<DOC>
[106th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:64025.wais]
THE RELIGIOUS BROADCASTING FREEDOM ACT AND THE NONCOMMERCIAL
BROADCASTING FREEDOM OF EXPRESSION ACT OF 2000
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TELECOMMUNICATIONS,
TRADE, AND CONSUMER PROTECTION
of the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
on
H.R. 3535--THE RELIGIOUS BROADCASTING FREEDOM ACT
H.R. 4201--THE NONCOMMERCIAL BROADCASTING FREEDOM OF EXPRESSION ACT OF
2000
__________
APRIL 13, 2000
__________
Serial No. 106-121
__________
Printed for the use of the Committee on Commerce
U.S. GOVERNMENT PRINTING OFFICE
64-025CC WASHINGTON : 2000
------------------------------
COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa TOM SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING,
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Telecommunications, Trade, and Consumer Protection
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL G. OXLEY, Ohio, EDWARD J. MARKEY, Massachusetts
Vice Chairman RICK BOUCHER, Virginia
CLIFF STEARNS, Florida BART GORDON, Tennessee
PAUL E. GILLMOR, Ohio BOBBY L. RUSH, Illinois
CHRISTOPHER COX, California ANNA G. ESHOO, California
NATHAN DEAL, Georgia ELIOT L. ENGEL, New York
STEVE LARGENT, Oklahoma ALBERT R. WYNN, Maryland
BARBARA CUBIN, Wyoming BILL LUTHER, Minnesota
JAMES E. ROGAN, California RON KLINK, Pennsylvania
JOHN SHIMKUS, Illinois TOM SAWYER, Ohio
HEATHER WILSON, New Mexico GENE GREEN, Texas
CHARLES W. ``CHIP'' PICKERING, KAREN McCARTHY, Missouri
Mississippi JOHN D. DINGELL, Michigan,
VITO FOSSELLA, New York (Ex Officio)
ROY BLUNT, Missouri
ROBERT L. EHRLICH, Jr., Maryland
TOM BLILEY, Virginia,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Dreistadt, Mark, Vice President, Administration and Finance,
Cornerstone Television..................................... 15
Furchtgott-Roth, Hon. Harold W., Commissioner, Federal
Communications Commission.................................. 6
Gustavson, E. Brandt, President, National Religious
Broadcasters............................................... 20
Tristani, Hon. Gloria, Commissioner, Federal Communications
Commission................................................. 11
Wildmon, Don, President, American Family Association......... 24
Material submitted for the record by:
Citizens for Independent Public Broadcasting, letter dated
April 13, 2000, enclosing material for the record.......... 54
(iii)
HEARING ON H.R. 3535, THE RELIGIOUS BROADCASTING FREEDOM ACT AND H.R.
4201, THE NONCOMMERCIAL BROADCASTING FREEDOM OF EXPRESSION ACT OF 2000
----------
THURSDAY, APRIL 13, 2000
House of Representatives,
Committee on Commerce,
Subcommittee on Telecommunications,
Trade and Consumer Protection,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:08 p.m., in
room 2322, Rayburn House Office Building, Hon. W.J. ``Billy''
Tauzin (chairman) presiding.
Members present: Representatives Tauzin, Gillmor,
Pickering, Stearns, Oxley, Shimkus, and Markey.
Staff present: Linda Bloss-Baum, majority counsel; Cliff
Riccio, legislative analyst; and Andy Levin, minority counsel.
Mr. Tauzin. The committee will please come to order.
Welcome and good afternoon.
Early this year, the FCC sought to quantify the service
obligations of noncommercial television licenses by requiring
that ``More than half of the hours of programming aired on a
reserved channel must serve an educational, instructional or
cultural purpose in the station's community of license.'' The
Commission further determined that while programming which
``teaches about religion'' would count toward the new
benchmark, programs ``devoted to religious exhortation,
proselytizing, or statements of personally held religious views
and beliefs would not qualify.''
In drawing substantive distinctions between varying
religious messages, the FCC clearly attempted to impose
content-based programming requirements on noncommercial,
religious television broadcasters without considering the
implications such requirements had on broadcaster rights under
the First Amendment and the Religious Freedom Restoration Act.
Moreover, the FCC tried to directly discriminate against
religious broadcasters without ever conducting notice or
comment.
In the wake of these actions, the FCC was inundated with
stern opposition to the ``Additional Guidance portion'' of its
WQED Pittsburgh Memorandum, Opinion and Order. This opposition
came from noncommercial licensees, from listeners, viewers and
religious groups and from the Hill in waves. I, myself, sent a
list of 33 questions to Chairman Kennard asking him to explain
full detail the basis for the Commission's decision. Just as I
suspected, the Commission declined to respond to the
interrogatories. In addition, Congressman Oxley dropped a bill
to negate the legal effect of the WQED Pittsburgh Order which
is one of the two bills up for consideration here today.
Fortunately, in response to our collective public outcry
over its actions, the FCC wisely decided to vacate the
Additional Guidance portion of its order by a vote of 4 to 1.
For that, I do commend the Commission. However, I feel there is
still some cause for concern.
Despite the 4 to 1 reversal of its order, it is clear that
some Commissioners still contend that the Additional Guidance
portion of the Order represents sound policy that offends
neither the First Amendment, the Religious Freedom Restoration
Act, nor traditional American values. Commissioner Tristani has
even asserted that she, ``for one, will continue to cast her
vote in accordance with the views expressed in the Additional
Guidance.'' This gives me the eerie feeling that if we, in
Congress, don't legislate in this area as soon as possible, FCC
will once again attempt to impose onerous and unreasonable
eligibility standards upon those entities seeking to receive
and maintain noncommercial educational broadcast licenses. Once
again, I fear these standards will have the net effect of
directly discriminating against religious content.
Today, we are here to discuss the proper legislative course
of action to deal with the situation. Before us are two bills,
H.R. 3201, the Noncommercial Broadcasting Freedom of Expression
Act, introduced by Mr. Pickering last week and H.R. 3525, the
Religious Broadcasting Freedom Act, the bill I alluded to
earlier that was introduced by Mr. Oxley shortly after the FCC
issued its WQED Pittsburgh Order. Both of these are good bills
and clearly we would be better off than we are today if either
one were enacted into law.
At this juncture, I feel the approach taken by H.R. 3525,
while very noble in concept, needs some strengthening. In
addition to directing the FCC to vacate the WQED Pittsburgh
Order, which it has already done, H.R. 3525 enables the FCC to
set eligibility standards, content-based programming
requirements and content neutral programming requirements
subject to only one limitation, that the Commission must set
these standards and requirements through a rulemaking
proceeding based on notice and comment.
While it is true the FCC offended us all when it tried to
circumvent the notice and comment requirements of the APA, I
don't believe that we solve our ultimate problem simply by
requiring the FCC to go through a rulemaking every time they
decide to legislate on the content requirements of
noncommercial broadcasters.
Just because a rulemaking proceeding may produce a record
that we all like does not mean we can trust the FCC the
objectively abide by that record. To the contrary, in the age
of the administrative state, the FCC has the become rather
infamous, I think, in shunning an administrative record and
imposing its own policy agenda when it chooses to do so.
We are, on the floor today, dealing with an FM radio bill
that is a good example of that where the Commission moved
through a rule to do something which this committee feels very
strongly was heading in a very bad direction.
Later today, I will be managing the bill also introduced by
Mr. Oxley on the floor to deal exactly with that. As we
rightfully acknowledged before the Rules Committee yesterday,
the bill that we have on the floor today seeks to rectify the
situation whereby the Commission created a new low-powered FM
radio license in complete disregard of the administrative
record containing clear evidence that the creation of these new
licenses would result in unacceptable levels of interference
for existing FM stations.
In light of this LPFM predicament, I must ask why should we
expect the FCC to respect the record that might renounce the
FCC's proposed definition of cultural, instructional and
educational program or its proposed eligibility standards for
receiving and holding a noncommercial license. The short answer
is that we shouldn't and we can't afford to.
Rulemakings these days only slow down the FCC just a bit.
Even when charged with notice, content and comment
responsibilities, the FCC always seems to find a way to impose
its will, whether or not that is the will of Congress to whom
the FCC is supposed to be legislatively answerable.
I think enough is enough. Now the FCC has shown us the
blueprint of how it would prefer to treat noncommercial,
religious programming, we simply need a bill that does more
than subject that blueprint to notice and comment. Mr.
Pickering's bill, H.R. 4201, which he has introduced on behalf
of Mr. Oxley, myself, Mr. Largent, Mr. Stearns, I believe today
Mr. Armey and Mr. DeLay have signed on as co-sponsors, takes an
appropriately stronger stance against the FCC and against what
they tried to do earlier this year.
Under H.R. 4201, an entity is eligible for a noncommercial
license where the station is primarily used to broadcast
material that the entity reasonably determines serves an
educational, instructional or cultural purpose. Unless such
determinations are arbitrary or unreasonable, the FCC must
defer to the editorial programming judgment of the entity by
affording actual licensees some discretion to determine what
type of programming bears a reasonable or rational relationship
to educational, instructional or cultural.
The bill imposes a single, clear, non-onerous eligibility
requirement on noncommercial broadcasters. Moreover, the FCC in
paragraph 3 of its Memorandum, Opinion and Order, which vacates
the Additional Guidance of the WQED Order, fully admits that
this type of discretion affording eligibility standard is in
fact the most prudent type of eligibility standard the
Commission should be enforcing.
I quote from paragraph 3 of the Order, ``In hindsight, we
see the difficulty of making clear definitional parameters for
'educational instruction or cultural programming.' Therefore,
we vacate our Additional Guidance. We will defer to the
editorial judgment of the licensees unless such judgment is
arbitrary or unreasonable.'' In accordance with this
conclusion, H.R. 4201 prudently seeks to codify this standard
so that something more onerous cannot be proposed later on down
the road. The Commission, pursuant to its own regulations, has
been deferring to the reasonable judgment of noncommercial
broadcasters for years. Now is not the time to change that
policy.
In addition, H.R. 4201 prevents the FCC from imposing the
same content-based programming requirements upon noncommercial
programming that we saw in the WQED Order. Specifically, the
FCC cannot require that a majority or 50.1 percent of
noncommercial entity programming must serve an educational,
instructional or cultural purpose in order for that entity to
receive and hold a noncommercial broadcast license.
