U.S. GOVERNMENT PRINTING OFFICE

64–025CC WASHINGTON : 2000

THE RELIGIOUS BROADCASTING FREEDOM ACT

AND THE NONCOMMERCIAL BROADCASTING

FREEDOM OF EXPRESSION ACT OF 2000

HEARING

BEFORE THE

SUBCOMMITTEE ON TELECOMMUNICATIONS,

TRADE, AND CONSUMER PROTECTION

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

ON

H.R. 3535—THE RELIGIOUS BROADCASTING FREEDOM ACT

H.R. 4201—THE NONCOMMERCIAL BROADCASTING FREEDOM OF

EXPRESSION ACT OF 2000

APRIL 13, 2000

Serial No. 106–121

Printed for the use of the Committee on Commerce

(

COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

TOM SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON TELECOMMUNICATIONS, TRADE, AND CONSUMER PROTECTION

W.J. ‘‘BILLY’’ TAUZIN, Louisiana, Chairman

MICHAEL G. OXLEY, Ohio,

Vice Chairman

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ROBERT L. EHRLICH, Jr., Maryland

TOM BLILEY, Virginia,

(Ex Officio)

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

BILL LUTHER, Minnesota

RON KLINK, Pennsylvania

TOM SAWYER, Ohio

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

2

C O N T E N T S

Page

Testimony of:

Dreistadt, Mark, Vice President, Administration and Finance, Cornerstone Television ............................................................................................. 15

Furchtgott-Roth, Hon. Harold W., Commissioner, Federal Communications Commission .......................................................................................... 6

Gustavson, E. Brandt, President, National Religious Broadcasters ............ 20

Tristani, Hon. Gloria, Commissioner, Federal Communications Commission ................................................................................................................. 11

Wildmon, Don, President, American Family Association .............................. 24

Material submitted for the record by:

Citizens for Independent Public Broadcasting, letter dated April 13, 2000,

enclosing material for the record ................................................................. 54

(III)

(1)

HEARING ON H.R. 3535, THE RELIGIOUS

BROADCASTING FREEDOM ACT AND H.R.

4201, THE NONCOMMERCIAL BROADCASTING FREEDOM OF EXPRESSION ACT

OF 2000

THURSDAY, APRIL 13, 2000

HOUSE OF REPRESENTATIVES, COMMITTEE ON COMMERCE, SUBCOMMITTEE ON TELECOMMUNICATIONS, TRADE AND CONSUMER PROTECTION, Washington, DC.

The subcommittee met, pursuant to notice, at 1:08 p.m., in room

2322, Rayburn House Office Building, Hon. W.J. ‘‘Billy’’ Tauzin

(chairman) presiding.

Members present: Representatives Tauzin, Gillmor, Pickering,

Stearns, Oxley, Shimkus, and Markey.

Staff present: Linda Bloss-Baum, majority counsel; Cliff Riccio,

legislative analyst; and Andy Levin, minority counsel.

Mr. TAUZIN. The committee will please come to order.

Welcome and good afternoon.

Early this year, the FCC sought to quantify the service obligations of noncommercial television licenses by requiring that ‘‘More

than half of the hours of programming aired on a reserved channel

must serve an educational, instructional or cultural purpose in the

station’s community of license.’’ The Commission further determined that while programming which ‘‘teaches about religion’’

would count toward the new benchmark, programs ‘‘devoted to religious exhortation, proselytizing, or statements of personally held

religious views and beliefs would not qualify.’’

In drawing substantive distinctions between varying religious

messages, the FCC clearly attempted to impose content-based programming requirements on noncommercial, religious television

broadcasters without considering the implications such requirements had on broadcaster rights under the First Amendment and

the Religious Freedom Restoration Act. Moreover, the FCC tried to

directly discriminate against religious broadcasters without ever

conducting notice or comment.

In the wake of these actions, the FCC was inundated with stern

opposition to the ‘‘Additional Guidance portion’’ of its WQED Pittsburgh Memorandum, Opinion and Order. This opposition came

from noncommercial licensees, from listeners, viewers and religious

groups and from the Hill in waves. I, myself, sent a list of 33 questions to Chairman Kennard asking him to explain full detail the

2

basis for the Commission’s decision. Just as I suspected, the Commission declined to respond to the interrogatories. In addition, Congressman Oxley dropped a bill to negate the legal effect of the

WQED Pittsburgh Order which is one of the two bills up for consideration here today.

Fortunately, in response to our collective public outcry over its

actions, the FCC wisely decided to vacate the Additional Guidance

portion of its order by a vote of 4 to 1. For that, I do commend the

Commission. However, I feel there is still some cause for concern.

Despite the 4 to 1 reversal of its order, it is clear that some Commissioners still contend that the Additional Guidance portion of the

Order represents sound policy that offends neither the First

Amendment, the Religious Freedom Restoration Act, nor traditional American values. Commissioner Tristani has even asserted

that she, ‘‘for one, will continue to cast her vote in accordance with

the views expressed in the Additional Guidance.’’ This gives me the

eerie feeling that if we, in Congress, don’t legislate in this area as

soon as possible, FCC will once again attempt to impose onerous

and unreasonable eligibility standards upon those entities seeking

to receive and maintain noncommercial educational broadcast licenses. Once again, I fear these standards will have the net effect

of directly discriminating against religious content.

Today, we are here to discuss the proper legislative course of action to deal with the situation. Before us are two bills, H.R. 3201,

the Noncommercial Broadcasting Freedom of Expression Act, introduced by Mr. Pickering last week and H.R. 3525, the Religious

Broadcasting Freedom Act, the bill I alluded to earlier that was introduced by Mr. Oxley shortly after the FCC issued its WQED

Pittsburgh Order. Both of these are good bills and clearly we would

be better off than we are today if either one were enacted into law.

At this juncture, I feel the approach taken by H.R. 3525, while

very noble in concept, needs some strengthening. In addition to directing the FCC to vacate the WQED Pittsburgh Order, which it

has already done, H.R. 3525 enables the FCC to set eligibility

standards, content-based programming requirements and content

neutral programming requirements subject to only one limitation,

that the Commission must set these standards and requirements

through a rulemaking proceeding based on notice and comment.

While it is true the FCC offended us all when it tried to circumvent the notice and comment requirements of the APA, I don’t

believe that we solve our ultimate problem simply by requiring the

FCC to go through a rulemaking every time they decide to legislate

on the content requirements of noncommercial broadcasters.

Just because a rulemaking proceeding may produce a record that

we all like does not mean we can trust the FCC the objectively

abide by that record. To the contrary, in the age of the administrative state, the FCC has the become rather infamous, I think, in

shunning an administrative record and imposing its own policy

agenda when it chooses to do so.

We are, on the floor today, dealing with an FM radio bill that

is a good example of that where the Commission moved through a

rule to do something which this committee feels very strongly was

heading in a very bad direction.

3

Later today, I will be managing the bill also introduced by Mr.

Oxley on the floor to deal exactly with that. As we rightfully acknowledged before the Rules Committee yesterday, the bill that we

have on the floor today seeks to rectify the situation whereby the

Commission created a new low-powered FM radio license in complete disregard of the administrative record containing clear evidence that the creation of these new licenses would result in unacceptable levels of interference for existing FM stations.

In light of this LPFM predicament, I must ask why should we

expect the FCC to respect the record that might renounce the

FCC’s proposed definition of cultural, instructional and educational

program or its proposed eligibility standards for receiving and holding a noncommercial license. The short answer is that we shouldn’t

and we can’t afford to.

Rulemakings these days only slow down the FCC just a bit. Even

when charged with notice, content and comment responsibilities,

the FCC always seems to find a way to impose its will, whether

or not that is the will of Congress to whom the FCC is supposed

to be legislatively answerable.

I think enough is enough. Now the FCC has shown us the blueprint of how it would prefer to treat noncommercial, religious programming, we simply need a bill that does more than subject that

blueprint to notice and comment. Mr. Pickering’s bill, H.R. 4201,

which he has introduced on behalf of Mr. Oxley, myself, Mr.

Largent, Mr. Stearns, I believe today Mr. Armey and Mr. DeLay

have signed on as co-sponsors, takes an appropriately stronger

stance against the FCC and against what they tried to do earlier

this year.

Under H.R. 4201, an entity is eligible for a noncommercial license where the station is primarily used to broadcast material

that the entity reasonably determines serves an educational, instructional or cultural purpose. Unless such determinations are arbitrary or unreasonable, the FCC must defer to the editorial programming judgment of the entity by affording actual licensees

some discretion to determine what type of programming bears a

reasonable or rational relationship to educational, instructional or

cultural.

The bill imposes a single, clear, non-onerous eligibility requirement on noncommercial broadcasters. Moreover, the FCC in paragraph 3 of its Memorandum, Opinion and Order, which vacates the

Additional Guidance of the WQED Order, fully admits that this

type of discretion affording eligibility standard is in fact the most

prudent type of eligibility standard the Commission should be enforcing.

I quote from paragraph 3 of the Order, ‘‘In hindsight, we see the

difficulty of making clear definitional parameters for ’educational

instruction or cultural programming.’ Therefore, we vacate our Additional Guidance. We will defer to the editorial judgment of the licensees unless such judgment is arbitrary or unreasonable.’’ In accordance with this conclusion, H.R. 4201 prudently seeks to codify

this standard so that something more onerous cannot be proposed

later on down the road. The Commission, pursuant to its own regulations, has been deferring to the reasonable judgment of nonVerDate 11-MAY-2000 08:41 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 E:\HEARINGS\64025 pfrm01 PsN: 64025
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commercial broadcasters for years. Now is not the time to change

that policy.

In addition, H.R. 4201 prevents the FCC from imposing the same

content-based programming requirements upon noncommercial programming that we saw in the WQED Order. Specifically, the FCC

cannot require that a majority or 50.1 percent of noncommercial

entity programming must serve an educational, instructional or

cultural purpose in order for that entity to receive and hold a noncommercial broadcast license.

In addition, the FCC, under the bill, cannot prevent religious

programming from being determined by a licensee to serve an educational, instructional or cultural purpose. Nor can the Commission, in this bill, impose any other requirements on the content of

noncommercial programming that are not currently imposed upon

commercially broadcast programming.

Finally, H.R. 4201 protects both the noncommercial television

and radio license and licensees whereas the protections provided by

H.R. 3525 extend only to television licensees. The new bill covers

not only the television but radio licensees of religious programming.

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. MICHAEL G. OXLEY, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF OHIO

As we all know, in an FCC order released December 29, 1999 involving what

should have been a routine television license transfer, the FCC provided ‘‘additional

guidance’’ to noncommercial licensees stating that, henceforth, ‘‘religious exhortation, proselytizing, or statements of personally-held religious views and beliefs

generally would not qualify as ‘general educational’ programming.’’

The order also quantified the educational mandate of noncommercial licensees to

require them to devote at least 50 percent of their air time to educational programming—so the decision not to count traditional religious content towards that 50 percent mandate had serious implications for religious broadcasters. Broadcasters who

did not supplant a sufficient amount of their religious programming with FCC-approved content would run the risk of losing their licenses.

Within days, on January 6th, Congressmen Pickering, Largent, Stearns, and I

sent a letter to Chairman Kennard objecting to the Commission’s action. As we said

in that letter, ‘‘the Commission has no business—no business whatsoever—singling

out religious programming for special scrutiny.’’ We went on to say, ‘‘we advise you

to reverse this ruling, or stand by and see it overturned legislatively or in court.’’

The response we received from Chairman Kennard on January 12 stated that ‘‘the

Commission’s decision in this case... does not establish new rules, but simply clarifies long-standing FCC policy.’’ We immediately wrote back informing Chairman

Kennard that we had drafted legislation to nullify the Commission’s action. H.R.

3525, the Religious Broadcasting Freedom Act, was introduced on January 24th

with 60 original cosponsors. Four days later, the Commission withdrew its additional guidance. Today, H.R. 3525 enjoys the support of 125 bipartisan cosponsors.

While those of us sitting at this dias might like to take full credit for the Commission’s reversal, the truth is there was a much more powerful force at work. That,

of course, was the thousands of people of faith, acting out of religious conviction,

who flooded the Commission and Congress with phone calls, letters, and personal

testimony in support of religious freedom and religious broadcasting. It was a modern-day David and Goliath story.

However, it is my strong opinion that the FCC Order on Reconsideration does not

put the matter to rest. The Commission majority has never acknowledged its errors—substantive or procedural—in issuing the original directive. Rather, they attribute the uproar over the order to ‘‘confusion’’ over its meaning. Given Chairman

Kennard’s claims that the directive was merely a clarification of previous agency

policy, the decision to vacate it does not resolve the underlying problem with the

Commission’s interpretation of the law.

That being the case, I was pleased to work with the gentleman from Mississippi

to build on H.R. 3525, a process which resulted in the introduction of H.R. 4201.

5

This new bill spells out in even clearer terms that the Commission cannot discriminate against religious broadcasters and religious content. I commend the gentleman,

Mr. Pickering, for his hard work on this issue—from day one to the present—and

I thank the Chairman for calling today’s legislative hearing on both measures.

Mr. Chairman, it is clear to me that the FCC needs to have congressional intent

with respect to religious broadcasting spelled out in much clearer terms. God works

in mysterious ways, but almost certainly not through the FCC.

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Thank you Mr. Chairman and thank you for calling this hearing to discuss the

significant threat of content regulation of our nation’s airwaves.

For nearly half a century non-commercial educational television channels have

been allocated by the FCC to better serve the local needs of communities across the

country. Under this well established system, religious broadcasters that wish to become certified as a non-commercial broadcaster have been required to show that

their programming was ‘‘primarily educational.’’

But last December, when Congress was out of session and the public was focused

on the holiday season, the FCC issued a troublesome decision about what programming may qualify for these non-commercial licenses. This decision raised warning

flags on both substance and process.

