone agreed to exchange Channel 40 for Channel \*16,
    and operate on Channel \*16 as a noncommercial educational station
    in the event WQED\'s dereservation petition was denied, thereby
    allowing the sale of Channel 40 to a commercial buyer, with the
    proceeds of the sale shared by WQED and Cornerstone. The Commission
    made clear, however, that it did not intend to \"prejudge or signal
    approval of any future application seeking our consent to a 'channel
    swap' between WQED and Cornerstone.\" *Id.* at 11711.

3.  Almost a year after the Commission denied the dereservation
    petition, WQED, Cornerstone and Paxson filed the above-captioned
    assignment applications to implement the channel exchange between
    WQED and Cornerstone, and the sale of WPCB-TV to Paxson. Alliance
    filed a petition to deny, in which it challenges the qualifications
    of WQED, Cornerstone and Paxson. In addition, because Cornerstone
    proposed to make only minimal changes in its operations upon moving
    to Channel \*16, Alliance submitted videotaped programming aired on
    WPCB-TV, which Alliance alleged would be inappropriate, for a
    variety of reasons, if transmitted over a noncommercial reserved
    channel. As discussed more fully below, by letter dated March 27,
    1998, the Video Services Division requested that Cornerstone amend
    its portion of the WQEX(TV) assignment application to provide
    supplementary information regarding its qualifications to operate a
    station on a noncommercial reserved channel such as Channel \*16,
    and its proposed noncommercial educational service. On April 27,
    1998, Cornerstone filed a response to the Division\'s request for
    additional information, to which Alliance filed a reply on May
    12, 1998. Cornerstone again supplemented its programming showing on
    March 31, 1999, and Alliance responded with comments on April
    30, 1999. Cornerstone and WQED filed replies to Alliance\'s comments
    on the supplemental showing on May 12, 1999.

### DISCUSSION

**WQED\'S QUALIFICATIONS TO ASSIGN THE LICENSE OF WQEX(TV)**

4.  In assessing the merits of a petition to deny, a two-step process is
    required under Section 309(d)(1) and (2) of the Communications Act
    of 1934, as amended, 47 U.S.C. § 309(d)(1), (2). *See also,
    Astroline Communications Co. v. FCC*, 857 F.2d 1556 (D.C. Cir.
    1988). The first test is whether the petition demonstrates by
    specific allegations of fact that grant of the application would be
    *prima facie* inconsistent with the public interest, convenience and
    necessity. If such a *prima facie* case is alleged, the second test
    is whether \-- on the basis of the application, the pleadings, and
    other matters of which the Commission may take official notice \-- a
    substantial and material question of fact is presented to warrant
    further inquiry in a hearing.

5.  Citing the Commission\'s *Jefferson Radio* policy,[^5] Alliance
    contends that an inquiry into WQED\'s conduct and character is
    required because WQED misled and deceived the Commission, the
    Pittsburgh City Council and the WQED Board of Directors in
    connection with its dereservation petition. Alliance also asserts
    that WQED has made repeated misrepresentations in connection with
    requests to the Corporation for Public Broadcasting (CPB) for public
    funding. Finally, Alliance argues that WQED\'s decision to simulcast
    WQED(TV) and WQEX(TV) during the pendency of this proceeding, as
    well as alleged violations of Commission rules, raise further
    questions regarding WQED's continued qualifications to operate the
    two stations, which should be addressed though an early renewal
    proceeding.

6.  [WQED\'s Conduct in Connection with the Dereservation
    Petition]{.underline}. Alliance claims first, that WQED solicited
    letters supporting the dereservation petition \"under false
    pretenses,\" thereby misleading the Commission as to the level of
    community support.[^6] WQED denies this allegation, and submits
    letters from individuals Alliance suggests were duped into writing
    letters, reiterating their support for WQED\'s actions. We simply
    cannot conclude, based upon Alliance\'s unsupported assertion, that
    WQED manipulated the Commission record in connection with its
    dereservation petition. We also disagree that WQED lacked candor
    because it failed to disclose in connection with its dereservation
    petition that it had earlier rejected an offer by two Congressman to
    facilitate the enactment of legislation which, according to
    Alliance, would have immediately resolved WQED\'s debt crisis.[^7]
    Discussions with Pennsylvania representatives regarding alternative
    methods of resolving WQED\'s financial crisis were not relevant to
    the Commission\'s consideration of the statutory criteria it was
    required to apply in determining whether to dereserve Channel
    \*16.[^8] Finally, with respect to Alliance\'s assertion that WQED
    management \"averted a City Council resolution condemning the sale
    of the station by lying to the Council,\" and also lied to its own
    Board regarding the May 1996 agreement with Cornerstone, allegations
    of non-adjudicated, non-FCC related misconduct have no bearing on a
    licensee\'s qualifications. *See Policy Regarding Character
    Qualifications in Broadcast Licensing,* 5 FCC Rcd 3252 (1990),
    *recon. granted in part*, 6 FCC Rcd 3448 (1991), *modified*, 7 FCC
    Rcd 6564 (1992)(Relevant non-FCC misconduct typically includes only
    adjudicated instances of fraudulent misrepresentations to
    governmental units, or adjudicated criminal misconduct involving
    false statements or dishonesty.) Accordingly, we conclude that
    Alliance has failed to raise a substantial and material question as
    to WQED\'s qualifications, based on WQED\'s conduct in connection
    with its dereservation petition.

7.  [WQED\'s Compliance with Section 396 of the Communications
    Act]{.underline}. Alliance also alleges that WQED has received over
    \$9 million in grants from the Corporation for Public Broadcasting
    over the past five years, and falsely certified its compliance with
    Section 396 of the Communications Act during each grant cycle.[^9]
    WQED vigorously contests these allegations, producing extensive
    documentation of its compliance with Section 396.[^10] Based upon
    the foregoing, we see no need for further inquiry. It is well
    settled that the CPB has exclusive congressional responsibility for
    the distribution of funds pursuant to Section 396 of the Act, and
    that the Commission does not consider a licensee\'s compliance with
    that section in its licensing proceedings. *See KQED, Inc*., 88 FCC
    2d 1159, 1164-65 (1982), *aff\'d, California Public Broadcasting
    Forum v. FCC*, 752 F.2d 670 (D.C. Cir. 1985). Moreover, as WQED
    points out, the CPB is aware of Alliance\'s allegations regarding
    WQED\'s compliance with Section 396, and continues to support
    WQED\'s proposed divestiture of WQEX(TV).[^11]

8.  [Public File Access]{.underline}. Section 73.3527 requires licensees
    to maintain a public inspection file containing specified station
    records, and to make the file available to the public during regular
    business hours. *See* 47 C.F.R. § 73.3527(d), (f). According to
    Alliance, an individual visited WQED\'s offices twice on October 8,
    1996, and was told to call to make an appointment to inspect the
    public file, a practice contrary to Commission policy. *See
    Availability of Locally Maintained Records for Inspection by Members
    of the Public*, 28 FCC 2d 71 (1971). WQED states that written
    station policy prohibits station personnel from requiring members of
    the public to schedule an appointment to inspect the station file.
    WQED also denies that it required Alliance\'s representative to make
    an appointment, and submits affidavits of three of its employees
    disputing her claim that she was told to schedule an
    appointment.[^12] Even if Alliance\'s representative was told to
    call for an appointment, we do not believe that one isolated
    violation, which directly contravenes written station policy, is so
    serious as to be license threatening. *See Mark R. Nalbone,
    Receiver*, 6 FCC Rcd 7529, 7531-32 (MMB 1991); *WPOM Radio Partners,
    Ltd*., 6 FCC Rcd 1413, 1414 (MMB 1991). We emphasize, however, the
    importance of maintaining a public inspection file and allowing free
    access to members of the public, consistent with our rules and
    policies. *See Public Notice: Availability of Locally Maintained
    Records for Inspection by Members of the Public*, 13 FCC Rcd 17959
    (1998).

9.  [WQED\'s Decision to Simulcast WQED(TV) and WQEX(TV)]{.underline}.
    Several months after the assignment applications were filed with the
    Commission, Alliance filed a separate petition requesting that the
    Commission institute an early renewal proceeding against WQED, based
    upon WQED\'s announcement that it intended to commence simulcasting
    its two television stations.[^13] Alliance contends that
    simulcasting two stations with overlapping service areas is
    inconsistent with WQED\'s obligation to serve the public, wastes
    valuable spectrum, and has the same net effect on the Pittsburgh
    public as would a complete \"darkening\" of WQEX(TV). WQED opposed
    the petition and filed a motion requesting that the Commission
    censure Alliance and its counsel for filing a strike petition.

10. We conclude that given the circumstances present here, WQED\'s
    decision to simulcast its two television stations during the
    pendency of this proceeding raises no issue regarding its
    qualifications to transfer WQEX(TV). First, the Communications Act
    and Commission rules do not require that commonly-owned
    noncommercial educational television stations be separately
    programmed, nor are they required to operate on a regular schedule
    with a specified minimum number of hours. 47 C.F.R. § 73.1740(b).
    While at least a portion of WQED\'s public funding is conditioned on
    separately programming each station, the CPB has granted a temporary
    waiver of this requirement, based on WQED\'s financial
    condition.[^14] Alliance also complains that WQED\'s decision to
    simulcast is \"an effort to increase the probability of the proposed
    sale.\" WQED, however, has not advanced the programming change as
    grounds favoring grant of the pending assignment applications, and
    under the circumstances, we fail to see the relevance of WQED\'s
    programming decision to our consideration of the contested
    applications.[^15]

11. With respect to WQED\'s request that we censure Alliance and its
    counsel for abuse of process, in order to establish the filing of a
    strike petition, \"the charging party must make a strong showing
    that delay is the primary and substantial purpose behind a petition
    to deny.\" *Radio Carrollton*, 69 FCC 2d 1139, 1151
    (1978)(subsequent history omitted.) In determining whether delay is
    the petitioner\'s primary purpose, the Commission will consider,
    *inter alia*, statements admitting an obstructive purpose,
    withholding information relevant to the disposition of the requested
    issues, and the absence of any reasonable basis for the adverse
    allegations in the petition. *Id*. at 1151-52. Upon consideration of
    these criteria, we find that WQED has not made the requisite
    \"strong showing\" that delay was the \"primary and substantial\"
    purpose behind Alliance\'s emergency petition. As proof of an
    obstructive purpose, WQED cites to a press release dated October 8,
    1997, in which Alliance predicts that if the emergency petition \"is
    successful, it would delay the swap or sale . . . .\" In the
    preceding paragraph, however, the press release states that the
    emergency petition was filed \"because WQED has announced that
    beginning November 2, it will stop airing WQEX\'s unique,
    locally-oriented programming, and instead will take the
    extraordinary step of simulcasting WQED\'s programming on WQEX.\"
    While the press release then discusses Alliance\'s opposition to the
    pending assignment applications, and observes that Commission action
    instituting an early renewal proceeding against WQED would delay the
    proposed assignments, we do not find it establishes that delay was
    Alliance\'s \"primary and substantial purpose\" in filing the
    emergency petition. In addition, WQED has not suggested that
    Alliance withheld relevant information, and we cannot find that
    Alliance's emergency petition was so frivolous as to constitute a
    strike pleading, absent a clear showing that delay was the
    substantial and primary purpose. *See Dubuque T.V. Limited
    Partnership*, 4 FCC Rcd 1999, 2000 (1989); *American Mobilephone,
    Inc*., 10 FCC Rcd 12297 (WTB 1995). Thus, we find WQED\'s allegation
    of strike pleadings and abuse of process are insufficiently
    supported.[^16]

12. [WQED\'s Admitted Violation of Section 399B of the Act]{.underline}.
    By letters dated October 16 and 31, 1997, WQED notified the
    Commission that it had recently broadcast announcements supporting a
    ballot proposition in exchange for remuneration from a for-profit
    organization, in apparent violation of Section 399B of the
    Communications Act, 47 U.S.C. § 399B.[^17] WQED also informed the
    Commission that it had taken a number of remedial measures,
    including returning the remuneration, broadcasting an announcement
    opposing the ballot initiative at comparable times, and producing a
    live, town-hall type meeting on the proposed tax referendum. After
    this voluntary disclosure, Alliance supplemented its emergency
    petition, asserting that the underwriting violation further
    demonstrates WQED\'s unfitness to remain a licensee, and suggesting
    that WQED has been biased in its presentation of the issues because
    of its Chief Executive Officer\'s own views on the ballot
    proposition. Again, we conclude that Alliance has failed to raise an
    issue as to WQED\'s continued qualifications, based upon an isolated
    violation of Section 399B of the Communications Act. While we do not
    condone violations of our enhanced underwriting requirements by
    noncommercial stations, an adjudicated violation of Section 399B
    typically results in the imposition of a fine or admonishment.
    *See*, *e.g., Commission\'s Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, 12 FCC Rcd 17087 (1997). Because WQED promptly informed
    the Commission of its violation, and took immediate remedial steps
    to ensure that contrasting viewpoints were aired, we will admonish
    WQED for its violation of Section 399B of the Communications Act,
    but decline to take other enforcement action against it. We also
    remind WQED that the Commission expects all noncommercial television
    licensees to comply with our underwriting requirements.

13. [Public Interest Considerations]{.underline}. Under Section 310(d)
    of the Communications Act, the Commission may only approve a
    transfer of control of a license if it determines that the transfer
    would serve the \"public interest, convenience and necessity.\" 47
    U.S.C. § 310(d). Alliance contends that grant of the WQEX(TV)
    assignment application would be contrary to the public interest,
    primarily because of the loss of programming aired on WQEX(TV) prior
    to WQED\'s decision to simulcast. In support, Alliance submits
    letters from numerous viewers praising the programming which
    previously had been aired on WQEX(TV) and the station\'s
    responsiveness to the needs of children, minorities, the elderly and
    the poor. However, it is \"well-settled Commission policy that
    potential changes in programming formats are not considered in
    reviewing assignment applications.\" *WDCU(FM)*, 12 FCC Rcd 15242
    (MMB 1997); *see also, Changes in the Entertainment Formats of
    Broadcast Stations*, 60 FCC 2d 858, 865-66 (1976), *recon. denied*,
    66 FCC 2d 78 (1977), *rev\'d sub nom., WNCN Listeners Guild v. FCC*,
    610 F.2d 838 (D.C. Cir 1970, *rev\'d*, 450 U.S. 582 (1981). And
    while the Commission \"reserve\[s\] the right to intervene in such
    matters if necessary to serve the public interest more fully,\"
    *WNYC Communications Corp*., 11 FCC Rcd 13841, 13844 (VSD 1996), we
    see no reason to do so at this time. In this regard, we disagree
    with Alliance\'s contention that an assignment would significantly
    reduce the amount of noncommercial, educational programming
    available in Pittsburgh, instead replacing it with
    infomercials.[^18] As discussed below, as the licensee of a
    television station on reserved channel \*16, Cornerstone will be
    required to operate on a noncommercial basis and to air primarily
    educational programming. While the content of Cornerstone\'s
    programming would undoubtedly differ from the programming which was
    carried on WQEX(TV), the overall educational nature of the
    programming must still remain. Moreover, with respect to Alliance\'s
    fear that allowing the proposed assignment would \"set a precedent
    for selling noncommercial educational licenses to religious
    groups,\" especially in markets with commonly-owned public
    television stations, we will continue, as we have in the past, to
    closely scrutinize all applications for assignment of noncommercial
    educational licenses, to ensure that the facility will continue to
    operate in accordance with our noncommercial educational rules and
    policies upon assignment, and to take appropriate actions when
    viewers or other interested parties notify the Commission that a
    noncommercial educational station is operating contrary to our rules
    and policies.