In addition, the FCC, under the bill, cannot prevent
religious programming from being determined by a licensee to
serve an educational, instructional or cultural purpose. Nor
can the Commission, in this bill, impose any other requirements
on the content of noncommercial programming that are not
currently imposed upon commercially broadcast programming.
Finally, H.R. 4201 protects both the noncommercial
television and radio license and licensees whereas the
protections provided by H.R. 3525 extend only to television
licensees. The new bill covers not only the television but
radio licensees of religious programming.
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. Michael G. Oxley, a Representative in
Congress from the State of Ohio
As we all know, in an FCC order released December 29, 1999
involving what should have been a routine television license transfer,
the FCC provided ``additional guidance'' to noncommercial licensees
stating that, henceforth, ``religious exhortation, proselytizing, or
statements of personally-held religious views and beliefs generally
would not qualify as `general educational' programming.''
The order also quantified the educational mandate of noncommercial
licensees to require them to devote at least 50 percent of their air
time to educational programming--so the decision not to count
traditional religious content towards that 50 percent mandate had
serious implications for religious broadcasters. Broadcasters who did
not supplant a sufficient amount of their religious programming with
FCC-approved content would run the risk of losing their licenses.
Within days, on January 6th, Congressmen Pickering, Largent,
Stearns, and I sent a letter to Chairman Kennard objecting to the
Commission's action. As we said in that letter, ``the Commission has no
business--no business whatsoever--singling out religious programming
for special scrutiny.'' We went on to say, ``we advise you to reverse
this ruling, or stand by and see it overturned legislatively or in
court.''
The response we received from Chairman Kennard on January 12 stated
that ``the Commission's decision in this case . . . does not establish
new rules, but simply clarifies long-standing FCC policy.'' We
immediately wrote back informing Chairman Kennard that we had drafted
legislation to nullify the Commission's action. H.R. 3525, the
Religious Broadcasting Freedom Act, was introduced on January 24th with
60 original cosponsors. Four days later, the Commission withdrew its
additional guidance. Today, H.R. 3525 enjoys the support of 125
bipartisan cosponsors.
While those of us sitting at this dias might like to take full
credit for the Commission's reversal, the truth is there was a much
more powerful force at work. That, of course, was the thousands of
people of faith, acting out of religious conviction, who flooded the
Commission and Congress with phone calls, letters, and personal
testimony in support of religious freedom and religious broadcasting.
It was a modern-day David and Goliath story.
However, it is my strong opinion that the FCC Order on
Reconsideration does not put the matter to rest. The Commission
majority has never acknowledged its errors--substantive or procedural--
in issuing the original directive. Rather, they attribute the uproar
over the order to ``confusion'' over its meaning. Given Chairman
Kennard's claims that the directive was merely a clarification of
previous agency policy, the decision to vacate it does not resolve the
underlying problem with the Commission's interpretation of the law.
That being the case, I was pleased to work with the gentleman from
Mississippi to build on H.R. 3525, a process which resulted in the
introduction of H.R. 4201. This new bill spells out in even clearer
terms that the Commission cannot discriminate against religious
broadcasters and religious content. I commend the gentleman, Mr.
Pickering, for his hard work on this issue--from day one to the
present--and I thank the Chairman for calling today's legislative
hearing on both measures.
Mr. Chairman, it is clear to me that the FCC needs to have
congressional intent with respect to religious broadcasting spelled out
in much clearer terms. God works in mysterious ways, but almost
certainly not through the FCC.
______
Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
Thank you Mr. Chairman and thank you for calling this hearing to
discuss the significant threat of content regulation of our nation's
airwaves.
For nearly half a century non-commercial educational television
channels have been allocated by the FCC to better serve the local needs
of communities across the country. Under this well established system,
religious broadcasters that wish to become certified as a non-
commercial broadcaster have been required to show that their
programming was ``primarily educational.''
But last December, when Congress was out of session and the public
was focused on the holiday season, the FCC issued a troublesome
decision about what programming may qualify for these non-commercial
licenses. This decision raised warning flags on both substance and
process.
First on process. Not only was this decision released in the so
called ``dark of night,'' it was contained as an ``additional
guidance'' section to a license transfer decision--and therefore not
subject to public review and comment. In my opinion, any attempts to
impose content-based programming requirements on any broadcaster must
receive the benefits of a public rulemaking proceeding, in order to
fully consider the monumental impacts on broadcasters and on the
public.
Secondly on substance. The Commission attempted to impose content
based requirements on noncommercial educational stations, by requiring
that more than half of the programming hours on a reserved channel be
devoted to serve the educational needs of the community. The Commission
specifically singled out religious programming for new rules by stating
explicitly that church services would not qualify as educational
programming.
The FCC should not be in the business of quantifying program
requirements for noncommercial stations. Under current standards, the
FCC may only assess the reasonableness of a broadcaster's judgment
regarding the educational needs of its community. Let me be clear--the
FCC may go no further to review content.
I am pleased to see that both pieces of legislation that we
consider today address these fundamental issues regarding the FCC's
authority to act both substantively and procedurally. I would like to
commend the sponsors of the two bills, Mr. Oxley and Mr. Pickering, for
their hard work and for taking the quick action necessary to keep the
Commission in check. I look forward to hearing the views of our panel
this morning, and with that I yield back the balance of my time.
______
Prepared Statement of Hon. Gene Green, a Representative in Congress
from the State of Texas
Mr. Chairman: As a cosponsor of H.R. 3525, I was very concerned
last December when the Federal Communications Commission (FCC) issued
their ``additional guidance'' to the WQED-Pittsburgh broadcast license
application. The FCC decision attempting to clarify what is and is not
educational programming with respect to religious broadcasting was very
disturbing.
By not following normal rulemaking procedures the FCC prohibited my
constituents from being heard on this issue. Government and God do not
mix. When a federal entity decides it wants to involve itself with
religious matters there will be a reaction from Congress.
Unfortunately, that is why we are here today.
I believe Mr. Oxley's legislation is a balanced approach that
restores the status-quo to content requirements for non-commercial
educational television broadcasters. I appreciate the FCC acknowledging
their mistake and promptly rescinded their additional guidance section.
I am very interested in hearing from both Commissioners on any
future action they may be considering regarding this issue and whether
they believe their additional guidance was a new policy directive or
simply clarification of previous policy that had been implemented in
the past.
I do not want to completely prohibit the FCC for exercising some
limited oversight of the noncommercial educational channels if we can
receive some assurances that what happened in Pittsburgh was an attempt
to implement new policy. If the Commission believes that they were
simply expanding on existing authority allowing them to classify
educational content, then Mr. Pickering's legislation which we will be
considering next may have some merit.
I do have some concerns with Mr. Pickering's legislation. By
preventing the FCC from exercising any regulatory authority over what
may or may not qualify as educational content are we creating a
loophole that could allow very alternative religious programming to be
licensed under the guise of being educational, instructional, or
cultural. While the panel members here today represent what I consider
the main stream religions. What happens if someone applies for a non-
commercial educational television license to promote their beliefs in
some very alternative religion. What role does the FCC then play in
reviewing these types of applications.
This may be an extreme example, but I would appreciate any insights
panel members may have on a situation like this occurring.
In conclusion Mr. Chairman, I want to thank you for conducting this
important hearing and I look forward to hearing what the panelists have
to add on these issues.
Mr. Tauzin. With all that having been said, let me make one
thing very clear. At the end of the day, whichever legislative
language is adopted by the subcommittee, we ought to do it
right. For the numerous reasons I have cited today, we cannot
allow the Commission to have another bite at this apple when it
comes to protecting the freedom on noncommercial speech in
religious broadcasting.
The Chair welcomes our panel. I am pleased today to welcome
as our witnesses, the Honorable Harold W. Furchtgott-Roth; the
Honorable Gloria Tristani; Mark Dreistadt, Vice President,
Administration and Finance, Cornerstone Television; Mr. Don
Wildmon, President, American Family Association; and Mr. E.
Brandt Gustavson, President, National Religious Broadcasters.
We will begin with the Honorable Harold W. Furchtgott-Roth
of the Commission.
STATEMENTS OF HON. HAROLD W. FURCHTGOTT-ROTH, COMMISSIONER,
FEDERAL COMMUNICATIONS COMMISSION; HON. GLORIA TRISTANI,
COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; MARK
DREISTADT, VICE PRESIDENT, ADMINISTRATION AND FINANCE,
CORNERSTONE TELEVISION; E. BRANDT GUSTAVSON, PRESIDENT,
NATIONAL RELIGIOUS BROADCASTERS; AND DON WILDMON, PRESIDENT,
AMERICAN FAMILY ASSOCIATION
Mr. Furchtgott-Roth. Mr. Chairman, as always, it is a great
honor and privilege to be here.
I would like to have my testimony submitted for the record.
Mr. Tauzin. Without objection, the written statements of
all the witnesses, as well as any members who wish to submit
written statements, will be admitted into the record. It is so
ordered.
It is a great honor for me to be here today testifying,
along with my colleague, Commissioner Tristani. She and I do
occasionally differ on policy issues but I must say that she
brings to the Commission the very highest degree of personal
integrity. I am very privileged to serve with her.
The issues before us today have to do with free speech and
religious freedom. Mr. Chairman, I will abide no abridgement of
either of those. The issues before us also hinge very much on
constitutional law. I cannot sit here before you today and
pretend to be personally an expert in that area.
I am privileged to have on my staff, Ms. Helgi Walker who I
think is one of the very brightest lawyers with whom I have
ever had the privilege of working. So in my testimony, if you
find anything that is accurate and to the point, please
recognize that it is Ms. Walker who has placed it there. If I
make any mistakes here, those are mine.
Mr. Tauzin. They are all yours, of course.
Mr. Furchtgott-Roth. In the manner you described, I
dissented vigorously from the Additional Guidance. To my mind,
quantification of educational programming obligations of
noncommercial licensees was potentially unconstitutional.
In Turner Broadcasting System, Inc. v. FCC, the Supreme
Court went out of its way in discussing the validity of our
regulatory requirements for noncommercial, educational
broadcasters to note that our rules did not require
broadcasters to air any specific amount of such programming.
The clear implication of that discussion is that quantified
programming obligations for NCC licensees would indeed raise
First Amendment problems.
Worse, the Commission's Additional Guidance raised the
specter of discrimination against certain broadcasters on the
basis of their religious message. No other noncommercial,
educational broadcasters, of course, were subjected to the no
exhortation or no statement of personally held views standard
announced in that Order.
