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April 13, 2000, Thursday

SECTION: CAPITOL HILL HEARING

LENGTH: 20366 words

HEADLINE: HEARING OF THE TELECOMMUNICATIONS, TRADE AND CONSUMER PROTECTION SUBCOMMITTEE OF THE HOUSE COMMERCE COMMITTEE

SUBJECT: THE FCC AND NON-COMMERCIAL EDUCATIONAL TELEVISION BROADCASTERS

CHAIRED BY: REP. W.J. TAUZIN (R-LA)

WITNESSES: MARK DREISTADT, VICE PRESIDENT OF ADMINISTRATION AND FINANCE, CORNERSTONE TELEVISION; HAROLD FURCHTGOTT-ROTH, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; E. BRANDT GUSTAVSON, LLD, PRESIDENT, NATIONAL RELIGIOUS BROADCASTERS; DON WILDMON, PRESIDENT, AMERICAN FAMILY ASSOCIATION;

2322 RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C.

12:45 PM. EDT THURSDAY, APRIL 13, 2000 Copyright

BODY:
REP. W. J. TAUZIN (R-LA): The subcommittee will please come to order. Welcome and good afternoon. We weren't sure when we were going to commence this hearing.

Earlier this year, the FCC sought to quantify the service obligations of non-commercial television licenses by requiring that -- quote -- "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 has further determined that while programming which, quote, "teaches about religion," unquote would count toward the new benchmark, programs, quote, "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 non-commercial, 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. On the wake of these actions, the FCC was inundated with stern opposition to the -- quote -- "additional guidance" portion of its WQED Pittsburgh Memorandum of Opinion and Order. This opposition came from non-commercial licensees, from 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 of the commission's decision. And just as I suspected it would, the commission declined to respond to the interrogatories. In addition, Congressman Oxley dropped the 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 four to one. For that, I do commend the commission. However, I feel that there is still some cause for concern here. Despite the four to one 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.

Commission Tristani has even asserted that she -- quote -- "for one, will continue to cast her vote in accordance with the views expressed in the additional guidance." Unquote. 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 non-commercial educational broadcast licenses. And 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 that we should deal with this situation. Before us are two bills: H.R. 2101, the Non-Commercial 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. Both of these are, in fact, 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 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, 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's true that 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 problems simply by requiring the FCC to go through a rulemaking every time they decide, in fact, to legislate on the content requirements of non-commercial broadcasters. Just because a rulemaking proceeding may produce a record that we all like does not mean we can trust the FCC to objectively abide by that record. To the contrary, in the age of the administrative state, the FCC has 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's 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. Later today, I'll be managing a 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 handled on the floor today seeks to rectify the situation whereby the commission created a new, low-power 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. So in light of this 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 and educational programming or its proposed eligibility standards for receiving and holding a non-commercial license?

The short answer is that we shouldn't. And we can't afford to. Rulemaking, these days, only slows the FCC down just a bit. Even when charged with notice and 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 to.

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

Mr. Pickering's bill, 4201, which he has introduced on behalf of Mr. Oxley, myself, Mr. Largent, Mr. Stearns.

I believe today Mr. Ormey (sp) and Mr. DeLay have signed on as cosponsors. It takes an appropriately stronger stance against the FCC and against what they tried to do earlier this year. Under 4201, an entity is eligible for a non-commercial license where its station is primarily used to broadcast material that the entity reasonably determines serves its 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, a rational relation to educational, instructional or cultural.

The bill imposes a single, clear, non-onerous eligibility requirement on non-commercial broadcasters. Moreover, the FCC, in paragraph three of its Memorandum of Opinion and Order, which vacates the additional guidance of the WQED Order, fully permits -- admits, rather -- 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 three of the order. "In hindsight, we see the difficulty of minting clear definitional parameters for -- quote -- '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. 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 non- 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 non-commercial programming that we saw in the WQED Order. Specifically, the FCC cannot require that a majority -- or 50.1 percent -- of non-commercial entity programming must serve an educational, instructional or cultural purpose in order for that entity to receive and hold a non- commercial 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 non-commercial programming that are not currently imposed on commercially broadcast programming.

Finally, H.R. 4201 protects both the non-commercial television and radio license and licensees; whereas, the protections provided by 3525 extend only to television licensees. So the new bill covers not only the television but radio licensees of religious programming.

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 protection the freedom on non- commercial speech and religious broadcasting.

The chair now yields to my friend -- anyone else? Then the chair welcomes our panel. I am pleased today to welcome, as our witnesses, the Honorable Furchtgott-Roth, the Honorable Tristani, the Honorable Mark Dreistadt, vice president of administration and finance for Cornerstone Television, Mr. Don Wildmon, president, American Family Association and Mr. Brandt Gustavson, president of National Religious Broadcasters. We will begin with the Honorable Harold Furchtgott-Roth of the Commission. Mr. Roth?

MR. HAROLD FURCHTGOTT-ROTH: Mr. Chairman, as always it's a great honor and privilege to be here. I would like to have my testimony submitted for the record.

REP. TAUZIN: Without objection, the written statements of all of our witnesses, as well as any m members who wish to submit written statements, will be admitted into the record. It is so ordered.

MR. FURCHTGOTT-ROTH: 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. And 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. I am privileged to have on my staff Ms. Helge Walker (sp), who I think is one of the very brightest lawyers I've ever had the privilege of working with. And 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. And if I make any mistakes here, those are my -- REP. TAUZIN: They're all yours, of course. (Laughter.) MR. FURCHGOTT-ROTH: In the manner you described, I dissented vigorously from the additional guidance. To my mind, quantification of the educational programming obligation of non-commercial licensees was potentially unconstitutional. In Turner Broadcasting System, Inc. versus the FCC, the Supreme Court went out of its way, in discussing the validity of our regulatory requirements for non-commercial educational broadcasters, to note that our rules did not require broadcasters to air any specific amount of such programming. The clear implication of that discussion is that quantified programming obligations for NCE licensees would indeed raise First Amendment problems.

Worse, the commission's additional guidance raised the specter of discrimination against certain broadcasters on the basis of their religious message. No other non-commercial, educational broadcasters, of course, were subjected to the no exhortation or no statement of personally-held views standard announced in that Order.

In Rosenberger versus the University of Virginia, the Supreme Court made clear that once government opens up an avenue for expression, it may not deny access to those with religious editorial viewpoints, simply because of those viewpoints. Conversely -- and contrary to the assertion of some in the WQED majority -- the court also made clear that allowing such groups to speak on the same basis as others, in order to avoid a First Amendment violation, does not, in turn, violate the establishment clause.

And let me quote specifically from the Rosenberger case. At 846 (sp), 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, 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 non-commercial 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. And 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 the point.

The order indicated that church services generally would not qualify as general educational programming. We asked, however, why such programming might not qualify as cultural programming, just as a presentation of an opera might? It would be very hard to broad brush either type of programming as having no intrinsic cultural value. Moreover, depending upon the nature and content of the service, it might very well be properly educational. Certainly, millions of Americans attend church services, in part, for the educational value of the teachings embodied in 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 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 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 at the commission themselves is null and void.

If this question is left open, the commission is sure to go a second round on the specifics of when religious stations should be deemed to serve educational ends. All it would take is for a similar license transfer application to come along -- and we receive many such applications -- to have a renewed regulatory battle over this issue. I fear that the speech of religious broadcasters operating on the non- commercial educational 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, Mr. Chairman.

REP. TAUZIN: Thank you, Mr. Roth. Now, the chair is pleased to welcome the Honorable Gloria Tristani, also commissioner of the 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 that 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. And I wanted to say, on the public record, that the invitation for him to appear is still open. 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'll 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.