14. Accordingly, we find that WQED is fully qualified to assign its
    license for WQEX(TV), Channel \*16.

##### CORNERSTONE\'S QUALIFICATIONS TO OPERATE ON CHANNEL \*16

15. Cornerstone is a nonprofit, Section 501(c)(3) organization,[^19] and
    is presently airing a largely religious programming format on
    Channel 40, which is licensed to Greensburg, a small community
    located 30 miles east of Pittsburgh. Cornerstone has stated that
    upon grant of the pending assignment applications, it intends to
    shift the majority of its present programming to reserved Channel
    \*16. It is undisputed that licensees operating on unreserved
    commercial television channels \-- such as Cornerstone \-- are
    afforded a great deal of discretion in the scheduling, selection and
    presentation of programs aired on their stations. *See Commercial TV
    Stations*, 98 FCC 2d 1075, 1091-92 (1984).[^20] As discussed below,
    because the noncommercial educational broadcast service differs from
    the commercial service, applicants for reserved channels are
    required to demonstrate certain qualifications and meet other
    requirements not applicable to the commercial service.

16. [The NCETV Regulatory Framework -- Section 73.621(a)]{.underline}.
    The Commission first established a separate allocation for
    noncommercial educational broadcasting in 1945, when it set aside
    twenty percent of the FM radio band for use by noncommercial
    educational radio stations. Approximately five years later, the
    Commission conducted hearings on the need for educational
    television, with a total of 76 witnesses testifying on the issue. In
    1952, the Commission reserved 242 channels for noncommercial
    educational television service, including Channel \*16 in
    Pittsburgh. *Sixth Report and Order* in Docket Nos. 8736 and 8975,
    41 FCC 148 (1953); *see also* 47 C.F.R. § 73.606.[^21] The
    proponents of the allocation presented evidence on, among other
    things, the potential of educational television for both in-school
    and adult education, and the type of program material that could be
    presented over noncommercial television stations. In reserving the
    channels, the Commission recognized "the important contributions
    which noncommercial educational television can make in educating the
    people both in school -- at all levels -- and also the adult
    public." *Id*. at 165, quoting *Third Notice of Further Proposed
    Rulemaking*, 16 Fed. Reg. 3072 (1951). The Commission also expected
    that the separate allocation for these stations "was justified" by
    the "high quality type of programming which would be available in
    such stations -- programming of an entirely different character from
    that available on most commercial stations." *Id*. at 165-66.

17. For more than 50 years through the maintenance of the reserved
    allocations for noncommercial educational broadcast stations, this
    Commission has sought to promote the development of a "high quality
    type of programming" that would be different from the programming
    generated by the commercial pressures and demands placed on
    commercial stations. *Id*. As originally envisioned, these reserved
    channels have been used "to serve the educational and cultural
    broadcast needs of the *entire* community to which they are
    assigned."[^22] As Congress recognized when it adopted legislation
    to fund the operation of certain public broadcasting stations, it is
    in the public interest "to encourage the growth and development of
    public radio and television broadcasting, including the use of such
    media for instructional, educational and cultural purposes."[^23]
    Congress recognized that "expansion and development of public
    telecommunications and of diversity of its programming depend on
    freedom, imagination, and initiative" and that noncommercial
    educational public broadcast services "will constitute an expression
    of diversity and excellence."[^24] Over the years, Congress thus has
    reaffirmed the importance of noncommercial educational service in
    educating the public, "and examining and solving the social and
    economic problems of American life today."[^25]

18. In setting forth eligibility criteria for NCETV applicants for the
    reserved noncommercial educational television channels, the
    Commission adopted Section 73.621 of its rules, 47 C.F.R. § 73.621,
    which mandates that the allocations are to be "used primarily to
    serve the educational needs of the community" and for "the
    advancement of educational programs." Nowhere, however, does the
    rule define the term "educational."

19. An issue as to the interpretation of this "educational" requirement
    arose in the context of an application filed by a religious
    institution in 1977. In *Moody Bible Institute of Chicago,* in a two
    sentence opinion, the Commission granted an application for a new
    noncommercial educational FM ("NCEFM") station, finding that
    religious institution qualified as an "educational organization"
    under Section 73.503 of the Commission's rules.[^26] In a Concurring
    Statement, Chairman Wiley wrote separately, indicating that "the
    reason for the concurrence is simply to express \[the\] concern with
    the lack of a clear Commission standard for determining when an
    organization qualifies for a grant of license under" the rule
    governing eligibility for NCEFM stations.[^27] The Chairman was
    "particularly concerned that \[the\] present standard \[was\]
    unclear with respect to the eligibility of religious vis-à-vis
    non-religious organizations."[^28] Similarly, Commissioner White
    wrote separately in *Moody Bible Institute*, rejecting the notion
    that the Commission could constitutionally separate religious
    broadcasters or programming from educational broadcasters or
    programs given the broad and vague standards that had been adopted
    by the Commission prior to that time.[^29] Commissioner White
    expressed the belief that over the years, the Commission had
    "articulated the principle that organizations which are primarily
    religious in nature, even though they may have some educational
    aspects, will not be allowed to operate on channels reserved for
    educational use."[^30] Commissioner White also noted that previous
    Commission precedent "rejected the contention that education was the
    quintessence of religion;" instead, the Commission had taken the
    position that if "the educational thrust" of an organization "is but
    incidental to and supportive of the religious function, the
    organization is not an educational one."[^31] For more than four
    pages, Commissioner White criticized the Commission's practices
    prior to 1971, asserting that these actions violated the First
    Amendment, especially given the "total absence of even the most
    rudimentary definition or guideline as to what is or is not
    religious." Id. at 165, 164-68.

20. Shortly thereafter, in response to *Moody Bible Institute*, the
    Commission provided some clarification of the rule, issuing a set of
    processing standards. *Notice of Inquiry*, Docket No. 78-164, 43
    Fed. Reg. 30847, 30844-45 (1978) (the "*Guidelines*"). According to
    the *Guidelines*, in evaluating whether a proposed use of a NCETV
    station meets the requirements of Section 73.621, the Commission
    gives "primary weight to those programs which may properly be
    categorized as 'instructional' or 'general educational.'" *Id*.
    at 30844. "Instructional" programs are "all programs designed to be
    utilized by any level of educational institution in the regular
    instructional program of the institution;" a "General Educational"
    program is "an educational program for which no formal credit is
    given." *Id*. at 30844-45. No further guidance was prescribed
    regarding the kind of "educational programs" to which the Commission
    would give "primary weight."

21. Nevertheless, the Commission did specifically acknowledge that
    religious programs could qualify under the *Guidelines*. In
    specifically addressing religiously oriented programming, the
    Commission stated:

    We will not disqualify any program simply because the subject matter
    of the teaching or instruction is religious in nature. While 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. In this regard, some programs will properly be
    considered to be both instructional and religious or both general
    educational and religious.

    *Id*. at 30845. The Commission expressly provided that, "as in all
    matters relating to programming, we will defer to the judgment of
    the broadcaster unless his categorization appears to be arbitrary or
    unreasonable." *Id.*

22. Thus, in the *Guidelines*, the Commission took steps to clarify that
    religious "institutions" would qualify where they provided
    instructional programming, an issue at the heart of *Moody Bible
    Institute*. Cornerstone, however, is not an institution, much less
    an organization, that provides instruction in a formal setting.
    Instead, Cornerstone is a religious organization seeking to meet the
    requirements for a reserved NCETV channel based predominantly on its
    proposal to broadcast "general educational" programs, most of which
    are religious in orientation. Notwithstanding the changes made in
    the *Guidelines* following *Moody Bible Institute*, we are left only
    with the *Guideline's* direction that a "general educational"
    program is "an educational program for which no formal credit is
    given." We therefore must look to Commission precedent for any
    further instruction in evaluating the reasonableness of
    Cornerstone's judgment concerning its proposed programming.

23. [Commission Precedent - Interpreting The Requirements of Section
    73.621]{.underline}. In 1985, in *Way of the Cross of Utah, Inc.*,
    the Commission considered, and rejected, an application of a
    religiously oriented entity seeking a license to operate on a
    reserved NCETV channel.[^32] In that case, the Commission stated
    that "noncommercial, educational organizations, even though
    religiously oriented, can qualify upon an appropriate showing for
    licenses on reserved channels. The programming provided by such
    licensees provides diversity preferred by many of our citizens."
    *Id*. at 1374. Nevertheless, the Commission denied the application,
    finding that the applicant's Board of Directors was not sufficiently
    representative of the community of license and that the applicant
    had not provided a program schedule with a description of its
    programming.[^33] Given the applicant's failure to provide a program
    schedule on which the Commission could assess the applicant's
    judgment, the Commission did not make any effort to define "general
    educational programming."

24. Subsequent to *Way of the Cross*, the Commission has designated
    several cases for hearing concerning an applicant's eligibility for
    noncommercial educational reserved channels based on the standards
    in the *Guidelines*.[^34] These cases, however, involved
    applications for NCEFM stations similar to the application presented
    in *Way of the Cross*, where the applicants provided no program
    schedule or only the barest of descriptions concerning the nature of
    their proposed programs. For example, in *Music Ministries*, the
    Commission designated an application for hearing on an eligibility
    issue because the applicant's program statement contained only
    several general lines regarding its intention to broadcast
    instructional and general educational programming, without any
    description of programs.[^35] In *Dry Prong* and *Holy Spirit*, the
    applications were designated for hearing on an eligibility issue
    because they similarly provided a general program statement without
    delineating programs that the applicants judged to be
    educational.[^36] Finally, in *Christian Family Cinema*, the
    Commission designated an application for hearing because it found
    the program schedule supplied by the applicant to be "devoid" of any
    descriptions of educational programming. 6 FCC Rcd at 3628.

25. In other cases involving applicants for NCEFM stations, where
    illustrative examples of programming were provided, the Commission
    has tended to grant the applications, even where the program
    schedule provided by the applicant was less than comprehensive.[^37]
    For example, in *Palm Bay*, the Commission held that an applicant
    was eligible under Section 73.503(a) where the applicant had
    provided a description of 10.75 hours of its programs, finding the
    "illustrative program list" sufficient to meet the applicant's
    burden.[^38] Similarly, in *Columbia Bible College*, the
    Commission's Audio Services Division found an applicant eligible
    under Section 73.503(a) based upon its review of the applicant's
    proposed program schedule.[^39] Acknowledging that the applicant's
    programs were "geared to religious instruction," the Division stated
    that the Commission "will not disqualify any program simply because
    the subject matter of the teaching \[is\] religious in nature."
    *Id.* at 517. In granting these applications and rejecting claims
    that the applicants were not proposing programming that was
    sufficiently educational in nature, the Commission did not give any
    further guidance regarding the definition of a "general educational"
    program or any distinction between religious and educational
    programming.[^40]

26. The Commission's grant of these NCEFM applications, and its
    concomitant rejection of petitions to deny, however, does not
    reflect the outer limits of the showing the Commission can, and
    does, require from applicants for licenses for NCETV stations. The
    Commission applies a higher standard to applicants for NCETV
    reserved channels than is applied to NCEFM applicants based upon the
    more stringent requirement for eligibility in the relevant rule.
    While applicants for NCEFM and NCETV stations both must demonstrate
    that their programming will be "used for the advancement of" an
    educational program, only applicants for NCETV stations must show
    that "the proposed stations will be used [primarily]{.underline} to
    serve the educational needs of the community."[^41]

27. We do not agree with Cornerstone that the foregoing framework is
    inconsistent with the Supreme Court decision in *Turner Broadcasting
    System, Inc. v. FCC*, 512 U.S. 622, 650-51 (1994). In *Turner*,
    numerous cable programmers and operators challenged the
    constitutionality of the must-carry provisions of the Cable
    Television Consumer Protection and Competition Act of 1992,[^42] and
    the district court granted summary judgment for the government,
    holding that the challenged provisions were consistent with the
    First Amendment. While the Supreme Court vacated summary judgment
    and remanded to the district court, it agreed with the lower
    court\'s conclusion that the must-carry requirements did not warrant
    strict scrutiny as a content-based regulation, in that \"Congress
    designed the must-carry provisions not to promote speech of a
    particular content, but to prevent cable operators from exploiting
    their economic power . . . and thereby to ensure that all Americans
    . . . have access to free television programming \-- whatever its
    content.\" *Id*. at 649. The Court also rejected the argument that
    the preference conferred on broadcast stations by the must-carry
    rules automatically entails content requirements, recognizing that
    the Commission is forbidden by statute to engage in censorship, and
    that \"the FCC\'s oversight responsibilities do not grant it the
    power to ordain any particular type of programming which must be
    offered by broadcast stations.\" *Id.* at 650. The Court also noted
    that \"\[s\]tations licensed to broadcast over the special
    frequencies reserved for \'noncommercial educational\' stations are
    subject to no more intrusive content regulation than their
    commercial counterparts,\" in that noncommercial licensees \"are not
    required by statute or regulation to carry any specific quantity of
    \'educational\' programming or any particular \'educational\'
    programs.\" *Id.* at 651.