First on process. Not only was this decision released in the so called ‘‘dark of

night,’’ it was contained as an ‘‘additional guidance’’ section to a license transfer decision—and therefore not subject to public review and comment. In my opinion, any

attempts to impose content-based programming requirements on any broadcaster

must receive the benefits of a public rulemaking proceeding, in order to fully consider the monumental impacts on broadcasters and on the public.

Secondly on substance. The Commission attempted to impose content based requirements on noncommercial educational stations, by requiring that more than half

of the programming hours on a reserved channel be devoted to serve the educational

needs of the community. The Commission specifically singled out religious programming for new rules by stating explicitly that church services would not qualify as

educational programming.

The FCC should not be in the business of quantifying program requirements for

noncommercial stations. Under current standards, the FCC may only assess the reasonableness of a broadcaster’s judgment regarding the educational needs of its community. Let me be clear—the FCC may go no further to review content.

I am pleased to see that both pieces of legislation that we consider today address

these fundamental issues regarding the FCC’s authority to act both substantively

and procedurally. I would like to commend the sponsors of the two bills, Mr. Oxley

and Mr. Pickering, for their hard work and for taking the quick action necessary

to keep the Commission in check. I look forward to hearing the views of our panel

this morning, and with that I yield back the balance of my time.

PREPARED STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF TEXAS

Mr. Chairman: As a cosponsor of H.R. 3525, I was very concerned last December

when the Federal Communications Commission (FCC) issued their ‘‘additional guidance’’ to the WQED-Pittsburgh broadcast license application. The FCC decision attempting to clarify what is and is not educational programming with respect to religious broadcasting was very disturbing.

By not following normal rulemaking procedures the FCC prohibited my constituents from being heard on this issue. Government and God do not mix. When a federal entity decides it wants to involve itself with religious matters there will be a

reaction from Congress. Unfortunately, that is why we are here today.

I believe Mr. Oxley’s legislation is a balanced approach that restores the statusquo to content requirements for non-commercial educational television broadcasters.

I appreciate the FCC acknowledging their mistake and promptly rescinded their additional guidance section.

I am very interested in hearing from both Commissioners on any future action

they may be considering regarding this issue and whether they believe their additional guidance was a new policy directive or simply clarification of previous policy

that had been implemented in the past.

I do not want to completely prohibit the FCC for exercising some limited oversight

of the noncommercial educational channels if we can receive some assurances that

what happened in Pittsburgh was an attempt to implement new policy. If the ComVerDate 11-MAY-2000 08:41 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 E:\HEARINGS\64025 pfrm01 PsN: 64025
6

mission believes that they were simply expanding on existing authority allowing

them to classify educational content, then Mr. Pickering’s legislation which we will

be considering next may have some merit.

I do have some concerns with Mr. Pickering’s legislation. By preventing the FCC

from exercising any regulatory authority over what may or may not qualify as educational content are we creating a loophole that could allow very alternative religious programming to be licensed under the guise of being educational, instructional, or cultural. While the panel members here today represent what I consider

the main stream religions. What happens if someone applies for a non-commercial

educational television license to promote their beliefs in some very alternative religion. What role does the FCC then play in reviewing these types of applications.

This may be an extreme example, but I would appreciate any insights panel members may have on a situation like this occurring.

In conclusion Mr. Chairman, I want to thank you for conducting this important

hearing and I look forward to hearing what the panelists have to add on these

issues.

Mr. TAUZIN. With all that having been said, let me make one

thing very clear. At the end of the day, whichever legislative language is adopted by the subcommittee, we ought to do it right. For

the numerous reasons I have cited today, we cannot allow the Commission to have another bite at this apple when it comes to protecting the freedom on noncommercial speech in religious broadcasting.

The Chair welcomes our panel. I am pleased today to welcome

as our witnesses, the Honorable Harold W. Furchtgott-Roth; the

Honorable Gloria Tristani; Mark Dreistadt, Vice President, Administration and Finance, Cornerstone Television; Mr. Don Wildmon,

President, American Family Association; and Mr. E. Brandt Gustavson, President, National Religious Broadcasters.

We will begin with the Honorable Harold W. Furchtgott-Roth of

the Commission.

STATEMENTS OF HON. HAROLD W. FURCHTGOTT-ROTH, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION;

HON. GLORIA TRISTANI, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; MARK DREISTADT, VICE PRESIDENT, ADMINISTRATION AND FINANCE, CORNERSTONE TELEVISION; E. BRANDT GUSTAVSON, PRESIDENT, NATIONAL

RELIGIOUS BROADCASTERS; AND DON WILDMON, PRESIDENT, AMERICAN FAMILY ASSOCIATION

Mr. FURCHTGOTT-ROTH. Mr. Chairman, as always, it is a great

honor and privilege to be here.

I would like to have my testimony submitted for the record.

Mr. TAUZIN. Without objection, the written statements of all the

witnesses, as well as any members who wish to submit written

statements, will be admitted into the record. It is so ordered.

It is a great honor for me to be here today testifying, along with

my colleague, Commissioner Tristani. She and I do occasionally differ on policy issues but I must say that she brings to the Commission the very highest degree of personal integrity. I am very privileged to serve with her.

The issues before us today have to do with free speech and religious freedom. Mr. Chairman, I will abide no abridgement of either

of those. The issues before us also hinge very much on constitutional law. I cannot sit here before you today and pretend to be personally an expert in that area.

7

I am privileged to have on my staff, Ms. Helgi Walker who I

think is one of the very brightest lawyers with whom I have ever

had the privilege of working. So in my testimony, if you find anything that is accurate and to the point, please recognize that it is

Ms. Walker who has placed it there. If I make any mistakes here,

those are mine.

Mr. TAUZIN. They are all yours, of course.

Mr. FURCHTGOTT-ROTH. In the manner you described, I dissented

vigorously from the Additional Guidance. To my mind, quantification of educational programming obligations 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 NCC 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 subjected to the no exhortation or no statement of personally held views standard announced in that Order.

In Rosenberger v. University of Virginia, the Supreme Court

made clear that once government opens 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

insertion 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 First Amendment violation does not in turn violate

the establishment clause.

Let me quote specifically from the Rosenberger case. At 846, the

Court held, ‘‘There is no establishment clause violation in honoring

duties under the Free Speech Clause. The notion that there is an

establishment clause violation here is simply wrong.’’

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 beliefbased, inquiry. In essence, the standard enunciated in the Order

meant that if you believe what you are saying about religion, you

can’t say it on the noncommercial educational band, but if you don’t

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. It simply is ludicrous.

Commissioner Powell and I stated in our joint dissent ‘‘The more

the Commission attempts to 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 itself

illustrates this 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,

8

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 the sermon.

On January 28 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 cannot 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 defending the original Order, asserted in essence that

‘‘The Commission’s decision was simply writing down what was in

fact Commission practice.’’ This characterization of the WQED

Order is 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 not, in fact, necessary.

Assuming, however, that one does believe the nothing new characterization would be correct, then the 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. It should be made clear that the underlying policies and

interpretations of past precedent that animated the Additional

Guidance that the majority of the Commission adopted themselves

is null and void. If this question is left open, the Commission is

sure to go a second round on the specifics on 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, to have a renewed regulatory battle over this issue. I fear that the speech of

religious broadcasters operating on the noncommercial educational

band will be chilled and when the issue again comes to a head at

the Commission, their speech will be directly abridged.

9

1 47 C.F.R. section 73.621.

2WQEX-WQED Order at para. 43. 3 Id. at para. 44. 4See 512 U.S. 622, 651 (1994) (observing that ‘‘[w]hat is important for [First Amendment] purposes . . . is that noncommercial licensees are not required by statute to or regulation to carry

any specific quantity of ‘educational’ programming or any particular ‘educational’ programs’’). 5See 515 U.S. 819, 828-837(1995) (holding that denial of State funding for publications of student groups to those with religious editorial viewpoints is unconstitutional viewpoint discrimination).

Thank you, Mr. Chairman.

[The prepared statement of Hon. Harold W. Furchtgott-Roth follows:]

PREPARED STATEMENT OF HON. HAROLD W. FURCHTGOTT-ROTH, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION

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.’’ 1 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.2

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.3

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.4 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.5 Conversely—and

contrary to the assertion of some in the WQED majority—the Court also made clear

10

6See id. at 837-846 (holding that funding of religious student publications does not violate the

Establishment Clause); id. at 846 (stating that ‘‘[t]here is no Establishment Clause violation

in . . . honoring... duties under the Free Speech Clause.’’). 7 Cf. FCC v. League of Women Voters, 468 U.S. 364 (1984) (striking down statute barring NCE

stations receiving federal grants from engaging in editorializing). 8WQEX-WQED Order at para. 44 n.91. 9See http://www.fcc.gov/Speeches/Kennard/Statements/2000/stwek003.html.

that allowing such groups to speak on the same basis as others in order to avoid

a First Amendment violation does not, in turn, violate the Establishment Clause.6

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’t say it on the NCE band, but if you don’t 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.7

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.8 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, 2000.9 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 CommisVerDate 11-MAY-2000 08:41 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 E:\HEARINGS\64025 pfrm01 PsN: 64025
11

sion 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.

Mr. TAUZIN. Thank you, Commissioner.

Now the Chair is pleased to welcome the Honorable Gloria

Tristani, Commissioner, Federal Communications Commission.

The Chair would also like to make note that the committee invited all of the five Commissioners, including the Chairman, to be

with us today and the two Commissioners who are here today accepted the invitation.

I also want to point out for the record as I did to my friend yesterday in person, the Chairman of the Commission, we have not

seen the Chairman since October. This is the fourth time he was

not able to schedule to be with us at a hearing like this. I want

to say on the public record that the invitation for him to appear

is still. I would very much like to see Chairman Kennard at one

of our hearings where we might talk policy with him and would encourage him to accept the next invitation. We will try to work a

schedule that does not conflict with his at the next available time.

The Chair is now pleased to welcome the Honorable Gloria

Tristani to the hearing.

STATEMENT OF HON. GLORIA TRISTANI

Ms. TRISTANI. Thank you, Mr. Chairman.

I am pleased to be here to testify at your request. As my statement, I will read portions of my dissenting statement regarding the

Commission’s Order of January 28, 2000 vacating the Additional

Guidance.

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 educational use requirement on

reserved television channels. This is nothing new. For over 20

years, the Commission’s precedent has held that while not all religious programs are educational in nature, it is clear that those programs which involve the teaching of matters relating to religion

would qualify.

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.

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 a small number of television

channels set aside for noncommercial educational use. Religious

broadcasters are free to broadcast whatever they wish on commerVerDate 11-MAY-2000 08:41 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00015 Fmt 6633 Sfmt 6602 E:\HEARINGS\64025 pfrm01 PsN: 64025
12

cial 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 only selectively

promote certain speech without abridging other types of speech.

Perhaps the most disturbing charge leveled against the Commission is that its decision reflects an anti-religious 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 the 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 nonbelief.

As Justice O’Connor recognized in her concurring statement on

County of Allegheny v. ACLU, ‘‘[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.’’ Moreover, Government endorsement of a particular set of

religious beliefs sends a powerful message of exclusion to nonadherence.

Again Justice O’Connor concurring in Lynch v. Donnelly: ‘‘Endorsement sends a message to nonadherents 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.’’

Here, the Government reserves a small number of television

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 and to be responsive to the overall public

as opposed to the sway of particular political, economic, social or

religious interests.

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 it 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 emphaVerDate 11-MAY-2000 08:41 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 E:\HEARINGS\64025 pfrm01 PsN: 64025
13

size 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.’’ County of Allegheny, O’Connor concurring.

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 nonadherents 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 nonreligion, or vice versa.

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 as 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

the 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.

Thank you, Mr. Chairman.

[The prepared statement of Hon. Gloria Tristani follows:]

PREPARED STATEMENT OF HON. GLORIA TRISTANI, COMMISSIONER, FEDERAL

COMMUNICATIONS COMMISSION

I am pleased to be here to testify, at your request, on the Religious Broadcasting

Freedom Act and the Noncommercial Broadcasting Freedom of Expression Act of

2000. As my statement, I am attaching a copy of my dissenting statement regarding

the Commission’s Order of January 28, 2000 in Re: Application of WQED Pittsburgh

and Cornerstone Television, Inc. vacating the ‘‘additional guidance.’’

14

1See Notice of Inquiry, Docket No. 78-164, 43 Fed. Reg. at 30845 (1978) (setting forth processing standards for reserved channels). 2For 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. 3See, 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). 4 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’’). 5Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).

January 28, 2000

DISSENTING STATEMENT OF COMMISSIONER GLORIA TRISTANI

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.’’ 1 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.2

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).3

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.’’ 4 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.5

Here, the government reserves a small number of TV channels in a community

for educating the public. These channels are quite valuable—Cornerstone planned

15

6Fostering Expanded Use of the UHF Channels, 2 FCC 2d 527, 542 (1965) (emphasis added). 7 Noncommercial Nature of Educational Broadcast Stations, 90 FCC 2d 895, 900 (1982). 8 County of Allegheny, 492 U.S. at 651 (O’Connor, J., concurring).

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,’’ 6 and

to be ‘‘responsive to the overall public as opposed to the sway of particular political,

economic, social or religious interests.’’ 7 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.’’ 8 It is

no answer to say that nonadherents 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.

Mr. TAUZIN. Thank you very much, Commissioner.

The Chair is now pleased to welcome Mr. Mark Dreistadt, Vice

President, Administration and Finance, Cornerstone Television in

Pennsylvania. Mr. Dreistadt?

STATEMENT OF MARK DREISTADT

Mr. DREISTADT. Mr. Chairman, members of the subcommittee,

thank you for inviting me to testify before you today on behalf of

Cornerstone Television which operates WPCB Television, Channel

16

40, Greensburg, Pennsylvania, a station with a largely religious

format.