MS. GLORIA 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 requirement that reserved television channels be devoted primarily to educational use. 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 the 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 non-commercial 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 without thereby 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 non-belief. As Justice O'Connor recognized, "The 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 non-adherents.

Again, quoting from 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."

Here, the government reserves a small number of TV channels in a community for educating the public. These channels are quite valuable. Cornerstone planned to move to the non-commercial 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 has 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.

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 a sectarian school 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.

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 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.

REP. TAUZIN: Thank you very much, Madame Commissioner. The chair is now pleased to welcome Mr. Mark Dreistadt, vice president, administration and finance, of Cornerstone Television in Pennsylvania. Mr. Dreistadt?

MR. MARK 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 40, in 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 non- commercial educational station, WQEX in Pittsburgh, on which Cornerstone proposed to air Christian educational programming. I welcome this opportunity to comment both on H.R. 3525 and on H.R. 4201.

Early in 1997, Cornerstone entered into a cooperative effort with two other broadcasters, WQED in Pittsburgh and also Paxson Communications Company. And QEX had suffered substantial financial losses and QED was already the licensee of Channel 13, another non- commercial educational station in Pittsburgh. And they wanted to sell QED and use the monies therefrom to enhance the 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 continue to believe that this assignment would have been good for the community by adding additional diversity in the programming offered on non-commercial television stations in the Pittsburgh area.

Ultimately, on January 18, 2000, after over three 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 29th order, the FCC approved the assignment of the non-commercial 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. And 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 the ruling was arbitrary and capricious and raises serious First Amendment concerns. We believe 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 and church services, we could literally 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 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 this FCC additional guidance.

During the application process, Cornerstone repeatedly demonstrated its ability as an operator of a non-commercial 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 test of December 29th order, FCC stated that, "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 not accept either of these options, termination of its agreements with the other broadcasters were the only recourse.

Cornerstone believes that the FCC's additional guidance for religious broadcasters operating on non-commercial educational channels clearly violated the First Amendment of the United States Constitution by singling out religious programming for special scrutiny, regulating 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 non-commercial 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 action still leaves religious broadcasters who seek to operate on non-commercial 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 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 are 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 action can be addressed in this legislative context. Cornerstone believes that the only safety for religious broadcasters who are broadcasting on non-commercial 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 non-commercial 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 and members of the subcommittee, again, I appreciate this opportunity to share our views and look forward to answering any questions you may have.

REP. TAUZIN: Thank you very much, sir. The chair now recognizes Dr. Brandt Gustavson, president of National Religious Broadcasters in Manassas, Virginia. Dr. Gustavson?

MR. BRANDT 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 organization, let em 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 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 like Charles Fuller (sp), Walter Mire (sp), Myron Boyd (sp), Theodore Epps (sp) and MRD Hahn (sp).

We are proud to say that we are an association of Christian broadcasters. It's 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 non-commercial educational channel 16, a decision that would have provided millions of dollars for Cornerstone to produce quality programming and continue broadcasting the Gospel. But in adopting this order, as we have heard, 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 programming.

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 -- which, by the way, we call sermons and Bible studies -- proselytizing, which we call evangelism, or statements of personally- held religious views, which we call testimonials. And they generally would not qualify as general educational programming. This 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. Quote -- "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 literary perspective," they 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 program becomes more passionate, emotional, personal or originates from a church, it is somehow less educational, educational and instructional or cultural. Even though this additional guidance was formally directed only to non-commercial education TV stations, the majority of NRB members are radio broadcasters. We've got 1,730 religious broadcasting stations in the United States. And they, understandably, feared this decision might be a first step towards 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 -- when you all were out of session and the nation was in the midst of celebrating Christmas and New Year's 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 -- 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. And it wore us out, frankly. But it was effective.

In the end, the FCC vacated the additional guidance, a decision we're thankful for. But Cornerstone decided not to move, as Mark says, to Channel 16. And they have 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 all 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. And 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 Non-commercial 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.

And 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 and religious speech will be protected from any activist government agency.

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

REP. TAUZIN: Thank you, Dr. Gustavson. Now the chair is pleased to recognize the gentleman from Mississippi, Mr. Pickering, for an introduction.

REP. CHARLES PICKERING, JR. (R-MS): Thank you, Mr. Chairman. And I have the pleasure today of introducing Mr. Donald Wildmon, who is from my home state of Mississippi, the father of four, the author of more than 22 books, with a million copies in print, educated at Millhouse (sp) College in Jackson, Mississippi with a master of divinity from Emory University, with honorary doctorates from a number of outstanding educational and theological institutions.

But his recent contribution to our country and to our culture is through the American Family Association, which has more than 130 radio stations and a journal with a circulation of 500,000. He has been a consistent and strong voice and force for both freedom, for family and for faith. And I am glad that he can come today to testify on the need to protect those and to be ever vigilant. Thank you, Mr. Chairman.

REP. TAUZIN: Mr. Wildmon?

MR. DONALD WILDMON: Thank you, congressman. Mr. Chairman, members, 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 distributed 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 three to two 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 programming given by the FCC. Under their definition, a sermon by Dr. Billy Graham would not have been classified as 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.

REP. 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 three to two 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 happened. And why was a religious broadcaster chosen as the vehicle for these new definitional standards of educational and cultural programming?

MS. TRISTANI: I'd like to -- Mr. Chairman, the proceeding was a restricted proceeding, under which certain rules apply where we cannot be discussing things that are not public. But I can tell you that the decision was made not -- well, I will tell you that certain members of Congress were writing to us constantly about deciding the case. And the actual decision was rendered around December 15.

REP. 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, yes. I will tell you that, sir.

REP. TAUZIN: But you can't tell us who they were because that's restricted. MS. TRISTANI: No, there are letters -- REP. TAUZIN: In the record?

MS. TRISTANI: Actually, Senator McCain sent a letter saying, "If you don't decide by December 15 --" REP. 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?

MS. TRISTANI: Let me tell you where it came from, since I voted for the additional guidance.

REP. TAUZIN: Yes, please.

MS. TRISTANI: And I voted not to vacate the additional guidance.

REP. TAUZIN: Yes.

MS. TRISTANI: Under normal cases, we don't get into, as we did in this case, about what the programming is. But there was oppositions. There was opposition by citizens in Pittsburgh who questioned the educational programming of the broadcaster. We got involved because of that.

REP. TAUZIN: So who originated the language that was quoted to us by Dr. Gustavson? Where did that language come from? Is it something you wrote? Was it something staff wrote? Where did it come from?

MS. TRISTANI: I contributed to it, sir.

REP. TAUZIN: Okay, 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.

REP. TAUZIN: Was there a decision to render this -- MS. TRISTANI: And could I clarify something, Mr. Chairman?

REP. 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.

REP. TAUZIN: All right. Now, Ms. Tristani, you received a letter, I'm sure -- it's 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 asked 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'm 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 for the response was due -- it was after the commission vacated -- REP. TAUZIN: So you felt no need to answer the questions?

MS. TRISTANI: I thought it was moot, sir.

REP. TAUZIN: Because it was vacated?

MS. TRISTANI: That's what I thought.

REP. TAUZIN: Let me then ask or put a few of those questions to you. In vacating the order, the commission basically said, "We're going to go back to previous policy that gives discretion to the licensee to make determinations and that, only when it's arbitrary or capricious will we ever step in and act." What necessitated departing from that previous policy, in your mind, in the minds of the other two members who voted for it?

MS. TRISTANI: Well, we didn't depart from the policy that it had to be arbitrary and unreasonable.

REP. 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.

REP. TAUZIN: Well, let's talk about that. Now, I asked you these questions in the list of questions I sent you. But Handel's "Messiah" is a pretty beautiful piece. "Amazing Grace" is a pretty beautiful song. Why, in your instructions -- in these additional instructions -- were those beautiful music, those beautiful songs, considered educational and cultural if 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 in the guidance.