28. Noncommercial educational television stations are not required to
    operate on a regular schedule with a specified minimum number of
    hours. *See* 47 C.F.R. § 73.1740(b). However, while the
    Commission\'s rules do not require a specific minimum number of
    hours of educational programming which must be broadcast by a
    television station operating on a reserved channel, both before and
    since *Turner* was decided, Section 73.621 has required that a
    station operating on a reserved channel be \"used **primarily** to
    serve the educational needs of the community.\" Such a requirement
    is essential to giving meaning to the reservation of frequencies for
    \"noncommercial educational\" purposes, and is not presumptively
    unconstitutional under *Turner*. To the contrary, the Court upheld
    the provision requiring cable operators to carry noncommercial
    educational stations, using the percentage of programming that is
    educational to evaluate whether a noncommercial educational station
    complied with the must-carry requirements. While emphasizing the
    discretion accorded noncommercial educational stations, the Court
    did not suggest that the "primarily educational" requirement was
    unconstitutional.

29. Given the importance of these objectives, and the authority of the
    Commission to prescribe "the nature of the services to be rendered
    by each class of station," the First Amendment does not prevent the
    Commission from establishing incidental restrictions on speech that
    are required for a broadcaster to maintain eligibility for a
    reserved allocation.[^43] The Commission therefore can require
    broadcasters to operate on a noncommercial basis, and to present
    programming that is directed "primarily to serve the educational
    needs" of the communities they serve.[^44] If the Commission's
    separate allocation for noncommercial *educational* stations is to
    achieve the educational goals underlying the allocation, our
    guidelines for programming such stations must encompass more than
    simply operating on a noncommercial basis. Any restrictions arising
    from the *educational* requirements are not directed narrowly at
    religious programmers, but act only as an incidental restriction on
    such expression. Just as not all cultural, artistic, and social
    programs will qualify as "general educational" programming, not all
    religious broadcasting must be deemed to be "general educational"
    programming. Nevertheless, in examining whether programming is
    "educational" or whether a program is of a "general educational"
    nature, we cannot help but consider First Amendment concerns. It is
    for this reason that we defer to the broadcaster's judgment unless
    that judgment is arbitrary or unreasonable.[^45]

30. [Cornerstone's Showing And Alliance's Contentions --
    Programming]{.underline}. We turn then to the record in this
    proceeding regarding Cornerstone's proposed programming. This case
    has proceeded over the last three years through three basic rounds
    of pleadings. First, Cornerstone filed its application in June 1997,
    prompting the filing of a Petition to Deny by Alliance, which
    Cornerstone opposed. Second, in response to a Bureau request in
    March 1998 that Cornerstone provide a further demonstration of the
    overall general, educational, cultural and instructional nature of
    its programming, Cornerstone filed an amendment and a responsive
    pleading, to which Alliance responded.[^46] Third, in March and
    April of 1999, Cornerstone once more supplemented its descriptions
    of its proposed programming and Alliance once more responded with
    its contention that the programming was not primarily
    educational.[^47]

31. While Cornerstone's descriptions and proposals have become more
    specific and detailed with each round of pleadings, it is clear that
    Cornerstone primarily will continue to broadcast religiously
    oriented programs that have aired on Channel 40, albeit with some
    additions and modifications. In its June 1997 application,
    Cornerstone represented that it "expects to continue to broadcast
    the majority of its programming, which has a very significant
    general educational component."[^48] Nevertheless, Cornerstone has
    indicated that it "plans to expand its program offerings to include
    for-credit Bible study courses and to expand its instructional
    program offerings in the future as funding and studio space/time
    permit."[^49] It also has promised to add "a weekly literacy program
    designed to reach functionally illiterate adults and children with
    basic reading problems."[^50] As originally cast, its general
    educational programming would include this literacy program,
    "biblical programs, and popular 'how to' programs for learners of
    all ages, including adult learners, on topics such as gardening,
    fishing, hunting, home repairs, crafts, cooking, exercise and
    more."[^51]

32. Cornerstone's primary approach in demonstrating that it qualifies
    under Section 73.621 has been to provide descriptions of its
    existing programs to support its claim that they are "general
    educational."[^52] Cornerstone, however, also has delineated certain
    additional programs that it will broadcast, including Bible study
    instruction in conjunction with Oral Roberts University and programs
    designed to address illiteracy. Additionally, Cornerstone has
    recognized that it will need to make adjustments to its programs to
    comply with the requirements of Section 73.621, and has committed to
    making such changes.[^53] This commitment appears to relate most
    directly to its need to eliminate the current commercial nature of
    its programs. Cornerstone has also provided some indication that it
    is willing to add additional programs to its schedule if that is in
    the public interest and necessary to comply with Section
    73.621(a).[^54]

33. In opposing the grant of Cornerstone's application based on the
    claim that its station will not be used primarily to meet the
    educational needs of the community, Alliance has intertwined two
    threads of argument. First, Alliance contends that Cornerstone's
    programming must be categorized as primarily religious, rather than
    educational, instructional and cultural.[^55] Second, Alliance
    contends that Cornerstone's programming is narrow, extremist,
    ideological, biased, distorted, erroneous, and propagandistic.[^56]
    In support of its contentions with regard to Cornerstone's
    programming, Alliance has supplied various declarations from
    individuals who have viewed the programs that have been broadcast on
    Channel 40 and apparently will be broadcast on Channel \*16 if
    Cornerstone's application is granted.[^57] In addition, Alliance
    provided videotapes of programming aired on WPCB-TV, some of which,
    it alleges, has no clear educational content and substance, and
    dispute Cornerstone's characterization of specific programs as
    educational. In response, Cornerstone affirmed that it has \"a
    co-extensive religious purpose\" and uses \"religious-oriented
    programming as a vehicle to pursue its educational goals.\"
    Cornerstone also submitted the declarations of its President and
    Vice President-Programming, stating that in their \"best judgment,\"
    the majority of Cornerstone\'s programming \"has educational value
    and would qualify as educational programming under the Commission\'s
    standard for reserved band TV operations.\"[^58]

34. As discussed above, given the state of the record after the initial
    round of pleadings, the Bureau required Cornerstone to provide a
    "further demonstration of the overall general, educational,
    cultural, and instructional nature" of its proposed
    programming.[^59] The Bureau noted that Cornerstone "identifies over
    70 percent of its programming as having a religious component."[^60]
    In response to the staff\'s request, Cornerstone submitted an
    updated programming schedule reflecting the WPCB-TV schedule as of
    May 1, 1998, totaling 168 hours of programming per week. Cornerstone
    also represented that the schedule, while \"subject to change as
    Cornerstone\'s programming plans evolve . . . represent\[s\]
    Cornerstone\'s current plans for Channel \*16.\" Cornerstone then
    listed 77 programs by program title under several categories,[^61]
    and more specifically described the educational component of a
    number of programs said to be representative of the other
    educational shows to be aired. In responding to the Commission and
    Alliance in the second and third round of pleadings in this case,
    Cornerstone has also stressed its First Amendment right to broadcast
    programming that is, in its judgment, of an educational nature, with
    deference due from the Commission to their judgment.[^62]
    Cornerstone also points out the vague and general nature of the
    definition for educational programming,[^63] citing *Black's Law
    Dictionary* as a source of a definition*.*[^64] Cornerstone also
    relies on the brevity of educational demonstrations by prior
    applicants for NCEFM stations, and the expansion of the descriptions
    has provided for all of its programming, including the hours of new
    programming Cornerstone proposes to broadcast on Channel \*16.[^65]

35. In responding to the Commission and Cornerstone, Alliance has
    stressed that the First Amendment does not protect applicants from
    complying with any incidental restrictions on their speech that are
    necessary to ensure eligibility for the reserved noncommercial
    educational allocation.[^66] Again, Alliance directs us to what it
    sees as the narrow and religious perspective of Cornerstone's
    programming, and its refusal to respond with changes to its schedule
    despite the Commission's alleged finding in the FCC Request that
    more than "seventy percent" of Cornerstone's "programming is
    primarily religious."[^67] The Petitioners emphasize the fact that
    the Commission previously has designated cases for a hearing when an
    applicant has made an insufficient showing that its programming
    meets the eligibility requirements for reserved noncommercial
    educational channels.[^68]

36. Ultimately, at this stage of the proceeding, we are left with
    Cornerstone's contention that it has set forth a schedule and
    described approximately 100 hours of its weekly programming that it
    believes, in its judgment, is composed of "instructional" or
    "general educational" programs. Specifically, we are left with
    descriptions of 99.5 hours of Cornerstone's programming that set
    forth the applicant's judgment concerning the educational
    orientation of the programs, and the contention of Alliance that the
    proposed programming is not sufficiently educational to make
    Cornerstone eligible to acquire and operate a NCETV station on
    Channel \*16.

37. [Evaluating Cornerstone's Judgment Regarding Its
    Programming]{.underline}. As an initial matter, we conclude that
    Cornerstone has provided a program schedule and description of
    programming that prevents us from denying its application based on
    its failure to come forward with sufficient evidence to evaluate its
    proposal. Cornerstone has provided us with descriptions and examples
    of approximately 100 hours of programming, and we thus cannot
    designate Cornerstone's application for hearing for failure to
    present us with a program schedule and information regarding the
    subject matter of its programs. Cornerstone has made a demonstration
    that its proposed programming for Channel \*16 will be "primarily to
    serve the educational needs of its community" that significantly
    exceeds the showing made in *Way of the Cross* and the other cases
    designated for hearing by this Commission on the basis of
    evidentiary insufficiency.[^69] Specifically, after the third round
    of pleadings concluded in June 1999, Cornerstone had set forth
    descriptions of approximately 100 hours of weekly programming with
    the basis for its belief that these programs were educational in
    nature. That showing must be credited, absent our determination that
    Cornerstone's judgment is "arbitrary or unreasonable."

38. Alliance claims, however, that Cornerstone's programs are primarily
    religious in nature, and thus, do not qualify as "general
    educational" programs.[^70] Under *Astroline Communications
    Company* v. *FCC*, the proponent of a petition to deny first "must
    set forth specific allegations of fact that a grant of the
    application would be *prima facie* inconsistent with the public
    interest, convenience and necessity."[^71] If a *prima facie* case
    is made, then the Commission must determine whether "on the basis of
    the application, the pleadings filed, or other matters of which the
    Commission may officially take notice, a substantial and material
    question of fact is presented." *Id*. at 1561.

39. In reviewing Alliance's allegations, which must be taken as true, it
    appears that Alliance has made a substantial effort to make a *prima
    facie* case that Cornerstone's judgment regarding the educational
    nature of its programming is "arbitrary or unreasonable." Alliance's
    efforts, however, to assert that the religious nature of the
    programming somehow prevents it from being educational must fail. If
    we have made anything clear in the past, it is that religious
    programming may be found to be primarily educational, regardless of
    its religious orientation.[^72] Although Alliance supports its
    assertions that much of the religious programming is ideological and
    propagandistic, it still must demonstrate -- with specific
    allegations of fact \-- that such an orientation prevents the
    programming from being "used primarily to serve the educational
    needs" of the community in the reasonable judgment of the
    broadcaster.[^73] We cannot question a licensee's judgment regarding
    the appropriate classification of its programming, much less
    overturn it, simply because Alliance believes the programming to be
    extremist, narrow-minded, or even plain wrong.

40. Regardless of whether a *prima facie* case has been made by
    Alliance, however, we must conclude that under the second prong of
    the *Astroline* test, we cannot find "arbitrary or unreasonable" the
    applicant's judgment that its proposed programming will be "used
    primarily to serve the educational needs" of its community. The
    Commission and its staff have reviewed the evidence in the record,
    including Cornerstone's descriptions of its programs in the second
    and third rounds of this proceeding and the additional programming
    it intends to broadcast. Some of Cornerstone's programming can
    clearly be regarded as serving the educational and instructional
    needs of the community, even without significant deference to
    Cornerstone. These programs include proposed college course
    offerings, Bible study series, drama presentations of Bible stories,
    news and public affairs programming, and regularly-scheduled
    programs on topics such as music, gardening, quilting, cooking,
    health, travel, fitness and children's issues. A relatively small
    portion of the programming Cornerstone has presented appears to be
    entertainment programming that cannot, absent greater detail from
    the applicant, be identified as "general educational" programs, even
    giving deference to the applicant in light of our very general
    guidelines.[^74]

41. Apart from these programs, a substantial number of the programs that
    Cornerstone has described in the Supplemental Showing in its 1999
    Amendment are programs with religious orientation that Cornerstone
    claims teach viewers how to use biblical stories and principles,
    investigate and analyze scriptural texts, and generally study
    selected Bible passages. The Commission and its staff apparently
    would be able to classify some of these programs as educational
    based upon the level of scriptural analysis and discussion of issues
    even given our absence of clearer guidelines for such an analysis
    because of the deference due to the judgment of the
    broadcaster.[^75] Assessment of other programs becomes much more
    problematic given the clearly devotional orientation of the
    programming and the absence of such guidelines.

42. Based on this review, we cannot say that the applicant's judgment
    that these other proposed programs will "primarily . . . serve the
    educational needs of" the Pittsburgh community is "arbitrary or
    unreasonable." Cornerstone has made a significant effort to explain
    its basis for its judgment.[^76] Looking at the record as a whole,
    in light of our current precedent, we cannot say that the Commission
    can establish a basis for delineating a "substantial and material
    question of fact" concerning the applicant's judgment, much less
    find that judgment to be "arbitrary or unreasonable."[^77]

**[COMPLIANCE WITH SECTION 73.621(A) -- ADDITIONAL
GUIDANCE]{.underline}**

43. We have now been faced squarely with the difficult balance between
    maintaining the educational nature of the reserved allocations and
    the First Amendment rights of broadcasters on this band. We believe
    that it would be advisable to give this licensee, other potential
    applicants and licensees, as well as the Commission and its staff,
    additional guidance regarding the review of programs or programming
    proposals for the reserved NCETV channels. In order to comply with
    the requirement that a NCETV station "be used primarily to serve the
    educational needs of the community," we now clarify that this
    requirement is two-fold. 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. We
    "will defer to the judgment of the broadcaster unless" the
    broadcaster's "categorization appears to be arbitrary or
    unreasonable."[^78] Additionally, the overall context of the
    broadcast is important to evaluating the reasonableness of the
    judgment of the broadcaster.

