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Federal Document Clearing House
Congressional Testimony
April 13, 2000, Thursday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 3099 words
HEADLINE:
TESTIMONY April 13, 2000 W.J. "BILLY" TAUZIN CHAIRMAN HOUSE
COMMERCE telecommunications, trade and consumer protection RELIGIOUS
BROADCASTING RESTRICTION
BODY:
Statement of
Congressman W.J. "Billy" Tauzin Chairman, Subcommittee on Telecommunications,
Trade, and Consumer Protection Hearing on H.R. 4201, The "Noncommercial
Broadcasting Freedom of Expression Act of 2000" And H.R. 3525, the "Religious
Broadcasting Freedom Act" The Subcommittee will come to order. Welcome and good
morning. Earlier this year, the FCC sought to quantify the service obligations
of noncommercial television licensees. 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, programming "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 conducting notice and comment! Well, in the wake
of these actions, the FCC was inundated with stern opposition to the "additional
guidance" portion of its INQED Pittsburgh Memorandum Opinion and Order. This
opposition came from noncommercial licensees, listeners and viewers, religious
groups, and from the Hill, in waves. I myself sent a list of 33 questions to
Chairman Kennard asking him to explain in full detail the basis for the
Commission's decision ... and just as I suspected it would, the Commission
declined to respond to my interrogatories. In addition, Congressman Oxley
dropped a bill to negate the legal effect of the WQED Pittsburgh Order, which is
one of two bills up for our 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 that there is still some
cause for concern here. 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, then the FCC will once again attempt to impose onerous and
unreasonable eligibility standards upon those entities seeking to receive and
maintain noncommercial educational broadcast licenses- and once again, I fear
that 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 that we should take to deal with this situation. Before us are two bills:
H.R. 4201 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-
clearly, we would be better off than we are today if either were to be enacted
into law. At this juncture, however, I feel that the approach taken by 3525,
while very noble in concept, needs to be strengthened a bit. In addition to
directing the FCC to vacate its WQED Pittsburgh Order, which it has already
done, 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 rule-making proceeding based on notice and comment. While
it is true that the FCC offended all of us 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 rule-making each
time they broaden the service obligations of noncommercial broadcasters. Just
because a rule-making proceeding may produce a record that we all like, does not
mean that we can trust the FCC to objectively abide by that record. To the
contrary, in this age of the "Administrative State," the FCC has become infamous
for shunning the administrative record and imposing its own policy agenda when
it so chooses. We see this all the time from this Commission. Later TODAY, I
will be managing a bill on the floor of the House, H.R. 3439, also introduced by
Mr. Oxley. As was rightfully acknowledged before the Rules Committee yesterday,
this bill seeks to rectify a situation whereby the Commission created new
low-power FM radio licenses in complete disregard of an
administrative record containing clear evidence that the creation of these new
licenses would likely result in unacceptable levels of interference for existing
FM stations. So, in light of the LPFM predicament, I must ask, why should we
expect the FCC to respect a record that, for instance, might denounce the FCC's
proposed definition of "cultural, instructional, or educational programming," 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.
Rule-makings, these days, only slow the FCC down a little bit. Even when charged
with notice and comment responsibilities, this FCC always seems to find a way to
impose its will. Well ... enough is enough. Now that the FCC has shown us a
blueprint of how it would prefer to treat noncommercial religious programming,
we need a bill that does more than just subject that blueprint to notice and
comment procedures. Mr. Pickering's bill, H.R. 4201, which he introduced on
behalf of Mr. Oxley, myself, Mr. Largent, and Mr. Stearns, I believe takes an
appropriately stronger stance against what the FCC did earlier this year. Under
4201 , an entity is eligible for a noncommercial license where its station is
primarily used to broadcast material that the entity reasonably determines
serves an educational, instructional, or cultural purpose. Unless such
determination is 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 (rational)
relation to education, instruction, or culture, the bill imposes a single,
clear, and non- onerous eligibility requirement on noncommercial broadcasters.
Moreover, the FCC, in Paragraph 3 of its Memorandum Opinion and Order which
vacates the additional guidance in the WQED Pittsburgh Order, fully admits that
this type of discretion- affording eligibility standard is, in fact, the most
prudent type of eligibility standard that the Commission should be enforcing. I
quote from Paragraph 3 of the Order. "In hindsight, we see the difficulty of
minting clear definitional parameters for educational, instructional, or
cultural programming .... Therefore, we vacate our additional guidance. We will
defer to the editorial judgment of the licensee unless such judgment is
arbitrary or unreasonable." In accordance with this conclusion, H.R. 4291
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 noncommercial
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 Pittsburgh
Order. Specifically, the FCC cannot require that a "majority, Y1 or 50.1 of a
noncommercial entity's 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 cannot prevent religious programming
from being determined by a licensee to serve an educational, instructional, or
cultural purpose, nor can the Commission 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
noncommercial television and radio licenses/licensees whereas the protections
provided by 3525 extend only to television licensees. With all of that having
been said, let me make one thing clear. At the end of the day, whatever
legislative language is adopted by this Subcommittee, we have got to do it right
For the numerous reasons I have sighted here today, we cannot allow the
Commission to have another bite at the apple when it comes to protecting the
freedom on noncommercial speech.
LOAD-DATE: April 26,
2000, Wednesday 