Cornerstone, as you know, was involved in a lengthy FCC proceeding with two other broadcasters to sell WPCB and to acquire

a noncommercial educational station, WQEX in Pittsburgh on

which Cornerstone proposed to air christian educational programming. I welcome this opportunity to comment on both H.R. 3525

and on H.R. 4201.

Early in 1997, Cornerstone entered a cooperative effort with two

other broadcasters, WQED in Pittsburgh and also Paxson Communications Company. WQEX had suffered substantial financial

losses and QED was already a licensee of Channel 13, another noncommercial, educational station in Pittsburgh and they wanted to

sell QED and use the moneys therefrom to enhance their programming. So Cornerstone was willing to purchase WQEX and Paxson

was willing to purchase Cornerstone’s existing television station,

and the appropriate assignment applications were filed with the

FCC in the late spring of 1997.

Cornerstone Television continues to believe that this assignment

would have been good for the community by adding additional diversity in the programming offered on noncommercial televisions

stations in the Pittsburgh area.

Ultimately on January 18, 2000, after over 3 years of litigation

at the FCC, Cornerstone terminated its cooperative effort to acquire Channel 16 and sell Channel 40 to Paxson. Cornerstone’s

President, Oleen Eagle stated, ‘‘Our decision to terminate this

transaction was forced upon us by the unprecedented December 29

Order of the FCC which would have seriously jeopardized our ability to carry out our mission of broadcasting christian educational

programming on Channel 16.’’

In the December 29 Order, the FCC approved the assignment of

the noncommercial Channel 16 license to Cornerstone, however,

the Commission Order contained a section entitled, ‘‘Additional

Guidance’’ in which the Commission announced that more than 50

percent of Cornerstone’s programming on Channel 16 would have

to be educational. The FCC stated further that ‘‘not all programming, including programming about religious matters, qualifies as

general educational programming.’’ By way of example, the FCC

declared that programming devoted to ‘‘religious exhortation, proselytizing statements of personally held religious views and beliefs

and church services generally would not qualify as general educational programming.’’

We believe that ruling was arbitrary and capricious and raises

serious First Amendment concerns. We believe that the FCC failed

to recognize the cultural impact and benefit of religious programming.

The FCC’s Order further stated that Cornerstone was obligated

to comply with these newly announced standards and threatened

that failure to do so could lead to appropriate action, which Cornerstone understood to include the loss of license to broadcast on

Channel 16.

Since Cornerstone’s mission requires us to broadcast programming that involves christian exhortation, evangelizing and statements of personal testimonies and personally held views, beliefs

17

and church services, we could literally be threatened with the loss

of our primary means of carrying out our mission if we exchange

the Channel 40 license for the Channel 16 license. Because of these

problems, Cornerstone felt it had no alternative but to terminate

the agreement.

The financial benefits of the transaction for Cornerstone would

have been significant, about $17.5 million, but there is no benefit

that would justify the sacrifice of religious freedom required by the

FCC Additional Guidance.

During the application process, Cornerstone repeatedly demonstrated its ability as an operator of a noncommercial educational

channel. Cornerstone made modifications to the organization’s mission statement, to its board of directors and to its overall program

schedule in an attempt to more fully comply with the FCC’s existing regulations.

Cornerstone was the subject of an inquiry into content that we

feel is both inappropriate and unprecedented. It took significant

time and expense but in the end, in its text of the December 29

Order, FCC stated, ‘‘We conclude that Cornerstone has provided a

program schedule and description of programming that prevents us

from denying its application. In fact, Cornerstone demonstrated in

excess of over 100 hours weekly of Christian and religious educational programming that would be carried on our schedule.’’

Yet, in the same document, the FCC’s Additional Guidance redefined the programming requirements thus creating an untenable

situation for Cornerstone. To accept the grant would have required

Cornerstone to comply with the Additional Guidance or operate in

violation of the law. Since Cornerstone could accept neither of these

options, termination of its agreements with the other broadcasters

was the only recourse.

Cornerstone believes that the FCC’s Additional Guidance for religious broadcasters operating on noncommercial educational channels clearly violated the First Amendment of the United States

Constitution by singling out religious programming for special scrutiny, regulating content or religious speech or suppressing religious

expression by prior restraint.

We also believe that the Additional Guidance was so vague and

overbroad that it would be impossible for religious broadcasters operating on noncommercial educational television channels to determine what programming qualifies as educational programming.

On January 29, 2000, after overwhelming public opposition, the

FCC vacated its decision insofar as it provided Additional Guidance. However, in that process, it did not disavow the principles of

that guidance. The Commission acknowledged that its actions created less certainty rather than more and recognized the difficulty

of minting clear definitional parameters for educational instructional or cultural programming without the benefit of broad comment.

However, the Commission’s actions still leaves religious broadcasters who seek to operate on noncommercial educational channels

in a quandary. For instance, in a Dissent Order vacating the Additional Guidance, Commissioner Tristani offered the opinion that

the Commission’s Additional Guidance was an attempt to give

some clarity to existing precedent and added that ‘‘programming on

18

reserved channels must still be primarily educational and not all

religious programming will qualify.’’

We believe that the probability of subsequent attacks in this area

is likely. We regret that the FCC action compelled us to terminate

our transaction. We pray that the religious freedom issues raised

by the FCC’s actions can be addressed in this legislative context.

Cornerstone believes that the only safety for religious broadcasters

who are broadcasting on noncommercial educational channels will

be through legislation that protects the First Amendment rights of

freedom of speech and freedom of religion for broadcasters.

The bills before us both address issues that are critical to granting religious broadcasters the same discretion and latitude given to

all others who hold noncommercial licenses. Cornerstone maintains

that religious programming is both cultural and educational and

thereby meets the standards for general educational programming.

These bills will ensure that religious broadcasters across America

will be guaranteed the freedom to broadcast programming that upholds the moral, spiritual and ethical fiber upon which our Nation

was founded.

Mr. Chairman, members of the subcommittee, again, I appreciate

this opportunity to share our views and look forward to answering

any questions you may have.

[The prepared statement of Mark Dreistadt follows:]

PREPARED STATEMENT OF MARK DREISTADT, VICE PRESIDENT OF ADMINISTRATION &

FINANCE, CORNERSTONE TELEVISION, INC.

Mr. Chairman, Members of the subcommittee, my name is Mark Dreistadt and

I am Vice President of Administration and Finance of Cornerstone Television, Inc.

Thank you for inviting me to testify before you today on behalf of Cornerstone which

operates Station WPCB-TV, Channel 40, Greensburg, Pennsylvania, a station with

a largely religious programming format. Cornerstone was involved in a lengthy FCC

proceeding with two other broadcasters to sell WPCB-TV and to acquire noncommercial educational Station WQEX(TV), Pittsburgh, Pennsylvania on which Cornerstone proposed to air Christian educational programming. I welcome this opportunity to comment on H.R. 3525, the Religious Broadcasting Freedom Act and H.R.

4201, the Noncommercial Broadcasting Freedom of Expression Act of 2000.

In early 1997, Cornerstone entered into a cooperative effort with two other broadcasters—WQED Pittsburgh, the licensee of Station WQEX(TV), Channel 16, Pittsburgh and Paxson Pittsburgh License, Inc. WQEX had suffered substantial financial

losses and WQED, which already was the licensee of WQED(TV), Channel 13, another noncommercial educational television station in Pittsburgh, wanted to sell

WQED and use the monies obtained therefrom to enhance the programming on

WQED. Cornerstone was willing to purchase WQEX and Paxson was willing to purchase Cornerstone’s existing television station on Channel 40. The appropriate assignment applications were filed with the Federal Communications Commission

(‘‘FCC’’) in the late spring of 1997.

Ultimately, on January 18, 2000, after several years of litigation at the FCC, Cornerstone terminated its cooperative effort to acquire Channel 16 and sell Channel

40 to Paxson. As Cornerstone’s President, Oleen Eagle, stated: ‘‘Our decision to terminate the transaction was forced upon us by the unprecedented December 29, 1999

Order of the FCC which would have seriously jeopardized our ability to carry out

our mission of broadcasting Christian educational programming on Channel 16.’’

In the December 29th Order, the FCC approved the assignment of the noncommercial Channel 16 license to Cornerstone; however, the Commission Order contained a section entitled ‘‘Additional Guidance’’ in which the Commission announced

that more than 50% of Cornerstone’s programming on Channel 16 would have to

be educational. The FCC stated that ‘‘not all programming, including programming

about religious matters qualifies as ‘general educational’ programming.’’ By way of

example, the FCC declared that ‘‘programming devoted to religious exhortation,

proselytizing, or statements of personally-held religious views and beliefs generally

19

would not qualify as ‘general educational’ programming.’’ We believe that the ruling

was arbitrary and capricious and raises serious First Amendment concerns.

The FCC’s Order further stated that Cornerstone was obligated to comply with

these newly announced standards and threatened that failure to do so could lead

to appropriate action, which Cornerstone understood could include loss of the license

to broadcast on Channel 16. Since Cornerstone’s mission requires us to broadcast

programming that involves Christian exhortation, evangelizing, statements of personally-held religious views and beliefs and church services, we could be threatened

with the loss of our primary means of carrying out our mission if we exchanged the

Channel 40 license for the Channel 16 license. Because of these problems, Cornerstone felt that it had no alternative but to terminate the agreement. The financial

benefits of the transaction for Cornerstone would have been significant ($17.5 million) but there is no benefit that would justify the sacrifice of religious freedom required by the FCC Additional Guidance.

During the application process, Cornerstone repeatedly demonstrated its ability to

qualify as an operator of a noncommercial educational channel. Cornerstone made

modifications to its organization’s mission statement, to its Board of Directors and

to its overall program schedule in an attempt to more fully comply with the FCC’s

existing regulations. In the text of its December 29th Order, the FCC stated, ‘‘. . . we

conclude that Cornerstone has provided a program schedule and description of programming that prevents us from denying its application . . .’’ Yet in the same document, the FCC’s Additional Guidance redefined the programming requirements,

thus creating an untenable situation for Cornerstone. To accept the grant would

have required Cornerstone to comply with the Additional Guidance or operate in

violation of the law. Since Cornerstone could not accept either of these options, termination of its agreements with the other broadcasters was the only recourse.

Cornerstone believes that the FCC’s Additional Guidance for religious broadcasters operating on noncommercial educational channels clearly violated the First

Amendment to the United States Constitution by singling out religious programming for special scrutiny, regulating the content of religious speech and suppressing

religious expression by prior restraint. We also believe that the Additional Guidance

was so vague and overbroad that it would be impossible for religious broadcasters

operating on noncommercial educational television channels to determine what programming qualifies as educational programming.

On January 28, 2000, after overwhelming public opposition, the FCC vacated its

decision insofar as it provided Additional Guidance. The Commission acknowledged

that its actions had created less certainty, rather than more, and recognized the difficulty of minting clear definitional parameters for ‘‘educational, instructional or cultural’’ programming without the benefit of broad comment. However, the Commission action still leaves religious broadcasters who seek to operate on noncommercial

educational channels in a quandary. For instance, in a dissent to the Order vacating

the Additional Guidance, Commissioner Tristani opined that the Commission’s Additional Guidance was an attempt to give some clarity to its existing precedent and

added that programming on the reserved channels still must be primarily educational and ‘‘not all religious programming will qualify.’’

We regret that the FCC action compelled us to terminate our transaction. We

pray that the religious freedom issues raised by the FCC’s action can be addressed

in this legislative context. Cornerstone believes that the only safety for religious

broadcasters who are broadcasting on noncommercial educational channels will be

through legislation that protects the First Amendment rights of freedom of speech

and freedom of religion for religious broadcasters.

The bills before this Subcommittee, H.R. 3525 and H.R. 4201, both address the

issue that Cornerstone has faced and Cornerstone is very grateful for the support

of the congressmen who sponsored these bills. H.R. 4201 is the more recent and

more comprehensive of the two bills. Cornerstone supports the passage of this legislation with slight modifications. Specifically, Section 4 should state that any revisions to FCC regulations must be consistent with Section m (1) and (2). Section m

(2)(C) should be clarified to make it clear that noncommercial educational licensees

may not carry commercial advertising and that the ‘‘programming’’ referenced in the

section does not include advertising.

Mr. Chairman and members of the Subcommittee, again, I appreciate the opportunity to share these views with you and I look forward to answering any questions

that you may have. Thank you.

Mr. TAUZIN. Thank you.

The Chair now recognizes Mr. E. Brandt Gustavson, President,

National Religious Broadcasters, Manassas, Virginia.

20

STATEMENT OF E. BRANDT GUSTAVSON

Mr. GUSTAVSON. Mr. Chairman and members of the committee,

thank you for inviting National Religious Broadcasters to provide

testimony today.

On behalf of NRB’s 1,250 member organizations let me express

our gratitude for the way many of you swiftly and firmly came to

the defense of religious broadcasters when the FCC released its

ruling on Cornerstone Television in December. It is encouraging to

see so many men and women in Congress stand up for the fundamental liberty of religious expression.

National Religious Broadcasters was formed in 1944 by a small

group of christian broadcasting pioneers with the purpose of maintaining access to the air waves for the gospel message. The threat

then was the Federal Council of Churches, now known as the National Council of Churches trying to strike an agreement with the

networks and the large stations in communities across the Nation

to act as gatekeeper for all religious programming.

With the Federal Council of Churches choosing who gets network

air time, this would have certainly been the end of the broadcast

ministries of great preachers and teachers by Charles Fuller, Walter Maier, Myron Boyd, Theodore Epp and Mr. DeHaan. We are

proud to say that we are an association of christian broadcasters.

It is our byline.