In Rosenberger v. University of Virginia, the Supreme Court
made clear that once government opens an avenue for expression,
it may not deny access to those with religious, editorial
viewpoints simply because of those viewpoints. Conversely and
contrary to the insertion of some in the WQED majority, the
Court also made clear that allowing such groups to speak on the
same basis as others in order to avoid a First Amendment
violation does not in turn violate the establishment clause.
Let me quote specifically from the Rosenberger case. At
846, the Court held, ``There is no establishment clause
violation in honoring duties under the Free Speech Clause. The
notion that there is an establishment clause violation here is
simply wrong.''
Federal examination of the question whether a view
expressed by an individual is personally held or not is an
astonishingly invasive venture. It seems to be an obviously
content-based, indeed belief-based, inquiry. In essence, the
standard enunciated in the Order meant that if you believe what
you are saying about religion, you can't say it on the
noncommercial educational band, but if you don't believe what
you are saying, then you can.
A personal belief test for designating those who may and
may not operate on the reserved band is a clear infringement of
core speech rights. It simply is ludicrous.
Commissioner Powell and I stated in our joint dissent ``The
more the Commission attempts to define which educational,
instructional and cultural programming will count for
regulatory purposes, the closer it will come to unacceptable
and unconstitutional content regulation. The example of church
services used in the Order itself illustrates this point.
The order indicated that church services generally would
not qualify as general educational programming. We asked,
however, why such programming might not qualify as cultural
programming, just as a presentation of an opera might. It would
be very hard to broad-brush either type of programming as
having no intrinsic cultural value. Moreover, depending upon
the nature and content of the service, it might very well be
properly educational. Certainly millions of Americans attend
church services in part for the educational value of the
teachings embodied in the sermon.
On January 28 the Commission hurriedly issued on its own
motion an Order vacating the Additional Guidance of the first
WQED Decision. I concurred in that vacatur because as I
explained, ``That guidance was wrong on the merits.'' I also
stated that ``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.
For instance, the Bureau cannot suggest the addition of
certain shows or the deletion of others from a programming
schedule in order to obtain licensing approval. Instead, 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. Anything more in the way of programming content
review or programming quantification would be unwarranted,
improper and in derogation of the Order on Reconsideration.
Unfortunately, while this understanding of the Bureau's
current authority is, in my opinion, the legally correct one,
it is unclear whether this understanding prevails at the
Commission. Chairman Kennard, in defending the original Order,
asserted in essence that ``The Commission's decision was simply
writing down what was in fact Commission practice.'' This
characterization of the WQED Order is based entirely on past
precedent was not rejected in the Order on Reconsideration, nor
has it since been refuted.
Of course I strongly disagree with the assertion that the
Order established nothing new. If that were true, there would
have been no need to write and adopt the Additional Guidance
section of the Order. I doubt that the majority would have
engaged in this work if it were not, in fact, necessary.
Assuming, however, that one does believe the nothing new
characterization would be correct, then the simple vacatur of
the WQED Order is insufficient to protect religious
broadcasters from the treatment heralded in the Additional
Guidance section of that Order. This uncertainty is a lingering
problem for religious broadcasters. It should be made clear
that the underlying policies and interpretations of past
precedent that animated the Additional Guidance that the
majority of the Commission adopted themselves is null and void.
If this question is left open, the Commission is sure to go a
second round on the specifics on when religious stations should
be deemed to serve educational ends.
All it would take is for a similar license transfer
application to come along, and we receive many such
applications, to have a renewed regulatory battle over this
issue. I fear that the speech of religious broadcasters
operating on the noncommercial educational band will be chilled
and when the issue again comes to a head at the Commission,
their speech will be directly abridged.
Thank you, Mr. Chairman.
[The prepared statement of Hon. Harold W. Furchtgott-Roth
follows:]
Prepared Statement of Hon. Harold W. Furchtgott-Roth, Commissioner,
Federal Communications Commission
On December 29, 1999, 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.
Cornerstone sought, and was granted, authority to move from Channel 40
to Channel 16, and to sell Channel 40 to Paxson.
I voted to adopt this part of the Commission's decision, which
found that Cornerstone--a religious broadcasting entity--met the legal
standard for operating on the noncommercial, educational (``NCE'')
band. That standard requires that the ``station[] . . . be used
primarily to serve the educational needs of the community'' and ``for
the advancement of educational programs.'' <SUP>1</SUP> In applying
this standard, the Commission deferred, as it traditionally has done,
to the good faith judgment of the broadcaster that its station would
serve educational purposes.
---------------------------------------------------------------------------
\1\ 47 C.F.R. section 73.621.
---------------------------------------------------------------------------
The Commission did not stop there, however. In a further statement
purportedly designed to provide broadcasters with ``additional
guidance,'' the Commission elaborated on the situations in which
religious programming would be deemed ``primarily educational'' for
purposes of licensing on the NCE band.
The Commission stated:
First, with respect to the overall weekly program schedule,
more than half of the hours of programming aired on a reserved
channel must primarily serve an educational, instructional or
cultural purpose in the station's community of license. Second,
in order to qualify as a program which is educational,
instructional or cultural in character, and thus counted in
determining compliance with the overall benchmark standard, a
program must have as its primary purpose service to the
educational, instructional or cultural needs of the
community.<SUP>2</SUP>
---------------------------------------------------------------------------
\2\ WQEX-WQED Order at para. 43.
---------------------------------------------------------------------------
On this second point, the Commission elaborated that:
not all programming, including programming about religious
matters, qualifies as ``general educational'' programming. 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 . . . [T]he reserved
television channels are intended ``to serve the educational and
cultural broadcast needs of 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.<SUP>3</SUP>
---------------------------------------------------------------------------
\3\ Id. at para. 44.
---------------------------------------------------------------------------
I dissented vigorously from this discussion. To my mind,
quantification of the educational programming obligation of
noncommercial licensees was potentially unconstitutional. In Turner
Broadcasting System, Inc. v. FCC, the Supreme Court went out of its
way, in discussing the validity of our regulatory requirements for
noncommercial educational broadcasters, to note that our rules did not
require broadcasters to air any specific amount of such
programming.<SUP>4</SUP> The clear implication of that discussion is
that quantified programming obligations for NCE licensees would indeed
raise First Amendment problems.
---------------------------------------------------------------------------
\4\ See 512 U.S. 622, 651 (1994) (observing that ``[w]hat is
important for [First Amendment] purposes . . . is that noncommercial
licensees are not required by statute to or regulation to carry any
specific quantity of `educational' programming or any particular
`educational' programs'').
---------------------------------------------------------------------------
Worse, the Commission's ``additional guidance'' raised the specter
of discrimination against certain broadcasters on the basis of their
religious message. No other noncommercial, educational broadcasters, of
course, were subject to the ``no exhortation'' or ``no statement of
personally-held views'' standard announced in the Order. In Rosenberger
v. University of Virginia, the Supreme Court made clear that once
government opens up an avenue for expression, it may not deny access to
those with religious editorial viewpoints simply because of those
viewpoints.<SUP>5</SUP> Conversely--and contrary to the assertion of
some in the WQED majority--the Court also made clear that allowing such
groups to speak on the same basis as others in order to avoid a First
Amendment violation does not, in turn, violate the Establishment
Clause.<SUP>6</SUP>
---------------------------------------------------------------------------
\5\ See 515 U.S. 819, 828-837(1995) (holding that denial of State
funding for publications of student groups to those with religious
editorial viewpoints is unconstitutional viewpoint discrimination).
\6\ See id. at 837-846 (holding that funding of religious student
publications does not violate the Establishment Clause); id. at 846
(stating that ``[t]here is no Establishment Clause violation in . . .
honoring . . . duties under the Free Speech Clause.'').
---------------------------------------------------------------------------
On top of that, federal examination of the question whether a view
expressed by an individual is personally held or not is an
astonishingly invasive venture. It seems to be an obviously content-
based--indeed, belief-based--inquiry. In essence, the standard
enunciated in the Order meant that if you believe what you are saying
about religion, you can't say it on the NCE band, but if you don't
believe what you are saying, then you can. A ``personal belief'' test
for designating those who may and may not operate on the reserved band
is a clear infringement of core speech rights.<SUP>7</SUP>
---------------------------------------------------------------------------
\7\ Cf. FCC v. League of Women Voters, 468 U.S. 364 (1984)
(striking down statute barring NCE stations receiving federal grants
from engaging in editorializing).
---------------------------------------------------------------------------
At bottom, and as Commissioner Powell and I stated in our joint
dissent, the more the Commission attempts to generically define which
``educational, instructional and cultural'' programming will count for
regulatory purposes, the closer it will come to unacceptable and
unconstitutional content regulation. The example of church services
used in the Order illustrates the point. The Order indicated that
church services generally would not qualify as ``general educational''
programming.<SUP>8</SUP> We asked however, why such programming might
not qualify as ``cultural'' programming just as a presentation of an
opera might? It would be very hard to broad brush either type of
programming as having no intrinsic cultural value. Moreover, depending
upon the nature and content of the service, it might very well be
properly educational. Certainly, millions of Americans attend church
services, in part, for the educational value of the teachings embodied
in a sermon.
---------------------------------------------------------------------------
\8\ WQEX-WQED Order at para. 44 n.91.
---------------------------------------------------------------------------
On January 28, 2000, the Commission hurriedly issued on its own
motion an Order vacating the ``additional guidance'' of the first WQED
decision. I concurred in that vacatur because, as I explained, that
guidance was wrong on the merits.
I also stated that, 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. For instance, the Bureau can not suggest the addition of
certain shows or the deletion of others from a programming schedule in
order to obtain licensing approval. Instead, 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. Anything more in the way of
programming content review or programming quantification would be
unwarranted, improper, and in derogation of the Order on
Reconsideration.
Unfortunately, while this understanding of the Bureau's current
authority is in my opinion the legally correct one, it is unclear
whether this understanding prevails at the Commission. Chairman Kennard
in defense of the original Order asserted that:
The Commission's decision in this case therefore does not
establish new rules, but simply clarifies long-standing FCC
policy applicable to any broadcaster seeking to use an NCE-
reserved channel. The decision followed and cited prior
Commission decisions in describing what kinds of religious
programming would qualify as educational.
Letter from Chairman William E. Kennard to Representatives Oxley,
Pickering, Stearns, and Largent, Jan. 20, 2000.<SUP>9</SUP> This
characterization of the WQED Order as based entirely on past precedent
was not rejected in the Order on Reconsideration, nor has it since been
refuted.
