####  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 )

##### ORDER ON RECONSIDERATION

**Adopted: January 28, 2000 Released: January 28, 2000**

By the Commission: Commissioner Furchtgott-Roth concurring and issuing a
statement; Commissioner Tristani dissenting and issuing a statement.

1.  By *Memorandum Opinion and Order* released December 29, 1999,[^1]
    the Commission granted the above-captioned applications for consent
    to the assignment of licenses of noncommercial educational
    television station WQEX(TV), Channel \*16, Pittsburgh, Pennsylvania,
    from WQED Pittsburgh to Cornerstone TeleVision, Inc. and of
    television station WPCB-TV, Channel 40, Greensburgh, Pennsylvania,
    from Cornerstone to Paxson Pittsburgh Licensee, Inc. We also denied,
    *inter alia*, the petition to deny filed by The Alliance for
    Progressive Action and QED Accountability Project. By letter dated
    January 18, 2000, Cornerstone notified the Commission that it had
    terminated the agreements underlying the above-referenced
    transactions, and requested dismissal of its applications to acquire
    Channel \*16 from WQED Pittsburgh and assign Channel 40 to Paxson.

2.  On our own motion, pursuant to 47 C.F.R. § 1.108, we hereby
    reconsider and vacate our decision, insofar as it provided
    additional guidance regarding compliance with Section 73.621(a), 47
    C.F.R. § 73.621, of the Commission's rules. [^2] *See WQED
    Pittsburgh* at ¶¶ 43-44 and n.77. In an attempt to clarify what
    constitutes non-commercial educational programming, we offered
    additional guidance broadly, and attempted to apply that guidance to
    specific cases involving religious programming. Regrettably, it has
    become clear that our actions have created less certainty rather
    than more, contrary to our intent.

3.  In hindsight, we see the difficulty of minting clear definitional
    parameters for\
    "educational, instructional or cultural" programming, particularly
    without the benefit of broad comment. Therefore, we vacate our
    additional guidance. We will defer to the editorial judgment of the
    licensee unless such judgment is arbitrary or unreasonable. *Way of
    the Cross*, 101 FCC 2d 1368, 1372, n. 5 (1985), *citing Notice of
    Inquiry* in Docket No. 78-164, 43 Fed. Reg. 30842, 30844-45 (1978).

4.  We wish to emphasize that our action here does not rescind or alter
    the underlying grant of the above-captioned applications.

5.  The Commission has already received many communications from members
    of the public and others concerning this proceeding. Insofar as
    these presentations directly and primarily relate to the general
    policy question of appropriate standards for evaluating programming
    proposals for reserved noncommercial educational television
    channels, while incidentally mentioning the captioned application
    proceeding, they will be governed by the Commission's
    permit-but-disclose ex parte procedures as set forth in 47 C.F.R.
    1.1206(b) and placed in a file associated with the record concerning
    the captioned applications. Any similar communications received in
    the future will be treated in the same manner. All persons are
    reminded, however, that the matter involving the captioned
    applications remains a restricted proceeding under 47 C.F.R. 1.1208,
    until such time as the proceeding on the assignment applications is
    formally terminated and no longer subject to Commission or court
    review. Thus, any written presentations directly addressing the
    merits or outcome of those applications must be served on all
    parties to that proceeding. Similarly, no such oral presentations
    concerning the applications may be made without advance notice to
    all parties and an opportunity for them to be present.

6.  Accordingly, IT IS ORDERED, that pursuant to 47 C.F.R. § 1.108, the
    above-referenced portion of the Commission's decision in *WQED
    Pittsburgh* IS RECONSIDERED and VACATED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

In 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; Cornerstone
Television, Inc. and Paxson Pittsburgh License, Inc. For Consent to the
Assignment of License of Station WPCB-TV, Channel 40, Greensburg,
Pennsylvania

# 

# Order on Reconsideration

## Concurring Statement of Commissioner Harold W. Furchtgott-Roth

I concur in the Commission's judgment to vacate the "additional
guidance" section of the original decision in this matter. I do so
because that guidance was wrong on the merits, raising the specter of
viewpoint discrimination against religious broadcasters in violation of
the First Amendment, not because it provided insufficient clarity. *See*
Order on Reconsideration at para. 2 ("Regrettably, it has become clear
that our actions have created less certainty rather than more, contrary
to our intent.").