Today, the threat of the Federal Communications Commission, a

government agency which has at times overstepped its authority by

acting outside of its congressional mandate and making unconstitutional policy decisions without the benefit of public notice or comment in its attempt to restrict our fundamental freedom of religious expression.

In what has become known as the Cornerstone decision, the FCC

granted Cornerstone Television of Pittsburgh permission to move

from its commercial Channel 40 to noncommercial educational

channel 16, a decision that would have provided millions of dollars

for Cornerstone to produce quality programming and continue

broadcasting the gospel.

In adopting this Order, as we have heard, the FCC singled out

religious programming for a new set of rules to determine eligibility toward a new quota of educational programs that noncommercial educational TV stations were expected to provide. In its

Additional Guidance, the FCC required more than half of the programming hours on a reserved channel to be devoted to serve the

educational, instructional or cultural needs of a community of license.

The Commission said it would defer to the judgment of the

broadcaster in determining what programs meet those needs but

apparently not in the case of religious programming. The Commission specifically singled out religious programming for new rules.

On page 24 of the Decision, the Commission said, ‘‘Church services

and programming primarily devoted to religious exhortation,

‘‘which by the way we call sermons and bible studies,’’ and ‘‘proselytizing’’ which we call evangelism ‘‘or statements of personally

held religious views,’’ which we call testimonials that ‘‘they generally would not qualify as general educational programming.’’ This

21

constituted a severe restriction on an important category of religious speech, the core of our message.

The FCC said it would not disqualify any program simply because the subject matter of the teaching or instruction is religious

in nature; in fact, they went on to describe religious programming

that would qualify as educational, ‘‘programs analyzing the role of

religion in connection with historical or current events, various cultures or the development of the arts exploring the connection between religious belief and physical and mental health, and examining the apparent dichotomy between science, technology and established religious tenets or studying religious text from a historical or literally perspective’’ all meet with the FCC’s approval.

Thus, in effect, the FCC created a category of politically correct

government-approved, religious speech and that is abhorrent to us

and unacceptable. Essentially, the FCC seems to think it is permissible for programs to talk all about religion in academic or intellectual terms but when the programs become more passionate, emotional, personal or originates from a church, it is somehow less educational, instructional or cultural.

Even though this Additional Guidance was formerly directed to

only noncommercial educational TV stations, the majority of NRB

members are radio broadcasters. We have 1,730 religious broadcasting stations in the United States. They understandably feared

this decision might be a first step toward new restrictions on educational FM, 88 to 92 on the FM band.

Not only was the decision troublesome, but the manner in which

it was delivered raised serious concerns. The original decision was

adopted on December 15 but was not made public until December

29 when Congress was out of session and the Nation was in the

midst of celebrating Christmas and New Years and preparing for

the lights to go out on New Years Day. It had all the appearances

of a stealth decision flying below the radar.

Fortunately, the Cornerstone decision did not go unnoticed. In a

beautiful demonstration of democracy in action, which by one of the

Commissioners was called demagoguery, many of you on this committee responded swiftly. In addition, many christian broadcasters

went on the air with this news and in turn, thousands of citizens

prayed and flooded Capitol Hill and the FCC with phone calls, letters and e-mail pleading for a reversal and I personally say that

we in the NRB office did 135 interviews and program material to

secular and religious stations all across the country. It wore us out

frankly but it was effective.

In the end, the FCC vacated the Additional Guidance, a decision

we are thankful for but Cornerstone decided not to move, as Mark

says, to Channel 16 and have suffered an enormous financial loss

because it was concerned that these restrictions will come back to

life 1 day and severely inhibit their ability to broadcast the gospel.

Mr. Chairman, we must finish the job. Bad ideas in Washington

never seem to go away. They are often resurrected one piece at a

time. We must not allow this to happen with the Cornerstone decision. We fear that the underlying philosophy that allowed such a

decision in the first place is still alive at the Commission. We are

asking the Lord to give you and this committee the wisdom to proVerDate 11-MAY-2000 08:41 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 E:\HEARINGS\64025 pfrm01 PsN: 64025
22

vide a legislative solution that will prevent the FCC from taking

this kind of unconstitutional action again.

We stand in full support of the noncommercial Broadcasting

Freedom of Expression Act, recently introduced by Congressman

Pickering. This bill takes a new approach to the problem while incorporating the best ideas of the other legislation from Congressman Oxley and Senator Hutchinson and we respectfully ask for the

committee to act swiftly and unanimously to pass the Pickering bill

to the House floor for a vote.

We believe that the freedom of religious expression is an issue

that transcends party lines because of the basis of our development

as a Nation. This is a time to set aside political divisions and joint

together to protect our liberty. Once this bill is passed, we trust our

freedom of religious speech will be protected from any activist government agency.

God bless you and thank you for the opportunity to testify today.

[The prepared statement of E. Brandt Gustavson follows:]

PREPARED STATEMENT OF E. BRANDT GUSTAVSON, PRESIDENT, NATIONAL RELIGIOUS

BROADCASTERS

Mr. Chairman and members of the committee, thank you for inviting National Religious Broadcasters to provide testimony today. On behalf of NRB’s one thousandtwo hundred and fifty member organizations, let me express our gratitude for the

way many of you swiftly and firmly came to the defense of religious broadcasters

when the FCC released its ruling on Cornerstone Television in December. It is encouraging to see so many men and women in Congress stand up for the fundamental liberty of religious expression.

National Religious Broadcasters was formed in 1944 by a small group of Christian

broadcasting pioneers with the purpose of maintaining access to the airwaves for

the gospel message. The threat then was the Federal Council of Churches, now

known as the National Council of Churches, trying to strike an agreement with the

networks to act as gatekeeper for all religious programming. With the Federal

Council of Churches choosing who gets network airtime, this would have certainly

been the end of the broadcast ministries of great preachers and teachers like

Charles Fuller, Walter Maier, Myron Boyd, Theodore Epp, and M.R. DeHaan.

Today the threat is the Federal Communications Commission, a government agency which has, at times, overstepped its authority by acting outside of its Congressional mandate and making unconstitutional policy decisions without the benefit of

public notice or comment in an attempt to restrict our fundamental freedom of religious expression.

In what has become known as the Cornerstone decision, the Federal Communications Commission granted Cornerstone Television of Pittsburgh, Pennsylvania, permission to move from its commercial channel 40 to non-commercial/educational

channel 16—a decision that would have provided millions of dollars for Cornerstone

to continue broadcasting the gospel. But in adopting this order, the FCC singled out

religious programming for a new set of rules to determine eligibility towards a new

quota of educational programs that non-commercial/educational TV stations were

expected to provide.

In its additional guidance, the FCC required more than half of the programming

hours on a reserved channel to be devoted to serve the educational, instructional,

or cultural needs of the community of license. The Commission said it would defer

to the judgment of the broadcaster in determining what programs meet those

needs—but apparently not in the case of religious programs.

The Commission specifically singled out religious programming for new rules. On

page 24 of the decision, the Commission said that church services and ‘‘programming primarily devoted to religious exhortation, proselytizing, or statements of personally held religious views and beliefs generally would not qualify as ‘general educational’ programming.’’

This constituted a severe restriction on an important category of religious speech,

the core of the gospel message.

The FCC said it ‘‘would not disqualify any program simply because the subject

matter of the teaching or instruction is religious in nature.’’ In fact, they went on

to describe religious programming that WOULD qualify as educational. ‘‘Programs

23

analyzing the ROLE of religion in connection with historical or current events, various cultures, or the development of the arts; exploring the connection between religious belief and physical and mental health; examining the apparent dichotomy between science, technology and established religious tenets, or studying religious

texts from a historical or literary perspective’’ all meet with the FCC’s approval.

Thus, in effect, the FCC created a category of politically correct government approved religious speech!

Essentially, the FCC seems to think it is permissible for programs to talk ABOUT

religion in academic or intellectual terms, but when the program becomes more passionate, emotional, personal or originates from a church it is somehow less instructional, educational or cultural.

Even though this additional guidance was formally directed only to non-commercial educational TV stations, the majority of NRB members are radio broadcasters

who understandably feared that this decision might be a first step toward new restrictions on radio.

Not only was the decision troublesome, but the manner in which it was delivered

raised serious concerns. The original decision was adopted on December 15th, but

was not made public until December 29th when Congress was out of session and

the nation was in the midst of celebrating Christmas and preparing for the lights

to go out on New Year’s Day. It had all the appearances of a stealth decision flying

below the radar.

Fortunately, the Cornerstone decision did not go unnoticed. In a beautiful demonstration of democracy-in-action, many of you on this committee responded swiftly.

In addition, many Christian broadcasters went on the air with the news. And in

turn thousands of citizens prayed and flooded Capitol Hill and the FCC with phone

calls, letters, and e-mail pleading for a reversal.

In the end, the FCC vacated the additional guidance, a decision we are thankful

for. But, Cornerstone decided not to move to channel 16 and has suffered an enormous financial loss because it was concerned that these restrictions will come back

to life one day and severely inhibit their ability to broadcast the gospel.

Mr. Chairman, we must finish the job. Bad ideas in Washington never seem to

go away; they are often resurrected a piece at a time. We must not allow this to

happen with the Cornerstone decision. We fear that the underlying philosophy that

allowed such a decision in the first place is still alive at the Commission. We are

asking the Lord to give you and this committee the wisdom to provide a legislative

solution that will prevent the FCC from taking this kind of unconstitutional action

again.

We stand in full support of the Noncommercial Broadcasting Freedom of Expression Act recently introduced by Congressman Pickering. This bill takes a new approach to the problem while incorporating the best ideas of the other legislative

ideas from Congressman Oxley and Senator Hutchinson. We respectfully ask for the

committee to act swiftly and unanimously to pass the Pickering bill to the House

floor for a vote. We believe that the freedom of religious expression is an issue that

transcends party lines because it is the basis of our development as a nation. This

is a time to set aside political divisions and join together to protect our liberty.

Once this bill is passed, we trust our freedom of religious speech will be protected

from an activist government agency. God bless you and thank you for the opportunity to testify today. I will be happy to answer any questions you may have.

Mr. TAUZIN. Thank you, Mr. Gustavson.

Now, the Chair is pleased to recognize the gentleman from Mississippi, Mr. Pickering for an introduction.

Mr. PICKERING. Thank you, Mr. Chairman.

I have the pleasure today of introducing Mr. Don Wildmon from

my home State of Mississippi who is the father of four, the author

of more than 22 books with a million copies in print, educated at

Millsaps College in Jackson, Mississippi with a Master of Divinity

from Emory University, with honorary doctorates from a number of

outstanding educational and theological institutions.

His recent contribution to our country and our culture is through

the American Family Association which has more than 130 radio

stations and a journal with circulation of half a million. He has

been a consistent and strong voice and force for both freedom, for

24

family and for faith. I am glad he can come today to testify on the

need to protect those and to be ever vigilant.

Thank you, Mr. Chairman.

STATEMENT OF DON WILDMON

Mr. WILDMON. The action by the FCC in December came as a

shock to me and many others in the broadcasting industry. Many

of us were greatly disturbed by that action. We were disturbed by

the manner in which the action came. There were no public hearings in the matter. The FCC went outside its normal standards of

operation, it did not seek public input.

We were disturbed by the fact that the decision was made by a

3 to 2 vote, with the vote being along party lines. We were disturbed by the fact that the decision came when Congress was in

recess. We were disturbed by the definition of educational program

given by the FCC. Under their definition, a sermon by Dr. Billy

Graham would not have been classified as being educational but a

program featuring Howard Stern would be.

We feel that our concerns were justified by the fact that the FCC

rescinded their action a month later. We feel that legislation protecting the freedom of speech for the religious broadcaster must be

enacted to protect that freedom from being usurped by the FCC in

the future. Freedom of speech for the religious broadcaster should

be no different than that of any other entity.

Thank you.

Mr. TAUZIN. Thank you, Mr. Wildmon.

The Chair recognizes himself and other members in order.

Let me first try to find out how this happened. This obviously

happened indeed while we were out of session. It happened in regard to a transfer of license request regarding a religious broadcaster and it happened on a 3 to 2 vote by the Commission without

hearing or public comment.

I would ask either one of our two Commissioners if they would

like to give us an explanation of how this sort of thing happens and

why was a religious broadcaster chosen as the vehicle for these

new definitional standards of education and cultural programming?

Ms. TRISTANI. Mr. Chairman, the proceeding was a restricted

proceeding under which certain rules apply. One rule is that we

cannot discuss issues that are not public. But I will tell you that

certain Members of Congress were writing to us constantly about

deciding the case. The actual decision was rendered around December 15.

Mr. TAUZIN. Are you telling us the decision was made in response to Members of Congress asking you to do this?

Ms. TRISTANI. Yes, on the date it was rendered. Yes. I will tell

you that, sir.

Mr. TAUZIN. But you can’t tell us who they were because that is

restricted?

Ms. TRISTANI. No, there are letters in the record. Actually, Senator McCain sent a letter stating he wanted to see a decision by

December 15.

Mr. TAUZIN. If you don’t decide the issue of the license transfer.

There was no request by Members of Congress asking you to do

this Additional Guidance, was there? Where did that come from?

25

Ms. TRISTANI. Let me tell you where it came from since I voted

for the Additional Guidance, and I voted not to vacate the Additional Guidance.

Mr. TAUZIN. Yes, please.

Ms. TRISTANI. Under normal cases, we don’t get into, as we did

in this case, what the programming is, but there was opposition by

citizens in Pittsburgh who questioned the educational programming of the broadcaster. We got involved because of that.

Mr. TAUZIN. So who originated the language that was quoted to

us by Mr. Gustavson? Where did that language come from? Was it

something you wrote, was it something staff wrote?

Ms. TRISTANI. I contributed to it, sir.

Mr. TAUZIN. So these were actual contributions by the members

of the three majority?