---------------------------------------------------------------------------
\9\ See http://www.fcc.gov/Speeches/Kennard/Statements/2000/
stwek003.html.
---------------------------------------------------------------------------
Of course, I strongly disagree with the assertion that the Order
established nothing new. If that were true, there would have been no
need to write and adopt the ``additional guidance'' section of the
Order. I doubt that the majority would have engaged in this work if it
were in fact unnecessary.
Assuming, however, that one does believe the ``nothing new''
characterization to be correct--as the Chairman of the FCC apparently
does--then simple vacatur of the WQED Order is insufficient to protect
religious broadcasters from the treatment heralded in the additional
guidance section of that Order.
This uncertainty is a lingering problem for religious broadcasters
operating with NCE licenses. It should be made clear that the
underlying policies and interpretations of past precedent that animated
the ``additional guidance'' majority at the Commission are themselves
null and void. If this question is left open, the Commission is sure to
go a second round on the specifics of when religious stations should be
deemed to serve ``educational'' ends. All it would take is for a
similar license transfer application to come along, and we receive many
such applications: a renewed regulatory battle over this issue is
likely just a question of time. I fear that, in the meanwhile, the
speech of religious broadcasters operating on the NCE band will be
chilled and that, when the issue again comes to a head at the
Commission, their speech will be directly abridged.
Thank you again for inviting me to appear before you today.
Mr. Tauzin. Thank you, Commissioner.
Now the Chair is pleased to welcome the Honorable Gloria
Tristani, Commissioner, Federal Communications Commission.
The Chair would also like to make note that the committee
invited all of the five Commissioners, including the Chairman,
to be with us today and the two Commissioners who are here
today accepted the invitation.
I also want to point out for the record as I did to my
friend yesterday in person, the Chairman of the Commission, we
have not seen the Chairman since October. This is the fourth
time he was not able to schedule to be with us at a hearing
like this. I want to say on the public record that the
invitation for him to appear is still. I would very much like
to see Chairman Kennard at one of our hearings where we might
talk policy with him and would encourage him to accept the next
invitation. We will try to work a schedule that does not
conflict with his at the next available time.
The Chair is now pleased to welcome the Honorable Gloria
Tristani to the hearing.
STATEMENT OF HON. GLORIA TRISTANI
Ms. Tristani. Thank you, Mr. Chairman.
I am pleased to be here to testify at your request. As my
statement, I will read portions of my dissenting statement
regarding the Commission's Order of January 28, 2000 vacating
the Additional Guidance.
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 educational use
requirement on reserved television channels. This is nothing
new. For over 20 years, the Commission's precedent has held
that while 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 a 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 only selectively promote certain speech without
abridging other types of speech.
Perhaps the most disturbing charge leveled against the
Commission is that its decision reflects an anti-religious 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 the 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 nonbelief.
As Justice O'Connor recognized in her concurring statement
on County of Allegheny v. ACLU, ``[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 nonadherence.
Again Justice O'Connor concurring in Lynch v. Donnelly:
``Endorsement sends a message to nonadherents 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 television
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 it 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.'' County of Allegheny, O'Connor concurring.
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 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 as
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 the 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.
Thank you, Mr. Chairman.
[The prepared statement of Hon. Gloria Tristani follows:]
Prepared Statement of Hon. Gloria Tristani, Commissioner, Federal
Communications Commission
I am pleased to be here to testify, at your request, on the
Religious Broadcasting Freedom Act and the Noncommercial Broadcasting
Freedom of Expression Act of 2000. As my statement, I am attaching a
copy of my dissenting statement regarding the Commission's Order of
January 28, 2000 in Re: Application of WQED Pittsburgh and Cornerstone
Television, Inc. vacating the ``additional guidance.''
______
January 28, 2000
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.'' \1\ 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.\2\
---------------------------------------------------------------------------
\1\ See Notice of Inquiry, Docket No. 78-164, 43 Fed. Reg. at 30845
(1978) (setting forth processing standards for reserved channels).
\2\ For example, the Commission stated that a program analyzing the
role of religion in connection with historical or current events,
various cultures, or the development of the arts generally would
qualify as educational, while church services generally would not.
---------------------------------------------------------------------------
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).\3\
---------------------------------------------------------------------------
\3\ See, e.g., National Endowment for the Arts v. Finley, 524 U.S.
569, 118 S.Ct. 2168, 2179 (1998) (``Congress may `selectively fund a
program to encourage certain activities it believes to be in the public
interest, without at the same time funding an alternative program which
seeks to deal with the problem in another way.' '') (citing Rust v.
Sullivan, 500 U.S. 173, 193 (1991)). See also Finley, 118 S.Ct. at 2183
(Scalia, J., concurring) (``It is preposterous to equate the denial of
taxpayer subsidy with measures `aimed at the suppression of dangerous
ideas'') (citations omitted).
---------------------------------------------------------------------------
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.'' \4\ Moreover, government endorsement
of a particular set of religious beliefs sends a powerful message of
exclusion to non-adherents. Again, Justice O'Connor:
---------------------------------------------------------------------------
\4\ County of Allegheny v. ACLU, 492 U.S. 573, 631 (1989)
(O'Connor, J., concurring). See also Roemer v. Board of Public Works of
Maryland, 426 U.S. 736, 747 (1976) (``the state must confine itself to
secular objectives and neither advance nor impede religious
activity'').
---------------------------------------------------------------------------
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.\5\
---------------------------------------------------------------------------
\5\ Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J.,
concurring).
---------------------------------------------------------------------------
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,'' \6\ and to be
``responsive to the overall public as opposed to the sway of particular
political, economic, social or religious interests.'' \7\ 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.
---------------------------------------------------------------------------
\6\ Fostering Expanded Use of the UHF Channels, 2 FCC 2d 527, 542
(1965) (emphasis added).
\7\ Noncommercial Nature of Educational Broadcast Stations, 90 FCC
2d 895, 900 (1982).
---------------------------------------------------------------------------
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.'' \8\
It is no answer to say that nonadherents 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).
---------------------------------------------------------------------------
\8\ County of Allegheny, 492 U.S. at 651 (O'Connor, J.,
concurring).
---------------------------------------------------------------------------
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.
Mr. Tauzin. Thank you very much, Commissioner.
The Chair is now pleased to welcome Mr. Mark Dreistadt,
Vice President, Administration and Finance, Cornerstone
Television in Pennsylvania. Mr. Dreistadt?
STATEMENT OF MARK DREISTADT
Mr. Dreistadt. Mr. Chairman, members of the subcommittee,
thank you for inviting me to testify before you today on behalf
of Cornerstone Television which operates WPCB Television,
Channel 40, Greensburg, Pennsylvania, a station with a largely
religious format.
Cornerstone, as you know, was involved in a lengthy FCC
proceeding with two other broadcasters to sell WPCB and to
acquire a noncommercial educational station, WQEX in Pittsburgh
on which Cornerstone proposed to air christian educational
programming. I welcome this opportunity to comment on both H.R.
3525 and on H.R. 4201.
Early in 1997, Cornerstone entered a cooperative effort
with two other broadcasters, WQED in Pittsburgh and also Paxson
Communications Company. WQEX had suffered substantial financial
losses and QED was already a licensee of Channel 13, another
noncommercial, educational station in Pittsburgh and they
wanted to sell QED and use the moneys therefrom to enhance
their programming. So Cornerstone was willing to purchase WQEX
and Paxson was willing to purchase Cornerstone's existing
television station, and the appropriate assignment applications
were filed with the FCC in the late spring of 1997.
Cornerstone Television continues to believe that this
assignment would have been good for the community by adding
additional diversity in the programming offered on
noncommercial televisions stations in the Pittsburgh area.
Ultimately on January 18, 2000, after over 3 years of
litigation at the FCC, Cornerstone terminated its cooperative
effort to acquire Channel 16 and sell Channel 40 to Paxson.
Cornerstone's President, Oleen Eagle stated, ``Our decision to
terminate this transaction was forced upon us by the
unprecedented December 29 Order of the FCC which would have
seriously jeopardized our ability to carry out our mission of
broadcasting christian educational programming on Channel 16.''
In the December 29 Order, the FCC approved the assignment
of the noncommercial Channel 16 license to Cornerstone,
however, the Commission Order contained a section entitled,
``Additional Guidance'' in which the Commission announced that
more than 50 percent of Cornerstone's programming on Channel 16
would have to be educational. The FCC stated further that ``not
all programming, including programming about religious matters,
qualifies as general educational programming.'' By way of
example, the FCC declared that programming devoted to
``religious exhortation, proselytizing statements of personally
held religious views and beliefs and church services generally
would not qualify as general educational programming.''
We believe that ruling was arbitrary and capricious and
raises serious First Amendment concerns. We believe that the
FCC failed to recognize the cultural impact and benefit of
religious programming.
The FCC's Order further stated that Cornerstone was
obligated to comply with these newly announced standards and
threatened that failure to do so could lead to appropriate
action, which Cornerstone understood to include the loss of
license to broadcast on Channel 16.
Since Cornerstone's mission requires us to broadcast
programming that involves christian exhortation, evangelizing
and statements of personal testimonies and personally held
views, beliefs and church services, we could literally be
threatened with the loss of our primary means of carrying out
our mission if we exchange the Channel 40 license for the
Channel 16 license. Because of these problems, Cornerstone felt
it had no alternative but to terminate the agreement.
The financial benefits of the transaction for Cornerstone
would have been significant, about $17.5 million, but there is
no benefit that would justify the sacrifice of religious
freedom required by the FCC Additional Guidance.
During the application process, Cornerstone repeatedly
demonstrated its ability as an operator of a noncommercial
educational channel. Cornerstone made modifications to the
organization's mission statement, to its board of directors and
to its overall program schedule in an attempt to more fully
comply with the FCC's existing regulations.
Cornerstone was the subject of an inquiry into content that
we feel is both inappropriate and unprecedented. It took
significant time and expense but in the end, in its text of the
December 29 Order, FCC stated, ``We conclude that Cornerstone
has provided a program schedule and description of programming
that prevents us from denying its application. In fact,
Cornerstone demonstrated in excess of over 100 hours weekly of
Christian and religious educational programming that would be
carried on our schedule.''
Yet, in the same document, the FCC's Additional Guidance
redefined the programming requirements thus creating an
untenable situation for Cornerstone. To accept the grant would
have required Cornerstone to comply with the Additional
Guidance or operate in violation of the law. Since Cornerstone
could accept neither of these options, termination of its
agreements with the other broadcasters was the only recourse.
