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[House Report 106-662]
[From the U.S. Government Publishing Office]

                                                                       
106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-662

======================================================================

 
      NONCOMMERCIAL BROADCASTING FREEDOM OF EXPRESSION ACT OF 2000

                                _______
                                

  June 9, 2000.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Bliley, from the Committee on Commerce, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 4201]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Commerce, to whom was referred the bill 
(H.R. 4201) to amend the Communications Act of 1934 to clarify 
the service obligations of noncommercial educational broadcast 
stations, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     3
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     7
Committee on Government Reform Oversight Findings................     7
New Budget Authority, Entitlement Authority, and Tax Expenditures     7
Committee Cost Estimate..........................................     7
Congressional Budget Office Estimate.............................     7
Federal Mandates Statement.......................................     8
Advisory Committee Statement.....................................     8
Constitutional Authority Statement...............................     8
Applicability to Legislative Branch..............................     8
Section-by-Section Analysis of the Legislation...................     8
Changes in Existing Law Made by the Bill, as Reported............    10
Minority Views...................................................    13

                               Amendment

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Noncommercial Broadcasting Freedom 
of Expression Act of 2000''.

SEC. 2. FINDINGS.

    The Congress finds the following:
          (1) In the additional guidance contained in the Federal 
        Communication Commission's memorandum opinion and order in WQED 
        Pittsburgh (FCC 99-393), adopted December 15, 1999, and 
        released December 29, 1999, the Commission attempted to impose 
        content-based programming requirements on noncommercial 
        educational television broadcasters without the benefit of 
        notice and comment in a rulemaking proceeding.
          (2) In doing so, the Commission did not adequately consider 
        the implications of its proposed guidelines on the rights of 
        such broadcasters under First Amendment and the Religious 
        Freedom Restoration Act.
          (3) Noncommercial educational broadcasters should be 
        responsible for using the station to primarily serve an 
        educational, instructional, cultural, or religious purpose in 
        its community of license, and for making judgments about the 
        types of programming that serve those purposes.
          (4) Religious programming contributes to serving the 
        educational and cultural needs of the public, and should be 
        treated by the Commission on a par with other educational and 
        cultural programming.
          (5) Because noncommercial broadcasters are not permitted to 
        sell air time, they should not be required to provide free air 
        time to commercial entities or political candidates.
          (6) The Commission should not engage in regulating the 
        content of speech broadcast by noncommercial educational 
        stations.

SEC. 3. CLARIFICATION OF SERVICE OBLIGATIONS OF NONCOMMERCIAL 
                    EDUCATIONAL OR PUBLIC BROADCAST STATIONS.

    (a) Service Conditions.--Section 309 of the Communications Act of 
1934 (47 U.S.C. 309) is amended by adding at the end the following new 
subsection:
    ``(m) Service Conditions on Noncommercial Educational and Public 
Broadcast Stations.--
          ``(1) In general.--A nonprofit organization shall be eligible 
        to hold a noncommercial educational radio or television license 
        if the station is used primarily to broadcast material that the 
        organization determines serves an educational, instructional, 
        cultural, or religious purpose (or any combination of such 
        purposes) in the station's community of license, unless that 
        determination is arbitrary or unreasonable.
          ``(2) Additional content-based requirements prohibited.--The 
        Commission shall not--
                  ``(A) impose or enforce any quantitative requirement 
                on noncommercial educational radio or television 
                licenses based on the number of hours of programming 
                that serve educational, instructional, cultural, or 
                religious purposes; or
                  ``(B) impose or enforce any other requirement on the 
                content of the programming broadcast by a licensee, 
                permittee, or applicant for a noncommercial educational 
                radio or television license that is not imposed and 
                enforced on a licensee, permittee, or applicant for a 
                commercial radio or television license, respectively.
          ``(3) Rules of construction.--Nothing in this subsection 
        shall be construed as affecting--
                  ``(A) any obligation of noncommercial educational 
                television broadcast stations under the Children's 
                Television Act of 1990 (47 U.S.C. 303a, 303b); or
                  ``(B) the requirements of section 396, 399, 399A, and 
                399B of this Act.''.
    (b) Political Broadcasting Exemption.--Section 312(a)(7) of the 
Communications Act of 1934 (47 U.S.C. 312(a)(7)) is amended by 
inserting ``, other than a noncommercial educational broadcast 
station,'' after ``use of a broadcasting station''.
    (c) Audit of Compliance With Donor Privacy Protection 
Requirements.--Section 396(l)(3)(B)(ii) of the Communications Act of 
1934 (47 U.S.C. 396(l)(3)(B)(ii)) is amended--
          (1) in subclause (I), by inserting before the semicolon the 
        following: ``, and shall include a determination of the 
        compliance of the entity with the requirements of subsection 
        (k)(12)''; and
          (2) in subclause (II), by inserting before the semicolon the 
        following: ``, except that such statement shall include a 
        statement regarding the extent of the compliance of the entity 
        with the requirements of subsection (k)(12)''.
    (d) Implementation.--Consistent with the requirements of section 4 
of this Act, the Federal Communications Commission shall amend sections 
73.1930 through 73.1944 of its rules (47 CFR 73.1930-73.1944) to 
provide that those sections do not apply to noncommercial educational 
broadcast stations.