44. In assessing whether a program has as its primary purpose service to
    the educational, instructional or cultural needs of the community,
    "we will not disqualify any program simply because the subject
    matter of the teaching or instruction is religious in nature."[^79]
    We do not believe that the discussion of religious matters during a
    program that has as its primary purpose service to the educational,
    instructional or cultural needs of the broader community
    disqualifies the program from being a "general educational" program
    under Section 73.621. [^80] Conversely, however, 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.[^81] We reiterate that the reserved television channels
    are intended "to serve the educational and cultural broadcast needs
    of the *entire* community to which they are assigned,"[^82] and to
    be "responsive to the overall public as opposed to the sway of
    particular political, economic, social or religious interests."
    [^83]

45. [Other Programming Related Matters]{.underline}. Stations operating
    on reserved channels are also required to provide a noncommercial
    service. Alliance contends that Cornerstone intends to air
    commercial programming on Channel \*16 in contravention of Section
    399B of the Communications Act, and also to engage in prohibited
    fundraising. In support, Alliance points to Cornerstone\'s proposal
    to retain most of its present programming and gives examples of
    programs aired on WPCB-TV in 1997 which would not meet the
    Commission\'s requirements for operation on a reserved noncommercial
    channel. In its March 27, 1998 letter, the staff requested that
    Cornerstone review the programming it presently proposes to air on
    Channel \*16, and, with respect to those programs which presently
    would not comply with the Commission\'s advertising and fund-raising
    restrictions on noncommercial, educational stations, to explain what
    steps it will take to monitor and adjust those programs to comply
    with the rules. In response, Cornerstone states that it has
    undertaken a comprehensive program to ensure compliance with
    noncommercial educational rules and policies upon commencing
    operations on Channel \*16, and detailed a number of steps it had
    taken to ensure its compliance with Section 399B in the event it is
    permitted to operate on Channel \*16.[^84] Accordingly, based upon
    the information we have before us at present, we see no reason for
    further inquiry into Cornerstone\'s commitment to operate Channel
    \*16 in full compliance with the applicable rules and policies for
    noncommercial operations.

46. Alliance also raises a number of other issues relating to
    Cornerstone\'s present operation of WPCB-TV, and its compliance with
    the Commission\'s general programming policies. We have considered
    Alliance\'s arguments and conclude that it has failed to raise a
    substantial and material question of fact as to Cornerstone\'s
    qualifications to assign the license of WPCB-TV. *See Jefferson
    Radio v. FCC*, 340 F.2d at 783.

47. Alliance complains that Cornerstone\'s programming \"promotes the
    adoption of a belief based on its own brand of evangelical
    Christianity,\" and that the alleged ideological nature of
    Cornerstone\'s programming raises an issue as to whether Cornerstone
    \"is likely to give a fair break to others who do not share them.\"
    In support of its assertion that Cornerstone\'s programming is
    unbalanced, Alliance refers to a number of programs aired on WPCB-TV
    which express views with which Alliance apparently disagrees.[^85]
    In response, Cornerstone asserts that its programming represents a
    wide variety of theological perspectives, including Sunday
    broadcasts of \"traditional church services covering the spectrum of
    Christian denominations,\" and that it has adequately responded to
    community issues in the past.

48. To the extent that Alliance alleges that Cornerstone has failed to
    meet its public interest obligations to present programming which is
    responsive to the needs and interests of its community of license,
    *Commercial TV Stations*, 98 FCC 2d 1075, 1091-92 (1984), thereby
    calling into question whether it can be expected to meet its public
    interest obligations as the licensee of Channel \*16, we find that
    it has failed to make a *prima facie* case. The Commission has
    granted licensees broad discretion to choose, in good faith, which
    issues are of concern to the community and to choose the types of
    programming to address those issues. The Commission will defer to
    the broadcaster\'s judgment regarding its issue-responsive
    programming absent a showing that \"the broadcaster was unreasonable
    or discriminatory in its selection of issues or that the licensee
    has offered such nominal levels of responsive programming as to have
    effectively defaulted on its obligation to contribute to the
    discussion of issues facing its community.\" *License Renewal
    Applications of Certain Commercial Television Stations Serving
    Philadelphia, Pennsylvania*, 5 FCC Rcd 3847, 3848 (1990). While
    Alliance submitted affidavits from a few individuals who viewed
    several hours of programming on WPCB-TV and were critical of the
    content of the programs, we find these affidavits insufficient to
    support an allegation that Cornerstone \"has offered such nominal
    levels of responsive programming as to have effectively defaulted on
    its obligation to contribute to the discussion of issues facing its
    community.\" *Id*.

49. We also conclude that Alliance has failed to raise a *prima facie*
    case that Cornerstone has been \"unreasonable or discriminatory in
    its selection of issues,\" *Philadelphia Renewal Applications*, 5
    FCC Rcd at 3848, or used WPCB-TV to \"exercise\[\] for \[its\] own
    private interests in a grossly partial, discriminatory or unfair
    manner.\" *WBNX Broadcasting Co*., 12 FCC 837, 841 (1948). With
    respect to Alliance\'s complaint that some of Cornerstone\'s
    programming included disparaging comments regarding certain
    religious adherents and other groups, these expressions of views,
    although clearly offensive to some viewers, do not rise to the level
    of repeated irresponsible, defamatory or discriminatory conduct
    which would warrant an inquiry into whether Cornerstone can be
    relied upon to administer fairly its responsibilities as a licensee.
    We emphasize again, however, that noncommercial educational
    television licensees are expected to provide \"a service that is
    responsive to the overall public as opposed to the sway of
    particular political, economic, social or religious interests.\"
    *Noncommercial Nature of Educational Broadcast Stations*, 90 FCC 2d
    at 900.

50. Similarly, in support of its contention that Cornerstone\'s proposed
    programming does not meet the educational needs of the Pittsburgh
    community, Alliance submitted affidavits from area educators who
    were critical of Cornerstone\'s programming. For example, two local
    professors viewed an hour-long documentary aired on WPCB-TV on April
    26, 1997 regarding issues affecting American public schools, and
    opined that the program had little or no educational value,
    describing the program as \"extremist,\" \"radically unbalanced,\"
    and presenting \"misinformation as if it were accepted
    knowledge.\"[^86] A professor at the University of Pittsburgh with
    extensive involvement in AIDS research and prevention efforts, and
    the Associate Director of the Pittsburgh AIDS Task Force, viewed an
    hour-long program aired on April 27, 1997, and concluded that the
    program presented a \"distorted view\" of AIDS Service
    Organizations, presented statements and opinions that were
    \"inflammatory and false,\" and sought to undermine HIV prevention
    efforts by discouraging viewers from taking advantage of HIV
    educational efforts. The Commission, however, \"has long held that
    its function is not to judge the merit, wisdom or accuracy of any
    broadcast discussion or commentary,\" finding that \"\[a\]ny other
    position would stifle discussion and destroy broadcasting as a
    medium of free speech.\" *Anti-Defamation League of B\'nai B\'rith*,
    4 FCC 2d 190, 191-92 (1966)*, aff\'d*, *Anti-Defamation League of
    B\'nai B\'rith v. FCC*, 403 F.2d 169 (D.C. Cir. 1968), *cert.
    denied*, 394 U.S. 930 (1969). Instead, \"\[i\]t is the role of the
    public, critics, and students of the mass media, either to comment
    or to be critical with regard to \[a broadcaster\'s coverage of
    issues.\]\" *Democratic National Convention Television Coverage*, 16
    FCC 2d 650, 658 (1969). Accordingly, we encourage viewers to make
    their views regarding programming matters known to Cornerstone\'s
    Board and management.

51. [Cornerstone\'s Board of Directors]{.underline}. Noncommercial
    television applicants which are non-profit organizations, such as
    Cornerstone, must submit \"evidence that officers, directors and
    members of the governing board are broadly representative of the
    educational, cultural and civic groups in the community.\" (FCC Form
    340, Section II, Paragraph 11(a)). Prior to the filing of the
    assignment application, Cornerstone\'s Board of Directors was
    comprised of Reverend R. Russell Bixler and Oleen Eagle, who had
    served continuously as directors and chief officers since 1978, when
    Cornerstone acquired the WPCB-TV construction permit, Reverend
    Mitchel Nickols, who had served on the Board since 1989, Linford S.
    MacDonald, a director since 1992, and Reverend Gary Tustin. The
    remaining officers of Cornerstone were also long-time employees of
    the company: David Skeba, Vice President-Programming and Mrs.
    Eagle\'s nephew, had been employed full-time since 1979, and
    Blake A. Richert, Vice President-Engineering, had been employed
    since 1983.[^87] While Cornerstone named three new directors to its
    Board the month preceding the filing of the assignment
    application,[^88] based upon the information provided in the
    assignment application, the staff could not reach a determination as
    to whether Cornerstone\'s Board was sufficiently
    representative.[^89] Accordingly, the staff gave Cornerstone the
    opportunity to provide additional information regarding the steps it
    had taken, and further steps it intended to take, to ensure that its
    Board and management were broadly representative of the educational,
    cultural and civic groups in the Pittsburgh community.

52. Cornerstone amended its application on April 27, 1998, to provide
    further information regarding its directors and the organizations
    with which they are affiliated. Cornerstone also stated that it had
    hired a Station Manager, whose responsibilities include \"the
    creation and oversight of the station\'s participation in cultural
    and educational activities . . . and for the administration of a
    Community Advisory Board for Channel \*16\" which \"will be made up
    of individuals from the Channel \*16 coverage area from these
    categories: Civic, Cultural (Ethnic), Cultural (Arts), Business,
    Senior Citizens, Youth, Service Organizations, Local Education,
    Media and Labor.\" Cornerstone filed a second amendment to the
    assignment application on June 12, 1998, to report that two
    additional board members \-- William F. Roemer and William W.
    Pendleton, Sr. \-- have agreed to join Cornerstone\'s board should
    Cornerstone become the licensee of Channel \*16.

53. We have reviewed all of the materials and conclude that
    Cornerstone\'s Board of Directors and management are sufficiently
    representative of the Pittsburgh community. With the exception of
    the Reverends Tustin and Simmons,[^90] the remaining ten officers
    and directors reside in the Pittsburgh area. Mr. Roemer is Chairman
    of the National City Bank of Pennsylvania, a Governing Board member
    of the United Way of Allegheny County, Pittsburgh 2000 and the
    Coalition for Christian Outreach, and the President of the Board of
    Trustees for the Episcopal Diocese of Pittsburgh. He is also a
    former director of the Pittsburgh Branch of the Federal Reserve Bank
    of Cleveland, the Pittsburgh Symphony and the Allegheny Trails
    Council of the Boy Scouts of America. Mr. Pendleton, a former member
    of the Pennsylvania House of Representatives representing Pittsburgh
    and Allegheny County, is on the Board of Directors of Grove City
    College, the Pittsburgh Advisory Economic Development Committee,
    Forbes Hospital HMO, Ronald McDonald Charities, and the Saltworks
    Theatre Company in Pittsburgh. He is also a member of the NAACP and
    Urban League, and serves on advisory boards to the Pittsburgh Board
    of Education and Catholic Diocese. Dr. Kofmehl, who received a Ph.D.
    in Education from the University of Pittsburgh, is the Chairman of
    the Board of Directors of the Lutheran Service Society of Western
    Pennsylvania, and the Executive Director of the Allegheny County
    Literacy Council/Christian Literacy Associates, an organization that
    trains volunteer tutors and provides literacy programs in the United
    States and overseas. He is also on the faculty of local community
    colleges, supervises student teachers at Pittsburgh inner-city
    schools, and was a member of a local school board for a number of
    years. Reverend Nickols, who also received a Ph.D. in Education from
    the University of Pittsburgh, is the Founder and Pastor of Bibleway
    Christian Fellowship, Inc., a church in a Pittsburgh suburb, and
    serves as a member of the Citizen\'s Advisory Committee and Human
    Relations Committee of the Highlands School District, and of the
    Council of Graduate Students in Education at the University of
    Pittsburgh. He also teaches courses in African-American History,
    Philosophy and Religions of the World at Allegheny Community
    College, is a regular speaker at area schools regarding \"valuing
    diversity,\" and is a member of various professional educational
    organizations, the League of Voter Education, and the NAACP. While
    the remaining officers and directors are somewhat less involved with
    local organizations,[^91] we believe, on balance, that Cornerstone
    has adequately demonstrated that its Board and management are
    representative of the community.

54. Alliance complains that various segments of the community are not
    presently represented on Cornerstone\'s Board. It also acknowledges,
    however, that \"no one group is entitled to representation.\" Here,
    Cornerstone\'s Board includes representatives of the business
    community, local government (through membership on boards of
    education and various advisory committees), religious organizations
    (including two religious Dioceses in Pittsburgh), a health care
    organization, various charitable organizations, institutions of
    higher education, numerous professional organizations, and
    organizations committed to the interests of minorities (NAACP and
    Urban League).[^92] In this regard, it is also important to
    recognize that Cornerstone has operated on a nonreserved channel
    allocated to Greensburg for more than twenty years, during which
    time it was not required to have a board broadly representative of a
    major city. Moreover, Cornerstone has begun taking the necessary
    steps towards converting from a commercial to a noncommercial
    educational operation, including expanding its Board to add five new
    directors, hiring a station manager responsible for community and
    cultural outreach, and committing to form a broadly representative
    CAB to provide general input into the station regarding
    programming.[^93] In the event that Cornerstone becomes the licensee
    of Channel \*16 at Pittsburgh, we fully expect that it will continue
    to broaden the representative nature of its Board of Directors and
    management over the course of its operation on Channel \*16,
    consistent with its obligations as a noncommercial educational
    licensee in a community as large and diverse as Pittsburgh.

55. [Cornerstone\'s Qualifications as an Educational Organization With
    an Educational Purpose]{.underline}. Noncommercial educational
    broadcast stations will be licensed only to \"nonprofit educational
    organizations upon a showing that the proposed stations will be used
    primarily to serve the educational needs of the community; for the
    advancement of educational programs; and to furnish a nonprofit and
    noncommercial television broadcast service.\" 47 C.F.R. § 73.621(a).
    Until immediately prior to the filing of the above-referenced
    assignment application, Cornerstone\'s Articles of Incorporation
    stated that it was organized as a \"religious corporation for the
    purpose of bringing glory to Almighty God . . . \[and\] the
    promulgation of the Gospel of Jesus Christ and the truths of the
    Holy Bible by whatever means possible,\" and required that the
    corporation\'s authorized business \"shall be exclusively for
    religious purposes, in furtherance thereof, and for no other
    purpose.\" While Cornerstone amended its Articles in May 1997, to
    change its designation from a \"religious corporation\" to a
    corporation \"organized exclusively for religious, charitable,
    educational and distinct ecclesiastical purposes,\" and to expand
    the permitted purposes of the corporation to include education,
    based on the totality of the record before it, the staff was unable
    to determine to what extent Cornerstone intended to pursue its
    largely unidentified educational purposes on reserved Channel
    \*16.[^94] Accordingly, the staff requested further information
    regarding Cornerstone\'s specific educational goals and its
    commitment to the advancement of an educational program, in
    accordance with Section 73.621 of the rules.

