TO: NRB Members
 
FROM: Brandt Gustavson
 
DATE: January 4, 2000
 
RE: The FCC’s decision in the Cornerstone case 
 
As many NRB members may already know, late last week the FCC issued a decision in a long-pending proceeding concerning a proposed station swap among Cornerstone Television, Inc., a prominent religious broadcaster and NRB member; WQED Pittsburgh, that city’s largest noncommercial educational television (“NCETV”) broadcaster; and a Pittsburgh-based subsidiary of Paxson Communications. The Commission’s Order in the case is a highly disturbing one—for although the agency granted the parties’ license assignment applications, the FCC also used the case to establish new, stringent standards for the “educational” programming that NCETV stations must air to remain qualified to hold their licenses.[1]  
Of deepest concern is that the Order singles out religious programming for special scrutiny under this new NCETV policy. It apparently seeks to draw a line between programs that teach about religion—which the agency deems acceptable as the kind of educational fare that NCETV stations must air—and programs devoted to religious “exhortation” or statements of personal religious belief—which do not satisfy the new programming standard.  
To be specific, the agency’s Order states that: 
(1)  NCETV licensees must devote at least 50 percent of their regularly scheduled weekly broadcast hours to “educational” programs. This mandate applies to all noncommercial television broadcasters, whether religious or secular. To qualify as educational, programming either must be “instructional,” meaning that it is aired in conjunction with institutions that offer educational course credits, or be “general educational” programs. The latter category is loosely defined as programming that has as its “primary purpose” service to the “educational, instructional or cultural needs of the community.” (2)  While some religious programming may qualify as “general educational” material under this standard, other religious programs will not. “For example,” the Commission stated, “programming primarily devoted to religious exhortation, proselytizing, or statements of personally-held religious views and religious beliefs generally would not qualify as ‘general educational’ programming.”  
 
 
In determining how programming would fit into the murky category of general educational programming, the agency did state that it would not “disqualify any program simply because the subject matter of the teaching or instruction is religious in nature.” However, as the Commission’s own examples illustrate, the line-drawing that the new standards require is likely to be a difficult, if not impossible, exercise: 
FCC examples of religious fare that would qualify as educational
 
· Programs “analyzing the role of religion in connection with historical or current events, various cultures, or the development of the arts”· Programs “exploring the connection between religious belief and physical or mental health”· Programs “examining the apparent dichotomy between science, technology and religious tenets”· Programs “studying religious texts from a historical or literary perspective”FCC examples of religious fare that would not qualify as educational 
· Programs that consist of “church services”—unless that service is “part of an historic event, such as the funeral of a national leader” and the “primary purpose” of that program material was to “serve the educational, instructional or cultural needs of the entire community” In that same vein, the Order implies that programs primarily devoted to exhortation or proselytizing about religious faith are not educational because they do not “serve the educational and cultural broadcast needs of the entire community” to which the NCETV station is assigned. The FCC repeatedly warns that educational television stations are supposed to be “responsive to the overall public as opposed to the sway of particular political, economic, social or religious interests.”  
The Commission states that it will “defer to the judgment of the broadcaster” as to whether a particular program qualifies as educational, “unless the broadcaster’s categorization appears to be arbitrary or unreasonable.” But the Order also adds a caveat to this traditional expression of agency deference to the good faith judgment of licensees: “Additionally, the overall context of the broadcast is important to evaluating the reasonableness of the judgment of the broadcaster.” Practicalities of categorization aside, the Commission’s imposition of the new NCETV programming standard raises significant legal issues, including constitutional ones. As the FCC’s examples suggest, the Order contains a disquieting implication that the government may restrict certain strains of religious speech—disfavoring more passionate and emotional expressions of faith—while not constraining others that are more “intellectual” and drained of human emotion. The Order does not suggest that the agency has power to impose the same sort of categorization scheme on other topics of interest to noncommercial broadcast audiences, such as music (classical vs. country?), health care (prescription drugs vs. herbal medicines?), or cultural pursuits (travel to Europe vs. travel to Branson, Missouri?). Nor does the Order suggest that the proponents of classical music, for example, must be dispassionate about the subject matter of their “educational” programming.
NRB is actively consulting with its Washington counsel (Wiley, Rein & Fielding) and with Cornerstone about the best method for addressing this disturbing development in the Commission’s NCETV policies. The procedural aspects of this case pose another set of problems. The FCC generally does not issue a “rule of general applicability” in a license application proceeding, but by doing so here, the agency has avoided opening the matter to broad comment by interested members of the public—including other religious broadcasters. NRB is now considering the various legal options available to it, and members may rest assured that the association considers this a matter of high priority. 
Members interested in reading the entire text of the Commission’s order in the case may find the document on the FCC’s website at http://www .fcc.gov/Bureau/Mass_Media/Orders/1999/fcc99393.doc

[1] The Order applies only to noncommercial television broadcasters at this point, but much of the legal rationale potentially could be applied to noncommercial FM stations in the future.