REP. TAUZIN: But if I read your instructions, as Mr. Gustavson read them to us today, it basically says that the church service where the music was played would not be considered educational or cultural.

MS. TRISTANI: Mr. Chairman, as I said in my statement, one of the big concerns I have -- and it's based on the Establishment Clause -- is that religion is something very, very different. And religion raises some questions for non-adherents.

REP. TAUZIN: But didn't you realize that when you particularized what was acceptable and what was not acceptable in religious programming?

MS. TRISTANI: We gave examples, Mr. Chairman. And we also said that, in certain instances, church services might be educational.

REP. 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 add something, Mr. Chairman, is that we never said you cannot broadcast those services on a reserved channel.

REP. TAUZIN: You just wouldn't count them.

MS. TRISTANI: We wouldn't count it towards the 50 percent.

REP. TAUZIN: Then you would decide. You would decide whether they -- MS. TRISTANI: No, because they still would have a broad range of 49 or whatever -- 49.5 or I don't know how you counted exactly.

REP. TAUZIN: But Ms. Tristani, if a station could lose its license if it didn't reach your percentage of qualified programming, were you not -- MS. TRISTANI: Well, we weren't going to go out there and count.

REP. 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: And 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 the same religion or are non-believers at all on the adherence dangers. If I may quote from Justice O'Connor, if I could, 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 for which citizens, based on their personal religious choices, government cannot endorse the religious practices and beliefs of some citizens, without sending a clear message to non- adherents that they are outsiders or less equal members of a political community.

REP. TAUZIN: But you, in your instructions to these religious broadcasters, told them -- and I quote -- "Church services generally will not qualify as general educational programming under our rules. However, a church services which is part of an historic event, such as a funeral of a national leader, would qualify." You would, in fact, put yourself in the position of deciding 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 as religious broadcasters, but at those who broadcast on the reserved channels, a very small sliver of the spectrum that is reserved for public purposes and to be primarily educational.

REP. TAUZIN: Did that example have the force of law, as far as the commission was concerned? Did it have the force of law, Mr. Furchtgott-Roth? I see you shaking your head. Did it?

MR. FURCHTGOTT-ROTH: Yes.

REP. TAUZIN: Yes, it did. And 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 -- MS. TRISTANI: No, would be counted towards the educational portion of a broadcast.

REP. TAUZIN: We quibble. Let me ask you, Ms. Tristani and Mr. Roth -- MS. TRISTANI: Yes.

REP. TAUZIN: 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 and that ought to be clear.

REP. TAUZIN: Mr. Furchtgott-Roth?

MR. FURCHTGOTT-ROTH: Mr. Chairman, I've been at the commission for about 2.5 years. There have been many things I've 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. Mr. Chairman, I will never support any move to have the government placed in the position of deciding whether programming fits into one pigeonhole or another. It is just abhorrent to me. And to say that religious broadcasting fits into this pigeonhole or that pigeonhole is not the role of government.

REP. TAUZIN: My time has expired. The chair recognizes the gentleman from Massachusetts, Mr. Markey, for a round of questions.

REP. EDWARD MARKEY (D-MA): Thank you, Mr. Chairman, very much. I apologize that I was not here at the point at which opening statements were made. And that was only because we had a role 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 that, to our witnesses who are unfamiliar with the Congress, that if all federal agencies were unable to act when Congress was out of session, in this particular Congress, it would mean that, for the most part, that no federal agency would be able to act for at least half of the year. Now, that might be the wish of some particular, you know, anti-government philosophy, but it would be impractical, in terms of the operation of the very important functions -- whether it be health or safety or education -- for America. So when agencies, including the Federal Communications Commission, act when Congress is out of session, they're doing it -- as is every other agency, with every other part of the government -- in order to advance the public well-being, whether any one of us may agree or disagree with any of those decisions.

This hearing comes on the heels of decisions at the Federal Communications Commission dealing with television license transfers and attendant clarifying guidance that was issued to ensure that the Federal Communications Commission non-commercial -- non-commercial -- 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 decisions reflected a bias against religion. Far from a bias against religion, it must be remembered that Cornerstone was requesting -- no pun attended -- 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 non-commercial educational stations. I do not question whether religious programming is often educational. In fact, I believe that many of the programs on religious stations 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 anti-religion or against religious programming. It simply questions whether the distinction between commercial and non-commercial 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 non-sectarian 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 non-commercial stations. Every licensee, under the rules implementing the Children's Television Act, must air a paltry three hours a week of programming for the child audience. 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.

I at this point would also, Mr. Chairman, ask that the hearing record remain open for the customary two weeks. I have statements from parties that I would like to have inserted in the record. and I thank you for allowing me to make my opening statement at this point.

REP. TAUZIN: Without objection, the gentleman's request that the record remain open for two weeks is permitted. Without objection, so ordered. And the record will so remain open. The chair thanks the gentleman. The chair -- I hope Mr. Gillmor would permit me, the chair will recognize the vice-chairman of our subcommittee, the author of the Oxley Bill, one of the bills before us today. The gentleman from Ohio, Mr. Oxley?

REP. MICHAEL OXLEY (R-OH): Thank you, Mr. Chairman. As we all know, the FCC decision on December 29 elicited a letter, signed by myself and Congressman Pickering, Largent, Stearns to Chairman Kennard, objecting to the commission's action. And 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 said -- quote -- "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 that we had drafted the Religious Broadcasting Freedom Act. It was introduced on January 24 with 60 original cosponsors. We now enjoy 125 cosponsors on that legislation. So this is kind of setting the stage for only what occurred at the commission.

So Commissioner Tristani, I'd like to ask you, in your dissenting statement, you say that the commission has -- quote -- "capitulated to an organized campaign of distortion and demagoguery." End quote. Is that correct?

MS. TRISTANI: Yes, sir.

REP. OXLEY: And you still stand by that?

MS. TRISTANI: Yes, sir.

REP. OXLEY: Do you feel this campaign could have been avoided if the commission had simply followed -- had proceeded with a rulemaking, as is normally consistent when these kind of major policy decisions are made?

MS. TRISTANI: Probably not.

REP. OXLEY: Probably not?

MS. TRISTANI: Not if we'd come up with the same result.

REP. OXLEY: Obviously, there is large part of the public that 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.

REP. OXLEY: And why not?

MS. TRISTANI: Well, because I think this is, given the emotions that it's still generating and the e-mail that I'm getting and I'm sure all of you are getting, I think it's the kind of issue that you could do it in a rulemaking, you could do it in many different ways, but it would still generate a lot of concern. REP. OXLEY: And you don't think that, in a rulemaking procedure where the public has an opportunity to comment, that it wouldn't have had a different result initially?

MS. TRISTANI: Well, sir, as I was explaining earlier, this was a license transfer application. And it's not a rulemaking procedure.

And that's why -- and the issue came up in the particular case. As a matter of fact -- REP. OXLEY: Did you think this was a major shift in policy by the FCC?

MS. TRISTANI: No, sir. No, sir. I think it was a clarification of our rules or the then -- REP. OXLEY: Mr. 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'm just deeply distressed that any government agency would be reviewing videotapes and trying to tell -- REP. OXLEY: Well, let's get into that a minute, then. If, in fact, the decision by the FCC were to have the effect -- as many of us thought and feared -- 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 mean, I find Rep. Oxley, Kennard's (sp) statement that this was, in fact, just a codification of prior commission practice extraordinarily disturbing and I can't speak to that prior Commission practice. DR. TRISTANI: Could I add something?

REP. OXLEY: Of course.