56. In its April 1998 amendment, Cornerstone more fully described its
    educational objectives and program to include, *inter alia*: (1)
    advancing an overall educational program schedule to teach basic
    moral and ethical principles derived from Judeo-Christian ethics, as
    set forth in the Bible; (2) providing programming that instructs in
    everyday activities of life, such as exercise, gardening, home
    remodeling, cooking, computers, personal finance, health and
    nutrition; (3) providing programming to meet the educational and
    informational needs of children and teenagers; (4) offering college
    course credit programming and related correspondence courses; (5)
    providing an educational program series on basic adult literacy for
    the community at large; (6) providing entertaining educational
    programming with a moral and ethical emphasis which utilizes and
    fosters an appreciation for the arts, music and history; and (7)
    providing public affairs programming, including local programming,
    to meet the needs and interests of the community. Based upon the
    foregoing, we believe that Cornerstone has now adequately
    articulated specific educational programs and goals.

##### PAXSON\'S QUALIFICATIONS TO BECOME THE LICENSEE OF WPCB-TV

57. Alliance also contends that the assignment of WPCB-TV to Paxson
    would be contrary to the public interest. According to Alliance, the
    proposed programming statement submitted by Paxson in support of the
    assignment application does not accurately describe Paxson\'s actual
    programming plans and practices. Instead, Alliance states that
    Paxson\'s Internet website, as well as comments made by corporate
    officers in the trade and financial press, demonstrate that the
    programming on Paxson\'s Pittsburgh television station would consist
    almost entirely of sales presentations, with little or no
    noncommercial, local content. Alliance acknowledges that
    \"Commission policy does not recognize that stations with
    programming substantially devoted to sales presentations are
    contrary to the public interest.\" It asks, however, that the
    Commission refrain from approving the transfer of additional
    stations to Paxson until such time as the Commission rules on a
    pending petition for reconsideration on the 1992 Cable Act provision
    requiring the Commission to determine whether home shopping
    broadcast stations are serving the public interest, convenience and
    necessity,[^95] and completes a pending rulemaking proceeding
    regarding limitations on the commercial time on television
    stations.[^96] In response, Paxson argues, *inter alia*, that the
    courts and Commission have repeatedly rejected arguments that would
    require intrusion into the format choices of broadcast licensees,
    and that the Commission has already concluded that specialty
    programming, including the shop-at-home formats, offer a valuable
    diversity of programming and satisfy the public interest,
    convenience and necessity*.* According to Paxson, deferring action
    on the pending assignment application would also violate fundamental
    administrative law principles regarding the distinction between
    rulemaking proceedings and application proceedings. Moreover, Paxson
    argues that in the event the Commission reconsiders the *Home
    Shopping Order* or imposes commercial time limitations on broadcast
    licensees, existing licensees utilizing a home shopping format would
    be allowed to adjust their programming to comply with the revised
    rules.

58. We conclude that Alliance has failed to demonstrate by specific
    allegations of fact that grant of the application for assignment of
    license of WPCB-TV to Paxson would be *prima facie* inconsistent
    with the public interest, convenience and necessity. As discussed
    above, it is well-settled Commission policy that potential changes
    in programming formats are not considered in reviewing assignment
    applications. Moreover, the Commission has previously concluded that
    specialty stations, such as religious, foreign language and home
    shopping stations, are not inconsistent with the public
    interest,[^97] and broadcasters such as Paxson are entitled to rely
    on these determinations unless and until we change our policy
    regarding home shopping formats. We also note that Paxson proposes
    to offer programming responsive to the issues of concern to
    Greensburg and the surrounding area, and to devote a portion of
    program time to news, public affairs and non-entertainment
    programming. FCC Form 314, Exhibit E.[^98] In addition, Paxson and
    WQED contemplate entering into an agreement whereby WQED would
    provide up to five hours per week of public affairs programming and
    children\'s core programming for broadcast on WPCB-TV. Assignment
    and Acceptance Agreement, Art. 13.5(b). Accordingly, we find that
    Paxson\'s program service statement fully satisfies the
    Commission\'s requirements.

##### CONCLUSION

59. Based upon our review of the record before us, we conclude that the
    petitions and objections against the proposed transactions fail to
    raise a substantial and material question of fact as to the
    qualifications of WQED and Cornerstone to assign their respective
    licenses, and have further failed to raise a substantial and
    material question of fact as to the qualifications of Cornerstone
    and Paxson as the proposed assignee\'s of WQEX(TV) and WPCB-TV.

60. Accordingly, IT IS ORDERED, That the Emergency Petition to Direct
    Immediate Filing of Renewal Applications filed by The Alliance for
    Progressive Action and QED Accountability Project on October 7, 1997
    IS DENIED, and that WQED Pittsburgh\'s Motion to Strike the
    Emergency Petition IS ALSO DENIED.

61. IT IS FURTHER ORDERED, That the petition to deny filed by the
    Alliance for Progressive Action and QED Accountability Project, the
    informal objection filed by Robert W. McChesney, and the letters in
    opposition to the instant assignment applications ARE DENIED.

62. Having determined that the applicants are qualified in all respects,
    we find that grant of the applications to assign the licenses of
    noncommercial educational television station WQEX(TV), Pittsburgh,
    Pennsylvania from WQED Pittsburgh to Cornerstone Television, Inc.,
    and of television station WPCB-TV, Greensburg, Pennsylvania from
    Cornerstone to Paxson Pittsburgh Licensee, Inc. will serve the
    public interest, convenience and necessity.

63. Accordingly, IT IS ORDERED, That the applications for consent to the
    assignment of licenses of noncommercial educational television
    station WQEX(TV), Pittsburgh, Pennsylvania from WQED Pittsburgh to
    Cornerstone Television, Inc. (File No. BALET-970602IA), and of
    television station WPCB-TV, Greensburg, Pennsylvania from
    Cornerstone to Paxson Pittsburgh Licensee, Inc. (File No.
    BALCT-970530IA) ARE GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

> Magalie Roman Salas

Secretary

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."[^99] 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.

Separate Statement of Commissioner Susan Ness

***Re: Applications of WQED Pittsburgh and Cornerstone Television,
Inc.***

> ***For Consent to the Assignment of License of Noncommercial
> Educational Station WQEX(TV), Channel \*16, Pittsburgh,
> Pennsylvania***

In considering the application of Cornerstone Television, Inc.
("Cornerstone"), to acquire the license to operate a Noncommercial
Educational Television ("NCETV") Station on Channel \*16 in Pittsburgh,
Pennsylvania, we face the difficult task of balancing two cardinal
principles at the heart of our regulation of public broadcasting: First,
we seek to safeguard the reserved allocations for NCETV stations -- an
oasis for "the important contributions which noncommercial educational
television can make in educating people both in school -- at all levels
-- and also the adult public."[^100] Second, we seek to respect the
First Amendment rights of broadcasters, including broadcasters of
programming with a religious orientation, to exercise their editorial
discretion.[^101]

Ultimately, I concur in granting Cornerstone's application. After
applying our existing rules and precedent to the record in this
proceeding, I cannot conclude that there is a substantial and material
question of fact concerning the reasonableness of the applicant's
judgment that its proposed programming will be "used primarily" to serve
the "educational" needs of the station's community. My decision is based
upon the application of our current overly general guidelines to
Cornerstone's program showing and Cornerstone's apparent willingness to
modify its programming to comply with the requirements of Section
73.621, which should include any clarification we provide.

Given the consequence of this decision, I write separately to explain
why I cannot hold the applicant's judgment to be "arbitrary or
unreasonable." As the recitation of our precedent in the decision we
release today makes clear, "as in all matters relating to programming,
we will defer to the judgment of the broadcaster unless \[that\]
categorization appears to be arbitrary or unreasonable." *Notice of
Inquiry*, Docket No. 78-164, 43 Fed. Reg. 30847, 30845 (1978)
("Guidelines"). We also have clearly stated that "some programs will
properly be considered to be both instructional and religious or both
general educational and religious." *Id*. But as to what constitutes a
"general educational" program, our processing guidelines only state that
a "general educational" program is "an educational program for which no
formal credit is given." *Id*. at 30844-45.[^102]

***[Cornerstone's Programming Showing Under Current Guidelines And
Precedent]{.underline}***

In the absence of clearer definitions and guidance, I am concerned that
finding this broadcaster's judgment to be arbitrary or unreasonable
would constitute an improvident review of the applicant's judgment,
especially prior to any actual broadcast by Cornerstone of programs on
the reserved channel. In its final amended showing, filed in April of
this year, Cornerstone made a significant effort to demonstrate that
approximately 100 hours of its current and proposed programs can be
reasonably categorized, in *its* judgment, as "general educational"
programs.[^103] Some of these programs are clearly educational, even
given the very general definitions and guidelines that we have provided,
while the assessment of other programs becomes more problematic. *See
Decision*, ¶ 41 & n.46. Looking at the record as a whole, in light of
our current precedent, I cannot say that the Commission can establish a
basis for delineating a "substantial and material question of fact"
concerning the applicant's judgment, much less find that judgment to be
"arbitrary or unreasonable."

My conclusion is based in significant part on the absence of clarity in
our definition of "general educational" programming and our guidelines
for determining what is "religious" but not "educational" pursuant to
Section 73.621.[^104] We have not previously given applicants sufficient
guidance as to how we will assess the reasonableness of their judgment,
so that absent the most abusive exercises of broadcaster discretion, our
own judgment must be circumspect. As the Supreme Court has recognized
for almost 50 years, the "lack of standards in the license-issuing
'practice' renders that 'practice' a prior restraint in contravention
of" the First Amendment.[^105] What Justice Frankfurter wrote in his
concurring opinion in *Neimotko* nearly 50 years ago concerning the
issuance of permits governing the right to hold meetings in public parks
cannot be ignored by this Commission \-- "the basis which guides
licensing officials in granting or denying a permit must not give them a
free hand, or a hand effectively free . . . ." *Neimotko*, 340 U.S. at
284-85 (Frankfurter, J., concurring). In this case, given the most
general guidance provided for our review of the applicant's programming
judgment, I cannot find "arbitrary or unreasonable" the applicant's
judgment that its proposed programming will be "used primarily to serve
the educational needs" of the Pittsburgh community.[^106]

***[Additional Guidance]{.underline}***

Nevertheless, having concluded that our guidelines currently are
sufficiently vague to make me reluctant to disregard the broadcaster's
judgment concerning its programming, I have joined two of my fellow
Commissioners to clarify the guidelines for our review of NCETV
proposals and programming. We have an obligation to provide additional
guidance to FCC staff, as well as to applicants and existing licensees,
if we are to be able to assess whether a broadcaster's judgment is
reasonable.

I recognize that it is a difficult task to establish meaningful and
valid guidelines, and that the guidance proffered in our decision will
not clarify the categorization of every program, given the variety of
programs that can be broadcast. It is axiomatic, however, that the
reservation of allocations for noncommercial *educational* stations is
more than simply a reservation for *noncommercial* stations.[^107]
Without adequate guidance, we effectively would eliminate the
eligibility standards that preserve the "educational" mission of the
reserved allocations.

We now clarify our guidelines to state that for an NCETV station to be
"used primarily to serve the educational needs of the community," more
than half of the hours of programming aired on that station must
primarily serve an educational, instructional or cultural purpose.
*Decision*, ¶ 43. Moreover, in order to qualify as a "general
educational" program, a program must have as its primary purpose service
to the educational, instructional or cultural needs of the community.
*Id*. While some programs will properly be considered to be both general
educational and religious, a program primarily devoted to religious
exhortation, proselytizing or testimonials regarding personal religious
faith generally will not qualify as a "general educational"
program.[^108]

Given this additional guidance, we will continue to defer to the
judgment of an applicant or licensee concerning the educational nature
of its programming, unless that judgment is arbitrary or
unreasonable.[^109] We also understand that the overall context of the
broadcast is important to evaluating the reasonableness of the judgment
of the broadcaster. While there may be additional guidance concerning
the types of programming that would or would not qualify under Section
73.621(a), I do not believe that it would be appropriate to go beyond
our elaboration today, absent public discussion and comment.

While we have the legal authority to do so,[^110][^111] I also believe
that it would be inequitable to apply our newly enumerated processing
guidelines to judge the instant record, which was developed over more
than two years without the benefit of such clarification. First, the
fact that this Commission has never issued more than very general
guidelines suggests that our new guidance, which may be viewed as
significant, should be carefully applied. Applying the revised
processing guidelines to a record developed without its benefit would
not constitute a wise exercise of discretion.[^112]

Second, the potential harm to Cornerstone and others from our
application of new definitions and guidelines is significant.
Cornerstone and other parties would face, at a minimum, additional delay
in any action on their pending applications.[^113] Moreover, a
Commission action that questions Cornerstone's judgment regarding its
own programming showing based upon clarified processing guidelines
delineated after the submission of Cornerstone's showing raises issues
of fundamental fairness.

Finally, the grant of Cornerstone's application should not create
deleterious mischief to our rules for reserved NCETV channels. As even
Cornerstone recognizes, it is obligated to comply with Section 73.621,
and it will be obligated to comply with any clarifications to Section
73.621(a), including those that are evident from this decision. [^114]
As noted in our *Decision*, if Cornerstone's operation of an NCETV
station is shown to violate Section 73.621, as clarified by our
decision, after programming is actually broadcast on Channel \*16 by
Cornerstone, the Commission can take appropriate action at that
time.[^115]

***[Conclusion]{.underline}***

By our decision today, we tread carefully to further our two cherished
objectives -- preserving the distinct public benefits of the reserved
educational allotments and respecting the First Amendment programming
deference broadcasters enjoy when seeking to operate on such
frequencies. I expect that Cornerstone will honor its commitment to meet
the requirements \-- as clarified today \-- for broadcasters operating
on reserved channels. In turn, the Pittsburgh community will soon again
be served by two distinct educational television stations.

**SEPARATE STATEMENT OF**

**COMMISSIONERS POWELL AND FURCHTGOTT-ROTH**

**APPROVING IN PART AND DISSENTING IN PART**

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.[^116] 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.[^117] 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]: Alliance states that it is a coalition of approximately 40 public
    interest organizations in the Greater Pittsburgh area, and that it
    has sponsored the QED Accountability Project since 1993 as a \"watch
    dog\" organization for public television. Alliance also forwarded a
    number of letters from viewers and signed petitions opposing the
    proposed transactions.