Ms. TRISTANI. I can’t speak for my other Commissioners. I know

I contributed to it, sir.

May I clarify something, Mr. Chairman?

Mr. TAUZIN. Yes, please.

Ms. TRISTANI. I dissented from the license transfer because I

think this should have been sent to one of our administrative law

judges.

Mr. TAUZIN. You received a letter I am sure, it is a part of the

folders for all the members, dated January 19, 2000 in which I

wrote to Chairman Kennard, expressing my deep concern over this

Additional Guidance and asking that each one of the FCC Commissioners respond in writing to a list of questions I submitted to you.

Among those questions were some I am going to ask you today

but first of all, did you respond to that request in writing?

Ms. TRISTANI. Sir, I did not because I believe the date the response was due was after the Commission vacated.

Mr. TAUZIN. So you felt no need to answer the questions?

Ms. TRISTANI. I thought it was moot.

Mr. TAUZIN. Because it was vacated?

Ms. TRISTANI. That is what I thought.

Mr. TAUZIN. Let me ask a few of those questions.

In vacating the Order, the Commission basically said, we are

going back to previous policy that gives discretion to the licensee

to make determinations and only when it is arbitrary and capricious will we ever step in and act. What necessitated departing

from that previous policy in your mind and in the minds of the

other two members who voted for it?

Ms. TRISTANI. We didn’t depart from the policy standard of ‘‘arbitrary and unreasonable.’’

Mr. TAUZIN. But you departed from the policy of giving discretion

to the licensees to a policy where you very carefully articulated

what was and was not acceptable religious programming. What

made you decide to do that?

Ms. TRISTANI. In this case, because citizens in Pittsburgh and

elsewhere questioned what was educational.

Mr. TAUZIN. Let us talk about that. I asked you these questions

in the list of questions I sent you. Handel’s Messiah is a beautiful

piece, Amazing Grace a beautiful song. Why in your instructions in

these Additional Instructions were those beautiful songs considered

26

educational or cultural played at the Kennedy Center but not in a

church service?

Ms. TRISTANI. I don’t recall that we specifically used those beautiful pieces of music.

Mr. TAUZIN. But as I read your instructions as Mr. Gustavson

read to us today, it basically says a church service where that

music was played would not be considered educational or cultural.

Ms. TRISTANI. As I said in my statement, one of the big concerns

I have—and it is based on the establishment clause—is that religious is something very, very different. Religion raises some questions for nonadherents.

Mr. TAUZIN. But didn’t you realize that when you particularize

what was acceptable and not acceptable.

Ms. TRISTANI. We gave examples, Mr. Chairman, and we also

said that in certain instances, church services might be educational.

Mr. TAUZIN. But who was going to make that decision? You were

going to make that decision? You were going to decide what church

services were okay and which were not to be broadcast?

Ms. TRISTANI. If I could comment, Mr. Chairman. We never said

you cannot broadcast those services on a reserved channel.

Mr. TAUZIN. You just wouldn’t count them.

Ms. TRISTANI. We wouldn’t count them toward the 50 percent.

Mr. TAUZIN. Then you would decide.

Ms. TRISTANI. No, because you still would have a broad range of

49 or 49.5, however you count it exactly.

Mr. TAUZIN. But if station could lose its license if it didn’t reach

your percentage of qualified programming.

Ms. TRISTANI. We weren’t going to go out there and count.

Mr. TAUZIN. Were you not putting yourself in the position of

making judgments as to what was acceptable religious programming and what was not?

Ms. TRISTANI. The reason we might be in that position would be

because of not running afoul of the establishment clause, and of the

dangers that can be posed when religion is imposed on people that

are not of that same religion or nonbelievers, and all of the adherence dangers. If I may quote from Justice O’Connor in another case

in County of Allegheny, ‘‘The essential command of the establishment clause is that government must not make a person’s religious

beliefs relevant to his or her standing in the political community

by conveying a message that religion or a particular religious belief

is favored or disfavored.’’

‘‘We live in a pluralistic society. Our citizens come from diverse

religious traditions or adhere to no particular religious beliefs at

all. If government is to be neutral in matters of religion, rather

than showing either favoritism or disapproval toward citizens

based on their personal religious choices, government cannot endorse the religious practices and beliefs of some citizens without

sending a clear message to nonadherents that they are outsiders or

less than full members of a political community.’’

Mr. TAUZIN. But you, in your instruction to these religious broadcasters told them, ‘‘Church services generally will not qualify as

general educational programming under our rules. However,

church services which are part of a historic event, such as a funeral

27

of a national leader, would qualify.’’ You, in fact, put yourself in the

position of deciding what church service, what religious activities

would qualify, therefore would keep a station on the air or not.

Ms. TRISTANI. That was by way of example, Mr. Chairman, and

it was not aimed just at religious broadcasters but at those who

broadcast on the reserved channels, a very small sliver of the spectrum that is reserved for primarily educational public purposes.

Mr. TAUZIN. Did that example have the force of law as far as the

Commission was concerned? Did it have the force of law, Commissioner Furchtgott-Roth? I see you shaking your head. Did it?

Mr. FURCHTGOTT-ROTH. Yes.

Mr. TAUZIN. Yes, it did. So the Commission was, by these examples, forcefully declaring what types and forms of religious programming and services would be acceptable to keep a license and

which would deny a station its license.

Ms. TRISTANI. What would be counted toward the educational

portion of the broadcast.

Mr. TAUZIN. Let me ask you Ms. Tristani and Mr. FurchtgottRoth, would either of you favor a rulemaking to put this Additional

Guidance back into effect?

Ms. TRISTANI. I would favor a rulemaking if it would clarify the

educational standards that we have in place. I would. That ought

to be clear.

Mr. TAUZIN. Mr. Furchtgott-Roth?

Mr. FURCHTGOTT-ROTH. Mr. Chairman, I have been at the Commission for about 21⁄2 years. There have been many things I have

disagreed with but the scariest moment, the most frightening moment, the most chilling moment at the Commission was when staff

asked me if I wanted to review videotapes.

I will never support any move to have the government placed in

the position of deciding whether programming fits into one pigeon

hole or another. It is just abhorrent to me. To say that religious

broadcasting fits into this pigeon hole or that pigeon hole is not the

role of government.

Mr. TAUZIN. My time has expired.

The Chair recognizes the gentleman from Massachusetts, Mr.

Markey, for a round of questions.

Mr. MARKEY. Thank you, Mr. Chairman.

I apologize that I was not here when opening statements were

made. That was only because we had a roll call on the floor and

I had another very brief engagement that I had to attend to.

First, I would like to begin by saying to our witnesses who are

unfamiliar with the Congress, that if all Federal agencies were unable to act when Congress was out of session, and this particular

Congress, it would mean that for the most part, no Federal agency

would be able to act for at least half of the year.

That might be the wish of some particular antigovernment philosophy but it would be impractical in terms of the operation of the

very important functions, whether it be health, safety or education

for Americans. So when agencies, including the Federal Communications Commission, act when Congress is out of session, they

are doing it as is every other agency for every other part of the

Government in order to advance the public wellbeing, whether any

one of us may agree or disagree with any of those decisions.

28

This hearing comes on the heels of decisions at the Federal Communications Commission dealing with television license transfers

and appended clarifying guidance that was issued to ensure that

the Federal Communications Commission’s noncommercial educational licensees serve the entire community with programming

that was primarily educational.

There are a number of misconceptions that I believe are associated with these decisions which culminated in the Federal Communications Commission subsequently deciding to vacate the Additional Guidance issued in the decision affecting WQED, Pittsburgh

and Cornerstone Television.

First, there is a notion that the Federal Communications decision

reflected a bias against religion. Far from a bias against religion,

it must be remembered that Cornerstone was requesting—no pun

intended—a special blessing from the Federal Communications

Commission to broadcast on a station reserved primarily for public

education, as distinguished from religion.

Second, there was an allegation that the Federal Communications Commission was restricting religious speech. Religious broadcasters are not restricted in broadcasting religious programming,

and many do so throughout the country on commercial broadcast

stations. The question here is, not whether religious messages are

being restricted because they are not, but rather the nature of requirements for licensees on noncommercial educational stations.

I do not question whether religious programming is often educational. In fact, I believe that many of the programs on religious

programs are quite beneficial to many viewers especially when contrasted with much of the programming on commercial television

generally.

Moreover, the Federal Communications Commission rules permit

programming about religion to qualify as educational. The question

again is whether religious programming from a particular religious

broadcaster serves in a Nation founded upon religious diversity and

religious freedom the entire community and is educational to those

of other religions. To ask that question doesn’t mean one is either

antireligion or against religious programming. It simply questions

whether the distinction between commercial and noncommercial licensees has any meaning.

In particular, I also want to note with deep concern legislation

introduced by other members of this committee, including the subcommittee chairman. I am not sure whether the solution proposed

might not make the alleged problem worse. If you believe in the

separation of church and State, then we tread on very dangerous

ground when sectarian messages intended for the followers of a

particular religion are licensed to displace nonsectarian educational

messages intended for the entire community.

Second, I am not sure if the sponsors of the legislation intended

in headlong pursuit of ensuring that no one at the FCC could pass

judgment on whether religious programming was educational or to

simultaneously eviscerate the Children’s Television Act requirements for noncommercial stations. Every licensee under the rules

implementing the Children’s Television Act must air a paltry 3

hours a week of programming for the child audience.

29

I would hope that the sponsors would reconsider the language in

their bill to ensure that educational programming requirements for

children, whether such programming is religious or not, is not undermined by the bill before the subcommittee today.

At this point, Mr. Chairman, I would also ask that the hearing

record remain open the customary 2 weeks. I have statements from

parties that I would like to have inserted in the record.

I thank you for allowing me to make my opening statement at

this time.

Mr. TAUZIN. Without objection, the gentleman’s request that the

record remain open for 2 weeks is permitted. Without objection, so

ordered. The record will so remain open.

The Chair thanks the gentleman.

The Chair will recognize the vice chairman of our subcommittee,

the author of one of the bills before us today, the gentleman from

Ohio, Mr. Oxley.

Mr. OXLEY. Thank you, Mr. Chairman.

As we all know, the FCC decision on December 29 elicited a letter signed by myself and Congressmen Pickering, Largent and

Stearns to Chairman Kennard objecting to the Commission’s action. We said in that letter the Commission has no business whatsoever singling out religious programming for special scrutiny. We

go on to say, ‘‘We advise you to reverse this ruling or stand by and

see it overturned legislatively or in court.’’

The response we received from Chairman Kennard on January

12 said ‘‘The Commission’s decision in this case does not establish

new rules but simply clarifies longstanding FCC policy.’’ We then

immediately wrote back and said, we had drafted the Religious

Broadcasting Freedom Act which was introduced on January 24

with 60 original co-sponsors, and we now enjoy 125 co-sponsors on

that legislation. This is kind of setting the stage for only what occurred at the Commission.

Commissioner Tristani, I would like to ask you, in your dissenting statement you say that the Commission has ‘‘capitulated to

an organized campaign of distortion and demagoguery.’’ Is that correct?

Ms. TRISTANI. Yes, sir.

Mr. OXLEY. You still stand by that?

Ms. TRISTANI. Yes, sir.

Mr. OXLEY. Do you feel this campaign could have been avoided

if the Commission had simply proceeded with a rulemaking as is

normally consistent when these kind of major policy decisions are

made?

Ms. TRISTANI. Probably not. Not if we had come up with the

same result.

Mr. OXLEY. Obviously a large part of the public had something

to say on this issue and the pressure campaign you speak of only

had to occur because the Commission simply didn’t give them the

appropriate avenue in which to express their concerns. Do you

agree with that?

Ms. TRISTANI. No.

Mr. OXLEY. Why not?

Ms. TRISTANI. Well, because I think given the emotion that it is

still generating and the e-mail I am getting, and I am sure all of

30

you are getting, I think it is the kind of issue that even were it

dealt with in a rulemaking—you could do it in many different

ways—but it would still generate a lot of concern.

Mr. OXLEY. You don’t think the rulemaking procedure where the

public has an opportunity to comment, that it wouldn’t have had

a different result initially?

Ms. TRISTANI. Sir, as I was explaining earlier, this was a license

transfer application and it was not a rulemaking procedure. That

is why the issue came up in this particular case.

Mr. OXLEY. Did you think this was a major shift in policy by the

FCC?

Ms. TRISTANI. No, sir. I think it was a clarification of our rules.

Mr. OXLEY. Commissioner Furchtgott-Roth, do you agree that

this was perceived by the members of the Commission as not a

major change in policy at the FCC?

Mr. FURCHTGOTT-ROTH. Mr. Oxley, I wish I could tell you whether it was or not. I can tell you that I am deeply distressed that any

government agency would be reviewing videotapes.

Mr. OXLEY. Let us get into that a minute. If in fact the decision

by the FCC were to have the effect, as many of us here thought,

that it was the intrusion of the Federal Government into making

decisions on content, would you not consider that to be a major decision by the Federal Communications Commission?

Mr. FURCHTGOTT-ROTH. Yes, Mr. Oxley. The only thing I can’t

address is whether or not that has been going on at the Commission. I find Chairman Kennard’s statement that this was just a

codification of prior Commission practice extraordinarily disturbing. I can’t speak to that prior Commission practice.

Ms. TRISTANI. Could I add something?

Mr. OXLEY. Sure.

Ms. TRISTANI. Just to respond a little bit to my colleague, the

Commission regularly reviews indecency and obscenity complaints,

both audio and video, so it is something we do based on some of

our rules.

Mr. OXLEY. Commissioner Tristani, you say apparently the Commission capitulated to an organized campaign of distortion and

demagoguery. Are you accusing Mr. Gustavson and Mr. Dreistadt

and others of distortion and demagoguery?

Ms. TRISTANI. I am not accusing anyone personally.