DR. TRISTANI: As far as reviewing, just to respond a little bit to my colleague, the Commission Regularly review indecency and obscenity complaints, both audio and video, so it's something that we do, based on some of our rules.

REP. OXLEY: Ms. Tristani you say, apparently, the Commission capitulates an organized campaign of distortion and demagoguery. Are you accusing Dr. Furchtgott and Mr. Dreistadt and others of distortion and demagoguery?

DR. TRISTANI: I'm not accusing anyone personally.

REP. OXLEY: Let me ask Commissioner Furchtgott-Roth, 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're considering today?

DR. FURCHTGOTT-ROTH: Mr. Oxley, I'm not a constitutional expert and I would urge you to ask someone who is that question and I would hope that any legislation you might consider would avoid any such problems. But I do not believe that there is any existing establishment clause problem with permitting broadcasters in a non- commercial educational band to self-certify. And these issues that are being raised about the establishment clause, with all due respect, I think are just simply incorrect.

REP. OXLEY: Thank you.

REP. Thank you, Mr. Oxley. The chair now yields to the vice chairman Mr. Tauzin of the Full Committee. Mr. Gillmor.

REP. GILLMOR: Thank you very much, Mr. Tauzin. I'd like to follow up with Commissioner Tristani on a couple of things. You indicated that the reason we got into this content aspect on a transfer was because of complaints from citizens from pittsburgh.

DR. TRISTANI: Yes, sir. Before that contested application.

REP. GILLMOR: Yeah. What I'm asking, I mean, what was the nature of the complaints? Who complained? What was the volume of them? Was this hundreds of letters? Was this one specific group?

DR. TRISTANI: Well, I think specifically from the city of Pittsburgh. There were maybe 300 letters, but I'm not sure of these numbers. It's from what I recall. I think it's in our original December 28th decision. I think there were, like, 30,000 e-mails from around the country, protecting the application. Now, there may have been 50 or 100 letters in favor of the application. REP. GILLMOR: What was the basis of those complaints?

DR. TRISTANI: They questioned the educational programming, whether that licensee would be satisfying the programming.

REP. GILLMOR: Are those.

DR. TRISTANI: The requirement that's imposed or that's required of anyone who's on the reserve channels, whether they're religious broadcasters or not.

REP. GILLMOR: Are those complaints a matter of public record?

DR. TRISTANI: You know, I'm 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. I've got to talk to counsel.

REP. GILLMOR: Would these complaints be any different than, for example, if a member of Congress had expressed a view on the transfer? Would that be a matter of public record?

DR. TRISTANI: Probably, and I'm just told that these complaints would be, yes, a matter of public record.

REP. GILLMOR: The complaints are a matter of public record.

DR. TRISTANI: Yes, yes. The whole file.

REP. GILLMOR: Okay. Okay. Just one other question on, because the rhetoric, it appeared to me, was rather heated from a number of areas, including from yourself when you use terms such as distorting and demagoguery. Would you specify who the demagogues were and who?

DR. TRISTANI: Again, I don't have knowledge of personal, of who specifically said what, but I got a lot of e-mails. Commission got a lot of e-mails accusing us of being anti-religious, you know, very, very nasty stuff.

REP. GILLMOR: But you don't know who did that?

DR. TRISTANI: Well, I have the e-mails and a lot of citizens and a lot of people, yeah.

REP. GILLMOR: Thank you.

REP. TAUZIN: Thank you, Mr. Gillmor. The chair recognizes the gentleman from Mississippi, Mr. Pickering.

REP. PICKERING: Thank you, Mr. Tauzin. Your honor, I'm very appreciate that we're having this hearing, that we're moving legislation to ensure that what was attempted does not occur and that there is no possibility in the future for it occurring. But 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. Well, let me just say, for the record, I feel like it's 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.

Now, 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've heard today has used extreme rhetoric. They've defended their rights to broadcast their beliefs, their liberty, their freedom, the common shared American values. They did not accuse anyone that I've heard of demagoguery, of distortion or witch hunts. But I will say that that language, that extreme rhetoric and that extreme language did come from Commissioner Tristani.

So the demagoguery and the distortion and extreme rhetoric, let the record show, did not come from the gentleman 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 listen 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?

DR. TRISTANI: I don't think that's what I said, sir.

REP. PICKERING: Well, please clarify your logic on this. And let me ask another question to better understand the context. Do you site 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 non-commercial religious broadcasters or religious expression?

DR. TRISTANI: I do not believe there's been a Supreme Court decision addressing that. No, sir.

REP. PICKERING: So you're taking the Supreme Court decisions on establishment clause and trying to build a case in your guidelines? I'm just trying to understand your constitutional logic. Does license transfer equal endorsement equal establishment?

DR. TRISTANI: I think any time we're dealing with religions, we have to look at the establishment clause, yes.

REP. PICKERING: So license transfer equals endorsement of the views expressed?

DR. TRISTANI: No, no. Those are not my words, sir.

REP. PICKERING: But if you all, if you boil this down in simplicity, that is what you're saying. And then you go further and let me just use Justice O'Connor's words in relation to what you -- 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 -- proselytizing or statements 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.

DR. TRISTANI: No, no.

REP. PICKERING: So not only do you oppose specific religious expressions, then you give another kind of -- of acceptable.

DR. TRISTANI: Sir, I do not oppose specific religious expression.

REP. PICKERING: These are your words, for example, "programming primarily devoted to religious exhortation -- or statements of personally held religious views and beliefs generally would not qualify."

DR. TRISTANI: Sir, what the guidelines said was that they would not qualify for the parts that's general education requirements 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.

REP. PICKERING: So we need a government commission to decide what -- is educational or instructional.

DR. TRISTANI: No, sir. No, sir.

REP. PICKERING: Forty-nine percent is educational.

DR. TRISTANI: I am concerned about adherence -- non-adherence and government sending the message that they favor a particular religion or no religion.

REP. PICKERING: Or you specifically get into content regulation of opposing what is, in your view, unacceptable and then giving a category of acceptable speech. And if you read the same court decision from Justice O'Connor, I would argue that she prohibits exactly what you site as the basis for your decision. You are favoring one set of speech and you're opposing or prohibiting another set of speech.

DR. TRISTANI: Sir, I would disagree with that and, of course, everybody interprets cases differently. But I would again stress that we're talking about reserve channels here, a small sliver of the spectrum that government has set aside for educational purposes.

DR. TRISTANI: But by your constitutional logic, as I understand it: license equals endorsement equal establishment, you're setting a very dangerous precedent not only for non-commercial licenses, but for commercial licenses.

REP. PICKERING: You're beginning a very dangerous slippery slope.

DR. TRISTANI: But, sir, I don't.

REP. PICKERING: And what is also very offensive to me.

DR. TRISTANI: But sir, that's your interpretation of my.

REP. PICKERING: What is also very offensive to me is that you're trying to change whether you try to minimize it by saying that this is simply guidelines of clarification. This is substantive constitutional change of policy done in an un-democratic closed process with no public comment period, not following the Administrative Procedures Act. It is a classic and unfortunately not the classic liberal in the best sense of the word, but it's the classic liberal tendency to try to get through government procedures or court decisions what this country will not tolerate and run around what we have set up as a decisionmaking body, whether it's the legislative body or trying to set some new constitutional interpretation of what is or what is not religiously acceptable speech.

DR. TRISTANI: Sir, I was just trying to do the best I could in a licensed transfer where we are charged in ensuring that the channel is primarily educational.

REP. PICKERING: Let me say this, we're going to do everything we can to keep your views from ever happening.

REP. TAUZIN: The gentleman yields back. The chair recognizes the gentleman from Florida, Mr. Stearns.