[^2]: WQED filed a Motion to Strike the Emergency Petition, requesting
    that the Commission initiate a sanction proceeding against Alliance
    and its counsel.

[^3]: These \"CitizenLetters\" were sent to the Commission by Working
    Assets, a long distance telephone provider, at the request of its
    telephone service subscribers/customers. In addition, the Video
    Services Division received over 1,500 telephone calls from Working
    Assets subscribers, stating their opposition to the proposed
    transactions.

[^4]: WQED\'s petition was filed pursuant to the Department of Justice
    and Related Agencies Appropriations Act of 1996, Pub. L. No.
    104-134, 110 Stat. 1321 (1996), which provided, in pertinent part,
    that the Commission \"shall, not later than 30 days after receipt of
    a petition by WQED, Pittsburgh, determine, without conducting a
    rulemaking or other proceeding, whether to amend Section 73.606 of
    Title 47, Code of Federal Regulations, by deleting the asterisk for
    \[Channel 16\] in Pittsburgh, Pennsylvania . . . .\"

[^5]: *See Jefferson Radio Co. v. FCC*, 340 F.2d 781, 783 (D.C. Cir.
    1964)(\"It is the recognized policy of the Commission that
    assignment of broadcast authorization will not be considered until
    the Commission has determined that the assignor has not forfeited
    the authorization.\")

[^6]: In connection with the dereservation petition, WQED disclosed that
    it had agreed to pay Cornerstone \$7.5 million in the event the
    petition was granted and WQED was permitted to sell WQEX(TV) to a
    commercial operator, thereby obviating the contemplated channel
    exchange between WQED and Cornerstone. According to Alliance,
    because the letters failed to mention the contingent payment to
    Cornerstone, WQED clearly withheld this information from the persons
    from whom it solicited support, recognizing that fewer supporting
    letters would have been written if WQED had fully disclosed its
    agreement with Cornerstone.

[^7]: Alliance states that in March 1996, certain members of Congress
    offered to propose legislation which would have dereserved Channel
    \*16, but required that any proceeds from the sale of WQEX(TV) in
    excess of WQED\'s outstanding debt be given to the Corporation for
    Public Broadcasting.

[^8]: The specified statutory criteria were: (1) the public interest;
    (2) the existing common ownership of two noncommercial stations in
    Pittsburgh; (3) the financial distress of WQED; and (4) the threat
    to the public of loss or impairment of local public broadcasting
    service in the area. In connection with the third criteria, WQED
    submitted audited financial statements prepared by KMPG Peat Marwick
    LLP, which fully documented WQED\'s financial condition.
    Accordingly, we find no merit to Alliance\'s accusation that WQED
    misled the Commission about its financial condition.

[^9]: The Public Broadcasting Act of 1967, which created the CPB,
    provides for the funding of programs and public stations, and
    specifies certain conditions attached to that funding. Alliance
    alleges that WQED failed to comply with Section 396(k)(4), which
    prohibits federal funding of a licensee unless its governing and
    advisory bodies hold open meetings preceded by reasonable notice to
    the public, and Section 396(k)(8), which requires that public
    broadcasters establish a community advisory board (CAB), assure that
    the CAB meet at regular intervals, and permit the CAB to advise the
    governing board on programming policies and other matters.

[^10]: For example, WQED submits letters from current CAB members
    attesting to the overall responsiveness of WQED management, and
    minutes from CAB meetings. WQED also notes that Alliance dwells
    primarily on CAB events that occurred in 1993 and 1994, before
    WQED\'s new management revamped the CAB procedures.

[^11]: *See* Letter from the CPB, PBS and America\'s Public Television
    Stations to Chairman Kennard, dated February 12, 1998.

[^12]: While the record indicates that Alliance\'s representative made
    an appointment to inspect the public file, it is unclear whether she
    was required to schedule an appointment as a prerequisite to gaining
    access to the file, or whether she scheduled the appointment as a
    matter of personal convenience.

[^13]: The Commission requires that \"persons seeking the extraordinary,
    discretionary action of calling for the early filing of a renewal
    application because of alleged 'compelling reasons' should, at a
    minimum, support their requests with factual allegations meeting the
    requirements of Section 309(d) \[of the Communications Act\].\"
    *Greater Portland Broadcasting Corporation*, 3 FCC Rcd 1953, 1954
    (1988), quoting *Sioux Empire Broadcasting Co*., 9 FCC 2d 683, 684
    (1967).

[^14]: *See* Letter from CPB Associate General Counsel to counsel for
    Alliance, dated October 10, 1997. In connection with Alliance\'s
    assertion that the Commission has \"sought early renewal of a
    license when a broadcaster sought to modify its programming for
    financial reasons, without informing the Commission,\" the case on
    which it relies, *Leflore Broadcasting Co., Inc*., 36 FCC 2d 101
    (1972), is not applicable to the circumstances here. Renewal
    applications used to require a pledge that specific amounts of
    various categories of non-entertainment programming would be
    broadcast, and a specified format maintained. Eight months after the
    Commission granted Leflore\'s renewal application, which proposed to
    meet the unmet entertainment and non-entertainment needs of the
    large minority community in Greenwood, Mississippi, Leflore notified
    the Commission that it had changed its format due to economic
    difficulties, and the Commission instituted an early renewal
    proceeding to determine whether Leflore had carried out its
    programming representations in good faith, or misrepresented its
    programming plans in the renewal application. Here, WQED was not
    required to pledge a specific program proposal in its renewal
    application (*see* File No. BRET-940401LU), nor does the assignor\'s
    portion of FCC Form 314, on which the pending WQEX(TV) assignment
    application was filed, make any inquiry regarding the nature and
    extent of the assignor\'s program service.

[^15]: Because WQED was not required to disclose its programming
    decisions in connection with the assignment application, we disagree
    with Alliance that WQED somehow violated Section 1.65 of the rules,
    which requires an applicant to promptly inform the Commission of any
    significant changes that may be of decisional significance in the
    consideration of its application. 47 C.F.R. § 1.65. Moreover, the
    simulcasting issue was fully briefed by both parties before
    simulcasting commenced, and WQED informed the Commission in
    connection with the 1996 dereservation proceeding that it was
    considering curtailing operations or simulcasting its two stations.

[^16]: In its May 12, 1999 reply to Alliance\'s comments on its March
    31, 1999 supplement, Cornerstone contends that Alliance should be
    sanctioned because its webpage solicits and encourages website
    visitors to contact the Commission to oppose the sale of WQEX(TV),
    in violation of Section 1.1210 of the rules, which provides that
    \"no person shall solicit or encourage others to make any
    presentation which he or she is prohibited from making under the
    provisions of this subpart.\" 47 C.F.R. § 1.1210 (1998). It appears,
    however, based upon the materials submitted by WQED, that
    Alliance\'s webpage is meant to inform interested persons of the
    proposed assignment of WQEX(TV) and the Commission\'s processes, and
    urge Pittsburgh area residents to make their views known to the
    Commission, a presentation which is exempt from the prohibitions of
    restricted proceedings pursuant to Section 1.1204(8) of the
    Commission\'s rules. *See* 47 C.F.R. § 1.1204(8). Accordingly, we
    see no reason for further inquiry.

[^17]: Section 399B prohibits noncommercial educational stations from
    broadcasting advertisements, and defines an advertisement as \"any
    message or other programming material which is broadcast or
    otherwise transmitted in exchange for any remuneration, and which is
    intended \--

    \(1\) to promote any service, facility, or product offered by any
    person who is engaged in such offering for profit;

    \(2\) to express the views of any person with respect to any matter
    of public importance or interest; or

    \(3\) to support or oppose any candidate for public office.

[^18]: According to Alliance, \"the proposed assignments would replace
    two educational, noncommercial stations (WQED and WQEX) and one
    religious station (Cornerstone), with one educational noncommercial
    station (WQED), one religious station (Cornerstone), and a new
    commercial station (Paxson) that will air mostly infomercials.\"
    Professor McChesney also discusses the importance of \"second
    stations\" such as WQEX(TV) in serving their communities, and
    opposes the proposed transactions as \"an attempt to close down a
    second station to pay off back debt accrued by the established
    station.\"

[^19]: ^ ?^ Section 501(c)(3) of the Internal Revenue Code provides, in
    part, for the exemption from federal income tax of organizations
    that are organized and operated exclusively for religious,
    charitable, scientific or educational purposes, provided no part of
    the net earnings inure to the benefit of any private shareholder or
    individual.

[^20]: Moreover, the Commission has acknowledged that specialty
    programming, of the type presently offered by Cornerstone on
    WPCB-TV, appeals to segments of the population with particularized
    programming interests, which are typically not met by other types of
    programming. *See, e.g., First Report and Order* in Docket 20553, 58
    FCC 2d 442, 452 (1976), *recon. denied*, 60 FCC 2d 661 (1976).

[^21]: The Commission's statutory authority to prescribe allocations for
    noncommercial educational television stations emanates from Section
    303 of the Communications Act of 1934, as amended, 47 U.S.C. § 303,
    which gives the Commission authority to prescribe "the nature of the
    services to be rendered by each class of station." *See* *Memorandum
    Opinion and Order, Amendment of Section 3.606 of the Commissions
    Rules and Regulations*, 7 R.R.2d 371, 373-75 (1951).

[^22]: *Fostering Expanded Use of the UHF Television Channels*, 2 FCC 2d
    527, 542 (1965) (emphasis added).

[^23]: Public Broadcasting Act of 1967, 47 U.S.C. § 396(a)(1). As a
    prelude to the passage of the Public Broadcasting Act, in 1964, the
    Carnegie Commission on Educational Television was charged by the
    National Association of Educational Broadcasters and the United
    States Office of Education with studying the needs of educational
    television. According to the study prepared by the Carnegie
    Commission, the reserved television channels were designed primarily
    to educate and increase viewers' knowledge and understanding on a
    wide diversity of topics, such as community, national and world
    affairs; literature, art and the performing arts; nature and the
    physical world; health, nutrition and home economics; social
    interaction and behavior; and morality and spirituality. *See*
    *Public Television, a Program for Action*, Report of the U.S. Senate
    Committee on Commerce to Accompany S. 1160, 90^th^ Cong., 1^st^
    Sess. S. Rep. 222 (1967).

[^24]: *Id*. § 396(a)(4-5).

[^25]: Sen. Rep. No. 91-167, 91^st^ Cong., 1^st^ Sess. at 7 (1969).

[^26]: *Moody Bible Institute of Chicago*, 66 FCC 2d 162 (1977) ("*Moody
    Bible Institute*"). Section 73.503, the rule governing eligibility
    for NCEFM stations, parallels section 73.621 governing NCETV
    stations in many respects, with several differences. As is discussed
    in more detail below, one significant difference is the absence from
    Section 73.503 of the requirement that the noncommercial educational
    station "be used primarily to serve the educational needs of the
    community. *Compare* 47 C.F.R. § 73.621(a) *with* 47 C.F.R. §
    73.503(a).

[^27]: *Moody Bible Institute*, 66 FCC 2d at 162-63 (Concurring
    Statement of Chairman Richard E. Wiley, joined by Commissioner
    Benjamin L. Hooks).

[^28]: *Id*. at 163. The Chairman, joined by Commissioner Hooks, stated
    that "religious organizations must be judged on the same basis as
    non-religious organizations."

[^29]: *Id*. at 163-68 (Concurring Statement of Margita E. White).

[^30]: Id. at 163, citing *Keswick Foundation Incorporated*, 26 FCC 2d
    1025 (1970); *Christ Church Foundation, Inc.*, 13 FCC 2d 987 (1968);
    *National Education Foundation, Inc.*, 15 FCC 2d 1032 (1968).

[^31]: *Id*. at 164, citing *Bible Moravian Church, Inc.*, 28 FCC 2d 1
    (1971). In *Bible Moravian Church*, the Commission had indicated
    that "recognizing that some overlap in purposes is, or can be
    involved, we look to the application as a whole to determine which
    is the essential purpose and which is incidental." *Id*. at 2.

[^32]: 101 FCC 2d 1368 (1985).

[^33]: *Id*. at 1375-77. Despite the absence of any program schedule,
    the Commission stated that "religiously oriented applicants for
    reserved television channels can meet the requisite eligibility
    standards." *Id*. at 1374 n.8. In so doing, the Commission expressly
    rejected the conclusion of the Mass Media Bureau that "the
    Commission has articulated the principle that organizations which
    are primarily religious in nature, even though they have some
    educational aspects, will not be allowed to operate on channels
    reserved for educational use." *Id*. Despite some evidence to the
    contrary in the Commission's decision in *Bible Moravian Church*,
    *see supra* at n.31, the Commission held that this "statement was
    clearly in error." *Id*. In any event, "in *Way of the Cross*, the
    Commission overruled *Moravian Church, Inc*., 28 FCC 2d 1 (1971),
    and made clear that noncommercial educational organizations, even
    though religiously-oriented, can qualify upon an appropriate showing
    for licences on reserved channels." *Columbia Bible College
    Broadcasting Co.*, 6 FCC Rcd 516, 517 (ASD 1991).

[^34]: *Music Ministries, Inc.*, 9 FCC Rcd 3628 (1994); *Toccoa Falls
    College*, 8 FCC Rcd 3085 (1994); *Holy Spirit Harvest Church*, 7 FCC
    Rcd 3043 (1992); *Dry Prong Educational Broadcasting Foundation*, 7
    FCC Rcd 496 (1992); *Christian Family Cinema*, 6 FCC Rcd 7364
    (1991).

[^35]: 9 FCC Rcd at 3628 (mere commitment to air "educational" and "some
    instructional" programming is not sufficient). The applicant also
    failed to indicate whether it was eligible as an "institution" or an
    "organization."

[^36]: *Dry Prong*, 7 FCC Rcd at 496; *Holy Spirit*, 7 FCC Rcd at 3044
    (merely stating that corporation is a religious, charitable and
    educational entity, but providing no documentation of programs, is
    insufficient). The applicant in *Toccoa Falls* also failed to file
    sufficiently detailed program descriptions to support the finding
    that it qualified as an educational organization proposing to
    broadcast the requisite educational programming. 8 FCC Rcd at 3085.

[^37]: *See, e.g.,* *Palm Bay Public Radio, Inc.*, 6 FCC Rcd 1772
    (1991); *Lower Cape Communications, Inc.*, 47 R.R.2d 1577 (1980);
    *Columbia Bible College Broadcasting Co.*, 6 FCC Rcd 516 (ASD 1991);
    *Community Educational Association*, 10 FCC Rcd 3179 (ALJ 1995).