Mr. OXLEY. You mentioned the establishment clause in your testimony. Do you see anything in the pending legislation of either bill

that would cause problems with the establishment clause that we

are considering today?

Mr. FURCHTGOTT-ROTH. Mr. Oxley, I am not a constitutional expert and I would urge you to ask someone who is that question and

I would hope any legislation you might consider would avoid any

such problems. I do not believe that there is any existing establishment clause problem with permitting broadcasters in the noncommercial educational band to self-certify.

These issues that are being raised about the establishment

clause, with all due respect, I think are simply incorrect.

Mr. OXLEY. Thank you.

Mr. TAUZIN. Thank you.

31

The Chair will now yield to the vice chairman of the full committee, Mr. Gillmor.

Mr. GILLMOR. Thank you, Mr. Chairman.

I would like to follow up with Commissioner Tristani on a couple

of things. You indicated the reason you got into this content aspect

on the transfer was because of complaints from citizens from Pittsburgh.

Ms. TRISTANI. Yes, sir, this was a contested application.

Mr. GILLMOR. What was the nature of the complaints, who complained, what was the volume of them? Was this hundreds of letters, one specific group?

Ms. TRISTANI. I think specifically from the city of Pittsburgh,

there were maybe 300 letters. But I am not sure of these numbers,

that is what I recall. I think it is in our original December 28 decision. I think there were about 30,000 e-mails from around the

country protesting the application. There may have been 50 or 100

letters in favor of the application.

Mr. GILLMOR. What was the basis of those complaints?

Ms. TRISTANI. They questioned the educational programming,

whether that licensee would be satisfying the programming requirement that is imposed or that is required of anyone who is on

the reserved channels, whether religious broadcasters or not.

Mr. GILLMOR. Are those complaints a matter of public record?

Ms. TRISTANI. I am not sure because this is a restricted proceeding and I know part of it is in the public record and part of

it is not, but I would be glad to explain that more fully after I talk

to counsel.

Mr. GILLMOR. Would these complaints be any different than, for

example, if a Member of Congress has expressed a view on the

transfer? Would that be a matter of public record?

Ms. TRISTANI. Probably. I was just told that yes, these complaints would be a matter of public record.

Mr. GILLMOR. The complaints are?

Ms. TRISTANI. Yes.

Mr. GILLMOR. Just one other question because the rhetoric it appeared to me was rather heated from a number of areas, including

from yourself when you used terms such as ‘‘distorting’’ and ‘‘demagoguery.’’ Would you specify who the demagogues were?

Ms. TRISTANI. Again, I don’t have knowledge of who specifically

said what but I got a lot of e-mails, our Commission got a lot of

e-mails accusing us of being anti-religious, very nasty stuff.

Mr. GILLMOR. But you don’t know who did that?

Ms. TRISTANI. I have the e-mails from a lot of citizens and a lot

of people.

Mr. GILLMOR. Thank you.

Mr. TAUZIN. The Chair recognizes the gentleman from Mississippi, Mr. Pickering.

Mr. PICKERING. Thank you, Mr. Chairman.

I am very appreciative that we are having this hearing, that we

are moving legislation to ensure that what was attempted does not

occur and that there is no possibility in the future for it occurring.

I am also extremely disappointed that we find ourselves here

today. Commissioner Tristani begins her dissenting comments,

‘‘This is a sad and shameful day for the FCC.’’ Let me just say for

32

the record, I feel it is a sad and shameful day that Congress has

to stop a government agency from attempting to limit, to restrict

and regulate religious expression of liberty.

Let me also say for the record that I take offense to the rhetoric

and let me also say that nobody on this panel that I have heard

today has used extreme rhetoric. They have defended their rights

to broadcast their beliefs, their liberty, their freedom, the common,

shared American values.

They did not accuse anyone that I have heard of demagoguery,

of distortion or witch hunts. I will say that language, that extreme

rhetoric and that extreme language did come from Commissioner

Tristani, so the demagoguery and the distortion and the extreme

rhetoric, let the record show, did not come from the gentlemen promoting and defending religious expression. It came from those who

are trying to regulate and restrict that core American value.

Having said that, let me try to understand the logic of the dissenting view and the basis for the action which almost occurred. As

I listened to the testimony and read the dissenting statement, it

seems to flow with this logic, license transfer equals endorsement

equals establishment.

Commissioner Tristani, is that your constitutional logic in trying

to clarify the guidelines, license transfer equals endorsement

equals establishment?

Ms. TRISTANI. I don’t think that is what I said, sir.

Mr. PICKERING. Please clarify to me your logic on this and let me

ask another question to better understand the context. You cite

Justice O’Connor. Has there ever been any court decision that has

directly addressed the question of FCC license transfers as it relates to commercial or noncommercial religious broadcasters or religious expression?

Ms. TRISTANI. I do not believe there has been a Supreme Court

decision addressing that. No, sir.

Mr. PICKERING. So you are taking the Supreme Court decision on

the establishment clause and trying to build a case in your guidelines. I am trying to understand your constitutional logic, that license transfer equals endorsement equals establishment.

Ms. TRISTANI. I think anytime we are dealing with religion, we

have to look at the establishment clause. Yes.

Mr. PICKERING. So license transfer equals endorsement of the

views expressed?

Ms. TRISTANI. No. Those are not my words, sir.

Mr. PICKERING. But if you boil this down in simplicity, that is

what you are saying and then you go further. Let me just use Justice O’Connor’s words in relation to what you tried to do. You can

either endorse or oppose a particular religious belief. Let me see if

this would oppose or disfavor a particular religious view.

For example, ‘‘Programming primarily devoted to religious exhortation, proselytizing, or statement of personally held religious

views and beliefs generally would not qualify as general education

programming.’’ So you have just given a guideline that opposes a

particular religious expression and then you try to qualify what is

acceptable.

Ms. TRISTANI. No.

33

Mr. PICKERING. So not only do you oppose specific religious expression.

Ms. TRISTANI. Sir, I do not oppose specific religious expression.

Mr. PICKERING. These are your words, ‘‘For example, programming primarily devoted to religious exhortation, proselytizing or

statements of personally held religious views and beliefs generally

would not qualify as general education.’’

Ms. TRISTANI. What the guideline said was that they would not

qualify for the part that is the general education requirement because in my deeply held belief that because we are such a religiously diverse society, what might be educational for me in the religious context as a Catholic, might not be educational for some of

my staffers that are Jewish.

Mr. PICKERING. So we need a government commission to decide

what religion is educational, cultural or instructional?

Ms. TRISTANI. No, sir. I am concerned about non-adherence and

government sending the message that they favor a particular religion or no religion.

Mr. PICKERING. You specifically get into content regulation of opposing what is, in your view, unacceptable and then giving a category of acceptable speech. If you read the same court decision

from Justice O’Connor, I would argue that she prohibits exactly

what you cite as the basis for your decision. You are favoring one

set of speech and you are opposing or prohibiting another set of

speech.

Ms. TRISTANI. Sir, I would disagree with that. Everybody interprets cases differently but I would again stress we are talking

about reserved channels here, a small sliver of the spectrum that

government has set aside for educational purposes.

Mr. PICKERING. But by your constitutional logic as I understand

it, license equals endorsement equals establishment, you are setting a very dangerous precedent, not only for noncommercial licenses but for commercial licenses. What is also very offensive to

me is that you are trying to change, whether you try to minimize

it by saying this is simply guidelines or clarification, this is substantive constitutional change of policy done in an undemocratic,

closed process with no public comment period, not following the Administrative Procedures Act. It is classic, and unfortunately not the

classic liberal in the best sense of the word, but it is the classic liberal tendency to try to get through government procedures or court

decisions what this country will not tolerate, an end run around

what we have set up as a decisionmaking body, whether it is the

legislative body or trying to set some new constitutional interpretation of what is or is not religiously acceptable speech.

Ms. TRISTANI. Sir, I was just trying to do the best I could in a

license transfer where we are charged with ensuring that the channel is primarily educational.

Mr. PICKERING. Let me say this. We are going to do everything

we can to keep your views from ever happening.

Mr. TAUZIN. The Chair recognizes the gentleman from Florida,

Mr. Stearns.

Mr. STEARNS. Thank you.

34

I want to thank the witnesses for coming and, Commissioner

Tristani, your courage in also expressing your views. It is your

right to do so.

Many of us feel that the FCC in itself as a body should be reformed. Chairman Tauzin and others, and Mr. Gillmor from Ohio

have a bill to reform the FCC.

If you look at the computer industry and you talk about what

has happened there, the innovation, they did not have an FCC. For

many of us, the innovation that could occur in the telecommunications industry could occur much rapidly without the FCC as an

oversight body, as a bureaucracy trying to regulate and to endorse

programming and to make decisions which consumers could make.

In this case, I think as Mr. Pickering has pointed out, you have

misinterpreted the establishment clause which is part of the First

Amendment and I think in your quote of Justice Sandra O’Connor,

you have misinterpreted, at least from our standpoint on this side,

what she was saying.

I think what has touched me the most is when Commissioner

Furchtgott-Roth said that he felt chills when staff asked him would

you like to look at videos. Let me ask you, have you looked at videos and made some decisions yourself, that would say to yourself,

this is not educational programming? Have you made that in your

own judgment?

Ms. TRISTANI. I did look at videos over a year ago and that is

when I thought this should go to an administrative law judge to

decide. I thought that was the proper procedure.

Mr. STEARNS. Would it be appropriate for you to tell us what videos you looked at?

Ms. TRISTANI. It was so long ago, I don’t recall.

Mr. STEARNS. Let me give you a couple of examples and maybe

you could tell me. If I showed you a video in which a television

broadcaster and other individuals advocated individuals in the audience to lead a life according to the principles of the Ten Commandments, how would you view that? Do you think that is educational or religious?

Ms. TRISTANI. It could be educational to some and religious to

others.

Mr. STEARNS. To you, how do you feel that is?

Ms. TRISTANI. On a personal level? Having been brought up as

a Catholic?

Mr. STEARNS. You are a Commissioner and you have looked at

videos and you made a value judgment that this was not educational.

Ms. TRISTANI. No, the value judgment was that it did not serve

the primarily educational requirement.

Mr. STEARNS. Let us keep your hat as Commissioner and I have

just showed you a video of an individual and others who are advocating the use of the Ten Commandments to lead a life according

to the principles thereof, would you as a Commissioner view that

as educational, yes or no?

Ms. TRISTANI. I think I would have to see more of the program,

of the video because it could be in different contexts.

Mr. STEARNS. Say we had a noncommercial educational channel

providing teachings to the audience about collecting items, colVerDate 11-MAY-2000 08:41 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 E:\HEARINGS\64025 pfrm01 PsN: 64025
35

lecting wrestling magazines or comic books, would you consider

that educational or not?

Ms. TRISTANI. Collecting magazines or wrestling. I would again

have to see more about the programming.

Mr. STEARNS. I could make it more ridiculous and say what

about teaching the audience how to collect pet rocks. Is that educational?

Ms. TRISTANI. Pet what?

Mr. STEARNS. Pet rocks.

Ms. TRISTANI. I don’t know what pet rocks are.

Mr. STEARNS. That is probably another aspect about this. If a

person is going to make a decision on listening to a video or watching it, he or she has got to be some kind of culturally, educationally

observer to even make a decision. So what I am trying to point out

in this discussion is you are taking a bizarre position in which you

as an individual can decide whether the collecting of pet rocks,

wrestling and comic books, or people advocating the Ten Commandments as a way of life, you can’t make that decision yourself

this afternoon, so it is bizarre for you to come here——

Ms. TRISTANI. I said on the Ten Commandments I would have to

see the full context of that. I think what we are struggling with

here is that any standard is very hard. But we do have a standard

that programming should be primarily educational. We have it, as

Congressman Markey brought up in the children’s television guidance.

Mr. STEARNS. You can’t this afternoon tell me, out of the three

programs I gave you, whether they are educational or not.

Ms. TRISTANI. I think I would have to see them. Again, we were

giving guidance. If the questions came up and some question

whether they are meeting——

Mr. STEARNS. I see you there. We have the program here, we

have five programs and you are sitting there as the FCC czar of

information and you say that program is no good, that program is

educational and this program is educational and this program is

not. Do you see how offensive that is?

Ms. TRISTANI. Sir, that is not how I see myself, as the czar of

anything. That is for sure.

Mr. STEARNS. Mr. Wildmon, it is great to see you. I have been

on your program. How many religious broadcasters are there?

Mr. GUSTAVSON. 1,730 radio stations, AM, FM, educational, commercial and about 245 television stations. By the way, 15 of them

operate in that noncommercial educational band that are owned by

christian organizations.

Mr. STEARNS. What is the average number of hours of programming a day, or week in some of these stations?

Mr. GUSTAVSON. Many of them are 24 hours a day.

Mr. STEARNS. And some are also less?

Mr. GUSTAVSON. Oh, yes. Some of them are daytime, AM stations

and so on.

Mr. STEARNS. Do you think it is possible the FCC could quantify

the difference between cultural and educational?

Mr. GUSTAVSON. It has occurred to me as I have been sitting

here, operas, concerts, teachings on pets and animals and cooking

shows, would all be considered educational in nature on a station

36

but not religion. In other words, they would qualify as being acceptable educational programming. It is very confusing to us.

Mr. STEARNS. My time is almost up. I would be glad to let Mr.

Wildmon speak.

Mr. WILDMON. What I heard started this whole thing was they

got some complaints from Pittsburgh from people there that Cornerstone was going to go over and it was supposed to be 50 percent

educational and cultural. Is the programming supposed to be educational or cultural for all the people or all the viewers?

Mr. STEARNS. That is another problem with this because for me,

collecting pet rocks would not be educational, cultural or meaningful but for some people in this country, it might.