SEC. 4. RULEMAKING.

    (a) Limitation.--After the date of enactment of this Act, the 
Federal Communications Commission shall not establish, expand, or 
otherwise modify requirements relating to the service obligations of 
noncommercial educational radio or television stations except by means 
of agency rulemaking conducted in accordance with chapter 5 of title 5, 
United States Code, and other applicable law (including the amendments 
made by section 3).
    (b) Rulemaking Deadline.--The Federal Communications Commission 
shall prescribe such revisions to its regulations as may be necessary 
to comply with the amendment made by section 3 within 270 days after 
the date of enactment of this Act.

                          Purpose and Summary

    The purpose of H.R. 4201, the Noncommercial Broadcasting 
Freedom of Expression Act of 2000, is to ensure that the 
Federal Communications Commission (FCC) does not engage in 
regulating the content of speech broadcast by noncommercial 
educational stations, except by means of a formal agency 
rulemaking.

                  Background and Need for Legislation

    Since 1952, the FCC has reserved a limited number of 
television channels for educational broadcasters, known as Non-
Commercial Educational channels (NCEs). Under Commission rules 
(47 CFR Sec. 73.621(a)), applicants seeking to use NCE-reserved 
television channels are required to demonstrate that their 
programming will be ``primarily educational'' in nature and 
thus serve the educational purpose for which the channel was 
reserved. While many religious broadcasters hold traditional 
commercial broadcast licenses, some religious broadcasters have 
requested that they be certified as NCE-TV broadcasters and 
thereby, become subject to the standards of an NCE television 
station.
    On December 29, 1999, the FCC issued a memorandum opinion 
and order in the WQED Pittsburgh decision (FCC 99-393) 
approving the application for an assignment of a license. 
However, this order included a section entitled ``additional 
guidance'' regarding noncommercial educational broadcasting. 
This additional guidance essentially attempted to impose 
content-based programming requirements on noncommercial 
educational television broadcasters in three ways.
    First, it quantified the obligations 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.'' Second, the ``additional guidance'' 
concluded that ``a program must have as its primary purpose 
service to the educational, instructional or cultural needs of 
the community'' in order to be counted toward this new 
benchmark. Third, it singled out religious programming and 
essentially distinguished 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 generally not qualify. The memorandum opinion and 
order explicitly found that church services do not serve the 
educational and cultural needs of the general public.
    Controversy soon arose from many religious broadcasters 
about the policy implications of this additional guidance 
section, as well as about the process by which it was announced 
by the Commission. Critics, including several newspaper 
editorial boards across the country, questioned the FCC's 
judgment in the decision. Congressional pressure increased, 
including the introduction of H.R. 3525, the Religious 
Broadcasting Freedom Act, with 59 original co-sponsors, which 
set aside the FCC's Order. On January 28, 2000, the Commission 
issued an order vacating the ``additional guidance'' section on 
the original decision.
    However, questions remained as to whether the FCC's 
December 29th order was instituting new policy, or simply a 
clarification of previous policy that had been implemented in 
the past. Members continued to insist that, if the December 
order was only a clarification of previous policy, then 
vacating that clarification would not solve theunderlying 
problem with the Commission's interpretation of the law. H.R. 4201, the 
Noncommercial Broadcasting Freedom of Expression Act of 2000 seeks to 
answer these policy questions in order to avoid future confusion 
regarding the policy.

