Testimony of Commissioner Harold W. Furchtgott-Roth Before the Subcommittee
  on Telecommunication, Trade, and Consumer Protection, Hearing on H.R. 3525, the
  Religious Broadcasting Freedom Act and H.R. 4201, the Noncommercial
  Broadcasting Freedom of Expression Act of 2000, Thursday, April 13, 2000, 2 p.m.
  
  
  On December 29, 1999, the FCC released a decision approving the application for
  assignment of license of WQEX(TV) Channel 16, Pittsburgh, PA, from WQED  
  Pittsburgh to Cornerstone TeleVision, Inc., and the application for assignment of license
  of WPCB-TV, Channel 40, Greensburg, PA, from Cornerstone to Paxson Pittsburgh
  License, Inc. Cornerstone sought, and was granted, authority to move from Channel 40 to
  Channel 16, and to sell Channel 40 to Paxson.  
  
  I voted to adopt this part of the Commission's decision, which found that
  Cornerstone   a religious broadcasting entity   met the legal standard for operating on the
  noncommercial, educational ("NCE") band.  That standard requires that the "station[] . . .
  be used primarily to serve the educational needs of the community" and "for the
  advancement of educational programs."  In applying this standard, the Commission
  deferred, as it traditionally has done, to the good faith judgment of the broadcaster that its
  station would serve educational purposes.
  
  The Commission did not stop there, however.  In a further statement purportedly
  designed to provide broadcasters with  "additional guidance," the Commission elaborated
  on the situations in which religious programming would be deemed "primarily
  educational" for purposes of licensing on the NCE band.     
  
  The Commission stated:
       First, with respect to the overall weekly program schedule, more than half of the
       hours of programming aired on a reserved channel must primarily serve an
       educational, instructional or cultural purpose in the station's community of
       license.  Second, in order to qualify as a program which is educational,
       instructional or cultural in character, and thus counted in determining compliance
       with the overall benchmark standard, a program must have as its primary purpose
       service to the educational, instructional or cultural needs of the community.
  
  On this second point, the Commission elaborated that:
       not all programming, including programming about religious matters, qualifies as
       "general educational" programming.  For example, programming primarily
       devoted to religious exhortation, proselytizing, or statements of personally-held
       religious views and beliefs generally would not qualify as "general educational"
       programming. . . . [T]he reserved television channels are intended "to serve the
       educational and cultural broadcast needs of the entire community to which they
       are assigned," and to be responsive to the overall public as opposed to the sway of
       particular political, economic, social or religious interests. 
  
  I dissented vigorously from this discussion. To my mind, quantification of the
  educational programming obligation of noncommercial licensees was potentially
  unconstitutional.  In Turner Broadcasting System, Inc. v. FCC, the Supreme Court went
  out of its way, in discussing the validity of our regulatory requirements for
  noncommercial educational broadcasters, to note that our rules did not require
  broadcasters to air any specific amount of such programming.  The clear implication of
  that discussion is that quantified programming obligations for NCE licensees would
  indeed raise First Amendment problems.
  
  Worse, the Commission's "additional guidance" raised the specter of
  discrimination against certain broadcasters on the basis of their religious message.  No
  other noncommercial, educational broadcasters, of course, were subject to the "no
  exhortation" or "no statement of personally-held views" standard announced in the Order. 
  In Rosenberger v. University of Virginia, the Supreme Court made clear that once
  government opens up an avenue for expression, it may not deny access to those with 
  religious editorial viewpoints simply because of those viewpoints.  Conversely   and
  contrary to the assertion of some in the WQED majority -- the Court also made clear that
  allowing such groups to speak on the same basis as others in order to avoid a violation of
  the Free Speech Clause does not, in turn, violate the Establishment Clause. 
  