Mr. WILDMON. What I heard said was that religion serves only

a small group of people. That may not have been the exact words

but that was the implication. Therefore, because you only serve a

small group of people, we have to regulate your license and make

sure you act like the government thinks you ought to act.

I would ask the question, I don’t speak a lot of good English but

I sure don’t speak any Spanish. What about those stations that are

24-hour, noncommercial Spanish speaking stations, are they educational? Do you see the point? We are opening a can of worms

here.

Mr. STEARNS. Anyone else?

Mr. DREISTADT. Just a couple of points I would like to speak to.

In the application process, Cornerstone demonstrated meticulously

that we had over 100 hours of qualified programming under the established standards. That was acknowledged in the decision of December 29. Under the Additional Guidance, we applied those standards to the same programming and reduced it down to about 30

hours per week, which was no longer able to allow us to qualify.

Our mission is to broadcast the gospel. That is something we do

24 hours a day, 7 days a week. To comply would have meant that

we would have had to abandon our mission 49 percent of the time.

There are already 15 other noncommercial television broadcasters

who are already broadcasting christian programming, 15 applications have already been approved.

Because of the opposition, the complaints raised from the Pittsburgh groups, this application was singled out for special scrutiny

that we believe was inappropriate. It is interesting to note that of

all those complaints that were raised, my understanding is that

none of those complaints were justified and all of them were dismissed.

So in spite of the fact there were complaints, none of them had

any credibility. This whole decision, frankly, put us in a catch 22.

We wonder if the FCC or members of the FCC did not understand

that because they found themselves between a group that was protesting and a group that was applying. This decision would appear

to get them off the hook because we were in a position they knew

had to be untenable for religious broadcasters.

A final comment. I do find it offensive to be categorized in the

same group of those who are evaluated for indecency and obscenity.

Religious programming is the very moral fiber of our Nation and

has no place to be compared to indecent and obscene programming.

Mr. STEARNS. Thank you, Mr. Chairman. I yield back.

37

Mr. TAUZIN. Thank you, Mr. Stearns.

The Chair recognizes the gentleman from Illinois, Mr. Shimkus.

Mr. SHIMKUS. I apologize. I was at another illuminating meeting

with Administrator Browner and the EPA, so I come from the fire

into the frying pan here. I do appreciate those in attendance.

Mr. Dreistadt, you explained your testimony. You were starting

to talk about it in the last part of Mr. Stearns’ time. As a result

of the national attention to this issue at the FCC, Cornerstone was

forced to terminate the proposed transaction and the corresponding

sale of the television and lose financial benefits of $17.5 million in

addition to over 3 years of time and resources dedicated to the

project?

Mr. DREISTADT. Correct.

Mr. SHIMKUS. What effect do the witnesses think—this is for everyone—that this proceeding will have on religious broadcasters’

speech operating on the FM band?

Mr. GUSTAVSON. That was what our members were afraid of, sir,

that it would go then from the television reserved channels into the

88-92 on the FM band and we have hundreds of stations that use

those frequencies.

Mr. SHIMKUS. Mr. Wildmon?

Mr. WILDMON. This was what disturbed me when I first learned

of this. It would be bad enough saying we only have 16 televisions

in the United States this would apply to. The standard would have

been established. In my mind, the logic would have said the next

step would be this same rule applies to the FM broadcaster.

You hate to accuse before it happens, but government has a way

of taking an inch and an inch and an inch until the whole foot is

gone.

Mr. SHIMKUS. To the Commission, you have stated that you fear

that religious speech will be chilled based on this. Can you elaborate on that?

Mr. FURCHTGOTT-ROTH. Yes, you are exactly right. If someone

has a message whether they are broadcasting it, whether they are

speaking it, whether they are writing it, they will behave differently if they think there is someone in a government agency

looking over their shoulder reviewing what they are saying and

making decisions based on what they say.

It is beyond belief that it does not have a chilling effect to know

that there is someone who is going to be reviewing a videotape of

what you are broadcasting and deciding whether it falls into one

category or another, and based on which category it falls into,

whether your license is potentially going to be threatened with revocation. That is not the proper role of government.

Mr. SHIMKUS. I got in on the last part of Congressman

Pickering’s First Amendment emotions. Commissioner Tristani, do

you agree with what you just heard as far as the chilling aspect

on free speech?

Ms. TRISTANI. No, I don’t because the first, as to FM radio or now

vacated Additional Guidance, applied only to the noncommercial

television reserve channels.

For the other, it applied to a very limited, as we have all heard,

I think 14 or 15 stations. It did not say you cannot broadcast cerVerDate 11-MAY-2000 08:41 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00041 Fmt 6633 Sfmt 6602 E:\HEARINGS\64025 pfrm01 PsN: 64025
38

tain types of speech. It said that a certain amount of programming

had to meet the educational requirement.

We have many religious broadcasters on commercial channels,

we have a lot of non-religious broadcasts that occur even on the

commercial channels. If you turn on the television on Sunday

morning, you have broadcasts all over, so I don’t see the chilling

effect.

I don’t see that government’s role to go and review programming

that occurs on the broadcasts. But we do do it in some circumstances. I brought up the indecency and obscenity regulations

that we have as an example, not to compare in any way, shape or

form this review but just as an example that we do look at tapes

at times when citizens complain that there has been an indecent

or obscene broadcast over the airwaves or the TV waves. So I

brought that up as an example.

We have the childrens’ television guidelines where we require 3

hours of childrens’ television which is supposed to be primarily

educational. This is another example where that comes up. We

don’t go out and review everything but if people complain or question a transfer of a license, we have to see whether it is arbitrary

or unreasonable.

Mr. SHIMKUS. That is probably the reason why because many of

us disagree with your evaluation of what happened. So we have

two bills proposed of which I am a co-sponsor of each.

To the broadcasters, do you feel that either of these bills will provide sufficient protection from any further similar FCC action that

may impede you from expressing yourselves over the air waves?

Mr. DREISTADT. I believe that both bills address the concerns

that we, as broadcasters, would have about this area. Certainly

H.R. 4201 is the more comprehensive and sweeping bill. That

would be the one that, from a broadcasters’ view point, we would

like to see enacted because it would give us that safety.

When the language was vacated, I think it is important to note,

there was considerable questioning and pressure for Cornerstone to

reenter the transaction that we had terminated. It would appear to

some that once the language was vacated, there was no reason not

to move forward. However, as we read the decision, as we sought

counsel on the decision, it became apparent to us that although the

language was vacated, it was not disavowed. There was no change

of principle or heart. In fact, we are seeing that to some degree

today.

Because of that, without legal remedy, without legislative remedy, I believe it is a slippery slope for broadcasters who choose to

use this noncommercial band for their mission.

Mr. GUSTAVSON. Yes, we would essentially feel the same way.

Mr. WILDMON. The same way.

Mr. SHIMKUS. I appreciate that. It has been an enlightening

hearing and I will yield.

Mr. TAUZIN. For the record, Mr. Dreistadt, how long was the application upon which this guidance was issued pending?

Mr. DREISTADT. It was in excess of 3 years.

Mr. TAUZIN. I was around for a long, long time?

Mr. DREISTADT. We felt like it was forever.

39

Mr. TAUZIN. The letters the FCC received were urging action on

the application?

Mr. DREISTADT. Correct. Our understanding was the letter did

not suggest one solution or the other but just finally——

Mr. TAUZIN. Is that correct, Ms. Tristani?

Ms. TRISTANI. As I recall, no letter suggested any solution.

Mr. TAUZIN. But it asked to do something about it?

Ms. TRISTANI. One letter actually said act by December 15.

Mr. TAUZIN. In fact, we have some legislation pending that is

going to tell the Commission to act on a certain date every time?

Ms. TRISTANI. yes.

Mr. TAUZIN. So that is all the letters you got from Members of

Congress.

Ms. TRISTANI. I am saying as a result of that, we voted it when

we did.

Mr. TAUZIN. The gentleman yields?

Mr. SHIMKUS. I will finish up by saying 3 years is a terminally

long period of time. I am in my fourth year as a Member of Congress. I have already been through one election by the time you

made a decision on this hearing. I think if members can seek reelection and go out before the voters. That will address the entire

FCC restructuring issue that eventually we will get to.

With that, I will yield back.

Mr. TAUZIN. The Chair would like to make a series of unanimous

requests.

First of all, the letters referred to by Mr. Oxley, by myself, to the

Commission in response to its decision be made a part of the

record. Without objection, so ordered.

Second, the Chair would like to submit for the record a defense

of the Pickering legislation on the establishment clause question

which has been prepared by staff. Without objection, that will be

a part of the record.

[The information referred to follows:]

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We are getting into some very thorny questions here in terms of

the identity of a community when individuals are religious with

lots of money and want to buy stations in communities that might

not in any way represent the tenets of that religion. Would the

community begin to feel that station has now been taken over and

is not reflective of the balance of views in that community?

How do we deal with that issue, Commissioner Tristani? How is

this something that we would deal with if that should so occur

under the proposals that are being propounded by opponents of

your position on this issue?

Ms. TRISTANI. Under the proposals, my understanding is you

wouldn’t be able to deal with that issue.

Mr. MARKEY. In other words, we would wind up with a station

owned by someone who had a religion that was a complete minority, that is 1 percent of the population being able to broadcast all

day long, one religion on the only noncommercial educational station in town?

Ms. TRISTANI. You could.

Mr. MARKEY. As a Catholic, I would just have to watch that TV

station all day long as one of only four or five in town and have

no way of influencing them to put on a broader spectrum of views

under this particular legislation, is that correct? Is that your interpretation?

Ms. TRISTANI. That could happen, yes.

Mr. MARKEY. That could happen. I think these are very thorny

questions, these are very difficult questions, very difficult. I know

the reason I was sent to Catholic schools for 20 years was that religion wasn’t taught in public schools because that is in the Constitution, we keep it separate. My religion is over here and the public schools are over here and there is a Jewish temple.

As I am asked now to cross this divide, it raises very real questions in my mind to be honest with you in terms of peoples’ right

not only to speak but also their right not to hear if they don’t want

to, especially on stations that are reserved for educational purposes. If a station begins to proselytize a religion that I don’t happen to subscribe to, and that is the only noncommercial educational

station in town, then I think without question there are going to

be some who are going to be offended by that, especially if there

was an ability for that religion to purchase another station that

was reserve for that purpose, for religion.

So if we are going to break down this barrier, that is a big moment. I think we would probably be better off discussing some way

in which we could put religious broadcasting into a completely different category so that all faiths could then compete for stations reserved for that purpose. To take the noncommercial educational

area and begin to try to draw lines, the questions that are being

posed to the Commissioner are thorny ones but a similar set of

questions can come right back at the other side once they decide

they are going to break new constitutional ground in terms of what

could be allowed by one minority religion in a community dominated by another religion.

I want to give you a little time, Commissioner, to comment on

what I just said.

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Ms. TRISTANI. I think you raised very legitimate concerns and it

not only applies in your hypothetical where the community where

you grew up was all Catholic. What if it was 80 percent Catholic

and 10 percent Jewish, 5 percent Baptist, 3 percent Islamic?

Mr. MARKEY. That was my community in fact. That is the exact

community I grew up in.

Ms. TRISTANI. You have a Methodist station. It is not only the

majority that may be offended by the fact that the one reserve

channel is just Methodist. But the Jewish community, the others

I mentioned could be offended. You can come up with a lot of

hypotheticals.

Mr. MARKEY. Thank you, Mr. Chairman.

The Chair recognizes himself briefly. Let me, on the contrary,

talk about the thorny question that is raised when the agency of

our government decides to begin deciding what is acceptable educational, cultural programming as it relates to religious broadcasting.

What is so thorny about that, Madam Commissioner, is that

when the Commission decides, as a matter of enforceable law, it

will determine whether a person keeps a license or not, the church

services generally will not qualify as general educational programming. The Commission, by setting a numerical standard, 50 percent plus 1, of qualifying programming, in effect limits the religious

programming that might be conducted on a station.

In effect, our government begins limiting the expression of religious content in our society. I may be offended, as one of the witnesses said, when one of those stations in my community is an all

foreign language station that I don’t speak, I might like it when it

is French or Cajun, I might like it better when it is a Cajun Catholic the way I was raised, but I could be offended if it was all Spanish as well.

The thorniest problem for us not whether we might be offended

because we can’t understand or we don’t agree with the tenets

being expressed in that programming, to me the real thorny problem is when government begins deciding what is and what is not

culturally attractive and educational to me in religious programming.

The question Mr. Stearns asked was interesting, whether a program that admonished me to live by the Ten Commandments

would or would not be considered by any one of you to be educational. Suppose I didn’t know the Ten Commandments and it

would be very educational, or as if I didn’t know what pet rocks

were, it would be somewhat educational for me to learn what they

were. I don’t know that any government agent or government institution can make that distinction.

As I read the retraction of the Commission of its guidance, it

says, ‘‘We vacate this Additional Guidance and we defer instead to

the educational judgment of the licensee unless such judgment is

arbitrary or unreasonable,’’ in effect returning to an age old policy,

that correctly decided not to try to define with clear definitional parameters what was or was not educational about religious programming.

I agree with my colleagues, that is the most slippery slope I

think our government could ever find itself on. I think the CommisVerDate 11-MAY-2000 12:52 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00051 Fmt 6633 Sfmt 6602 E:\HEARINGS\64025 pfrm01 PsN: 64025
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sion found itself there and quickly retreated. I frankly am glad the

Commission was assaulted by so many who found it offensive because I think our government needs to stay out of that.

One of my colleagues talked about the need for an FCC in general. I want to make a case here. The First Amendment respects

freedom of speech in our society. It is so sacred that our founding

fathers wrote it into the First Amendment. They didn’t mention

anything about the free right to truck in America but we deregulated trucking. We even abolished the agency which used to regulate trucking, the ICC. For some reason, we have maintained in

our society an agency to regulate free speech.