                                Hearings

    The Subcommittee on Telecommunications, Trade and Consumer 
Protection held a hearing on H.R. 4201, the Noncommercial 
Broadcasting Freedom of Expression Act of 2000 on April 13, 
2000. The Subcommittee received testimony from: Mr. Mark 
Dreistadt, Vice President of Administration and Finance, 
Cornerstone Television; The Honorable Harold Furchtgott-Roth, 
Commissioner, Federal Communications Commission; Mr. E. Brandt 
Gustavson, L.L.D., President, National Religious Broadcasters; 
The Honorable Gloria Tristani, Commissioner, Federal 
Communications Commission; and Mr. Don Wildmon, President, 
American Family Association.

                        Committee Consideration

    On May 10, 2000, the Subcommittee on Telecommunications, 
Trade and Consumer Protection met in open markup session and 
approved H.R. 4201, the Noncommercial Broadcasting Freedom of 
Expression Act of 2000 for Full Committee consideration, as 
amended by a record vote of 11 yeas and 5 nays. On May 17, the 
Full Committee met in open markup session and ordered H.R. 4201 
reported, with an amendment, by a voice vote.

                            Committee Votes

    Clause 3(b) of Rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. 
There were no record votes taken in connection with ordering 
H.R. 4201 reported. A motion by Mr. Bliley to order H.R. 4201 
reported to the House, without amendment, was agreed to by a 
voice vote.
    The following amendments were agreed to by a voice vote:
          An amendment by Mr. Oxley, #2, clarifying that the 
        requirements for non-commercial educational licensees 
        under section 396 of the Communications Act of 1934 (47 
        U.S.C. Sec.  396) are not affected by H.R. 4201; and,
          An amendment by Mr. Oxley, #3, requiring an 
        independent biennial audit of public broadcasting 
        stations' compliance with the donor privacy protections 
        set forth in section 396(k)(12) of the Communications 
        Act of 1934 (47 U.S.C. Sec. 396(k)).
    The following amendment was not agreed to by a record vote 
of 14 yeas and 23 nays. The names of Members voting for and 
against follow:
          An amendment by Mr. Markey, #1, allowing only 
        nonprofit educational organizations eligibility to hold 
        noncommercial licenses and establishing the principle 
        that broadcast material must serve an educational, 
        instructional, cultural or educational religious 
        purpose in the station's community of license.
        
        
                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee held a legislative 
hearing and made findings that are reflected in this report.

           Committee on Government Reform Oversight Findings

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, no oversight findings have been 
submitted to the Committee by the Committee on Government 
Reform.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
4201, the Noncommercial Broadcasting Freedom of Expression Act 
of 2000, would result in no new or increased budget authority, 
entitlement authority, or tax expenditures or revenues.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 25, 2000.
Hon. Tom Bliley,
Chairman, Committee on Commerce, House of Representatives, Washington, 
        DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4201, the 
Noncommercial Broadcasting Freedom of Expression Act of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Kathleen 
Gramp.
            Sincerely,
                                         Barry B. Anderson,
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 4201--Noncommercial Broadcasting Freedom of Expression Act of 2000

    H.R. 4201 would limit the Federal Communications 
Commission's (FCC's) authority to regulate the content of 
noncommercial educational broadcast services. For example, the 
commission could not require such stations to broadcast a 
minimum number of hours of educational or similar programming. 
Likewise, it could not set standards for the content of 
noncommercial broadcasts that differ from the standards 
applicable to commercial stations. (The bill would affirm, 
however, that such stations must continue to comply with 
statutory restrictions regarding advertising, political 
editorials, and children's television programming.) Finally, 
H.R. 4201 would require that the biannual audits of the 
Corporation for Public Broadcasting include reports on its 
compliance with statutory restrictions on disclosing the 
identity of contributors and donors.
    Based on information from the FCC, CBO estimates that 
implementing this bill would have no significant effect on the 
commission's workload or its discretionary spending. For 
purposes of this estimate, CBO assumes that the legislation 
would have little, if any, effect on the number of applications 
for new noncommercial stations. Hence, we estimate that 
enacting H.R. 4201 would have no significant effect on 
offsetting receipts from the FCC's auction of spectrum 
licenses. Because the bill could affect direct spending, pay-
as-you-go procedures would apply, but CBO estimates that any 
such effects would be negligible.
    H.R. 4201 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact is Kathleen Gramp. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 3, which grants Congress the power 
to regulate commerce with foreign nations, among the several 
States, and with the Indian tribes.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation

Section 1. Short Title

    This section provides the short title of the legislation, 
the ``Noncommercial Broadcasting Freedom of Expression Act of 
2000.''