  On top of that, federal examination of the question whether a view expressed by
  an individual is personally held or not is an astonishingly invasive venture.  It seems to be
  an obviously content-based   indeed, belief-based   inquiry.  In essence, the standard
  enunciated in the Order meant that if you believe what you are saying about religion, you
  can not say it on the NCE band, but if you do not believe what you are saying, then you
  can.  A "personal belief" test for designating those who may and may not operate on the
  reserved band is a clear infringement of core speech rights.  
  
  At bottom, and as Commissioner Powell and I stated in our joint dissent, the more
  the Commission attempts to generically define which "educational, instructional and
  cultural" programming will count for regulatory purposes, the closer it will come to
  unacceptable and unconstitutional content regulation. The example of church services
  used in the Order illustrates the point. The Order indicated that church services generally
  would not qualify as "general educational" programming.   We asked however, why such
  programming might not qualify as "cultural" programming, just as a presentation of an
  opera might?  It would be very hard to broad brush either type of programming as having
  no intrinsic cultural value.  Moreover, depending upon the nature and content of the
  service, it might very well be properly educational. Certainly, millions of Americans
  attend church services, in part, for the educational value of the teachings embodied in a
  sermon.
  
  On January 28, 2000, the Commission hurriedly issued on its own motion an
  Order vacating the "additional guidance" of the first WQED decision.  I concurred in that
  vacatur because, as I explained, that guidance was wrong on the merits.
  
  I also stated that, as a result of the Commission's express rejection and vacatur of
  this guidance, there should be no doubt that the Mass Media Bureau is unauthorized to
  engage in any formal or informal practice of directly reviewing the substance of stations'
  programming or imposing a quantification requirement on educational programming.  For
  instance, the Bureau can not suggest the addition of certain shows or the deletion of
  others from a programming schedule in order to obtain licensing approval. Instead, the
  Bureau's task is simply to assess whether the broadcaster's judgment that his station will
  be used chiefly to serve the educational needs of the relevant community is arbitrary or
  unreasonable.  Anything more in the way of programming content review or
  programming quantification would be unwarranted, improper, and in derogation of the
  Order on Reconsideration.
  
  Unfortunately, while this understanding of the Bureau's current authority is in my
  opinion the legally correct one, it is unclear whether this understanding prevails at the
  Commission.  Chairman Kennard in defense of the original Order asserted that:
  
       The Commission's decision in this case therefore does not establish new rules, but
       simply clarifies long-standing FCC policy applicable to any broadcaster seeking
       to use an NCE-reserved channel. The decision followed and cited prior
       Commission decisions in describing what kinds of religious programming would
       qualify as educational.  
  
  Letter from Chairman William E. Kennard to Representatives Oxley, Pickering, Stearns,
  and Largent, Jan. 20, 2000.  This characterization of the WQED Order as based entirely
  on past precedent was not rejected in the Order on Reconsideration, nor has it since been
  refuted.
  
  Of course, I strongly disagree with the assertion that the Order established nothing
  new.  If that were true, there would have been no need to write and adopt the "additional
  guidance" section of the Order.  I doubt that the majority would have engaged in this
  work if it were in fact unnecessary.
  
  Assuming, however, that one does believe the "nothing new" characterization to
  be correct   as the Chairman of the FCC apparently does --  then simple vacatur of the
  WQED Order is insufficient to protect religious broadcasters from the treatment heralded
  in the additional guidance section of that Order.  
  
  This uncertainty is a lingering problem for religious broadcasters operating with
  NCE licenses.   It should be made clear that the underlying policies and interpretations of
  past precedent that animated the "additional guidance" majority at the Commission are
  themselves null and void.  If this question is left open, the Commission is sure to go a
  second round on the specifics of when religious stations should be deemed to serve
  "educational" ends.  All it would take is for a similar license transfer application to come
  along, and we receive many such applications: a renewed regulatory battle over this issue
  is likely just a question of time.  I fear that, in the meanwhile, the speech of religious
  broadcasters operating on the NCE band will be chilled and that, when the issue again
  comes to a head at the Commission, their speech will be directly abridged.
  
  Thank you again for inviting me to appear before you today.