REP. STEARNS: Mr. Tauzin, thank you and I want to thank the witnesses for coming and Commissioner Tristani, your courage and for also expressing your views. And this is your right to do so. So you know, many of us feel that the FCC in itself, as a body, should be reform and Mr. Tauzin and others and Mr. Gillmor here 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 more rapidly without the FCC as an oversight body, as a bureaucracy trying to regulate and to endorse programming and to make decisions which the consumers could make. In this case, I think, as Mr. Pickering has pointed out, I think you've misinterpreted the establishment clause, which is part of the First Amendment. And I think in your quotes to Justice -- O'Connor, you have misinterpreted, at least from our standpoint, I think on this side, of what she was saying.

But I think what has touched me the most is when the commissioner first -- 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, would say to yourself this is not educational program? Have you made that, in your own judgment?

DR. TRISTANI: Actually, I did. I did look at videos over a year ago and that's when I thought this should go to an administrative law judge to decide.

REP. STEARNS: Okay. Can you tell me.

DR. TRISTANI: I thought that was the proper procedure.

REP. STEARNS: Would it be appropriate for you tell us what videos you looked at?

DR. TRISTANI: You know, it was so long ago, I don't recall.

REP. STEARNS: Okay. Well, let me give you a couple examples and maybe you could tell me. I showed you a video in which a television broadcaster and other individuals advocated individuals in the audience, the listening audience, to lead a life according to the principles of the 10 commandments. How would you view that? Do you think that is educational or religious?

DR. TRISTANI: It could be educational to some and religious to others.

REP. STEARNS: To you, how do you feel that is?

DR. TRISTANI: On a personal matter? I mean.

REP. STEARNS: Well, I mean, you would be the one.

DR. TRISTANI: Having been brought up a Catholic.

REP. STEARNS: You are a commissioner and you have looked at videos and you made a value judgment that this was not educational. So I'm taking you back.

DR. TRISTANI: No, a value judgment that it not serve the primarily educational requirement when we transfer.

REP. STEARNS: Okay, let's keep your hat as commissioner.

DR. TRISTANI: Yeah.

REP. STEARNS: And I've just showed you a video, an individual and others who are advocating the use of the 10 commandments to lead a life, according to the principles thereof, would you as a commissioner, view that as educational, yes or no?

DR. TRISTANI: You know, I think I'd have to see more of the program of the video, because it could be in a different context.

REP. STEARNS: Well, let's say we had a non-commercial educational channel providing teachings to the audience about collecting items, collecting wrestling magazines or comic books, would you consider that educational or not?

DR. TRISTANI: Collecting magazines or wrestling books, I would again have to see more about the program.

REP. STEARNS: But see, and I can make it more ridiculous and say what about teaching the audience how to collect pet rocks, is that educational?

DR. TRISTANI: Pet what?

REP. STEARNS: Pet rocks.

DR. TRISTANI: Rocks?

REP. STEARNS: Yes, how to collect.

DR. TRISTANI: I don't know what pet rocks are. REP. STEARNS: Oh, pet rocks. DR. TRISTANI: Excuse my answer.

REP. STEARNS: That's probably another aspect about this, if a person's 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 observant to even make a decision. So I'm saying, what I'm trying to point out in this discussion is this is a bizarre position you're taking.

DR. TRISTANI: No.

REP. STEARNS: And let me just finish and then I'll be glad to give you time.

DR. TRISTANI: Sure, sure.

REP. STEARNS: You're 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 10 commandments as a way to have a principle life, you can't make that decision yourself this morning, this afternoon. So it's bizarre for you to come here.

DR. TRISTANI: No, sir. I said on the 10 commandments, I would have to see the full context of that. But I think what we're struggling with here is that any standard is very hard, but we do have a standard that programming should be primarily educational and we have it also, as Congressman Markey brought up in the children's television guidelines.

REP. STEARNS: You can't, this afternoon, tell me out of the three programs I gave you, whether they're educational or not. You cannot even make that.

DR. TRISTANI: I think I would have to see them. And again, we were giving guidance if the questions came up and some would question whether they're meeting.

REP. STEARNS: Okay. I see here we have the program here. We have five programs, and you're 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. I mean, do you see how offensive that is?

DR. TRISTANI: Sir, that's now how I see myself as a czar of anything, that's for sure.

REP. STEARNS: Okay. Let me ask some of the witnesses, Mr. Wildmon, it's great to see you. I've been on your program. How many religious broadcasters are there, Mr. Furchgott-Roth, Dr. Furchtgott- Roth?

DR. FURCHTGOTT-ROTH: Seventeen hundred and thirty radio stations, AM, FM, educational, commercial, and about 245 televisions stations.

REP. STEARNS: Okay.

DR. FURCHTGOTT-ROTH: By the way, 15 of them operate in that non- commercial educational band that are owned by Christian organizations.

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

DR. FURCHTGOTT-ROTH: Well, many of them are 24 hours a day.

REP. STEARNS: Okay. And some of them are also less?

DR. FURCHTGOTT-ROTH: Oh, yes.

REP. STEARNS: Okay.

DR. FURCHTGOTT-ROTH: Some of them are daytime AM stations and so on.

REP. STEARNS: Do you think it's possible the FCC could -- the difference between cultural and educational?

DR. FURCHTGOTT-ROTH: Is has occurred to me, as I've been sitting here, operas, concerts, teachings on pets and animals and cooking shows, would all be considered educational in nature on a station, but not religion. In other words, they would qualify as being acceptable educational programming. It's just, it's very confusing to us.

REP. STEARNS: Now, my time's almost out. I'd be glad to let Dr. Wildmon or. DR. WILDMON: I wanted to ask, because what I heard started this whole thing was that they got some complaints from Pittsburgh from the people there that Cornerstone was going to go over and it's supposed to be 50 percent educational and cultural.

And so, is the programming supposed to be educational and cultural for all the people or all the viewers?

DR. FURCHTGOTT-ROTH: Well, I mean, that is another problem with this, because for me, collecting pet rocks would not be educational or cultural or meaningful. But for some people in this country, it might.

DR. WILDMON: But what I heard said was that religion serves only a small group of people or that may not have been exact words, but that was an implication.

DR. FURCHTGOTT: implication.

DR. WILDMON: And therefore, because you only serve a small group of people, we have to kindly regulate your license and make sure, you know, that you act like the government thinks you ought to act. And then I would go on to ask the question. I don't speak a whole lot of good English, but I sure don't speak any Spanish. What about those stations that are 24-hour non-commercial Spanish-speaking, are they educational? You see the point? We're opening up a can of worms here.

REP. STEARNS: Anyone else would like to go ahead?

DREISTADT: Just a couple of points that I'd like to speak to. In the application process, Cornerstone demonstrated meticulously that we had over 100 hours of qualified programming under the established standard. That was acknowledged in the decision of December 29th. Under the additional guidance, we applied those standards to the same programming and it 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's something we do 24 hours a day, 7 days a week. To comply would have meant that we would have had to abandoned our mission 49 percent of the time. There are already 15 other non-commercial television broadcasters who are already broadcasting Christian programming. Fifteen applications have already been approved, but because of the opposition, the complaints that have already been 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 and 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 the position that they knew had to be untenable for a religious broadcaster.

Just 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.

REP. STEARNS: Thank you, Mr. Tauzin, I yield back.

REP. TAUZIN: Thank you, Mr. Stearns. The chair recognizes the gentleman, Mr. Shimkus.

REP. SHIMKUS: Thank you, Mr. Tauzin. I apologize, I was at another illuminating meeting with Administrator Browner (sp) in the EPA, so I come from the fire into the frying pan here. But I do appreciate those in attendance. Mr. Dreistadt, you've explained your testimony and you were starting to talk about it in the last part of Mr. Stearn's 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 sales of television station and lose financial benefits of $17.5 million, in addition to over three years of time and resources dedicated to the project.

