79–006

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

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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 BROAD- CAST 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’’.

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(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

§ 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, instrucVerDate 11-MAY-2000 04:06 Jun 13, 2000 Jkt 079006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR662.XXX pfrm09 PsN: HR662
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tional 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 cosponsors, 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 the underlying 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

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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. § 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. § 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.

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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

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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.’’

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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. § 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. §§ 303A, 303B) or the requirements of sections 396,

399, 399A, and 399B of the Communications Act of 1934 (47 U.S.C.

§§ 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. § 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., § 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

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privacy protection requirements, laid out in section 396(k)(12) (47

U.S.C., § 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 purVerDate 11-MAY-2000 04:06 Jun 13, 2000 Jkt 079006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6603 E:\HR\OC\HR662.XXX pfrm09 PsN: HR662
11

poses) in the station’s community of license, unless that determination is arbitrary or unreasonable.

(2) ADDITIONAL CONTENT-BASED REQUIREMENTS PROHIB- ITED.—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)***

* * * * * * *

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(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)***

* * * * * * *

(13)

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 nonexistent 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

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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.

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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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