Cornerstone believes that the FCC's Additional Guidance for
religious broadcasters operating on noncommercial educational
channels clearly violated the First Amendment of the United
States Constitution by singling out religious programming for
special scrutiny, regulating content or religious speech or
suppressing religious expression by prior restraint.
We also believe that the Additional Guidance was so vague
and overbroad that it would be impossible for religious
broadcasters operating on noncommercial educational television
channels to determine what programming qualifies as educational
programming.
On January 29, 2000, after overwhelming public opposition,
the FCC vacated its decision insofar as it provided Additional
Guidance. However, in that process, it did not disavow the
principles of that guidance. The Commission acknowledged that
its actions created less certainty rather than more and
recognized the difficulty of minting clear definitional
parameters for educational instructional or cultural
programming without the benefit of broad comment.
However, the Commission's actions still leaves religious
broadcasters who seek to operate on noncommercial educational
channels in a quandary. For instance, in a Dissent Order
vacating the Additional Guidance, Commissioner Tristani offered
the opinion that the Commission's Additional Guidance was an
attempt to give some clarity to existing precedent and added
that ``programming on reserved channels must still be primarily
educational and not all religious programming will qualify.''
We believe that the probability of subsequent attacks in
this area is likely. We regret that the FCC action compelled us
to terminate our transaction. We pray that the religious
freedom issues raised by the FCC's actions can be addressed in
this legislative context. Cornerstone believes that the only
safety for religious broadcasters who are broadcasting on
noncommercial educational channels will be through legislation
that protects the First Amendment rights of freedom of speech
and freedom of religion for broadcasters.
The bills before us both address issues that are critical
to granting religious broadcasters the same discretion and
latitude given to all others who hold noncommercial licenses.
Cornerstone maintains that religious programming is both
cultural and educational and thereby meets the standards for
general educational programming.
These bills will ensure that religious broadcasters across
America will be guaranteed the freedom to broadcast programming
that upholds the moral, spiritual and ethical fiber upon which
our Nation was founded.
Mr. Chairman, members of the subcommittee, again, I
appreciate this opportunity to share our views and look forward
to answering any questions you may have.
[The prepared statement of Mark Dreistadt follows:]
Prepared Statement of Mark Dreistadt, Vice President of Administration
& Finance, Cornerstone Television, Inc.
Mr. Chairman, Members of the subcommittee, my name is Mark
Dreistadt and I am Vice President of Administration and Finance of
Cornerstone Television, Inc. Thank you for inviting me to testify
before you today on behalf of Cornerstone which operates Station WPCB-
TV, Channel 40, Greensburg, Pennsylvania, a station with a largely
religious programming format. Cornerstone was involved in a lengthy FCC
proceeding with two other broadcasters to sell WPCB-TV and to acquire
noncommercial educational Station WQEX(TV), Pittsburgh, Pennsylvania on
which Cornerstone proposed to air Christian educational programming. I
welcome this opportunity to comment on H.R. 3525, the Religious
Broadcasting Freedom Act and H.R. 4201, the Noncommercial Broadcasting
Freedom of Expression Act of 2000.
In early 1997, Cornerstone entered into a cooperative effort with
two other broadcasters--WQED Pittsburgh, the licensee of Station
WQEX(TV), Channel 16, Pittsburgh and Paxson Pittsburgh License, Inc.
WQEX had suffered substantial financial losses and WQED, which already
was the licensee of WQED(TV), Channel 13, another noncommercial
educational television station in Pittsburgh, wanted to sell WQED and
use the monies obtained therefrom to enhance the programming on WQED.
Cornerstone was willing to purchase WQEX and Paxson was willing to
purchase Cornerstone's existing television station on Channel 40. The
appropriate assignment applications were filed with the Federal
Communications Commission (``FCC'') in the late spring of 1997.
Ultimately, on January 18, 2000, after several years of litigation
at the FCC, Cornerstone terminated its cooperative effort to acquire
Channel 16 and sell Channel 40 to Paxson. As Cornerstone's President,
Oleen Eagle, stated: ``Our decision to terminate the transaction was
forced upon us by the unprecedented December 29, 1999 Order of the FCC
which would have seriously jeopardized our ability to carry out our
mission of broadcasting Christian educational programming on Channel
16.''
In the December 29th Order, the FCC approved the assignment of the
noncommercial Channel 16 license to Cornerstone; however, the
Commission Order contained a section entitled ``Additional Guidance''
in which the Commission announced that more than 50% of Cornerstone's
programming on Channel 16 would have to be educational. The FCC stated
that ``not all programming, including programming about religious
matters qualifies as `general educational' programming.'' By way of
example, the FCC declared that ``programming devoted to religious
exhortation, proselytizing, or statements of personally-held religious
views and beliefs generally would not qualify as `general educational'
programming.'' We believe that the ruling was arbitrary and capricious
and raises serious First Amendment concerns.
The FCC's Order further stated that Cornerstone was obligated to
comply with these newly announced standards and threatened that failure
to do so could lead to appropriate action, which Cornerstone understood
could include loss of the license to broadcast on Channel 16. Since
Cornerstone's 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 the loss of our primary means of carrying out our
mission if we exchanged the Channel 40 license for the Channel 16
license. Because of these problems, Cornerstone felt that it had no
alternative but to terminate the agreement. The financial benefits of
the transaction for Cornerstone would have been significant ($17.5
million) but there is no benefit that would justify the sacrifice of
religious freedom required by the FCC Additional Guidance.
During the application process, Cornerstone repeatedly demonstrated
its ability to qualify as an operator of a noncommercial educational
channel. Cornerstone made modifications to its organization's mission
statement, to its Board of Directors and to its overall program
schedule in an attempt to more fully comply with the FCC's existing
regulations. In the text of its December 29th Order, the FCC stated,
``. . . we conclude that Cornerstone has provided a program schedule
and description of programming that prevents us from denying its
application . . .'' Yet in the same document, the FCC's Additional
Guidance redefined the programming requirements, thus creating an
untenable situation for Cornerstone. To accept the grant would have
required Cornerstone to comply with the Additional Guidance or operate
in violation of the law. Since Cornerstone could not accept either of
these options, termination of its agreements with the other
broadcasters was the only recourse.
Cornerstone believes that the FCC's Additional Guidance for
religious broadcasters operating on noncommercial educational channels
clearly violated 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 also believe that the Additional Guidance was so
vague and overbroad that it would be impossible for religious
broadcasters operating on noncommercial educational television channels
to determine what programming qualifies as educational programming.
On January 28, 2000, after overwhelming public opposition, the FCC
vacated its decision insofar as it provided Additional Guidance. The
Commission acknowledged that its actions had created less certainty,
rather than more, and recognized the difficulty of minting clear
definitional parameters for ``educational, instructional or cultural''
programming without the benefit of broad comment. However, the
Commission action still leaves religious broadcasters who seek to
operate on noncommercial educational channels in a quandary. For
instance, in a dissent to the Order vacating the Additional Guidance,
Commissioner Tristani opined that the Commission's Additional Guidance
was an attempt to give some clarity to its existing precedent and added
that programming on the reserved channels still must be primarily
educational and ``not all religious programming will qualify.''
We regret that the FCC action compelled us to terminate our
transaction. We pray that the religious freedom issues raised by the
FCC's action can be addressed in this legislative context. Cornerstone
believes that the only safety for religious broadcasters who are
broadcasting on noncommercial educational channels will be through
legislation that protects the First Amendment rights of freedom of
speech and freedom of religion for religious broadcasters.
The bills before this Subcommittee, H.R. 3525 and H.R. 4201, both
address the issue that Cornerstone has faced and Cornerstone is very
grateful for the support of the congressmen who sponsored these bills.
H.R. 4201 is the more recent and more comprehensive of the two bills.
Cornerstone supports the passage of this legislation with slight
modifications. Specifically, Section 4 should state that any revisions
to FCC regulations must be consistent with Section m (1) and (2).
Section m (2)(C) should be clarified to make it clear that
noncommercial educational licensees may not carry commercial
advertising and that the ``programming'' referenced in the section does
not include advertising.
Mr. Chairman and members of the Subcommittee, again, I appreciate
the opportunity to share these views with you and I look forward to
answering any questions that you may have. Thank you.
Mr. Tauzin. Thank you.
The Chair now recognizes Mr. E. Brandt Gustavson,
President, National Religious Broadcasters, Manassas, Virginia.
STATEMENT OF E. BRANDT GUSTAVSON
Mr. Gustavson. Mr. Chairman and members of the committee,
thank you for inviting National Religious Broadcasters to
provide testimony today.
On behalf of NRB's 1,250 member organizations let me
express our gratitude for the way many of you swiftly and
firmly came to the defense of religious broadcasters when the
FCC released its ruling on Cornerstone Television in December.
It is encouraging to see so many men and women in Congress
stand up for the fundamental liberty of religious expression.
National Religious Broadcasters was formed in 1944 by a
small group of christian broadcasting pioneers with the purpose
of maintaining access to the air waves for the gospel message.
The threat then was the Federal Council of Churches, now known
as the National Council of Churches trying to strike an
agreement with the networks and the large stations in
communities across the Nation to act as gatekeeper for all
religious programming.
With the Federal Council of Churches choosing who gets
network air time, this would have certainly been the end of the
broadcast ministries of great preachers and teachers by Charles
Fuller, Walter Maier, Myron Boyd, Theodore Epp and Mr. DeHaan.
We are proud to say that we are an association of christian
broadcasters. It is our byline.
Today, the threat of the Federal Communications Commission,
a government agency which has at times overstepped its
authority by acting outside of its congressional mandate and
making unconstitutional policy decisions without the benefit of
public notice or comment in its attempt to restrict our
fundamental freedom of religious expression.
In what has become known as the Cornerstone decision, the
FCC granted Cornerstone Television of Pittsburgh permission to
move from its commercial Channel 40 to noncommercial
educational channel 16, a decision that would have provided
millions of dollars for Cornerstone to produce quality
programming and continue broadcasting the gospel.
In adopting this Order, as we have heard, the FCC singled
out religious programming for a new set of rules to determine
eligibility toward a new quota of educational programs that
noncommercial educational TV stations were expected to provide.
In its Additional Guidance, the FCC required more than half of
the programming hours on a reserved channel to be devoted to
serve the educational, instructional or cultural needs of a
community of license.