MR. DREISTADT: Correct.

REP. SHIMKUS: What effect do the witnesses think, and this is for everyone, that this proceeding will have on religious broadcaster speech operating on the FM band?

MR. DREISTADT: That was what our members were afraid of, sir, that it would go then from the television reserve channels into the 88 to 92 on the FM band and we have hundreds of stations that use those frequencies.

REP. SHIMKUS: Mr. Wildmon.

MR. WILDMON: This was what disturbed me when I first learned of this. It would be bad enough saying, you know, we only have 16 television stations in the U.S. that this would apply to. The standard would have been established. And in my mind, the logic would have said the next step would be this same rule applies to the FM broadcaster period. I mean, you hate to accuse before it happens, but government has a way of taking the -- until the whole foot is gone.

REP. SHIMKUS: If I can continue the same line of question to the commissioner, Furchtgott-Roth. You have stated, I think, that you fear that religious speech will be chilled, based upon this. Can you elaborate on that and am I correct in making that statement on your behalf?

MR. FURCHTGOTT-ROTH: I think you're exactly right. If someone has a message, whether they're broadcasting it, whether they're speaking it, whether they are writing it, they will behave differently if they think there's someone in a government agency looking over their shoulder, reviewing what they're saying and making decisions based on what they've said. 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 category. And based on which category it falls into, whether your license is potentially going to be threatened with revocation. And that is not the proper role of government.

REP. SHIMKUS: Thus, and I got in the last part of my colleague, Congressman Pickering's first amendment emotions, I think. Commissioner TRISTANI, do you agree with what you've just heard, as far as the chilling aspect on free speech? DR. TRISTANI: No, I don't because, first -- to FM radio are now vacated additional guidance applied only to the non-commercial television reserve channels, so that's for one. For the other, it applied to a very limited, as we've all heard, I think it's 14 or 15 stations. It did not say you cannot broadcast certain type of speech. It said the educational requirement had to be based on primarily educational, had to be a certain amount. We have many religious broadcasters on commercial channels. We have a lot of non-religious broadcast that occur, even on the commercial channels, I mean, that you've put on the television Sunday morning. You've got broadcasts all over. So I don't' see the chilling effect.

I don't see that government role is to go and review programming that occurs on the broadcast, but we do do it in some circumstances. And I brought up the indecency and obscenity law regulations that we have, as an example, not to compare in any way shape or form for 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 this airwaves for the -- waves, so I brought that as a that example. We have children television guidelines where we require the three hours of children's television, which is supposed to be primarily educational and this is another example where that comes up. Now, we don't go out and review everything, but if people complain or they question a transfer of a license, we have to see whether it's arbitrary or unreasonable.

REP. SHIMKUS: Well, obviously, and that's probably the reason why because many of us agree with your evaluation of what happened. And so, we have two bills proposed, which I am a co-sponsor of each.

So to the broadcasters, do you feel that either of these bills will provide sufficient protection from any further similar FCC action and may impede you from expressing yourselves over the airwaves?

MR. DREISTADT: I believe that both bills address the concerns that we as broadcasters would have about this area. Certainly, 4201 is the more comprehensive and sweeping bill and that would be the one that, from a broadcaster's viewpoint, we'd like to see enacted because it would give us that safety.

When the language was vacated, I think it's important to note this, when the language was vacated, there was considerable questioning and pressure for Cornerstone to re-enter 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 vacated, it was not disavowed. There was no change of principle or heart and, in fact, we're seeing that, to some degree, today.

And because of that, without legal remedy, without legislative remedy here, I believe it's the slippery slope for broadcasters who choose to use this non-commercial band for their mission.

REP. SHIMKUS: Dr. Furchtgott, the same.

DR. FURCHTGOTT-ROTH: Yes, we would just essentially feel the same way.

REP. SHIMKUS: Okay. Mr. Roth, same way? I appreciate that and, obviously, a very enlightening legislative hearing.

REP. TAUZIN: The gentleman please yield. For the record, Mr. Dreistadt. How long was the application upon which this guidance was issued?

MR. DREISTADT: It was in excess of.

REP. TAUZIN: How long was it pending?

MR. DREISTADT: It was in excess of three years.

REP. TAUZIN: It was around for a long, long time?

MR. DREISTADT: We felt like it was forever.

REP. TAUZIN: Yes. And the letters that the FCC received was urging action on the application, was it not?

MR. DREISTADT: Correct. Yeah, and my understanding was the letter did not suggest one solution or the other, but just simply that.

REP. TAUZIN: It was my understanding. Is that correct, Ms. Tristani?

DR. TRISTANI: As I recall, no letters suggested any solution, but on letter did say.

REP. TAUZIN: We just have to do something about that.

DR. TRISTANI: Actually, said act by December 15th.

REP. TAUZIN: Yes. So in other words, in fact, we have some legislation pending that's going to tell the Commission to act on a certain date every time.

DR. TRISTANI: Yes.

REP. TAUZIN: So that's all the letters you got from the members of Congress.

DR. TRISTANI: And I'm saying as a result of that, we voted it when we did. REP. TAUZIN: Okay. The gentleman yields back.

REP. SHIMKUS: I would just finish up by saying three years is terminably a long period of time. I'm in my fourth year as a member of Congress. I've already been through one election, by the time you've made a decision on this hearing and I think if a member can seek re-election and go out before the voters, then I think we ought to be able to get and that's going to address the entire FCC restructuring issue that eventually we'll get to and the bureau issue. With that, Mr. Tauzin, I'll yield back my time.

REP. TAUZIN: Thank you. 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, it is so ordered. Secondly, 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 part of the record. The gentleman from Massachusetts has already requested the record remain open for two weeks so members will be able to submit any additional information or witnesses may do so within the next two weeks. The gentleman is requesting.

REP. MARKEY: Time.

REP. TAUZIN: Time. The chair would yield to my friend, Mr. Markey.

REP. MARKEY: Thank you. You're doing a great job defending your position. First, of all, I'd like to clarify that Commissioner Tristani, as I heard it, did not air obscenity to the -- broadcast. She was asked a very narrow question of whether or not she reviewed video. And in answer to the question, she just said that she did do it in those other categories, not making any comparison whatsoever to equate religion with obscenity. I don't think that's fair to, in any way, impute that to her and I consider to be way over the line. I think it's quite clear that that's not what she was doing.

Here's my problem, as I look at this issue, if I live in a Christian community, small town, there's only one non-commercial educational station. In my community, I went to Catholic school every day from age six to 26 and I haven't stepped foot in a non-Catholic school. Now I live in a Christian community and there's only one non- commercial educational station in my community, four, five stations, that's it, one dedicated for that purpose and someone purchases that station, gains access to it, for whatever reason, and that religion that is now represented by the ownership of that station is not Christian, now all they broadcast all day long are the tenets of that religion, proselytizing that religion, going into that community, is that educational? Is that what we want the only non-commercial educational channel in town to be used for?

What to do we say to that community when someone buys that station? We get into very thorny questions here, in terms of the identity of a community when individuals or religions with lots of money want to buy stations in communities that might not, in any way, represent the kind of -- and would, in fact, the community begin to feel that 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 does is this something that, you know, we would deal with, if that should so occur under the proposals that are being propounded by opponents of your position on this issue?

DR. TRISTANI: Under the proposal, it's my understand that you wouldn't be able to deal with that issue.

REP. MARKEY: So, in other words, we would wind up with a station owned by someone who had a religion that was a complete minority, that is one percent of the population being able to broadcast all day long their one religion on the only non-commercial educational station in town?

DR. TRISTANI: You could.

