H.R. 4201, NonCommercial Broadcasting Freedom of Expresson Act

Minority Views

H.R. 4201, the "Noncommercial Broadcasting Freedom of Expression Act," purports to correct an unwise decision made by the Federal Communications Commission last year. Unfortunately, the bill itself is controversial, has not been constructed in a bipartisan fashion, and, we believe, takes precisely the wrong approach to dealing with a serious and difficult issue.

In December 1999, the FCC assigned a noncommercial educational broadcast license to a religious programmer, which was, by itself, entirely proper under existing rules. However, the Commission blundered badly when it supplemented its Order with what it called "additional guidance" on what kind of religious programming would be considered by the government to be educational in nature. As one would expect, the agency was attacked from both sides of the political spectrum for injecting itself into the business of evaluating program content.

The Commission’s decision was imprudent at best. But, unlike some other notable FCC foul-ups, the agency admitted its error and did something about it. Less than one month after issuing its "additional guidance," the Commission officially rescinded that portion of its Order. It would seem that a reasonable response by this Committee would be to declare victory and move on to address other matters important to the people.

But this Committee has developed a penchant for fixing problems that do not exist. Just this week, the House passed a Commerce Committee bill dealing with Internet access charges that can only be described as "virtual legislation." Kafka himself could only appreciate the manner in which the House fabricated a solution – to an imaginary problem – that was created by a make-believe Congressman. And now, just days later, we address yet another non-existent problem – one that was completely mooted back in January when the FCC repealed its controversial Order.

There is, however, an important distinction to be drawn between these two bills. The Internet bill was completely innocuous. While it was entirely unnecessary, it caused no direct or collateral damage, and the minority was able to support it. On the other hand, the bill before us today is ill-conceived, poorly vetted, and poses a dangerous threat to the future of noncommercial educational broadcasting in this country.

Regrettably, the majority refused to accept a perfecting amendment, offered by Mr. Markey, that simply would have clarified that the primary purpose of a "noncommercial educational license" is to provide educational programming. This important amendment was voted down along party lines.

The Markey amendment was a simple, but significant, clarification. Without this correction, the fundamental nature of public broadcasting is drastically changed. No longer will the availability of these specially reserved licenses be limited to nonprofit groups with an educational mission. This bill would allow any cult group in America to qualify for a free broadcast license – at the expense of the American taxpayer – and program anything that it sees fit, whether educational or not.

In fact, under the rubric proposed here, Jim Jones would have been eligible for a public broadcasting license simply by asserting a primarily religious purpose. David Koresh could have received this special license to broadcast his doomsday prophecies. The Heaven’s Gate cult could have extended its reach significantly if it had been armed with a public broadcasting license in the State of California.

This legislation makes clear that the majority intends to change the fundamental character of public broadcasting in America. No longer will these special channels be required to carry educational material. Any license applicant that regards his or her programming to be "religious" in nature – whether it contains an educational component or not – now will be eligible for a free public television channel.

Moreover, the bill suffers from a multitude of infirmities and inconsistencies. It contains no definition of "nonprofit organization" or "religious broadcasting" to assist in determining who is eligible to receive this special licensee status. The practical effect of these omissions is to extend the eligibility for a public broadcasting station to a sweeping new class of broadcast applicants, many of whom may not be operating in the public interest of their community of license.

The bill contains absolutely no criteria or guidance for the government, i.e., the FCC, to select a licensee from among competing applicants. While the majority ostensibly seeks to prevent the FCC from ever discriminating against a license applicant on the basis of the religious nature of its programming, it may be forcing precisely that result.

Since the longstanding educational programming requirement has been eviscerated by this bill, an applicant now would be eligible on the basis that it intends to broadcast 100% religious programming. Ironically, if two (or more) religious broadcasters are vying for a single license, the FCC now may be forced to choose between them based solely on the nature of the religious content.

The government should not be in the position of conferring any special status to one religious broadcaster over another, but that is just what this bill requires. It is clearly an unconstitutional encroachment on the establishment clause of the First Amendment, but the majority insists that it be rushed through the legislative process apparently with little regard for that important matter. In our view, this kind of legislating simply tarnishes the reputation of this great institution, and serves none of us well.

Although we may fundamentally disagree on the underlying need for this legislation, it is unfortunate that the majority refused to work with us in any way to produce a compromise product – one that could have addressed the majority’s concerns while protecting the integrity of the broadcast spectrum, maintaining a cohesive telecommunications policy, and, above all, honoring the Constitution.

JOHN D. DINGELL
ED MARKEY
FRANK PALLONE, JR.
LOIS CAPPS
RON KLINK
ELIOT L. ENGEL
TOM SAWYER
KAREN MCCARTHY
DIANA DEGETTE
ANNA G. ESHOO
SHERROD BROWN

Prepared by the Democratic staff of the Commerce Committee
2322 Rayburn House Office Building, Washington, DC 20515
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