Section 2. Findings

    Section 2 sets forth certain findings.

Section 3. Clarification of Service Obligations of Noncommercial 
        Educational or Public Broadcast Stations

    Section 3(a)(1) amends section 309 of the Communications 
Act of 1934 (47 U.S.C. Sec. 309) by adding a new subsection 
(m). This new subsection establishes the eligibility 
requirements for nonprofit organizations to hold noncommercial 
radio or television licenses. Under this section, these 
licenses must be used to primarily broadcast material that the 
organization determines serves an educational, instructional, 
cultural or religious purpose in the station's community of 
license. This new section also mandates that such determination 
by the broadcaster may not be arbitrary or unreasonable. The 
Committee does not intend to favor material with religious 
purposes over any other type of educational, instructional or 
cultural programming, but rather to allow religious content as 
one type of acceptable material for broadcast for noncommercial 
stations.
    Section 3(a)(2) provides that the FCC is prohibited from 
establishing additional content-based requirements on 
noncommercial educational radio or television licenses. These 
requirements include, but are not necessarily limited to: 
quantitative requirements on the number of hours of programming 
that serves educational, instructional, cultural or religious 
purposes; or, any other requirements on a noncommercial 
educational radio or television licensee, permittee, or 
applicant that is not imposed or enforced on a commercial radio 
or television licensee, permittee or applicant.
    Section 3(a)(3) clarifies that nothing in subsection (a) is 
to be construed as affecting any obligation of noncommercial 
educational television broadcast stations under the Children's 
Television Act of 1990 (47 U.S.C. Sec. Sec. 303A, 303B) or the 
requirements of sections 396, 399, 399A, and 399B of the 
Communications Act of 1934 (47 U.S.C. Sec. Sec. 396, 399, 399A, 
399B). The Committee intends to make clear with this subsection 
that the requirements for the Corporation for Public 
Broadcasting, particularly; the biennial audit by independent 
certified public accountants, the prescribed accounting records 
will not be affected in any way. Furthermore, the Committee 
intends to ensure that the noncommercial educational 
broadcasting rules for supporting or opposing political 
candidates, and the underwriting/advertising activities also 
are not affected by this subsection. Furthermore, the Committee 
does not intend the displacement of any existing public 
broadcast station from their current spectrum allocation 
following enactment of this legislation.
    Section 3(b)amends section 312(a)(7) of the Communications 
Act of 1934 (47 U.S.C. Sec. 312(a)(7)) by clarifying that a 
noncommercial educational broadcast station may not have its 
license revoked for failure to allow reasonable amounts of time 
to candidates for Federal elective offices. Because commercial 
stations are subject to such rules, the Committee intends to 
make statutorily clear that noncommercial educational stations, 
are not included as well.
    Section 3(c) amends section 396(l)(3)(B)(iii) of the 
Communications Act of 1934 (47 U.S.C., Sec. 396(l)(3)(B)(iii)) 
to include in the biennial audits of the Corporation for Public 
Broadcasting by independent accountants, a determination of 
compliance with the donor privacy protection requirements, laid 
out in section 396(k)(12) (47 U.S.C., Sec. 396(k)(12)). The 
donor privacy protection requirements set forth that public 
broadcasting entities that disclose contributor or donor names 
must inform the donor that personal information may be 
disclosed to a third party, give the donor the opportunity to 
opt out of such a disclosure before the fact, and explain how 
the donor may exercise that nondisclosure option. The 
requirements further prohibit any public broadcaster from 
renting or exchanging donor names to any political candidate, 
party or committee. The Committee intends that biennial audits 
of public broadcasters include a determination of compliance 
with these requirements, in addition to the other areas of 
auditor review.
    Section 3(d) directs the FCC to amend sections 73.1930 
through 73.1944 of its rules (47 CFR 73.1930-73.1944) to 
provide that those sections do not apply to noncommercial 
educational broadcast stations.

Section 4. Rulemaking

    Section 4 establishes that the FCC may not modify any 
requirements to the service obligations of noncommercial 
educational radio or television stations without conducting a 
formal rulemaking. Section 4 further prescribes that the FCC 
make the necessary revisions to its regulations, in order to 
comply with section 3 within 270 days after the date of 
enactment.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                      COMMUNICATIONS ACT OF 1934

           *       *       *       *       *       *       *

                TITLE III--PROVISIONS RELATING TO RADIO

                      PART I--GENERAL PROVISIONS

           *       *       *       *       *       *       *

SEC. 309. ACTION UPON APPLICATIONS; FORM OF AND CONDITIONS ATTACHED TO 
                    LICENSES.

