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Congress mulls religious-broadcasting bills April 13, 2000  
By Rod Perlmutter for Media Central.

A Congressional subcommittee is considering two bills that proponents say will keep federal regulators from dictating religious speech on radio and television.

But opponents say the bills will encourage religious broadcasters to take over the licenses of public radio and TV stations, and non-religious public broadcasting will disappear.

The House Telecommunications, Trade and Consumer Protection Subcommittee heard testimony Thursday about two bills proposed by Republicans aimed at rebuffing the Federal Communications Commission’s attempt to impose guidelines on reserved noncommercial educational (NCE) television channel licenses. The FCC proposed the guidelines on Dec. 29 but withdrew them on Jan. 28 after protests by some broadcasters and members of Congress.

The FCC’s decision to withdraw the guidelines angered groups that felt the FCC was, as one FCC commissioner said, an example of the agency “capitulating to an organized campaign of distortion and demagoguery” by Republicans and religious broadcasters. These groups said the guidelines would make sure that the owners of NCE licenses were groups that tried to represent the cultural and education needs of the community, and not just wealthy religious broadcasters looking for a cheap way to grab a chunk of the airwaves.

The bills are H.R. 3525, the Religious Broadcasting Freedom Act, and H.R. 4201, Noncommercial Broadcasting Freedom of Expression Act. The subcommittee heard testimony but did not consider amendments on the bill or schedule it for mark-up, said Pete Sheffield, a spokesman for the House Commerce Committee.

What triggered the FCC guidelines

On Dec. 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, said Jerry Starr, executive director of Citizens for Independent Public Broadcasting and co-chairman of the Save Pittsburgh Public TV Campaign.

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.

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.

"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.

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 FCC Chairman Kennard in January, who responded that the commission was not out to suppress religious expression nor was it trying to establish new rules. Instead, he wrote, the commission was trying to "clarify long standing FCC policy applicable to any broadcaster seeking to use an NCE-reserved channel."

On Jan. 24, Oxley introduced H.R. 3525, the Religious Broadcasting Freedom Act, which quickly attracted more than 120 co-sponsors. The bill stated the FCC “shall not establish, expand, or otherwise modify requirements relating to the service obligations of noncommercial educational television stations except by means of agency rulemaking.” It also voided the FCC’s NCE guidelines that it had established in the Paxson case.

‘Worse than the first’

Four days later, the FCC withdrew the guidelines. But House Republicans were not finished. On April 6, Rep. Chip Pickering (R-Miss.), proposed H.R. 4201, the “Noncommercial Broadcasting Freedom of Expression Act.”

The bill states that any nonprofit organization is eligible to hold a NCE license “if the station is used primarily to broadcast material that the organization or entity determines serves an educational, instructional, or cultural purpose…unless that determination is arbitrary or unreasonable.”

It also bans the FCC, when considering applicants for NCE licenses, from:

“Both bills are bad, but Pickering’s bill is even worse than the first one,” Starr said. “What is left out of the bill is anything to allow the community or the FCC to make a judgment whether a station is serving the needs of the community. It gives all the discretion to the broadcasters.”

Starr believes that while religious broadcasters should have the right to broadcast – that’s what commercial licenses are for -- they do not have the right to take over the small segment of the airwaves reserved for public broadcasting. The religious broadcasters are not interested in providing the type of cultural and educational programming that are commonly found on PBS or NPR. That’s because some religious broadcasters define “educational” programs in a way most communities would not only not recognize, but might find repugnant, he said.

“The program which they characterize as ‘sincere people of faith sharing their beliefs with others’ frequently consists of programs that are political in nature, not religious, and, sometimes, attacking people of other religions,” Starr said.

The Pittsburgh WQEX case is an omen of things to come in the broadcast industry, Starr said. Non-religious stations usually scrap by on contributions from corporations and individuals, but federal financial support for public broadcasting is always under attack in Congress. WQEX is one of many stations that may be forced out of business. This legislation suggested that if they do, religious broadcasters will swoop down to grab the licenses, he said.

“If this bill passes,” Starr said, “it’s open season on NCE licenses.”

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