REP. MARKEY: They could. And 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 on a broader spectrum of use under this particular legislation, is that correct? Is that your interpretation?

DR. TRISTANI: That could happen, yes.

REP. MARKEY: That could happen. Well, I think these are very thorny questions. These are very difficult questions, very difficult. I know that the reason that I was sent to Catholic school for 20 years was that religion wasn't taught in public schools, you know, because that's in the Constitution, you keep it separate, keep it separate. Our religion is over here and the public schools are over here and there's a Jewish temple. And...

REP. TAUZIN: Would the gentleman yield?

REP. MARKEY: Would you let me finish. And as I am asked now to cross this, you know, divide it raises very real questions in my mind, to be honest with you, in terms of people's rights not only to speak, but also their right not to hear if they don't want to, you know, especially on stations that are reserved for educational purposes.

If stations begin to proselytize a religion that I don't happen to subscribe to and it's the only non-commercial educational station in town, then I think, without question, there are going to be some people who are going to be offended by that, especially if there was an ability for that religion to purchase another station that was reserved for that purpose for religion.

So if we're going to break down this barrier, then that's a big moment. Now I think we'd probably be better of discussing some way in which we could put religious broadcasting into a completely different category, so that all faiths could then compete for stations that are reserved for that purpose. But to take the non-commercial educational area and to begin to try to draw lines and let me just say, the questions that are being posed for the commissioner are thorny ones. But a similar set of questions could come right back at the other side, once they decide that they're going to break new constitutional ground in terms of what could be allowed by one minority religion in a community that's dominated by another religion.

I just want to give you just a little bit of time, commissioner, to comment on what I just said.

DR. TRISTANI: I think you raise 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, I'm just throwing another half, another 10 percent Jewish, five percent Baptist, three percent Hispanic?

REP. MARKEY: That was my community, in fact, exactly. No, that is the precise community, that is the exact community that I grew up in.

DR. TRISTANI: But then you have a Methodist station where it's 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 that I mentioned would be offended. And you can come up with a lot of hypotheticals.

REP. MARKEY: Thank you, Mr. Tauzin.

REP. TAUZIN: 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's 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 educational, general educational programming. The Commission, by setting a numerical standard, 50 percent plus one, 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's French or Cajun. I might even like it better when it's a Cajun Catholic, the way I was raised, but I could be offended if it was all Spanish, as well. But the thorniest problem for us is not whether we might be offended because we don't like or we can't hear or we can't understand or we don't agree with the tenets being expressed in their 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. I don't know that the question Mr. Stearns asked was an interesting one, whether a program that admonished me to live by the 10 commandments would or would not be considered by any one of you to be education. And suppose I didn't know the 10 commandments and it'd be very educational, and if I didn't know what pet rocks were, it'd be somewhat educational for me to learn what they were. And I don't know that any government agent or any government institution can make that distinction.

Now, as I read the retraction of the Commission of its guidance, as I read it, it says that we vacate this additional guidance and we defer instead to the educational judgment of the licensee unless that 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 religious programming.

I agree with my colleagues, that is the most slippery slope I think our government could ever find itself on. And I think the Commission found itself there quickly retreated. And I frankly am glad the Commission was assaulted by so many people 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. And I want to make a case here, which the First Amendment respects for freedom of speech in our society 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 that used to regulate trucking, the ICC.

But for some reason, we've maintained in our society an agency to regulate free speech in such cases and we ought to always think about why we did that and why we need that. And we always ought to think about when it exceeds whatever minimal authority it ought to have in an area so sacred as free speech. And when it begins to, as an agency of government, 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've gone much too far.

Now, I've submitted into the record a statement prepared by staff defending the establishment clause sanctity of the Pickering Bill. The defendant on the three grounds established by the Supreme Court that the bill must have a secular legislative purpose, this bill does. It simply says the Commission shall not prevent religious programming, including religious services from being determined and it covers, in effect, all non-commercial programming.

It's not intended specifically to overtly give religious messages preferential treatment. It simply says don't discriminate against it and that's consistent with the constitution. It requires all non- commercial programming be treated the same and that's consistent with the constitution and neither advantages nor disadvantages religion and it doesn't entangle the government with religion as the action by the Commission, I think, almost did.

The chair wishes to publicly thank Mr. Oxley for his effort at addressing this in a legislative forum 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, I think, improving upon that 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 ruling 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 regards to what is or what is not educational but religious programming.

I commend this bill to the members of the committee and, as soon as we return after recess, we intend to come together and to, hopefully, mark this bill up and move it on to the Full Committee. The chair will yield to either of my colleagues. Mr. Oxley first.

REP. OXLEY: Thank you, Mr. Tauzin. Just briefly, this whole issue is really about re-establishing Congressional intent as it relates to whether, in fact, any government agency can control or direct content as it relates to broadcasting, strip down actually what this issue is all about. That's why we were able to secure so many co-sponsor 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 the content under the First Amendment protections that are afforded.

The gentleman from Massachusetts mentioned these are difficult questions and that's true. But I think this is clear, this issue is clear, that before the FCC, an un-elected independent agency, makes a determination that goes well beyond the issue of -- licenses and really get at the heart of what broadcasters and in this -- 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 whatever it may be, but, in fact, made in a standard rulemaking procedure whereby 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 and that's why we put that specifically in that bill to make certain that that was recognized.

Now that, it seems to me, is about as democratic, with a small "d" as we can make it. And I would dare say that there aren't too many people that 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 under rulemaking procedures where the public could have input, there is absolutely no way you would have the same results as you had the first time, absolutely none. And it's that vote, the vote rescind the order, I would indicate is clearly an example of that.

And the majority of the FCC commissioners, with the exception of Ms. Tristani, recognize the error of their ways, recognize that those decisions were far more important to everyone to be determined in a closed hearing without public comment. That really reflected, I think, reality. And 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'm sure that the gentleman from Pittsburgh had to be shocked at the way the entire unfolded. He thought that everything was up to normal, that the swap would take place and that he wouldn't have to be subjected to these kinds of decisions by the FCC. And that will never happen again, I guarantee you.

We'll pass this bill. We will re-establish congressional intent to make it very clear to the FCC and anybody else that's listening, that we are the elected representatives of the people. I don't say this is an arrogant way, that we are people who are responsive, who are elected, who are accountable to our constituents.

And with all due respect, Ms. Tristani, that distortion the demagoguery talked about was really about freedom, it was about democracy, it was about speaking one's mind and that is the essence of our system, should it ever be, as long as all of us live and far beyond that. We're 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.

REP. TAUZIN: I thank the gentleman for their comments. Mr. Pickering.

REP. PICKERING: Thank you, Mr. Tauzin. And 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 Stephen 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 had actually wanted to ban the religious voice from the public square or the public airwaves. And it is not only a position of neutrality, but a position of hostility and discrimination and bias against the religious and that's why I think we have to take the action in the legislation so that we can make sure that that does not happen. Now, let me just say, you know, to the gentleman from Massachusetts, if you look at, you know, when the Constitution was written, we didn't have public schools. Our educational institutions, the great institution of Harvard was a religious institution founded by religious people to instruct, to teach, to bring culture, and to get to the point today where we are in history where we are in our history to say that the religious voice is not educational, is not instructional, is not cultural, that's a very disturbing and sad place to be, but some take that view, but somehow they are mutually exclusive. It cannot be both religious and educational or instructional and cultural.

And I just do not believe that we should separate our history and our heritage by having the types of decisions that the FCC originally proposed and then rightfully are rescinded. I look forward to working with the REP. TAUZIN, with Mr. Oxley and the other members of this committee. I want to show 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.

REP. TAUZIN: Thank you, Mr. Pickering. No further comments?

REP. MARKEY: Can I?