  (a) * * *

           *       *       *       *       *       *       *

  (m) Service Conditions on Noncommercial Educational and 
Public Broadcast Stations.--
          (1) In general.--A nonprofit organization shall be 
        eligible to hold a noncommercial educational radio or 
        television license if the station is used primarily to 
        broadcast material that the organization determines 
        serves an educational, instructional, cultural, or 
        religious purpose (or any combination of such purposes) 
        in the station's community of license, unless that 
        determination is arbitrary or unreasonable.
          (2) Additional content-based requirements 
        prohibited.--The Commission shall not--
                  (A) impose or enforce any quantitative 
                requirement on noncommercial educational radio 
                or television licenses based on the number of 
                hours of programming that serve educational, 
                instructional, cultural, or religious purposes; 
                or
                  (B) impose or enforce any other requirement 
                on the content of the programming broadcast by 
                a licensee, permittee, or applicant for a 
                noncommercial educational radio or television 
                license that is not imposed and enforced on a 
                licensee, permittee, or applicant for a 
                commercial radio or television license, 
                respectively.
          (3) Rules of construction.--Nothing in this 
        subsection shall be construed as affecting--
                  (A) any obligation of noncommercial 
                educational television broadcast stations under 
                the Children's Television Act of 1990 (47 
                U.S.C. 303a, 303b); or
                  (B) the requirements of section 396, 399, 
                399A, and 399B of this Act.

           *       *       *       *       *       *       *

SEC. 312. ADMINISTRATIVE SANCTIONS.

  (a) The Commission may revoke any station license or 
construction permit--
          (1) * * *

           *       *       *       *       *       *       *

          (7) for willful or repeated failure to allow 
        reasonable access to or to permit purchase of 
        reasonable amounts of time for the use of a 
        broadcasting station, other than a noncommercial 
        educational broadcast station, by a legally qualified 
        candidate for Federal elective office on behalf of his 
        candidacy.

           *       *       *       *       *       *       *

     PART IV--ASSISTANCE FOR PUBLIC TELECOMMUNICATIONS FACILITIES; 
TELECOMMUNICATIONS DEMONSTRATIONS; CORPORATION FOR PUBLIC BROADCASTING

           *       *       *       *       *       *       *

             Subpart D--Corporation for Public Broadcasting

SEC. 396. DECLARATION OF POLICY.

  (a) * * *

           *       *       *       *       *       *       *

  (l)(1) * * *

           *       *       *       *       *       *       *

  (3)(A)

           *       *       *       *       *       *       *

  (B) Each public telecommunications entity receiving funds 
under this subpart shall be required--
          (i) * * *
          (ii)(I) to undergo a biennial audit by independent 
        certified public accountants or independent licensed 
        public accountants certified or licensed by a 
        regulatory authority of a State, which audit shall be 
        in accordance with auditing standards developed by the 
        Corporation, in consultation with the Comptroller 
        General, and shall include a determination of the 
        compliance of the entity with the requirements of 
        subsection (k)(12); or
          (II) to submit a financial statement in lieu of the 
        audit required by subclause (I) if the Corporation 
        determines that the cost burden of such audit on such 
        entity is excessive in light of the financial condition 
        of such entity, except that such statement shall 
        include a statement regarding the extent of the 
        compliance of the entity with the requirements of 
        subsection (k)(12); and
          (iii) * * *