The Commission said it would defer to the judgment of the
broadcaster in determining what programs meet those needs but
apparently not in the case of religious programming. The
Commission specifically singled out religious programming for
new rules. On page 24 of the Decision, the Commission said,
``Church services and programming primarily devoted to
religious exhortation, ``which by the way we call sermons and
bible studies,'' and ``proselytizing'' which we call evangelism
``or statements of personally held religious views,'' which we
call testimonials that ``they generally would not qualify as
general educational programming.'' This constituted a severe
restriction on an important category of religious speech, the
core of our message.
The FCC said it would not disqualify any program simply
because the subject matter of the teaching or instruction is
religious in nature; in fact, they went on to describe
religious programming 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 exploring the connection between
religious belief and physical and mental health, and examining
the apparent dichotomy between science, technology and
established religious tenets or studying religious text from a
historical or literally perspective'' all meet with the FCC's
approval.
Thus, in effect, the FCC created a category of politically
correct government-approved, religious speech and that is
abhorrent to us and unacceptable. Essentially, the FCC seems to
think it is permissible for programs to talk all about religion
in academic or intellectual terms but when the programs become
more passionate, emotional, personal or originates from a
church, it is somehow less educational, instructional or
cultural.
Even though this Additional Guidance was formerly directed
to only noncommercial educational TV stations, the majority of
NRB members are radio broadcasters. We have 1,730 religious
broadcasting stations in the United States. They understandably
feared this decision might be a first step toward new
restrictions on educational FM, 88 to 92 on the FM band.
Not only was the decision troublesome, but the manner in
which it was delivered raised serious concerns. The original
decision was adopted on December 15 but was not made public
until December 29 when Congress was out of session and the
Nation was in the midst of celebrating Christmas and New Years
and preparing for the lights to go out on New Years Day. It had
all the appearances of a stealth decision flying below the
radar.
Fortunately, the Cornerstone decision did not go unnoticed.
In a beautiful demonstration of democracy in action, which by
one of the Commissioners was called demagoguery, many of you on
this committee responded swiftly. In addition, many christian
broadcasters went on the air with this news and in turn,
thousands of citizens prayed and flooded Capitol Hill and the
FCC with phone calls, letters and e-mail pleading for a
reversal and I personally say that we in the NRB office did 135
interviews and program material to secular and religious
stations all across the country. It wore us out frankly but it
was effective.
In the end, the FCC vacated the Additional Guidance, a
decision we are thankful for but Cornerstone decided not to
move, as Mark says, to Channel 16 and have suffered an enormous
financial loss because it was concerned that these restrictions
will come back to life 1 day and severely inhibit their ability
to broadcast the gospel.
Mr. Chairman, we must finish the job. Bad ideas in
Washington never seem to go away. They are often resurrected
one piece at a time. We must not allow this to happen with the
Cornerstone decision. We fear that the underlying philosophy
that allowed such a decision in the first place is still alive
at the Commission. We are asking the Lord to give you and this
committee the wisdom to provide a legislative solution that
will prevent the FCC from taking this kind of unconstitutional
action again.
We stand in full support of the noncommercial Broadcasting
Freedom of Expression Act, recently introduced by Congressman
Pickering. This bill takes a new approach to the problem while
incorporating the best ideas of the other legislation from
Congressman Oxley and Senator Hutchinson and we respectfully
ask for the committee to act swiftly and unanimously to pass
the Pickering bill to the House floor for a vote.
We believe that the freedom of religious expression is an
issue that transcends party lines because of the basis of our
development as a Nation. This is a time to set aside political
divisions and joint together to protect our liberty. Once this
bill is passed, we trust our freedom of religious speech will
be protected from any activist government agency.
God bless you and thank you for the opportunity to testify
today.
[The prepared statement of E. Brandt Gustavson follows:]
Prepared Statement of E. Brandt Gustavson, President, National
Religious Broadcasters
Mr. Chairman and members of the committee, thank you for inviting
National Religious Broadcasters to provide testimony today. On behalf
of NRB's one thousand-two hundred and fifty member organizations, let
me express our gratitude for the way many of you swiftly and firmly
came to the defense of religious broadcasters when the FCC released its
ruling on Cornerstone Television in December. It is encouraging to see
so many men and women in Congress stand up for the fundamental liberty
of religious expression.
National Religious Broadcasters was formed in 1944 by a small group
of Christian broadcasting pioneers with the purpose of maintaining
access to the airwaves for the gospel message. The threat then was the
Federal Council of Churches, now known as the National Council of
Churches, trying to strike an agreement with the networks to act as
gatekeeper for all religious programming. With the Federal Council of
Churches choosing who gets network airtime, this would have certainly
been the end of the broadcast ministries of great preachers and
teachers like Charles Fuller, Walter Maier, Myron Boyd, Theodore Epp,
and M.R. DeHaan.
Today the threat is the Federal Communications Commission, a
government agency which has, at times, overstepped its authority by
acting outside of its Congressional mandate and making unconstitutional
policy decisions without the benefit of public notice or comment in an
attempt to restrict our fundamental freedom of religious expression.
In what has become known as the Cornerstone decision, the Federal
Communications Commission granted Cornerstone Television of Pittsburgh,
Pennsylvania, permission to move from its commercial channel 40 to non-
commercial/educational channel 16--a decision that would have provided
millions of dollars for Cornerstone to continue broadcasting the
gospel. But in adopting this order, the FCC singled out religious
programming for a new set of rules to determine eligibility towards a
new quota of educational programs that non-commercial/educational TV
stations were expected to provide.
In its additional guidance, the FCC required more than half of the
programming hours on a reserved channel to be devoted to serve the
educational, instructional, or cultural needs of the community of
license. The Commission said it would defer to the judgment of the
broadcaster in determining what programs meet those needs--but
apparently not in the case of religious programs.
The Commission specifically singled out religious programming for
new rules. On page 24 of the decision, the Commission said that church
services and ``programming primarily devoted to religious exhortation,
proselytizing, or statements of personally held religious views and
beliefs generally would not qualify as `general educational'
programming.''
This constituted a severe restriction on an important category of
religious speech, the core of the gospel message.
The FCC said it ``would not disqualify any program simply because
the subject matter of the teaching or instruction is religious in
nature.'' In fact, they went on to describe religious programming 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; exploring the connection between religious
belief and physical and mental health; examining the apparent dichotomy
between science, technology and established religious tenets, or
studying religious texts from a historical or literary perspective''
all meet with the FCC's approval. Thus, in effect, the FCC created a
category of politically correct government approved religious speech!
Essentially, the FCC seems to think it is permissible for programs
to talk ABOUT religion in academic or intellectual terms, but when the
program becomes more passionate, emotional, personal or originates from
a church it is somehow less instructional, educational or cultural.
Even though this additional guidance was formally directed only to
non-commercial educational TV stations, the majority of NRB members are
radio broadcasters who understandably feared that this decision might
be a first step toward new restrictions on radio.
Not only was the decision troublesome, but the manner in which it
was delivered raised serious concerns. The original decision was
adopted on December 15th, but was not made public until December 29th
when Congress was out of session and the nation was in the midst of
celebrating Christmas and preparing for the lights to go out on New
Year's Day. It had all the appearances of a stealth decision flying
below the radar.
Fortunately, the Cornerstone decision did not go unnoticed. In a
beautiful demonstration of democracy-in-action, many of you on this
committee responded swiftly. In addition, many Christian broadcasters
went on the air with the news. And in turn thousands of citizens prayed
and flooded Capitol Hill and the FCC with phone calls, letters, and e-
mail pleading for a reversal.
In the end, the FCC vacated the additional guidance, a decision we
are thankful for. But, Cornerstone decided not to move to channel 16
and has suffered an enormous financial loss because it was concerned
that these restrictions will come back to life one day and severely
inhibit their ability to broadcast the gospel.
Mr. Chairman, we must finish the job. Bad ideas in Washington never
seem to go away; they are often resurrected a piece at a time. We must
not allow this to happen with the Cornerstone decision. We fear that
the underlying philosophy that allowed such a decision in the first
place is still alive at the Commission. We are asking the Lord to give
you and this committee the wisdom to provide a legislative solution
that will prevent the FCC from taking this kind of unconstitutional
action again.
We stand in full support of the Noncommercial Broadcasting Freedom
of Expression Act recently introduced by Congressman Pickering. This
bill takes a new approach to the problem while incorporating the best
ideas of the other legislative ideas from Congressman Oxley and Senator
Hutchinson. We respectfully ask for the committee to act swiftly and
unanimously to pass the Pickering bill to the House floor for a vote.
We believe that the freedom of religious expression is an issue that
transcends party lines because it is the basis of our development as a
nation. This is a time to set aside political divisions and join
together to protect our liberty.
Once this bill is passed, we trust our freedom of religious speech
will be protected from an activist government agency. God bless you and
thank you for the opportunity to testify today. I will be happy to
answer any questions you may have.
Mr. Tauzin. Thank you, Mr. Gustavson.
Now, the Chair is pleased to recognize the gentleman from
Mississippi, Mr. Pickering for an introduction.
Mr. Pickering. Thank you, Mr. Chairman.
I have the pleasure today of introducing Mr. Don Wildmon
from my home State of Mississippi who is the father of four,
the author of more than 22 books with a million copies in
print, educated at Millsaps College in Jackson, Mississippi
with a Master of Divinity from Emory University, with honorary
doctorates from a number of outstanding educational and
theological institutions.
His recent contribution to our country and our culture is
through the American Family Association which has more than 130
radio stations and a journal with circulation of half a
million. He has been a consistent and strong voice and force
for both freedom, for family and for faith. I am glad he can
come today to testify on the need to protect those and to be
ever vigilant.
Thank you, Mr. Chairman.
STATEMENT OF DON WILDMON
Mr. Wildmon. The action by the FCC in December came as a
shock to me and many others in the broadcasting industry. Many
of us were greatly disturbed by that action. We were disturbed
by the manner in which the action came. There were no public
hearings in the matter. The FCC went outside its normal
standards of operation, it did not seek public input.
We were disturbed by the fact that the decision was made by
a 3 to 2 vote, with the vote being along party lines. We were
disturbed by the fact that the decision came when Congress was
in recess. We were disturbed by the definition of educational
program given by the FCC. Under their definition, a sermon by
Dr. Billy Graham would not have been classified as being
educational but a program featuring Howard Stern would be.