We ought to always think about why we did that and why we

need that. We always ought to think about when it exceeds whatever minimal authority it ought to have in an area so sacred as

free speech.

When it begins, as an agency of government, to define what is

not exceptional speech, when it comes to religious broadcasting and

whether or not a church service qualifies under a quantifiable percentage, under some judgments made by bureaucrats, not even

elected by the people of this country, I think we have gone much

too far.

I have submitted to the record a statement prepared by staff defending the sanctity of the Pickering bill. It defends it on the three

grounds established by the Supreme Court, that the bill must have

a secular legislative purpose. This bill does. I simply says the Commission shall not prevent religious programming, including religious services from being determined and it covers all noncommercial programming.

It is not intended specifically to overtly give religious message

preferential treatment. It simply says don’t discriminate against

them. That is consistent with the Constitution. It requires all noncommercial programming be treated the same. That is consistent

with the Constitution. It neither advances, advantages nor disadvantages religion. It doesn’t entangle the government with religion as the action by the Commission almost did, I think. I think

it is far preferable.

The Chair wishes to publicly thank Mr. Oxley for his effort at addressing this in legislative form as rapidly as he and my colleagues

who joined him did. The Chair wishes to thank Mr. Pickering for

working with the Chair and his staff, and the staff of our committee for improving upon the original draft so that it covers not

only television but radio licenses, and so that it not only prohibits

the FCC from doing what it attempted to do without a rule and

comment but prohibits them from doing it again, in fact insisting

upon the longstanding rule of the Commission to defer to the judgment of the licensees in regard to what is and is not educational

about religious programming.

I commend this bill to the members of the committee and as soon

as we return after Easter recess, we intend to come together and

mark up this bill and move it on to the full committee.

The Chair will yield to Mr. Oxley.

Mr. OXLEY. Briefly, this whole issue is really about reestablishing congressional intent as it relates to whether in fact any government agency can control or direct content as relates to broadVerDate 11-MAY-2000 12:52 Jan 04, 2001 Jkt 066732 PO 00000 Frm 00052 Fmt 6633 Sfmt 6602 E:\HEARINGS\64025 pfrm01 PsN: 64025
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casting. Stripped down that is what this issue is about, that is why

we were able to secure so many co-sponsors so quickly and so easily on this legislation because it really does get at the heart of the

issue as to whether the government can determine content under

the First Amendment protections afforded.

The gentleman from Massachusetts mentioned these are difficult

questions and that is true but I think this is clear. This issue is

clear that before the FCC, not an elected, independent agency

makes a determination that goes well beyond the issue of swapping

licenses and really gets at the heart of what broadcasters, in this

case, religious broadcasters, can or cannot establish as religious

broadcasting given educational content and the like, this issue gets

down to whether those kinds of fundamental decisions should not

be made over the holidays or whenever but in fact, made in a

standard rulemaking procedure where by the public has an opportunity as they do in virtually all of these kinds of matters that are

of fundamental importance to have public input. That is why we

specifically put that in that bill to make certain that was recognized.

It seems to me that is about as democratic as we can make it.

I would daresay that there aren’t too many people who have followed this issue that would indicate or would think that given the

circumstances to do over again and having a hearing like this that

would change fundamental policy out in the open in a rulemaking

procedure where the public could have input, there is absolutely no

way you would have the same result as you had the first time. Absolutely not.

The vote to rescind the Order, I would indicate is clearly an example of that. The majority of the FCC Commissioners, with the

exception of Ms. Tristani, recognized the error of their ways, recognized those decisions were far more important to everyone to be determined in a closed hearing without public comment. That really

reflected reality.

Our bill basically says you can’t do that again, you can’t control

content or attempt to control content in those kinds of decisions. I

am sure the gentleman from Pittsburgh had to be shocked at the

way the entire issue unfolded. He thought everything was up to

normal, that the swap would take place and he wouldn’t have to

be subjected to these kinds of decisions by the FCC.

That will never happen again, I guarantee you. We will pass this

bill, we will reestablish congressional intent, we will make it very

clear to the FCC and anybody else that is listening, that we are

the elected representatives of the people. I don’t say this in an arrogant way, but we are people who are responsive, who are elected,

who are accountable to our constituents.

With all due respect, Ms. Tristani, that distortion and demagoguery talked about was really about freedom, about democracy,

about speaking one’s mind. That is the essence of our system as

long as all of us live and far beyond that. We are going to make

certain by passing this legislation that those kinds of activities

don’t take place again.

I thank the Chair for his leadership on this issue.

Mr. TAUZIN. I thank the gentleman.

Mr. Pickering?

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Mr. PICKERING. Let me just add that the gentleman from Massachusetts raised the complexity of these issues and I agree, they are

complex, but I think this case embodies probably best what Steven

Carter described in his book ‘‘The Culture of Disbelief,’’ where we

have a group that not only wanted to bring balance in the establishment clause but they actually wanted to ban the religious voice

from the public square or the public airwaves.

It is not only a position of neutrality but a position of hostility

and discrimination and bias against the religious. That is why I

think we have to take the action in the legislation so that we can

make sure that does not happen.

Let me just say to the gentleman from Massachusetts, if you look

at when the Constitution was written, we didn’t have public

schools. Our educational institutions, the great educational institution of Harvard was a religious institution founded by religious

people to instruct, to teach, to bring culture and to get to the point

where we are today in history to say that the religious voice is not

educational, it’s not instructional, it is not cultural. That is a very

disturbing and sad place to be but some take that view, that somehow they are mutually exclusive, you cannot be both religious and

educational or instructional or and cultural.

I just do not believe we should separate our history and our heritage by having the types of decisions the FCC originally proposed

and then rightfully rescinded.

I look forward to working with the Chairman, Mr. Oxley and the

other members of this committee. I want to assure the gentleman

from Massachusetts that we did not intend or do not intend to do

anything that would harm children’s broadcasting. I would be glad

to work with you on that.

Thank you.

Mr. TAUZIN. Mr. Markey?

Mr. MARKEY. I thank the gentleman from Mississippi because I

know there is a legitimate debate that has raged in this country

for 213 years over this subject. It is one that we will be debating

for the next 213 years as well. It is not an easy one to resolve but

at the same time, it is not one that has all truth on one side which

I think is really one of the tenets of the legislation.

When I went to Catholic school, I was educated in the history of

the United States and the world. I am sure those of other religions

would be shocked at the roles the Catholics played in every key

part of the history of the world and the United States.

It is completely appropriate for Catholics to have their education

laced with these religious overtones. It is both. I was learning, they

were teaching, it was educational, but I am not so sure the Jews

or Methodists or an Islamic parent would feel comfortable listing

to the role.

I learned more about Roger B. Tauney being the first Catholic

Supreme Court Chief Justice than I did about what the impact of

the Dred Scott decision was made by Roger B. Tauney. That is fine,

that is the right. If you are going to teach, be educational and link

it with religion, you get that result. It is an absolutely appropriate

result in a Catholic school, in a christian school, in a Jewish school,

in an Islamic school. Every parent has every right to put their child

into a school that is going to lace education and religion together.

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All I am saying is that if the only noncommercial educational

station in town is owned by one religion and they are lacing education and religion together that way, and it is the minority religion in town, it is going to cause real problems in that town. If we

take the language, which is in the legislation being proposed, it

changes the definition under which licenses are granted from nonprofit educational organizations to the words ‘‘nonprofit organization or entity’’ and leaves out the word education.

We are not only going to open it up to the good but we are going

to open it up to the scam artists as well. There won’t be any standards, there won’t be any requirements and we will enter a whole

new world where education itself may not be predominant. It is

just nonprofit and that is very dangerous.

In addition, the impact which the legislation has upon the Children’s Television Act, which was no simple thing to get put on the

books just to get these commercial broadcasts put on 3 hours a

week, there are significant issues that are raised.

So I am very cognizant of the fact these stations don’t have to

go to auction, that the noncommercial stations are exempt, that

there are real risk that sham or scam artists can use the new definition to take over the only noncommercial educational station in

scores of communities across the country, and I am also afraid of

what the potential is for proselytizing by religions that more properly belong in a religious educational setting or in a church or synagogue.

I think we have to be very careful if we go down this line of invoking the alarm and its intended consequences. I think this was

a very good hearing. I am glad the issues have been aired and I

look forward to any activity on it.

Mr. TAUZIN. Let me say that I think the gentleman is perhaps

wrong when he alleges that because something I hear is disturbing

to me or that I don’t agree with, that it is not educational or cultural.

I used to disagree with my professors vehemently, got in big

trouble for it occasionally. They taught me things I thought were

wrong, challenged them on it, and sometimes came out good and

sometimes didn’t.

I went to Catholic school too, Mr. Markey. I remember in my confirmation lessons in the little Catholic church, I got into an argument with my parish priest because he was trying to tell me that

the only way a person could get to heaven was by becoming a

Catholic. I thought that was rather strange. I thought there were

a lot of people who might not be Catholic who followed their faith

and maybe some people who didn’t learn about a faith but who had

lived a good life. I couldn’t imagine God saying, you are not entitled

to share eternity with us because you didn’t join my religion. I almost didn’t get confirmed.

Because I don’t understand a Spanish broadcast station because

I have not learned Spanish and I should, my mother is a Martinez

and I should learn but because I don’t understand it doesn’t mean

it is not educational. Because some in my district might understand it and enjoy it and be educated from it, does that qualify it

as one of the witnesses said when all the people in my district are

not Spanish-speaking.

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The problem I have, and it is difficult to get into all this and this

has been a difficult hearing although a good one, is again the very

difficult problem we have when we try to define the parameters of

what is cultural and what is educational when it comes to religious

teachings and church services, music and all the things that are

part of the cultural, social religious life as it is broadcast over a

station.

I think we are always safer by not trying to get into it and trying

to define it as a government. I think that is what our forefathers

meant when they told us to separate, told us to do our business.

I believe Christ had it right when he said, ‘‘Render to Caesar the

things that are Caesar’s, and things that are God’s to God.’’ I think

that basically ought to be the thing that decides it for us. Keep our

hands off trying to define this stuff. That ought to be for the people

of our country and the religious broadcasters to do, withholding always to the Commission’s prerogative if in fact some scam artist

should clearly, unquestionably as a standard has always existed,

unreasonably, interpret that right to use those stations in a way

that does operate as a sham.

Mr. MARKEY. Would you yield?

Mr. TAUZIN. Yes. I would be glad to yield.

Mr. MARKEY. Again, you get into this area where Mr. FurchtgottRoth and Ms. Tristani would have to look at the films to see what

is unreasonable under that test as well.

Mr. TAUZIN. That has always been the law.

Mr. MARKEY. Mr. Furchtgott-Roth doesn’t feel comfortable at any

time looking at film, it is chilling to him to have to look at it.

I will be blunt about it, I don’t want Bob Jones University buying

the only noncommercial educational station in my hometown and

telling me that Catholics are a cult, telling me that the Pope is the

emissary of Satan.

Mr. TAUZIN. I think he called him an Antichrist which I found

offensive too.

Mr. MARKEY. I don’t like it but because Bob Jones has the money

to buy a station and to come to my hometown and that is the only

station in town and I am going to have to listen to this message

although it is laced with the history of our role in society and a little bit else about their university, that may satisfy the test to some

but I don’t want that.

I don’t think it is unreasonable for people to be apprehensive of

that guy coming to our town.

Mr. TAUZIN. Here is the problem, if all of us in government starting regulating speech in our society based upon what we like to

hear or what we agree with, we are in deep trouble. I don’t like

Bob Jones calling my Pope, the head of my church, the Antichrist.

I think he is wrong to do that and I would love it if he would apologize instead of going on Larry King and admitting he said that or

that he continues to believe that. I am troubled by that. I think

people of faith ought to be a lot more tolerant than that. We ought

not do that. I am offended by that too.

The fact that speech offends me does not give me the right to

regulate it or limit it the way I think this order attempted to do.

That is what I found so offensive.

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Mr. PICKERING. My understanding of the current practice and

the history of these noncommercial licenses and those who happen

to be religious in mission is that we do not have examples of

abuses or shams in the past or in the present. Our proposed legislation does not change the practice of the FCC in granting or transferring these licenses in any shape or form. The definition will not

change the practice in any way. Let that be clear. This has nothing

to do with Bob Jones or any other fringe group. This is simply

about whether the FCC can regulate the content of programming

and we say it cannot. It cannot do what it attempted to do earlier

by favoring or endorsing or opposing, in the words of Justice O’Connor, one religious speech over another.

So our bill does not change current practice, it will not result in

any sham group or any fringe group of getting something they do

not have today. The definition is taken from the IRS Code which

includes educational and nonprofit and religious. That is the only

change and that would not affect who is eligible yesterday, today

or tomorrow.

The gentleman from Massachusetts proposed earlier having a

separate category for religious broadcasters, a segregation of the

religious, this is too hard, this is too complex—we just really don’t

like those people, let us put them over here where their voice isn’t

heard or doesn’t intrude upon us. I think that is the heart of this

question, a question of bias and discrimination against the religious voice.

We did not change today’s practice or yesterday’s practice, we

simply say the FCC cannot regulate content.

Mr. TAUZIN. Thank the gentleman.

Let me thank the witnesses. Ms. Tristani, we obviously have a

difference of opinion and that is part of what America is all about

too. That is part of what I guess we are trying to protect, the right

to have a different opinion and different religions, different expressions and not for me to shut you down or you to shut me down in

any way. Thank you for coming and for expressing your opinion,

albeit one we disagreed with.

Commissioner Furchtgott-Roth, we always thank you for coming

back to what we consider part of your home here at the Commerce

Committee.

Gentlemen, we also thank you for educating us and adding some

culture to this committee.

The committee stands adjourned.

[Whereupon, at 3:24 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

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