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FCC reconsideration of portion of WQED decision, 1999

A month after the FCC gave "Additional Guidance," attempting to clarify criteria for religious broadcasters' operation on reserved noncommercial educational channels, in the commission, by a vote of 4-1, withdrew that portion of its decision on the sale of WQED's second station, WQEX.

Additional Guidance section of order | Statements by Commissioners Furchtgott-Roth, Tristani, Powell

Order on Reconsideration
Adopted: January 28, 2000
Released: January 28, 2000

By the Commission: Commissioner Furchtgott-Roth concurring and issuing a statement; Commissioner Tristani dissenting and issuing a statement.

    1. By Memorandum Opinion and Order released December 29, 1999, the Commission granted the above-captioned applications for consent to the assignment of licenses of noncommercial educational television station WQEX(TV), Channel *16, Pittsburgh, Pennsylvania, from WQED Pittsburgh to Cornerstone TeleVision, Inc. and of television station WPCB-TV, Channel 40, Greensburgh, Pennsylvania, from Cornerstone to Paxson Pittsburgh Licensee, Inc. We also denied, inter alia, the petition to deny filed by The Alliance for Progressive Action and QED Accountability Project. By letter dated January 18, 2000, Cornerstone notified the Commission that it had terminated the agreements underlying the above-referenced transactions, and requested dismissal of its applications to acquire Channel *16 from WQED Pittsburgh and assign Channel 40 to Paxson.
    2. On our own motion, pursuant to 47 C.F.R. § 1.108, we hereby reconsider and vacate our decision, insofar as it provided additional guidance regarding compliance with Section 73.621(a), 47 C.F.R. § 73.621, of the Commission’s rules. See WQED Pittsburgh at ¶¶ 43-44 and n.77. In an attempt to clarify what constitutes non-commercial educational programming, we offered additional guidance broadly, and attempted to apply that guidance to specific cases involving religious programming. Regrettably, it has become clear that our actions have created less certainty rather than more, contrary to our intent.
    3. In hindsight, 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. Way of the Cross, 101 FCC 2d 1368, 1372, n. 5 (1985), citing Notice of Inquiry in Docket No. 78-164, 43 Fed. Reg. 30842, 30844-45 (1978).
    4. We wish to emphasize that our action here does not rescind or alter the underlying grant of the above-captioned applications.
    5. The Commission has already received many communications from members of the public and others concerning this proceeding. Insofar as these presentations directly and primarily relate to the general policy question of appropriate standards for evaluating programming proposals for reserved noncommercial educational television channels, while incidentally mentioning the captioned application proceeding, they will be governed by the Commission’s permit-but-disclose ex parte procedures as set forth in 47 C.F.R. 1.1206(b) and placed in a file associated with the record concerning the captioned applications. Any similar communications received in the future will be treated in the same manner. All persons are reminded, however, that the matter involving the captioned applications remains a restricted proceeding under 47 C.F.R. 1.1208, until such time as the proceeding on the assignment applications is formally terminated and no longer subject to Commission or court review. Thus, any written presentations directly addressing the merits or outcome of those applications must be served on all parties to that proceeding. Similarly, no such oral presentations concerning the applications may be made without advance notice to all parties and an opportunity for them to be present.
    6. Accordingly, IT IS ORDERED, that pursuant to 47 C.F.R. § 1.108, the above-referenced portion of the Commission’s decision in WQED Pittsburgh IS RECONSIDERED and VACATED.

Magalie Roman Salas

Concurring Statement of Commissioner Harold W. Furchtgott-Roth

I concur in the Commission’s judgment to vacate the "additional guidance" section of the original decision in this matter. I do so because that guidance was wrong on the merits, raising the specter of viewpoint discrimination against religious broadcasters in violation of the First Amendment, not because it provided insufficient clarity. See Order on Reconsideration at para. 2 ("Regrettably, it has become clear that our actions have created less certainty rather than more, contrary to our intent.").

Quite the opposite, it seems to me that the Commission’s further statements on the "educational" nature of religious programming were all too well apprehended by regulated entities, the public, and their elected representatives. It was not for lack of clarity that these parties objected to the decision but for infringement of freedom of speech and freedom of religion – and rightly so.

Nor do I vote to vacate because the Commission’s error only became apparent after the original decision was adopted. See id. at para. 3 ("In hindsight, we see the difficulty of minting clear definitional parameters for ‘educational, instructional, or cultural’ programming. . .".)(emphasis added). The many and grave problems occasioned by direct review of religious programming for educational purpose were plainly perceptible when the Commission first set forth its "additional guidance." That is why I voted against it then, and why I vote to remove it from our books now.

Finally, as a result of the Commission’s express rejection and vacatur of this guidance, there should be no doubt that the Mass Media Bureau is unauthorized to engage in any formal or informal practice of directly reviewing the substance of stations’ programming or imposing a quantification requirement on educational programming -- suggesting, for instance, the addition of certain shows or the deletion of others from a programming schedule in order to obtain licensing approval. Instead, as this Order on Reconsideration states, the Bureau’s task is simply to assess whether the broadcaster’s judgment that his station will be used chiefly to serve the educational needs of the relevant community is arbitrary or unreasonable. But anything more in the way of programming content review or programming quantification would be unwarranted, improper, and in derogation of this Order on Reconsideration.