We feel that our concerns were justified by the fact that
the FCC rescinded their action a month later. We feel that
legislation protecting the freedom of speech for the religious
broadcaster must be enacted to protect that freedom from being
usurped by the FCC in the future. Freedom of speech for the
religious broadcaster should be no different than that of any
other entity.
Thank you.
Mr. Tauzin. Thank you, Mr. Wildmon.
The Chair recognizes himself and other members in order.
Let me first try to find out how this happened. This
obviously happened indeed while we were out of session. It
happened in regard to a transfer of license request regarding a
religious broadcaster and it happened on a 3 to 2 vote by the
Commission without hearing or public comment.
I would ask either one of our two Commissioners if they
would like to give us an explanation of how this sort of thing
happens and why was a religious broadcaster chosen as the
vehicle for these new definitional standards of education and
cultural programming?
Ms. Tristani. Mr. Chairman, the proceeding was a restricted
proceeding under which certain rules apply. One rule is that we
cannot discuss issues that are not public. But I will tell you
that certain Members of Congress were writing to us constantly
about deciding the case. The actual decision was rendered
around December 15.
Mr. Tauzin. Are you telling us the decision was made in
response to Members of Congress asking you to do this?
Ms. Tristani. Yes, on the date it was rendered. Yes. I will
tell you that, sir.
Mr. Tauzin. But you can't tell us who they were because
that is restricted?
Ms. Tristani. No, there are letters in the record.
Actually, Senator McCain sent a letter stating he wanted to see
a decision by December 15.
Mr. Tauzin. If you don't decide the issue of the license
transfer. There was no request by Members of Congress asking
you to do this Additional Guidance, was there? Where did that
come from?
Ms. Tristani. Let me tell you where it came from since I
voted for the Additional Guidance, and I voted not to vacate
the Additional Guidance.
Mr. Tauzin. Yes, please.
Ms. Tristani. Under normal cases, we don't get into, as we
did in this case, what the programming is, but there was
opposition by citizens in Pittsburgh who questioned the
educational programming of the broadcaster. We got involved
because of that.
Mr. Tauzin. So who originated the language that was quoted
to us by Mr. Gustavson? Where did that language come from? Was
it something you wrote, was it something staff wrote?
Ms. Tristani. I contributed to it, sir.
Mr. Tauzin. So these were actual contributions by the
members of the three majority?
Ms. Tristani. I can't speak for my other Commissioners. I
know I contributed to it, sir.
May I clarify something, Mr. Chairman?
Mr. Tauzin. Yes, please.
Ms. Tristani. I dissented from the license transfer because
I think this should have been sent to one of our administrative
law judges.
Mr. Tauzin. You received a letter I am sure, it is a part
of the folders for all the members, dated January 19, 2000 in
which I wrote to Chairman Kennard, expressing my deep concern
over this Additional Guidance and asking that each one of the
FCC Commissioners respond in writing to a list of questions I
submitted to you.
Among those questions were some I am going to ask you today
but first of all, did you respond to that request in writing?
Ms. Tristani. Sir, I did not because I believe the date the
response was due was after the Commission vacated.
Mr. Tauzin. So you felt no need to answer the questions?
Ms. Tristani. I thought it was moot.
Mr. Tauzin. Because it was vacated?
Ms. Tristani. That is what I thought.
Mr. Tauzin. Let me ask a few of those questions.
In vacating the Order, the Commission basically said, we
are going back to previous policy that gives discretion to the
licensee to make determinations and only when it is arbitrary
and capricious will we ever step in and act. What necessitated
departing from that previous policy in your mind and in the
minds of the other two members who voted for it?
Ms. Tristani. We didn't depart from the policy standard of
``arbitrary and unreasonable.''
Mr. Tauzin. But you departed from the policy of giving
discretion to the licensees to a policy where you very
carefully articulated what was and was not acceptable religious
programming. What made you decide to do that?
Ms. Tristani. In this case, because citizens in Pittsburgh
and elsewhere questioned what was educational.
Mr. Tauzin. Let us talk about that. I asked you these
questions in the list of questions I sent you. Handel's Messiah
is a beautiful piece, Amazing Grace a beautiful song. Why in
your instructions in these Additional Instructions were those
beautiful songs considered educational or cultural played at
the Kennedy Center but not in a church service?
Ms. Tristani. I don't recall that we specifically used
those beautiful pieces of music.
Mr. Tauzin. But as I read your instructions as Mr.
Gustavson read to us today, it basically says a church service
where that music was played would not be considered educational
or cultural.
Ms. Tristani. As I said in my statement, one of the big
concerns I have--and it is based on the establishment clause--
is that religious is something very, very different. Religion
raises some questions for nonadherents.
Mr. Tauzin. But didn't you realize that when you
particularize what was acceptable and not acceptable.
Ms. Tristani. We gave examples, Mr. Chairman, and we also
said that in certain instances, church services might be
educational.
Mr. Tauzin. But who was going to make that decision? You
were going to make that decision? You were going to decide what
church services were okay and which were not to be broadcast?
Ms. Tristani. If I could comment, Mr. Chairman. We never
said you cannot broadcast those services on a reserved channel.
Mr. Tauzin. You just wouldn't count them.
Ms. Tristani. We wouldn't count them toward the 50 percent.
Mr. Tauzin. Then you would decide.
Ms. Tristani. No, because you still would have a broad
range of 49 or 49.5, however you count it exactly.
Mr. Tauzin. But if station could lose its license if it
didn't reach your percentage of qualified programming.
Ms. Tristani. We weren't going to go out there and count.
Mr. Tauzin. Were you not putting yourself in the position
of making judgments as to what was acceptable religious
programming and what was not?
Ms. Tristani. The reason we might be in that position would
be because of not running afoul of the establishment clause,
and of the dangers that can be posed when religion is imposed
on people that are not of that same religion or nonbelievers,
and all of the adherence dangers. If I may quote from Justice
O'Connor in another case in County of Allegheny, ``The
essential command of the establishment clause is that
government must not make a person's religious beliefs relevant
to his or her standing in the political community by conveying
a message that religion or a particular religious belief is
favored or disfavored.''
``We live in a pluralistic society. Our citizens come from
diverse religious traditions or adhere to no particular
religious beliefs at all. If government is to be neutral in
matters of religion, rather than showing either favoritism or
disapproval toward citizens based on their personal religious
choices, government cannot endorse the religious practices and
beliefs of some citizens without sending a clear message to
nonadherents that they are outsiders or less than full members
of a political community.''
Mr. Tauzin. But you, in your instruction to these religious
broadcasters told them, ``Church services generally will not
qualify as general educational programming under our rules.
However, church services which are part of a historic event,
such as a funeral of a national leader, would qualify.'' You,
in fact, put yourself in the position of deciding what church
service, what religious activities would qualify, therefore
would keep a station on the air or not.
Ms. Tristani. That was by way of example, Mr. Chairman, and
it was not aimed just at religious broadcasters but at those
who broadcast on the reserved channels, a very small sliver of
the spectrum that is reserved for primarily educational public
purposes.
Mr. Tauzin. Did that example have the force of law as far
as the Commission was concerned? Did it have the force of law,
Commissioner Furchtgott-Roth? I see you shaking your head. Did
it?
Mr. Furchtgott-Roth. Yes.
Mr. Tauzin. Yes, it did. So the Commission was, by these
examples, forcefully declaring what types and forms of
religious programming and services would be acceptable to keep
a license and which would deny a station its license.
Ms. Tristani. What would be counted toward the educational
portion of the broadcast.
Mr. Tauzin. Let me ask you Ms. Tristani and Mr. Furchtgott-
Roth, would either of you favor a rulemaking to put this
Additional Guidance back into effect?
Ms. Tristani. I would favor a rulemaking if it would
clarify the educational standards that we have in place. I
would. That ought to be clear.
Mr. Tauzin. Mr. Furchtgott-Roth?
Mr. Furchtgott-Roth. Mr. Chairman, I have been at the
Commission for about 2\1/2\ years. There have been many things
I have disagreed with but the scariest moment, the most
frightening moment, the most chilling moment at the Commission
was when staff asked me if I wanted to review videotapes.
I will never support any move to have the government placed
in the position of deciding whether programming fits into one
pigeon hole or another. It is just abhorrent to me. To say that
religious broadcasting fits into this pigeon hole or that
pigeon hole is not the role of government.
Mr. Tauzin. My time has expired.
The Chair recognizes the gentleman from Massachusetts, Mr.
Markey, for a round of questions.
Mr. Markey. Thank you, Mr. Chairman.
I apologize that I was not here when opening statements
were made. That was only because we had a roll call on the
floor and I had another very brief engagement that I had to
attend to.
First, I would like to begin by saying to our witnesses who
are unfamiliar with the Congress, that if all Federal agencies
were unable to act when Congress was out of session, and this
particular Congress, it would mean that for the most part, no
Federal agency would be able to act for at least half of the
year.
That might be the wish of some particular antigovernment
philosophy but it would be impractical in terms of the
operation of the very important functions, whether it be
health, safety or education for Americans. So when agencies,
including the Federal Communications Commission, act when
Congress is out of session, they are doing it as is every other
agency for every other part of the Government in order to
advance the public wellbeing, whether any one of us may agree
or disagree with any of those decisions.
This hearing comes on the heels of decisions at the Federal
Communications Commission dealing with television license
transfers and appended clarifying guidance that was issued to
ensure that the Federal Communications Commission's
noncommercial educational licensees serve the entire community
with programming that was primarily educational.
There are a number of misconceptions that I believe are
associated with these decisions which culminated in the Federal
Communications Commission subsequently deciding to vacate the
Additional Guidance issued in the decision affecting WQED,
Pittsburgh and Cornerstone Television.
First, there is a notion that the Federal Communications
decision reflected a bias against religion. Far from a bias
against religion, it must be remembered that Cornerstone was
requesting--no pun intended--a special blessing from the
Federal Communications Commission to broadcast on a station
reserved primarily for public education, as distinguished from
religion.
Second, there was an allegation that the Federal
Communications Commission was restricting religious speech.
Religious broadcasters are not restricted in broadcasting
religious programming, and many do so throughout the country on
commercial broadcast stations. The question here is, not
whether religious messages are being restricted because they
are not, but rather the nature of requirements for licensees on
noncommercial educational stations.
I do not question whether religious programming is often
educational. In fact, I believe that many of the programs on
religious programs are quite beneficial to many viewers
especially when contrasted with much of the programming on
commercial television generally.
