Under Fire, FCC Reverses Religious Broadcasting Ruling
By Justin Torres
CNS Senior Staff Writer
28 January, 2000

(CNSNews.com) - Saying that "it has become clear that our actions have created less certainty rather than more, contrary to our intent," the Federal Communications Commission - in a four to one vote - Friday reversed new guidelines limiting religious content on noncommercial public television.

"In hindsight," the Commission said in the new decision, "we see the difficulty of minting clear definitional parameters for 'educational, instructional or cultural' programming, particularly without the benefit of broad comment. Therefore, we vacate our additional guidance. We will defer to the editorial judgment of the licensee unless such judgment is arbitrary or unreasonable."

The order also said that the Commission had received "many communications" from the public on the matter.

Commissioner Michael Powell said in statement, "As I predicted in my dissenting statement opposing this 'additional guidance' in the original order, it has opened a Pandora's Box of problems. In today's decision we put the lid back on the box."

Commissioner Gloria Tristani dissented from the reversal, saying, "This is a sad and shameful day for the FCC. In vacating last month's 'additional guidance,' . . . this supposedly independent agency has capitulated to an organized campaign of distortion and demagoguery."

Some publications recently have indicated that the FCC may issue a public notice on the need for a similar policy in the future.

Rep. Michael Oxley (R-OH), who planned to introduce legislation that would have nullified the new guidelines, called the reversal "a complete and total victory for free religious expression."

"Religious broadcasters and their listeners were a target for an FCC that sought to limit their freedom to express religious faith," Oxley said in a statement released to CNSNews.com. "It was wrong, and I'm thrilled that the FCC has seen the error of its ways."

"What we've been hoping for all along is for the FCC to reverse its decision without the need for legislation," Karl Stoll of the National Religious Broadcasters told CNSNews.com. "This a victory for all broadcasters, because it reinforces the validity of the First Amendment and the freedom of speech."

The new guidelines from the FCC - first reported January 5th by CNSNews.com - require broadcasters operating on noncommercial educational licenses to devote at least one-half of their programming hours to topics that serve the "educational, instructional or cultural needs of the community." To qualify, the Commission continued, that programming must not be "primarily devoted to religious exhortation, proselytizing, or statements of personally-held religious views and beliefs."

The decision, released December 29, 1999, allowed PBS station WQED in Pittsburgh, Penn., to swap one of its two stations for religious broadcaster Cornerstone TeleVision's WPCB in Greensburg, Penn., in anticipation of that station's sale to Paxson Communications.

On January 19th, Cornerstone TeleVision president Oleen Eagle announced that the company would decline the license, saying in a statement, "Since our mission requires us to broadcast programming that involves Christian exhortation, evangelizing, statements of personally-held religious views and beliefs and church services, we could be threatened with loss of our primary means of carrying out our mission,"

"The financial benefits of the transaction with WQED would have been significant but there is no benefit that would justify the sacrifice of religious freedom required by the new FCC standards," Eagle continued.

Calling the guidelines "horrendous" and "vague and overbroad," Eagle said that they "clearly violate the First Amendment to the United States Constitution by singling out religious programming for special scrutiny, regulating the content of religious speech and suppressing religious expression by prior restraint. . . . We regret that this simple license exchange transaction has become so politicized in Washington that it now has nationwide ramifications."

On January 12th, FCC chairman William Kennard responded to the growing controversy over the new regulations, releasing a letter to several congressional critics. The ruling, Kennard said, "does not establish new rules, but simply clarifies long-standing FCC policy applicable to any broadcaster seeking to use an NCE (noncommercial educational) channel. . . . The Commission thus did not single out religious broadcasters, but rather clarified standards applicable to all NCE broadcasters."

Kennard pointed out that "the large majority of broadcasters offering religious-oriented programming are exempt from the NCE eligibility requirements . . . because they use commercial channels."

Kennard added that the ruling does not force all religious programming off noncommercial channels - though it does make it ineligible to be used to meet the fifty percent requirement to receive an educational license.

Karl Stoll of the National Religious Broadcasters told CNSNews.com, concerning Kennard's letter, "So what if most religious broadcasters operate on commercial channels, does that mean it's OK to restrict religious speech when it only affects a small number?"

"Any thinking person can see it is very obvious in the decision that the FCC established new rules and did indeed single out religious programming for new standards, to say otherwise is dishonest," Stoll added.

Kennard's release responded to a letter sent from Oxley, Rep. Chip Pickering (R-MS), Rep. Cliff Stearns (R-FL), and Rep. Steve Largent (R-OK), that said that the agency "had no business - no business whatsoever - singling out religious programming for special scrutiny" and called the new guidelines "an unconstitutional restriction on religious speech."

On January 11th, Oxley, who is vice-chairman of the House Subcommittee on Telecommunications, Trade, and Consumer Protection, announced that he planned to introduce legislation when Congress reconvenes to reverse the new FCC regulations.

Additionally, the bill would have required the FCC to invite public comments before handing down any future changes to noncommercial licensing regulations.

Oxley planned to co-sponsor the bill with House Majority Leader Dick Armey and more than 50 co-sponsors, including several Democrats.

The legislation came after a major development in the story on January 10th, when - in a story exclusive to CNSNews.com - a high-ranking source at the Federal Communications Commission said that the agency "has had [religious broadcasters] in their sights for at least a year."

The source, who is familiar with the case and with FCC licensing procedures, told CNSNews.com on condition on anonymity that "certain commissioners have been discussing how best to rein in NCETV (noncommercial educational television) licensees for a while, on separation of church and state grounds."

"They've been looking for a test case, and they found one in this license swap," the source continued.

A spokesperson for the FCC, contacted by CNSNews.com at the time, called the allegations "preposterous" and said they "had no basis in fact."

"The detailed language of the WQED decision itself and the separate statements of the commissioners clearly demonstrates a respect for the programming discretion of all broadcasters, specifically including religious broadcasters," the spokesperson continued.