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FCC withdraws noncommercial TV 'guidelines' Feb. 4, 2000  
By Rod Perlmutter for Mediacentral.

In a contentious split decision this week, the Federal Communications Commission has withdrawn guidelines on television stations that critics said encroached on religious expression.

Now, a non-profit group says it is organizing groups, including religious and educational organizations, to reinstate the guidelines, or at least hold public hearings on them.

The guidelines were part of a December decision to allow Cornerstone Television Inc., a religious broadcaster, to swap a TV license for its Pittsburgh station for another, which was owned by a non-profit, PBS-affiliated station, and to sell the first to Paxson Communications Inc.

The guidelines, concerning how to determine whether a broadcaster qualifies for a reserved noncommercial educational (NCE) television channel license, prompted Rep. Tom Bliley, (R-Va.), the chairman of the House Commerce Committee, to propose legislation that would have removed the guidelines.

"The FCC is not just stifling religious expression but trampling on the First Amendment," Bliley said.

When the guidelines were withdrawn, on a 4-1 vote by the FCC on Jan. 28, the dissenting commissioner, Gloria Tristani, blasted the vote as a "sad and shameful day (because)…this supposedly independent agency has capitulated to an organized campaign of distortion and demagoguery."

Jerry Starr, executive director of Citizens Interested in Public Broadcasting and co-chairman of the Save Pittsburgh Public TV Campaign echoed those remarks.

"It was an unprecedented capitulation to a campaign of political pressure from the religious right," Starr said when contacted in Washington. "If the commission had simply allowed the process to play itself out, they would have heard a great number of different voices, including religious and educational organizations, defending the new guidelines as appropriate."

This week, Starr said, he contacted several organizations, including the National Council of Churches, National Educational Association, and the People for the American Way, who said they are contacting their members and asking them to petition the FCC to reconsider its decision to withdraw the guidelines. The goal, Starr said, is to hold public hearings that would eventually lead to adaptation of the guidelines or something similar.

The original December decision

On December 29, the FCC released a decision approving the application for assignment of license of WQEX (TV) Channel 16, Pittsburgh, PA, from WQED Pittsburgh to Cornerstone TeleVision, Inc., and the application for assignment of license of WPCB-TV, Channel 40, Greensburg, PA, from Cornerstone to Paxson Pittsburgh License, Inc. In short, Cornerstone sought and was granted authority to move from Channel 40 to Channel 16, and to sell Channel 40 to Paxson.

Channel 16 is one of two public television stations in the Pittsburgh area, Starr said. Cornerstone had been broadcasting religious programming on its commercial channel in Pittsburgh since 1978. Because of its financial problems, the public TV operator considered the swap deal. Once Channel 40 was sold, the proceeds of the sale were to be split between the public TV operator and Cornerstone, Starr said.

The deal would have meant that a religious broadcaster would have had the rights to a NCE license. That's unusual, Starr said, since the vast majority of religious broadcasters hold commercial licenses.

In granting the application the FCC denied the petitions of those who opposed the deal, including the Save Pittsburgh Public TV Campaign, based on the religious nature of some of Cornerstone's programming.

The FCC said that since 1952, the commission has reserved a limited number of television channels for educational broadcasters, including Channel 16 in Pittsburgh. Applicants seeking to use NCE-reserved television channels have always been required to demonstrate that their programming will be "primarily educational" in nature and thus serve the educational purpose for which the channel was reserved.

In a small number of cases, including the Cornerstone application, religious broadcasters have requested that they be certified as NCE TV broadcasters and thereby they become subject to the standards of an NCE TV station.

The commission said that in all license transactions, the FCC generally defers to the program judgments and decisions of the licensees, and does not review programming definitional issues on a factual basis unless it first determines that a substantial and material question of fact has arisen that the licensee's judgments are arbitrary and unreasonable.

In granting Cornerstone's application, the FCC said, it also sought to clarify standards that apply to any broadcaster, religious or otherwise, seeking commission certification as an educational television broadcaster eligible for a reserved NCE channel. The order in the case included two paragraphs of "Additional Guidance" to be used in the future to help resolve any factual issue raised about when programming is "primarily educational."

"To comply with the requirement that a NCETV station 'be used primarily to serve the educational needs of the community,' we now clarify that this requirement is two-fold," the FCC stated:

The FCC, citing previous decisions, said it would allow the broadcaster to assess whether its subject matter was "educational" unless the broadcaster's "categorization appears to be arbitrary or unreasonable."

"We do not believe that the discussion of religious matters during a program that has as its primary purpose service to the educational, instructional or cultural needs of the broader community disqualifies the program from being a 'general educational' program," the FCC stated. On the other hand, the commission stated, not all programming qualifies as educational.