[^38]: 6 FCC Rcd at 1773-74. In granting the application, the Commission
    rejected the contention in a petition to deny that the applicant had
    not provided descriptions of a sufficient amount of its programs,
    applying the standards set forth in *Astroline Communications Co.*
    v. *FCC*, 857 F.2d 1556 (D.C. Cir. 1988).

[^39]: 6 FCC Rcd at 517. In *Columbia Bible*, the Division rejected a
    petition to deny the subject application, determining under the
    *Astroline* test that the applicant's program schedule evidenced a
    sufficient intent to advance educational purposes. *Id*. at 516-17.

[^40]: It is worthy to note that one Administrative Law Judge, in
    finding an NCEFM applicant qualified under Section 73.503, drew
    guidance from a Commission statement regarding its "basic role" in
    the "history and development of public broadcasting." *See Community
    Educational Association*, 10 FCC Rcd 3179, 3180 (Chachkin, 1995)
    citing *Notice of Proposed Rule Making,* *Revision of Programming
    Policies and Reporting Requirements Related to Public Broadcasting
    Licensees*, 87 FCC 2d 716, 732 (1981) ("*Public Radio and TV*"). In
    *Public Radio and TV*, the Commission had recognized that its role
    had been "to broadly classify its program service, . . . the
    appropriately limited role of facilitating the development of the
    public broadcasting system rather than determining the content of
    its programming." 87 FCC 2d at 732. According to the Commission,
    "public broadcasting is characterized largely by a negative
    distinction, *i.e.,* public stations are not operated by profit
    seeking organizations nor supported by on-the-air advertising. The
    positive dimensions of public broadcasting are determined by social,
    political, and economic forces outside the Commission." *Id*. Such a
    limited role allowed "the system to develop in response to the
    diverse and proximate needs of the communities within which it
    operates and not according to a standard Commission mold." *Id*. The
    role allowed "those who operate, support, and consume public
    broadcasting to directly determine the nature of its service,
    especially its programming." *Id*.

[^41]: *Compare* 47 C.F.R. § 73.503(a) (for NCEFM applicants) *with* 47
    C.F.R. § 73.621(a) (*emphasis added*). The Commission apparently
    adopted a higher standard for NCETV applicants than for NCEFM
    applicants because of the greater spectrum use by television
    stations, the more extensive coverage of television stations, and
    the lesser number of television stations that serve geographic
    markets. *See Way of the Cross*, 101 FCC 2d at 1371 n.3.

[^42]: ^    ?^ Sections 4 and 5 of the Act require cable television
    systems to devote a specified portion of their channels to the
    transmission of local commercial and public broadcast stations.

[^43]: *See* *National Broadcasting Company* v. *United States*, 319
    U.S. 190 (1943); *Scott* v. *Rosenberg*, 702 F.2d 1263, 1272 (9^th^
    Cir. 1983); *Kings Garden, Inc.* v. *FCC*, 498 F.2d 51 (D.C. Cir.
    1974).

[^44]: *See* *Commission Policy Concerning the Noncommercial Nature of
    Educational Broadcast Stations*, 43 R.R.2d 731, 737-41 (1978)
    ("*Policy on NCE Stations*") (explaining Commission authority to
    determine the kinds and types of communications that can be
    broadcast on particular frequencies).

[^45]: *See supra* at Paras.18-21.

[^46]: In its April 1998 amendment, Cornerstone submitted a programming
    schedule setting forth a total of 168 hours of programming per week.
    *See* Cornerstone Amendment, April 27, 1998, Exhibit 7 ("1998
    Amendment"). Descriptive information and illustrative tapes were
    provided for programs that accounted for slightly more than 100
    hours of that weekly schedule. *Id*. at Exhibits 5-6. Cornerstone
    stated that 52 hours of its existing programming qualified as
    "general educational," and that it proposed to add 5 hours per week
    of for-credit instructional programming from Oral Roberts
    University, and a literacy program initially referenced in its June
    1997 application. *Id*. at 3. Cornerstone also stated that its list
    of programs was "not exhaustive of Cornerstone's programming." *Id*.
    at 6.

[^47]: In a March 31, 1999 amendment to its programming proposal ("1999
    Amendment"), Cornerstone provided further descriptive and
    illustrative material for 94.5 hours of regularly scheduled
    programming that it contends qualifies as general educational or
    instructional programming. *See* 1999 Amendment, Supplemental
    Showing. Cornerstone reiterated its intention to add 5 hours of
    instructional programming from Oral Roberts University, and supplied
    additional information regarding the proposed broadcast of that
    programming. *Id*.

[^48]: Application, Exhibit F, at 24. Cornerstone states that it "will
    air programming designed to further lifelong education, with
    emphasis on religious teaching and education as well as the teaching
    of moral and ethical values and practical Christian living." *Id*.
    Exhibit C, at 18.

[^49]: *Id.* Exhibit C, at 17.

[^50]: *Id*. Exhibit C, at 18. Cornerstone stated that it "will also air
    children's programming, including religious educational programming
    and programming that teaches children morals and values for living
    in a community."

[^51]: *Id*. Exhibit F, at 24. Cornerstone set forth brief descriptions
    of these programs in Exhibits F-2 and F-3 of its initial
    application.

[^52]: For this reason, in its May 12, 1999 response ("May 1999
    Response") to Alliance's comments on its 1999 Amendment, Cornerstone
    reiterated that "Cornerstone's stance has always been (and remains)
    that Cornerstone's existing programming, modified to meet applicable
    Commission standards for noncommercial operations, qualifies as
    educational." May 1999 Response at 4.

[^53]: Cornerstone has indicated that it "has [always]{.underline}
    understood that adjustments to its broadcast schedule would be
    necessary in order to operate a noncommercial educational broadcast
    station." Cornerstone Supplementary Pleading, April 27, 1998, at 12
    (*emphasis in original*).

[^54]: For example, Cornerstone has stated that it "plans to air *much*
    of its current program schedule on Channel \*16," but has
    simultaneously indicated that these programs will be "*supplemented
    by some new programs, including* instructional programs in
    cooperation with Oral Roberts University." April 27, 1998
    Supplemental Pleading, at 12 (*emphasis added*). There are
    additional examples of other potential programs in the record.
    Specifically, in calculating the total number of hours of qualifying
    programs described in its 1999 amendment, Cornerstone reports that
    "additional children's programs and other general educational
    programs not summarized here will bring the total even higher." 1999
    Amendment, Supplemental Showing, at 3. Finally, Cornerstone has
    stated that its "promises of future performance as a noncommercial
    educational licensee are commitments to the agency. The Commission
    must take those commitments seriously -- Cornerstone certainly
    does." 1999 Amendment, Supplemental Showing, at 3.

[^55]: *See, e.g.,* Petition to Deny, at 11, 27. Among other things,
    Alliance contends that "Cornerstone operates a religious station,
    not an educational station, and that Cornerstone's "current
    programming does not meet the educational needs of the community."
    Specifically, Alliance alleges that "scholars from the Pittsburgh
    area have viewed the programming that Cornerstone designates in its
    application as 'General Educational' or 'Children's programming' and
    found that it does not meet established educational standards."
    *Id*.

[^56]: Alliance uses declarations, discussed below, to support the
    general claim that Cornerstone "serves a small sectarian audience in
    a market that is religiously and ethnically diverse." April 30, 1999
    Reply, at 5.

[^57]: Linda Flower, a Professor of English at Carnegie Mellon
    University, has opined that the programming is "highly ideological,
    extremist tract," contending instead, that educational programming
    should "offer an accurate and balanced report that is supported by
    evidence, not primarily by personal testimony and emotional
    appeals." Professor Flower recognizes the "right of advocacy groups"
    from the "political right as well as left, to use incantation and
    appeals to fear and bias to rally support," but indicates that "we
    should not confuse this polemical activity with educating the public
    about weighty and complex issues with multiple sides, which call for
    open debate and balanced judgment." Michael Schneider, a senior
    science writer, takes issue with specific programming aired on
    WPCB-TV, indicating that it "proselytizes against knowledge that is
    well accepted and respected among scientists.\" Carole Stabile, a
    professor at the University of Pittsburgh, calls the programming
    "propagandistic," and indicates her belief that viewers "learn a
    narrow version of Christianity," but "learn nothing about science,
    contemporary politics, or the diverse culture in which they live."
    As a final example, Lincoln Wolfenstein, a professor of physics at
    Carnegie Mellon University, complains that specific programming on
    WPCB-TV regarding the planets and astronomy "ignores new and
    convincing evidence" of scientific fact, and "instead of objective
    reporting," presents "ideological beliefs."

[^58]: Cornerstone also submitted letters from officials from the
    National Religious Broadcasters stating that in their opinion, the
    programming currently aired on WPCB-TV is educational.

[^59]: *See* March 27, 1998 Letter from Barbara A. Kreisman to Oleen
    Eagle ("FCC Request"), at 3.

[^60]: *Id*. at 3 n.5.

[^61]: Cornerstone grouped these programs under the following category
    headings: \"General Educational (Includes Programs Involving
    Religious Teaching),\" \"Cultural and Arts Programming,\" \"News and
    Public Affairs,\" \"Informational,\" \"Entertainment\" and
    \"Instructional (For College Credit)\". Cornerstone also submitted a
    videotape with short excerpts of representative programs, in order
    to acquaint the staff with the nature of its programming.

[^62]: Cornerstone Opposition to Petition to Deny, at 17 (citing *Way of
    the Cross*). Cornerstone has stated, for example, that "the FCC
    staff is engaging in unconstitutionally rigorous scrutiny of, and
    applying an impossibly high standard to, the Cornerstone
    application, simply because of the applicant's religious orientation
    and programming viewpoint." April 27, 1998 Supplemental Pleading, at
    1-2.

[^63]: Cornerstone points out that "what the Commission means by
    'educational' in this context may not be well defined. The concepts
    of 'instructional' and 'general educational' programming originally
    set forth in the \[Guidelines\] have apparently evolved, as
    traditional public broadcasting stations air many programs that fall
    outside either concept." *Id*. at 9-10.

[^64]: According to *Black's Law Dictionary*, education comprehends "not
    merely the instruction received as school or college, but the whole
    course of training; moral, religious, vocational, intellectual, and
    physical. Education may be directed to either the mental, moral or
    physical powers and faculties, but in its broadest and best sense it
    relates to them all." *Black's Law Dictionary*, 5^th^ Ed. (1979).

[^65]: *See* April 27, 1998 Supplemental Pleading, at 4-8, citing *Palm
    Bay*, *Columbia Bible College*, *Community Educational Association*
    (*see supra* at Paras. 24-25 for a discussion of these cases); *Id*.
    at 11; 1999 Amendment, Supplemental Showing, at 1, 4.

[^66]: Alliance's August 1, 1997 Reply to Opposition at 4-5.

[^67]: *See, e.g.,* Alliance's May 12, 1998 Reply, at 5. In fact, the
    Commission staff did not find that more than 70 percent of
    Cornerstone's programming was "primarily religious," but instead
    recognized that Cornerstone itself acknowledged that over "70
    percent" of its programming had a "religious orientation."

[^68]: *See, e.g., id*. at 15, citing *Christian Family Cinema, Music
    Ministries, Toccoa Falls*, and *Holy Spirit Harvest* *Church* (see
    supra at Para. 24 for a discussion of these cases).

[^69]: *See* 1999 Amendment, Supplemental Showing; *supra*, 6-8. This is
    true even given the more substantial showing that is required of
    NCETV applicants.

[^70]: *See supra* at Para. 33.

[^71]: 857 F.2d 1556 (D.C. Cir. 1988).

[^72]: *See supra* at Paras. 19-23; *Moody Bible Institute*, 66 FCC 2d
    at 162; *Guidelines*, 43 Fed. Reg. at 30845; *Way of the Cross*, 101
    FCC 2d at 1374 n.8; *Columbia Bible College*, 6 FCC Rcd at 517.

[^73]: The evaluation of such an issue places us, of course, squarely in
    the position of assessing the content of the programming of the
    broadcaster or applicant, a situation in which this Commission ought
    to be placed only in the rarest of instances. *See* *CBS* v.
    *Democratic National Committee,* 412 U.S. 94, 120-21, 126-27 (1973).
    It is perhaps for this reason that even Alliance acknowledges that
    they "do not seek to prevent Cornerstone from airing any of its
    current programming, with the exception \[of programs that violate
    the Commission's substantive rules on commercial operation\].
    Instead, Petitioners maintain that to fulfill the requirements to
    operate as a noncommercial educational broadcaster, Cornerstone must
    [also]{.underline} provide programming that meets the educational
    and cultural needs of the entire Pittsburgh community." Alliance's
    May 12, 1998 Reply, at 2 (*emphasis in original*).

[^74]: These programs include "Sportsweek" and "His Place," described as
    a "fictional drama setting of a diner where people meet to talk
    about their lives."

[^75]: Giving the requisite deference to Cornerstone's judgment, for
    example, and based upon the record before it, the Commission and its
    staff could find "Biblical Portrait of Marriage," "Effective Living
    with Myles Munroe," "Food for Life," "Jack Hayford (The Living
    Way)," "John Hagee Today," "Love Worth Finding," "Marriage and
    Family Magazine," "The Word for Today," "Exposing the Lie," "Father
    Michael Manning," "Just the Facts," "Singles Plus," and "Marriage
    Plus" reasonably classified as "general educational" programming.

[^76]: For example, Cornerstone asserts that in "Joyce Meyers, Life in
    the Word," Ms. Meyers "teaches viewers how to use biblical
    principles and stories to cope with life's challenges." Cornerstone
    also asserts that "Kenneth Copeland" is a program that "consists of
    analysis and discussion of scriptural text on a variety of subjects
    with an emphasis on those that are most relevant to contemporary
    social issues." As one final example, Cornerstone describes "Living
    by the Word" as a program that employs "a team teaching approach to
    engage the viewer in a thorough study of a selected Bible passage."

[^77]: A majority of three Commissioners has attempted in this decision
    to provide additional guidance to this licensee, other potential
    applicants and licensees, and the Commission staff, with respect to
    the review of future programs and programming proposals for the
    reserved NCETV channels. We believe that it would be inequitable to
    apply any clarified guidelines emanating from this decision to the
    record developed over the past three years.

[^78]: *Way of the Cross*, 102 FCC 2d at 1372 n.8, citing *Guidelines*,
    43 Fed. Reg. at 30844-45.