REP. TAUZIN: Mr. Markey.

REP. PICKERING: Thank you, Mr. Tauzin.

REP. TAUZIN: And we wrap it up.

REP. PICKERING: Thank you, Mr. Tauzin. And I thank the gentleman from Mississippi. I know that there is a legitimate debate that has raised in this country for 213 years over this subject and it's one that we'll be debating for the next 213 years, as well. It's not an easy one to resolve, but, at the same time, it's 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'm sure that those of other religions would be shocked at the roles the Catholics play in --, part on the history of the world and the United States.

Now, it is completely appropriate for Catholics to have their education laced with these religious overtones, it's both, yeah. I was learning, they were teaching, it was educational, but I'm not so sure that a Jewish or a Methodist or an Islamic parent would feel comfortable listening to the role. I learned more about Roger Brooke Taney being the first Catholic Supreme Court chief justice than I did about what the impact of the Dred Scott decision was made by Roger Brooke Taney. I never linked those two. We learned a lot more about him, as a Catholic. Now, that's fine, that's the right.

If you're gong to teach, if you're going to be educational and link it with religion, you get that result. And it is an absolutely appropriate result in a Catholic school, in a Christian school, in a Jewish school, in an Islamic school. They have every right in the world. Every parent has every right to put their child into a school that's going to lace education and religion together.

All I'm saying is that if the only non-commercial educational station in town is owned by one religion and they're lacing education and religion together that way, and it's the minority religion in town, it's going to cause real problems in that town. And if we take the language, which is in the legislation that is being proposed, it changes the definition under which licenses are granted from non- profit educational organizations to the words non-profit organization or entity and leaves out the word educational, we're not only going to open it up for the good, but we're going to open it up for the scam artists, as well. There won't be any standards. There won't be any requirements. We enter a whole new world where education itself may not even be made predominant. It's just non-profit. That's very dangerous.

In addition to the impact which this legislation has upon the Children's Television Act, which was no simple thing to get put on the books, just to get these commercial broadcasters to put on three hours a week, there are significant issues that are raised. So I'm very cognizant of the fact that these stations don't have to go to auction, that the non-commercial stations are exempt, that there are real risks that sham or scam artists can use the new definition to take over the only non-commercial educational station in scores of communities across the country.

And I'm 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 a synagogue. And I think we have to be very careful as we go down this line of invoking the law of unintended consequences. I think it's a very good hearing. I'm glad that they've been aired and I look forward to any further activity on it.

REP. TAUZIN: I think, my friend, let me say, however, 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 it, that it's not educational or cultural. I used to disagree with my professors vehemently, got in big trouble for it on occasion. They taught me things I just thought were wrong, challenged them on it. Sometimes came out good and sometimes it didn't.

I remember in my, I went to Catholic School, too, Mr. Markey. I remember in my confirmation lessons in a little Catholic Church in Chagbay (ph), I got into an argument with my parish priest because he was trying to tell me that the only way a person can get to heaven was by becoming a Catholic and I thought that was rather strange.

I mean, I thought there were a lot of people might not be Catholic, should follow their faith and maybe even some people that didn't even know about or learn about the faith, but who lived a good life. I couldn't imagine God saying you're not entitled to share eternity with us, because you didn't join my religion. I got a big, I mean, he shut down the, I almost didn't get confirmed.

And because I don't understand a Spanish broadcast station because, unfortunately, I have not learned Spanish. I mean, I should, my mother is Latin. I should learn. A little, poquito (ph), that's all I know. But because I don't understand it, doesn't mean it's not educational. And because some of the people in my district might understand it, enjoy it and be educated from it, does that qualify it, as one of the witnesses said, when all of the people in my district are not Spanish-speaking?

The problem I have and it is so difficult for us to get into all of 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 and music and all the things that are part of the cultural, social or religious life of the church, as it's broadcast over a station.

I think we're always safer by not trying to get into it and defining it as a government. I think that's what our forefathers meant when they told us to separate and told us to do our business. And you know, I believe Christ had it right when he said render to Caesar the things of the Caesar, things of the God to things of the God. And I think that that basically ought to be the thing that decides it for us. It says keep your hands off trying to define this stuff. That ought to be for the people of our country and the religious broadcasters to do and withholding always to the Commission's prerogative if, in fact, some scam artists should clearly unquestionably, as the standard has always existed, unreasonably interpret their right to use those stations in a way that does, in fact, operate as a sham.

REP. MARKEY: Can I, will you yield?

REP. TAUZIN: Yes, I'll be glad to yield.

REP. MARKEY: Again, you get into this area then when Mr. Furchgott-Roth and Ms. Tristani will have to look at the film to see what's unreasonable and that's under that test, as well.

REP. TAUZIN: You know, again, I don't.

REP. MARKEY: That's always been the law.

REP. TAUZIN: Yes, I'm saying.

REP. MARKEY: Mr. Furchtgott-Roth doesn't feel comfortable at any time looking at the film. It's chilling to him to have to look at it, but. I guess, my feeling, I'll be blunt about it, I don't want Bob Jones University buying the only non-commercial educational station in my hometown and telling me that Catholics are a cult, telling me that the pope is the emissary of Satan.

REP. TAUZIN: I think he called him an anti-Christ, which I found sensitive too.

REP. MARKEY: Yeah, I don't like it. Because they have the money, because Bob Jones has the money to buy a station and to come into my hometown and that's the only station in town and I'm going to have to listen to this message, although it's laced with the history of -- Catholic, laced with the history of our role in society, you know, and a little bit else about their university, that may satisfy the -- of some people here, but I just don't want that, okay. And I don't think it's unreasonable for people to be apprehensive about.

REP. TAUZIN: But here's the problem, Mr. Markey. If all of us in government start regulation speech in our society, based upon what we like to hear or what we agree with, we're in deep trouble. I don't like Bob Jones calling my pope, the head of my church, the anti- Christ. I think he's wrong to do that and I would love if he apologized instead of going on Larry King and admitting that he said that or that he continues to believe that. I'm troubled by that. I think people of faith ought to be a lot more tolerant than that and we ought not do that. And you know, I'm offended by that, too. But 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, and that is what I found so offensive.

REP. PICKERING: Will the gentleman yield? My understanding today of the current practice and of the history of these non- commercial licenses and those who happen to be religious in mission, that we do not have examples of abuses or shams in the past or in the present. Our law or proposed legislation does not change the practice of the FCC in granting or transferring these licenses in any shape or form. And the definition will not change the practice in any way. And 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." And so our bill does not change current practice, it will not result in any sham group or any fringe group of getting something that they do not have today. It is the definition as it is taken from the IRS code, which includes educational and non-profit and religious. That is the only change, and that would not effect who is eligible yesterday, today, or tomorrow, and the gentleman from Massachusetts had proposed earlier, maybe having a separate category for religious broadcasts -- a segregation of the religious.

This is too hard, this is too complex and too, we just really don't like those people. Let's put them over here where their voice isn't heard, or doesn't intrude upon us.

I Think that's the heart of this question. It is a question of bias and discrimination against the religious voice. We did not change today's practice, or yesterday's practice. We simply say that the FCC cannot regulate content.

REP. TAUZIN: Thank you gentlemen. Let me thank the witnesses. Ms. Tristani, we've got obviously a difference of opinion and that's part of what America is all about. And, that's part I guess, of what we're trying to protect - the right for people to have different opinions and different religions, and different expressions. And not for me to shut you down or you to shut me down in any way. So, I want to thank you for coming and for expressing your opinion, albeit one that we disagreed with.

Commissioner McGrath (sp), again 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 for adding some culture to this committee room. Thank you very much, the committee stands adjourned.

END.

LOAD-DATE: April 26, 2000

Document 8 of 20.


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