           *       *       *       *       *       *       *

                             MINORITY VIEWS

    H.R. 4201, the ``Noncommercial Broadcasting Freedom of 
Expression Act,'' purports to correct an unwise decision made 
by the Federal Communications Commission last year. 
Unfortunately, the bill itself is controversial, has not been 
constructed in a bipartisan fashion, and, we believe, takes 
precisely the wrong approach to dealing with a serious and 
difficult issue.
    In December 1999, the FCC assigned a noncommercial 
educational broadcast license to a religious programmer, which 
was, by itself, entirely proper under existing rules. However, 
the Commission blundered badly when it supplemented its Order 
with what it called ``additional guidance'' on what kind of 
religious programming would be considered by the government to 
be educational in nature. As one would expect, the agency was 
attacked from both sides of the political spectrum for 
injecting itself into the business of evaluating program 
content.
    The Commission's decision was imprudent at best. But, 
unlike some other notable FCC foul-ups, the agency admitted its 
error and did something about it. Less than one month after 
issuing its ``additional guidance,'' the Commission officially 
rescinded that portion of its Order. It would seem that a 
reasonable response by this Committee would be to declare 
victory and move on to address other matters important to the 
people.
    But this Committee has developed a penchant for fixing 
problems that do not exist. Just this week, the House passed a 
Commerce Committee bill dealing with Internet access charges 
that can only be described as ``virtual legislation.'' Kafka 
himself could only appreciate the manner in which the House 
fabricated a solution--to an imaginary problem--that was 
created by a make-believe Congressman. And now, just days 
later, we address yet another non-existent problem--one that 
was completely mooted back in January when the FCC repealed its 
controversial Order.
    There is, however, an important distinction to be drawn 
between these two bills. The Internet bill was completely 
innocuous. While it was entirely unnecessary, it caused no 
direct or collateral damage, and the minority was able to 
support it. On the other hand, the bill before us today is ill-
conceived, poorly vetted, and poses a dangerous threat to the 
future of noncommercial educational broadcasting in this 
country.
    Regrettably, the majority refused to accept a perfecting 
amendment, offered by Mr. Markey, that simply would have 
clarified that the primary purpose of a ``noncommercial 
educational license'' is to provide educational programming. 
This important amendment was voted down along party lines.
    The Markey amendment was a simple, but significant, 
clarification. Without this correction, the fundamental nature 
of public broadcasting is drastically changed. No longer will 
the availability of these specially reserved licenses be 
limited to nonprofit groups with an educational mission. This 
bill would allow any cult group in America to qualify for a 
free broadcast license--at the expense of the American 
taxpayer--and program anything that it sees fit, whether 
educational or not.
    In fact, under the rubric proposed here, Jim Jones would 
have been eligible for a public broadcasting license simply by 
asserting a primarily religious purpose. David Koresh could 
have received this special license to broadcast his doomsday 
prophecies. The Heaven's Gate cult could have extended its 
reach significantly if it had been armed with a public 
broadcasting license in the State of California.
    This legislation makes clear that the majority intends to 
change the fundamental character of public broadcasting in 
America. No longer will these special channels be required to 
carry educational material. Any license applicant that regards 
his or her programming to be ``religious'' in nature--whether 
it contains an educational component or not--now will be 
eligible for a free public television channel.
    Moreover, the bill suffers from a multitude of infirmities 
and inconsistencies. It contains no definition of ``nonprofit 
organization'' or ``religious broadcasting'' to assist in 
determining who is eligible to receive this special licensee 
status. The practical effect of these omissions is to extend 
the eligibility for a public broadcasting station to a sweeping 
new class of broadcast applicants, many of whom may not be 
operating in the public interest of their community of license.
    The bill contains absolutely no criteria or guidance for 
the government, i.e., the FCC, to select a licensee from among 
competing applicants. While the majority ostensibly seeks to 
prevent the FCC from ever discriminating against a license 
applicant on the basis of the religious nature of its 
programming, it may be forcing precisely that result.
    Since the longstanding educational programming requirement 
has been eviscerated by this bill, an applicant now would be 
eligible on the basis that it intends to broadcast 100% 
religious programming. Ironically, if two (or more) religious 
broadcasters are vying for a single license, the FCC now may be 
forced to choose between them based solely on the nature of the 
religious content.
    The government should not be in the position of conferring 
any special status to one religious broadcaster over another, 
but that is just what this bill requires. It is clearly an 
unconstitutional encroachment on the establishment clause of 
the First Amendment, but the majority insists that it be rushed 
through the legislative process apparently with little regard 
for that important matter. In our view, this kind of 
legislating simply tarnishes the reputation of this great 
institution, and serves none of us well.
    Although we may fundamentally disagree on the underlying 
need for this legislation, it is unfortunate that the majority 
refused to work with us in any way to produce a compromise 
product--one that could have addressed the majority's concerns 
while protecting the integrity of the broadcast spectrum, 
maintaining a cohesive telecommunications policy, and, above 
all, honoring the Constitution.
                                   John D. Dingell.
                                   Ed Markey.
                                   Frank Pallone, Jr.
                                   Lois Capps.
                                   Ron Klink.
                                   Eliot L. Engel.
                                   Tom Sawyer.
                                   Karen McCarthy.
                                   Diana DeGette.
                                   Anna G. Eshoo.
                                   Sherrod Brown.

                                  
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