Quite the opposite, it seems to me that the Commission's further
statements on the "educational" nature of religious programming were all
too well apprehended by regulated entities, the public, and their
elected representatives.[^3] It was not for lack of clarity that these
parties objected to the decision but for infringement of freedom of
speech and freedom of religion -- and rightly so.

Nor do I vote to vacate because the Commission's error only became
apparent after the original decision was adopted. *See id.* at para. 3
("*In hindsight*, we see the difficulty of minting clear definitional
parameters for 'educational, instructional, or cultural' programming. .
.".)(emphasis added). The many and grave problems occasioned by direct
review of religious programming for educational purpose were plainly
perceptible when the Commission first set forth its "additional
guidance." That is why I voted against it then, and why I vote to remove
it from our books now. [^4]

Finally, as a result of the Commission's express rejection and vacatur
of this guidance, there should be no doubt that the Mass Media Bureau is
unauthorized to engage in any formal or informal practice of directly
reviewing the substance of stations' programming or imposing a
quantification requirement on educational programming \-- suggesting,
for instance, the addition of certain shows or the deletion of others
from a programming schedule in order to obtain licensing approval.
Instead, as this Order on Reconsideration states, the Bureau's task is
simply to assess whether the broadcaster's judgment that his station
will be used chiefly to serve the educational needs of the relevant
community is arbitrary or unreasonable. But anything more in the way of
programming content review or programming quantification would be
unwarranted, improper, and in derogation of this Order on
Reconsideration.

## [DISSENTING STATEMENT OF COMMISSIONER GLORIA TRISTANI]{.underline}

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

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

At bottom, the additional guidance provided in last month's decision
stood for one simple proposition: not all religious-oriented programming
will count toward the requirement that reserved television channels be
devoted primarily to "educational" use. This is nothing new. For over
twenty years, the Commission's precedent has held that "\[w\]hile not
all religious programs are educational in nature, it is clear that those
programs which involve the teaching of matters relating to religion
would qualify."[^5] What was new was that the Commission attempted to
give some clarity to its precedent in order to assist its licensees and
the public, and, more importantly, to ensure that the reserved channels
are used for their intended purpose.[^6]

Then the pressure campaign began. It was alleged that the Commission was
barring certain religious programming from the reserved channels. Not
true -- the Commission simply held that not all religious programming
would count toward the "primarily educational" requirement. Then it was
alleged that the Commission was somehow restricting religious speech, or
engaging in a prior restraint. Again, not true -- the decision only
dealt with the small number of television channels set aside for
noncommercial educational use. Religious broadcasters are free to
broadcast whatever they wish on commercial channels. Indeed, Cornerstone
has been broadcasting unimpeded on a commercial television channel in
Pittsburgh since 1978. In this case, Cornerstone was seeking a special
*privilege* from the government -- the right to broadcast on a channel
reserved primarily for public education. The government may selectively
promote certain speech (e.g., public educational speech) without thereby
abridging other types of speech (e.g., religious speech).[^7]

Perhaps the most disturbing charge leveled against the Commission is
that its decision reflects an "anti-religion bias" at the agency. I
reject and resent this type of attack, reminiscent of a witch-hunt. It
is precisely because of my deep respect for religion, and my deep
appreciation for the religious diversity of America, that I supported
our additional guidance. Religion is not merely an educational
"interest" like cooking or computers that may appeal to only a subset of
the population. Religion is much more than that. The freedom to believe,
and the freedom to believe in nothing at all, is one of our most
precious freedoms. In order to preserve that freedom, the Establishment
Clause of the First Amendment precludes the government from aiding,
endorsing or opposing a particular religious belief, or from promoting
belief versus non-belief. As Justice O'Connor recognized: "\[T\]he
endorsement standard recognizes that the religious liberty so precious
to the citizens who make up our diverse country is protected, not
impeded, when government avoids endorsing religion or favoring
particular beliefs over others."[^8] Moreover, government endorsement of
a particular set of religious beliefs sends a powerful message of
exclusion to non-adherents. Again, Justice O'Connor:

> Endorsement sends a message to non-adherents that they are outsiders,
> not full members of the political community, and an accompanying
> message to adherents that they are insiders, favored members of the
> political community.[^9]

Here, the government reserves a small number of TV channels in a
community for educating the public. These channels are quite valuable --
Cornerstone planned to move to the noncommercial channel free of charge
while selling its commercial channel for \$35 million. Because of their
scarcity, the reserved channels are expressly intended "to serve the
*entire* community to which they are assigned," [^10] and to be
"responsive to the overall public as opposed to the sway of particular
political, economic, social or religious interests." [^11] Thus, a
prospective licensee cannot operate on a reserved channel unless and
until the government concludes that its programming is primarily
"educational" for the broader public.