Dissenting Statement of Commissioner Gloria Tristani
Re: Applications of WQED Pittsburgh and Cornerstone Television, Inc.

This is a sad and shameful day for the FCC. In vacating last month’s "additional guidance" on its own motion, without even waiting for reconsideration petitions to be filed, this supposedly independent agency has capitulated to an organized campaign of distortion and demagoguery.

At bottom, the additional guidance provided in last month’s decision stood for one simple proposition: not all religious-oriented programming will count toward the requirement that reserved television channels be devoted primarily to "educational" use. This is nothing new. For over twenty years, the Commission’s precedent has held that "[w]hile not all religious programs are educational in nature, it is clear that those programs which involve the teaching of matters relating to religion would qualify." What was new was that the Commission attempted to give some clarity to its precedent in order to assist its licensees and the public, and, more importantly, to ensure that the reserved channels are used for their intended purpose.

Then the pressure campaign began. It was alleged that the Commission was barring certain religious programming from the reserved channels. Not true – the Commission simply held that not all religious programming would count toward the "primarily educational" requirement. Then it was alleged that the Commission was somehow restricting religious speech, or engaging in a prior restraint. Again, not true – the decision only dealt with the small number of television channels set aside for noncommercial educational use. Religious broadcasters are free to broadcast whatever they wish on commercial channels. Indeed, Cornerstone has been broadcasting unimpeded on a commercial television channel in Pittsburgh since 1978. 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).

Perhaps the most disturbing charge leveled against the Commission is that its decision reflects an "anti-religion bias" at the agency. I reject and resent this type of attack, reminiscent of a witch-hunt. It is precisely because of my deep respect for religion, and my deep appreciation for the religious diversity of America, that I supported our additional guidance. Religion is not merely an educational "interest" like cooking or computers that may appeal to only a subset of the population. Religion is much more than that. The freedom to believe, and the freedom to believe in nothing at all, is one of our most precious freedoms. In order to preserve that freedom, the Establishment Clause of the First Amendment precludes the government from aiding, endorsing or opposing a particular religious belief, or from promoting belief versus non-belief. As Justice O’Connor recognized: "[T]he endorsement standard recognizes that the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others." Moreover, government endorsement of a particular set of religious beliefs sends a powerful message of exclusion to non-adherents. Again, Justice O’Connor:

Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

Here, the government reserves a small number of TV channels 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. Because of their scarcity, the reserved channels are expressly intended "to serve the entire community to which they are assigned," and to be "responsive to the overall public as opposed to the sway of particular political, economic, social or religious interests." Thus, a prospective licensee cannot operate on a reserved channel unless and until the government concludes that its programming is primarily "educational" for the broader public.

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. From a constitutional perspective, a government policy that endorses certain sectarian programming as "educational," and awards exclusive use of a scarce public resource to permit those views to be expressed, would run afoul of the Establishment Clause. Indeed, programming that promotes adherence to a particular set of religious beliefs "inevitably ha[s] a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal. The Establishment Clause does not allow public bodies to foment such disagreement." 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. Nor is it an answer to say that all religious programming is "educational." First, the scarcity of reserved channels means that, as a practical matter, the government would be aiding and endorsing certain religious beliefs and not others. Second, the Establishment Clause not only prohibits government from aiding or endorsing a particular set of religious beliefs, it also prohibits government from aiding or endorsing religion over non-religion (or vice versa).

The majority clearly wishes that this entire subject would just go away. That has been the Commission’s unspoken policy through the years, and would have remained the policy had the people of Pittsburgh not pressed the issue. Now, having stuck their head out of their foxhole and drawing fire, the majority is burrowing back in as quickly and deeply as they can. The excuse for vacating the additional guidance – that our actions "have created less certainty rather than more" – would be laughable were the stakes not so high. The problem was not a lack of clarity, but that we were too clear. We actually tried to give meaning to our rule. What the majority really means is that they prefer a murky and unenforceable rule to a clear and enforceable one. Indeed, if our decision created uncertainty, the answer would be further clarification, not to vacate. The majority insists that it would like to have "the benefit of broad comment." But where, one may ask, is the notice of rulemaking? The seriousness of the majority’s rulemaking argument can be judged by how quickly it begins a proceeding. I doubt that a rulemaking on this subject will ever see the light of day.

In the end, the majority’s decision takes us back to where we were before this case began. Programming on the reserved channels still must be primarily educational. Programming about religion may still qualify as educational, but not all religious programming will qualify. The only difference now is that neither licensees nor the public will have the benefit of specific guidance. The majority’s mantra that we will defer to the licensee’s judgment unless that judgment is "arbitrary or unreasonable" simply begs the question – when does a licensee’s judgment cross the line and become arbitrary or unreasonable? The majority provides no clue. I cannot see how anyone is better off, other than those who oppose any enforceable rules in this area. I, for one, will continue to cast my vote in accordance with the views expressed in the additional guidance and in this statement.


Press Statement of Commissioner Michael K. Powell Regarding the Order on Reconsideration in WQED, Pittsburgh

I support the Order on Reconsideration adopted by the Commission today on its own motion vacating the "additional guidance" proffered by the majority in the WQED Pittsburgh case regarding what constitutes educational programming.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'sdecision we put the lid back on the box. I continue to believe that when treading this close to content regulation,the traditional deference the Commission has given to broadcasters in thesematters is the most appropriate regulatory course.

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