[^79]: *Id.*

[^80]: Examples would include programs analyzing the role of religion in
    connection with historical or current events, various cultures, or
    the development of the arts; exploring the connection between
    religious belief and physical and mental health; examining the
    apparent dichotomy between science, technology and established
    religious tenets, or studying religious texts from a historical or
    literary perspective. In this regard, we agree with Cornerstone that
    if we conclude that a program "parsing the language and meaning of
    the literature of Shakespeare is 'educational,' then a program
    parsing the language and meaning of the Bible" also similarly can be
    "educational." *See* April 27, 1998 Reply Pleading, at 10. As the
    Commission stated in *Way of the Cross*, while "not all religious
    programs are educational in nature, it is clear that those programs
    which involve the teaching of matters related to religion would
    qualify." *Id.*

[^81]: Thus, church services generally will not qualify as "general
    educational" programming under our rules. However, a church service
    which is part of an historic event, such as the funeral of a
    national leader, would qualify if its primary purpose is serving the
    educational, instructional or cultural needs of the entire
    community.

[^82]: *Fostering Expanded Use of the UHF Television Channels*, 2 FCC 2d
    at 542 (emphasis supplied.)

[^83]: *Noncommercial Nature of Educational Broadcast Stations*, 90 FCC
    2d 895, 900 (1982). As Cornerstone recognizes, it is obligated to
    comply with Section 73.621. Cornerstone also will be obligated to
    comply with any clarifications to Section 73.621(a), including those
    provided in this decision. If Cornerstone's operation of a NCETV
    station is shown to violate Section 73.621 after programming is
    actually broadcast on Channel \*16 by Cornerstone, the Commission
    can take appropriate action at that time.

[^84]: For example, Cornerstone states that it has hired a station
    manager whose basic duty is to ensure that Cornerstone complies with
    the noncommercial educational rules and policies, that staff members
    have attended briefing sessions on these rules and policies, and
    that it has undertaken a review of its program-related documents and
    agreements to ensure that all programs aired on Channel \*16 comply
    with Section 399B of the Communications Act and applicable rules and
    policies.

[^85]: Examples include programs in which the Unitarian Church is
    identified as a \"cult,\" the Church of Latter Day Saints is
    described as the cause of serious social problems in Utah, and
    adherents of Hinduism are referred to as part of \"the Kingdom of
    the enemy.\" Alliance also submits affidavits from several
    Pittsburgh scholars, alleging, *inter alia*, that Cornerstone\'s
    programming includes \"attacks on other segments of the community,
    including homosexuals and non-Christian faiths,\" is offensive to
    Jews, and fails to address problems and concerns of the
    African-American community.

[^86]: One of the educators stated that in his opinion, this program was
    \"propaganda\" and \"would have been more appropriately presented as
    a \'paid political message.\'\" As a commercial licensee,
    Cornerstone is not prohibited from accepting and airing paid
    political programs. Noncommercial educational licensees, however,
    may not broadcast \"any message or other programming material . . .
    in exchange for any remuneration, and which is intended . . . to
    express the views of any person with respect to any matter of public
    importance or interest; or to support or oppose any candidate for
    public office.\" 47 U.S.C. § 399B.

[^87]: The only information provided about Dolores Richert, the
    Secretary of the corporation, is that she is married to Blake
    Richert.

[^88]: Richard Simmons, William E. Kofmehl and Michelle D. Agatston
    replaced Mr. MacDonald, who was named a member of Cornerstone\'s
    Advisory Board.

[^89]: For example, few of the directors appeared to be affiliated with
    secular organizations in the Pittsburgh area, nor did it appear that
    the Board included representatives from local civic organizations,
    local government, cultural institutions or organizations, local
    universities or boards of education, professional groups, labor
    organizations, environmental or recreational groups, or
    organizations dedicated to the needs and interests of various
    segments of the Pittsburgh community, including senior citizens, the
    disabled, women, children, minorities and ethnic groups.

[^90]: Reverend Tustin resides within the service area of WKBS-TV,
    Channel 47, Altoona, Pennsylvania, which is licensed to Cornerstone,
    and has no involvement with Pittsburgh area organizations. Reverend
    Simmons resides in Washington, D.C. and his involvement with
    Pittsburgh organizations has been minimal.

[^91]: Ms. Agatston oversees a day care center for an area church, is a
    member of the Pittsburgh 2000 Women\'s Steering Committee and
    Hosanna House Advisory Committee, and is said to be active in the
    African-American community. Mrs. Eagle is a member of several area
    chambers of commerce and the Pittsburgh Steering Committee for the
    March for Jesus, and also is involved with international ministry
    projects. Reverend Bixler, Mr. Skeba, and Mr. and Mrs. Richert
    apparently have no present formal involvement with any local
    organizations.

[^92]: With respect to other areas, such as the arts, organized labor,
    and the specialized needs of children and the elderly, Cornerstone
    has promised that representatives of these interests, as well as
    other interests in the community, will be invited to participate in
    the station\'s community advisory committee.

[^93]: While the make-up of an advisory board is not considered in
    determining if the board of directors and management of a
    noncommercial educational applicant is broadly representative, the
    Commission recognizes that the existence of an advisory board is
    indicative that the station is responsive to local needs and
    interests.

[^94]: The staff noted that the fact that an applicant\'s Articles of
    Incorporation may \"permit 'charitable, educational, religious and
    scientific' activities tells us nothing as to which of these
    activities will, in fact, be pursued, and to what degree,\" and
    thus, standing alone, does not establish an applicant\'s
    qualifications as an educational organization. *See Way of the
    Cross*, 101 FCC 2d at 1375. Moreover, while Cornerstone stated in
    the application that it would fulfill an educational purpose \"by
    operating Channel \*16 as a noncommercial educational station that
    values education of children, teens, and adults on moral, ethical
    and community issues through lifelong learning and through the
    teaching of matters related to religion and practical Christian
    living,\" the staff did not consider this general statement
    sufficient to document a specific educational purpose or program.

[^95]: *Implementation of Section 4(g) of the Cable Television Consumer
    and Protection Act of 1992*, 8 FCC Rcd 5321 (1993) (*Home Shopping
    Order*), recon. pending.

[^96]: *Limitation on Commercial Time on Television Broadcasting
    Stations*, 8 FCC Rcd 7277 (1993).

[^97]: *See First Report and Order* in Docket No. 20553, 58 FCC 2d 442,
    452 (1976), *recon. denied*, 60 FCC 2d 661 (1976); *see also D P
    Media of Martinsburg, Inc*., 13 FCC Rcd 2123, 2130-31 (1998)(\"Home
    shopping stations typically attract a limited audience but can
    provide a diverse and valuable service to subscribers.\").

[^98]: Alliance complains that \"\[t\]he entire description of Paxson\'s
    proposed programming consists of three boiler-plate sentences.\"
    Applicants for assignment of an existing authorization, however, are
    required to provide only a brief narrative description of their
    proposed community issue-responsive service, sufficient to evince an
    understanding on the part of the applicant of its obligation to
    provide programming responsive to the needs of the community. *See
    Request for Declaratory Ruling Concerning Programming Information in
    Broadcast Applications for Construction Permits, Transfers and
    Assignments,* 3 FCC Rcd 5467 (1988), *aff\'d, Office of
    Communication of the United Church of Christ v. FCC*, 911 F.2d 803
    (D.C. Cir. 1990).

[^99]: *Wisconsin Gas Co. v. FERC*, 770 F.2d 1144, 1166 (D.C. Cir.
    1985), citing *SEC v. Chenery Corp.*, 332 U.S. 194, 202-03 (1947).

[^100]: Sixth Report and Order, *Amendment of Section 3.606 of the
    Commission's Rules and Regulations*, 41 F.C.C. 148, 165-66 (1952)
    ("*Sixth Report*"), quoting *Third Notice of Further Proposed
    Rulemaking*, 16 Fed. Reg. 3072 (1951).

[^101]: *Columbia Broadcasting System, Inc.* v. *National Democratic
    Committee*, 412 U.S. 94, 120-21, 126-27 (1973). As the Commission
    stated, the First Amendment does not prevent us from establishing
    incidental restrictions on speech that are required for a
    broadcaster to maintain eligibility for a reserved allocation. *See
    Decision*, ¶ 29.

[^102]: The Commission has not provided significant additional guidance
    in its decisions on applications for licenses for NCETV stations. As
    the discussion in the Decision we release today reveals, in the
    relevant past we have only designated applications for hearing where
    applicants provided inadequate descriptions of their programs. *See*
    *Decision*, ¶¶ 23-27. *See, e.g.*, *Way of the Cross*, 101 F.C.C.2d
    1368 (1985); *Music Ministries, Inc.*, 9 FCC Rcd. 3628 (1994);
    *Toccoa Falls College*, 8 FCC Rcd. 3085 (1994); *Holy Spirit Harvest
    Church*, 7 FCC Rcd. 3043 (1992); *Dry Prong Educational Broadcasting
    Foundation*, 7 FCC Rcd. 496 (1992); *Christian Family Cinema*, 6 FCC
    Rcd. 7364 (1991). We have not had to determine whether the judgment
    of a broadcaster was "arbitrary or unreasonable."

[^103]: Cornerstone's initial showing made in its June 1997 application
    and the supplemental showing first made in its April 1998 amendment
    to its application may well have been insufficient for a NCETV
    proposal as discussed in *Way of the Cross*, given the cursory
    nature of Cornerstone's descriptions of its programs.

[^104]: In this respect, I find myself expressing sentiments similar to
    those of Chairman Wiley and Commissioners Hooks and White in *Moody
    Bible Institute*. *See Decision*, ¶ 19.

[^105]: *Neimotko* v. *Maryland*, 340 U.S. 268, 269 (1951) (exercise of
    discretion in denying permit based on vague ordinance governing
    issuance of authorization for speaking events in community park
    violates First Amendment as applied to states by Fourteenth
    Amendment); *see* *Saia* v. *New York*, 334 U.S. 558, 560 (denial of
    permit unconstitutional where "there are no standards prescribed for
    the exercise of ... discretion").

[^106]: Distinguishing primarily religious programs from general
    educational programs, unlike the case with identifying "commercial
    speech," does not appear to be an instance where "the ordinary
    person exercising ordinary common sense can sufficiently understand
    and comply . . . without sacrificing the public interest." *CSC* v.
    *Letter Carriers*, 413 U.S. 548, 579 (1974). *See also* *Policy on
    NCE Stations*, 43 R.R.2d 731, 740-41 (1978). For example, would the
    performance of Handel's *Messiah* be primarily educational if it
    were performed at the Kennedy Center, but not be primarily
    educational if it were performed in a church? Similarly, would not
    some sermons be educational, depending upon their context?

[^107]: *See* *Decision*, ¶¶ 16-17 (discussing establishment of reserved
    noncommercial educational allocations for educational purposes and
    Congressional support for funding development of educational,
    instructional and cultural programming).

[^108]: Programs primarily devoted to exhortation and proselytizing, and
    other types of incitement and recruitment, should not qualify as
    general educational programming regardless of whether they are
    religiously oriented, or are oriented toward other social or
    cultural issues.

[^109]: We have continued to stress that "we will not disqualify any
    program simply because the subject matter of the teaching or
    instruction is religious in nature. While not all religious programs
    are educational in nature, it is clear that those programs which
    involve the teaching of matters related to religion would qualify."
    *See id*. ¶ 44 citing *Way of the Cross*, 102 F.C.C.2d at 1372 n.8;
    Guidelines, 43 Fed Reg. at 30844-45. Additionally, while stations
    operating on reserved educational channels are intended to serve the
    educational and cultural broadcast needs of their entire community,
    particular programs may meet the educational and cultural needs of
    different segments of the population.

[^110]: ^1^

[^111]: ^?^ The Supreme Court has recognized that administrative
    agencies have the discretion to deal with problems on an ad hoc,
    case-by-case basis through adjudication. *SEC* v. *Chenery Corp.*,
    332 U.S. 194, 203 (1947). In proceeding by ad hoc adjudication, the
    Court acknowledged that "such action might have a retroactive
    effect" that was "not necessarily fatal" to the case-by-case
    procedure's validity. *Id*. The Court indicated, however, that "such
    retroactive effect must be balanced against the mischief of
    producing a result which is contrary to statutory design or to legal
    and equitable principles." *Id*.; s*ee Retail, Wholesale and
    Department Store Union* v. *NLRB*, 466 F.2d 380, 390 (D.C. Cir.
    1972) ("*Retail Union*"). In *Retail Union*, the D.C. Circuit
    indicated that agencies should resolve the balance by addressing
    five considerations, the essence of which involves balancing the
    extent of any clarification, the harm to a party from applying the
    clarification, and the interest served by applying the
    clarification. *Retail Union*, 466 F.2d at 390.

[^112]: I do not believe that the public interest would be served by
    taking yet another round of supplemental showings and pleadings to
    address Cornerstone's proposed programming, or by designating the
    application for hearing to permit an administrative law judge to
    apply our clarified guidelines to the programming proposed by
    Cornerstone.

[^113]: While I do not believe that the financial difficulty of WQED
    Pittsburgh ("WQED"), the current licensee of Channel\*16,
    necessitates a grant of the assignment application, we *are*
    obligated to act expeditiously, since we committed to do so at the
    time we declined to dereserve Channel\*16.

[^114]: The Commission has in the past granted applications that did not
    initially comply with the Commission's rules as clarified in the
    proceeding at issue, with the express recognition that the licensee
    would be obligated to comply with the rules as clarified. *See,
    e.g.*, *NextWave Personal Communications, Inc.*, 12 FCC Rcd. 2030,
    2071 (1997) (application granted with licensee permitted to
    restructure ownership to comply with foreign ownership
    restrictions).

[^115]: While I have not maintained that we are required to exercise our
    discretion in this manner, there is some precedent suggesting that
    this approach should be adopted. "Courts have not infrequently
    declined to enforce administrative orders when in their view the
    inequity of retroactive application has not been counterbalanced by
    sufficient significant statutory interests." *See Retail Union*, 466
    F.2d at 390. Regardless of the extent to which our application of
    clarified guidelines to Cornerstone's programming showing would be
    "retroactive," a review of the factors discussed in *Retail Union*
    still supports the exercise of discretion militating against an
    aggressive application of new guidelines to programming that has yet
    to be broadcast.

[^116]: *See*, *Turner Broadcasting System, Inc. v. FCC,* 512 U.S. 622,
    651 (1994).

[^117]: *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).