"For example, programming primarily devoted to religious exhortation, proselytizing, or statements of personally-held religious views and beliefs generally would not qualify as 'general educational' programming," the FCC stated, and, in a footnote, gave another example: "Church services generally will not qualify as 'general educational' programming under our rules. However, a church service that is part of an historic event, such as the funeral of a national leader, would qualify if its primary purpose is serving the educational, instructional or cultural needs of the entire community."

The FCC approved the decision, including the guidelines, by a 3-2 vote.

Paxson gives angry retort

On Jan. 10, Lowell "Bud" Paxson, Chairman of Paxson Communications, blasted the guidelines as "horrendous" and said they would have far-reaching and damaging consequences. The rules:

Rep. Michael Oxley (R-Ohio) sent his complaints to the FCC Chairman William Kennard on Jan. 6, who responded on Jan. 12 that the commission was not out to suppress religious expression:

"The commission thus did not single out religious broadcasters, but rather clarified standards applicable to all NCE broadcasters. In fact, the large majority of broadcasters offering religious-oriented programming are exempt from the NCE eligibility requirements described in the Cornerstone decision because they use commercial channels that are not reserved for NCE stations, and thus are not subject to the NCE eligibility requirements."

Also, he said, the FCC did not try to establish new rules, but "clarify long standing FCC policy applicable to any broadcaster seeking to use an NCE-reserved channel."

Furthermore, Kennard said, the FCC was not attempt to ban or hinder religious programs.

"a complaint alleging simply that an NCE broadcaster is airing some religious programming would be summarily dismissed by the FCC since noncommercial programming of any nature is permissible on an NCE channel, as long as more than half of the overall weekly program schedule serves "an educational, instructional or cultural purpose in the station's community of license."

But that didn't satisfy Bliley, who proposed legislation that urged the FCC to reconsider its WQED decision and withdraw the guidelines.

"While the constitution prohibits the government from taking actions that promote the establishment of religion, (it) likewise prohibits actions that stifle religious expression," Bliley's bill stated. "The commission has intruded the government into a kind of content review of religious broadcasting that is neither necessary nor constitutionally valid. By requiring that qualifying programming must appeal to the broader community, the commission also fails to recognize that the hallmark of non-commercial television has been service to the needs of smaller audiences and to provide diverse niche programming to serve underserved and underrepresented populations."

On Jan. 28, the FCC voted 4-1 to uphold the transfer of license but to rescind the guidelines. "Regrettably, it has become clear that our actions have created less certainty rather than more, contrary to our intent," the commission said.

Steve Schmidt, a staff member of the House Commerce Committee in Washington, said Bliley's legislation was going to be withdrawn.

"Chairman Bliley is happy that common sense prevailed at the FCC," said Schmidt, who was contacted this week.

The guidelines were 'too clear'

Common sense didn't prevail, wrote the commission's one dissenter, Gloria Tristani. Instead, the FCC withdrew the guidelines because some riled broadcasters started a "witch hunt" against the commission.

"Not all religious-oriented programming will count toward the requirement that reserved television channels be devoted to 'educational' use - this is nothing new," Tristani wrote. "What was new was that the commission attempted to give some clarity to its precedent to assists its licensees and the public, and…to ensure that the reserved channels are used for their intended purpose."

Tristani said broadcasters covet non-commercial channels. "The government reserves a small number of TV channel in a community for educating the public. These channels are quite valuable - Cornerstone planned to move to the noncommercial channel free of charge while selling its commercial channel for $35 million.

Tristani denied that the commission was barring religious programming from the reserved channels. No, she wrote, the commission "simply held that not all religious programming would count toward the 'primarily educational' requirement." No, she wrote, the FCC did not restrict religious speech. The decision, she wrote, "only dealt with the small number of television channels sets aside for noncommercial educational use."

"Religious broadcasters are free to broadcast whatever they wish on commercial channels," Tristani wrote. "In this case, Cornerstone was seeking a special privilege from the government - the right to broadcast on a channel reserved primarily for public education. The government may selectively promote certain speech, e.g., public educational speech, without thereby abridging other types of speech, e.g. religious speech."

"Because of their scarcity, the reserved channels are expressly intended 'to serve the entire community to which they are assigned,'" Tristani wrote, quoting earlier FCC decisions. "In a religiously diverse society, sectarian religious programming, by its very nature, does not serve the 'entire community' and is not 'educational' to non-adherents."

"It is no answer to say that non-adherents need not watch those channels. That is like saying that the government can provide direct aid to the religious mission of sectarian schools because non-adherents can enroll elsewhere," she wrote.

"The problem was not a lack of clarity, but that we were too clear," Tristani wrote. "We actually tried to give meaning to our rule. What the majority really means is that they prefer a murky and enforceable rule to a clear and enforceable one."

And, she concluded, proponents of the guidelines shouldn't hold their breath about future action on them. "I doubt that a rulemaking on this subject will ever see the light of day," Tristani wrote.

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