In a religiously diverse society, sectarian religious programming, by
its very nature, does not serve the "entire community" and is not
"educational" to non-adherents. From a constitutional perspective, a
government policy that endorses certain sectarian programming as
"educational," and awards exclusive use of a scarce public resource to
permit those views to be expressed, would run afoul of the Establishment
Clause. Indeed, programming that promotes adherence to a particular set
of religious beliefs "inevitably ha\[s\] a greater tendency to emphasize
sincere and deeply felt differences among individuals than to achieve an
ecumenical goal. The Establishment Clause does not allow public bodies
to foment such disagreement.[^12][^13] It is no answer to say that
non-adherents need not watch those channels. That is like saying that
the government can provide direct aid to the religious mission of
sectarian schools because non-adherents can enroll elsewhere. Nor is it
an answer to say that *all* religious programming is "educational."
First, the scarcity of reserved channels means that, as a practical
matter, the government would be aiding and endorsing certain religious
beliefs and not others. Second, the Establishment Clause not only
prohibits government from aiding or endorsing a particular set of
religious beliefs, it also prohibits government from aiding or endorsing
religion over non-religion (or vice versa).

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

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

[^1]: *WQED Pittsburgh* (FCC 99-393); 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; Commission
    Ness issuing a separate statement.

[^2]: Section 73.621(a) provides, with limited exception, that
    "noncommercial educational television 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 . . . ."

[^3]: Reaction against this decision was swift, strong, and voluminous.
    In the past two weeks alone, I have received more than 1,000
    messages from opposed citizens. Many members of Congress have also
    voiced their strong objections in letters to the Commission; in
    fact, legislation to counteract the decision was introduced almost
    immediately after its release.

[^4]: Fortunately for religious entities that intend to apply for low
    power radio licenses, which are available only on the noncommercial
    educational reserved band, this action makes it easier for them to
    receive such licenses. *Cf.* Dissenting Statement of Commissioner
    Harold W. Furchtgott-Roth, *In the Matter of Creation of Low Power
    Radio Service,* MM Docket No. 99-25 (Jan. 20, 2000) (observing that
    under the WQED Order "the broadcast of religious services may not
    count towards the required amount of educational programming that
    \[church groups\] must air in order to retain their \[low power\]
    licenses" and noting that Commission's "goal of creating low power
    stations for use by churches and church groups" was hampered by the
    decision).

[^5]: *See Notice of Inquiry*, Docket No. 78-164, 43 Fed. Reg. at 30845
    (1978) (setting forth processing standards for reserved channels).

[^6]: For example, the Commission stated that a program analyzing the
    role of religion in connection with historical or current events,
    various cultures, or the development of the arts generally would
    qualify as educational, while church services generally would not.

[^7]: *See, e.g., National Endowment for the Arts v. Finley*, 524 U.S.
    569, 118 S.Ct. 2168, 2179 (1998) ("Congress may 'selectively fund a
    program to encourage certain activities it believes to be in the
    public interest, without at the same time funding an alternative
    program which seeks to deal with the problem in another way.'")
    (citing *Rust v. Sullivan*, 500 U.S. 173, 193 (1991)). *See also
    Finley*, 118 S.Ct. at 2183 (Scalia, J., concurring) ("It is
    preposterous to equate the denial of taxpayer subsidy with measures
    'aimed at the suppression of dangerous ideas") (citations omitted).

[^8]: *County of Allegheny v. ACLU*, 492 U.S. 573, 631 (1989) (O'Connor,
    J., concurring). *See also Roemer v. Board of Public Works of
    Maryland*, 426 U.S. 736, 747 (1976) ("the state must confine itself
    to secular objectives and neither advance nor impede religious
    activity").

[^9]: *Lynch v. Donnelly*, 465 U.S. 668, 688 (1984) (O'Connor, J.,
    concurring).

[^10]: *Fostering Expanded Use of the UHF Channels*, 2 FCC 2d 527, 542
    (1965) (emphasis added).

[^11]: *Noncommercial Nature of Educational Broadcast Stations*, 90 FCC
    2d 895, 900 (1982).

[^12]: ^"^

[^13]: *County of Allegheny*, 492 U.S. at 651 (O'Connor, J.,
    concurring).