Moreover, the Federal Communications Commission rules
permit programming about religion to qualify as educational.
The question again is whether religious programming from a
particular religious broadcaster serves in a Nation founded
upon religious diversity and religious freedom the entire
community and is educational to those of other religions. To
ask that question doesn't mean one is either antireligion or
against religious programming. It simply questions whether the
distinction between commercial and noncommercial licensees has
any meaning.
In particular, I also want to note with deep concern
legislation introduced by other members of this committee,
including the subcommittee chairman. I am not sure whether the
solution proposed might not make the alleged problem worse. If
you believe in the separation of church and State, then we
tread on very dangerous ground when sectarian messages intended
for the followers of a particular religion are licensed to
displace nonsectarian educational messages intended for the
entire community.
Second, I am not sure if the sponsors of the legislation
intended in headlong pursuit of ensuring that no one at the FCC
could pass judgment on whether religious programming was
educational or to simultaneously eviscerate the Children's
Television Act requirements for noncommercial stations. Every
licensee under the rules implementing the Children's Television
Act must air a paltry 3 hours a week of programming for the
child audience.
I would hope that the sponsors would reconsider the
language in their bill to ensure that educational programming
requirements for children, whether such programming is
religious or not, is not undermined by the bill before the
subcommittee today.
At this point, Mr. Chairman, I would also ask that the
hearing record remain open the customary 2 weeks. I have
statements from parties that I would like to have inserted in
the record.
I thank you for allowing me to make my opening statement at
this time.
Mr. Tauzin. Without objection, the gentleman's request that
the record remain open for 2 weeks is permitted. Without
objection, so ordered. The record will so remain open.
The Chair thanks the gentleman.
The Chair will recognize the vice chairman of our
subcommittee, the author of one of the bills before us today,
the gentleman from Ohio, Mr. Oxley.
Mr. Oxley. Thank you, Mr. Chairman.
As we all know, the FCC decision on December 29 elicited a
letter signed by myself and Congressmen Pickering, Largent and
Stearns to Chairman Kennard objecting to the Commission's
action. We said in that letter the Commission has no business
whatsoever singling out religious programming for special
scrutiny. We go on to say, ``We advise you to reverse this
ruling or stand by and see it overturned legislatively or in
court.''
The response we received from Chairman Kennard on January
12 said ``The Commission's decision in this case does not
establish new rules but simply clarifies longstanding FCC
policy.'' We then immediately wrote back and said, we had
drafted the Religious Broadcasting Freedom Act which was
introduced on January 24 with 60 original co-sponsors, and we
now enjoy 125 co-sponsors on that legislation. This is kind of
setting the stage for only what occurred at the Commission.
Commissioner Tristani, I would like to ask you, in your
dissenting statement you say that the Commission has
``capitulated to an organized campaign of distortion and
demagoguery.'' Is that correct?
Ms. Tristani. Yes, sir.
Mr. Oxley. You still stand by that?
Ms. Tristani. Yes, sir.
Mr. Oxley. Do you feel this campaign could have been
avoided if the Commission had simply proceeded with a
rulemaking as is normally consistent when these kind of major
policy decisions are made?
Ms. Tristani. Probably not. Not if we had come up with the
same result.
Mr. Oxley. Obviously a large part of the public had
something to say on this issue and the pressure campaign you
speak of only had to occur because the Commission simply didn't
give them the appropriate avenue in which to express their
concerns. Do you agree with that?
Ms. Tristani. No.
Mr. Oxley. Why not?
Ms. Tristani. Well, because I think given the emotion that
it is still generating and the e-mail I am getting, and I am
sure all of you are getting, I think it is the kind of issue
that even were it dealt with in a rulemaking--you could do it
in many different ways--but it would still generate a lot of
concern.
Mr. Oxley. You don't think the rulemaking procedure where
the public has an opportunity to comment, that it wouldn't have
had a different result initially?
Ms. Tristani. Sir, as I was explaining earlier, this was a
license transfer application and it was not a rulemaking
procedure. That is why the issue came up in this particular
case.
Mr. Oxley. Did you think this was a major shift in policy
by the FCC?
Ms. Tristani. No, sir. I think it was a clarification of
our rules.
Mr. Oxley. Commissioner Furchtgott-Roth, do you agree that
this was perceived by the members of the Commission as not a
major change in policy at the FCC?
Mr. Furchtgott-Roth. Mr. Oxley, I wish I could tell you
whether it was or not. I can tell you that I am deeply
distressed that any government agency would be reviewing
videotapes.
Mr. Oxley. Let us get into that a minute. If in fact the
decision by the FCC were to have the effect, as many of us here
thought, that it was the intrusion of the Federal Government
into making decisions on content, would you not consider that
to be a major decision by the Federal Communications
Commission?
Mr. Furchtgott-Roth. Yes, Mr. Oxley. The only thing I can't
address is whether or not that has been going on at the
Commission. I find Chairman Kennard's statement that this was
just a codification of prior Commission practice
extraordinarily disturbing. I can't speak to that prior
Commission practice.
Ms. Tristani. Could I add something?
Mr. Oxley. Sure.
Ms. Tristani. Just to respond a little bit to my colleague,
the Commission regularly reviews indecency and obscenity
complaints, both audio and video, so it is something we do
based on some of our rules.
Mr. Oxley. Commissioner Tristani, you say apparently the
Commission capitulated to an organized campaign of distortion
and demagoguery. Are you accusing Mr. Gustavson and Mr.
Dreistadt and others of distortion and demagoguery?
Ms. Tristani. I am not accusing anyone personally.
Mr. Oxley. You mentioned the establishment clause in your
testimony. Do you see anything in the pending legislation of
either bill that would cause problems with the establishment
clause that we are considering today?
Mr. Furchtgott-Roth. Mr. Oxley, I am not a constitutional
expert and I would urge you to ask someone who is that question
and I would hope any legislation you might consider would avoid
any such problems. I do not believe that there is any existing
establishment clause problem with permitting broadcasters in
the noncommercial educational band to self-certify.
These issues that are being raised about the establishment
clause, with all due respect, I think are simply incorrect.
Mr. Oxley. Thank you.
Mr. Tauzin. Thank you.
The Chair will now yield to the vice chairman of the full
committee, Mr. Gillmor.
Mr. Gillmor. Thank you, Mr. Chairman.
I would like to follow up with Commissioner Tristani on a
couple of things. You indicated the reason you got into this
content aspect on the transfer was because of complaints from
citizens from Pittsburgh.
Ms. Tristani. Yes, sir, this was a contested application.
Mr. Gillmor. What was the nature of the complaints, who
complained, what was the volume of them? Was this hundreds of
letters, one specific group?
Ms. Tristani. I think specifically from the city of
Pittsburgh, there were maybe 300 letters. But I am not sure of
these numbers, that is what I recall. I think it is in our
original December 28 decision. I think there were about 30,000
e-mails from around the country protesting the application.
There may have been 50 or 100 letters in favor of the
application.
Mr. Gillmor. What was the basis of those complaints?
Ms. Tristani. They questioned the educational programming,
whether that licensee would be satisfying the programming
requirement that is imposed or that is required of anyone who
is on the reserved channels, whether religious broadcasters or
not.
Mr. Gillmor. Are those complaints a matter of public
record?
Ms. Tristani. I am not sure because this is a restricted
proceeding and I know part of it is in the public record and
part of it is not, but I would be glad to explain that more
fully after I talk to counsel.
Mr. Gillmor. Would these complaints be any different than,
for example, if a Member of Congress has expressed a view on
the transfer? Would that be a matter of public record?
Ms. Tristani. Probably. I was just told that yes, these
complaints would be a matter of public record.
Mr. Gillmor. The complaints are?
Ms. Tristani. Yes.
Mr. Gillmor. Just one other question because the rhetoric
it appeared to me was rather heated from a number of areas,
including from yourself when you used terms such as
``distorting'' and ``demagoguery.'' Would you specify who the
demagogues were?
Ms. Tristani. Again, I don't have knowledge of who
specifically said what but I got a lot of e-mails, our
Commission got a lot of e-mails accusing us of being anti-
religious, very nasty stuff.
Mr. Gillmor. But you don't know who did that?
Ms. Tristani. I have the e-mails from a lot of citizens and
a lot of people.
Mr. Gillmor. Thank you.
Mr. Tauzin. The Chair recognizes the gentleman from
Mississippi, Mr. Pickering.
Mr. Pickering. Thank you, Mr. Chairman.
I am very appreciative that we are having this hearing,
that we are moving legislation to ensure that what was
attempted does not occur and that there is no possibility in
the future for it occurring.
I am also extremely disappointed that we find ourselves
here today. Commissioner Tristani begins her dissenting
comments, ``This is a sad and shameful day for the FCC.'' Let
me just say for the record, I feel it is a sad and shameful day
that Congress has to stop a government agency from attempting
to limit, to restrict and regulate religious expression of
liberty.
Let me also say for the record that I take offense to the
rhetoric and let me also say that nobody on this panel that I
have heard today has used extreme rhetoric. They have defended
their rights to broadcast their beliefs, their liberty, their
freedom, the common, shared American values.
They did not accuse anyone that I have heard of
demagoguery, of distortion or witch hunts. I will say that
language, that extreme rhetoric and that extreme language did
come from Commissioner Tristani, so the demagoguery and the
distortion and the extreme rhetoric, let the record show, did
not come from the gentlemen promoting and defending religious
expression. It came from those who are trying to regulate and
restrict that core American value.
Having said that, let me try to understand the logic of the
dissenting view and the basis for the action which almost
occurred. As I listened to the testimony and read the
dissenting statement, it seems to flow with this logic, license
transfer equals endorsement equals establishment.
Commissioner Tristani, is that your constitutional logic in
trying to clarify the guidelines, license transfer equals
endorsement equals establishment?
Ms. Tristani. I don't think that is what I said, sir.
Mr. Pickering. Please clarify to me your logic on this and
let me ask another question to better understand the context.
You cite Justice O'Connor. Has there ever been any court
decision that has directly addressed the question of FCC
license transfers as it relates to commercial or noncommercial
religious broadcasters or religious expression?
Ms. Tristani. I do not believe there has been a Supreme
Court decision addressing that. No, sir.
Mr. Pickering. So you are taking the Supreme Court decision
on the establishment clause and trying to build a case in your
guidelines. I am trying to understand your constitutional
logic, that license transfer equals endorsement equals
establishment.
Ms. Tristani. I think anytime we are dealing with religion,
we have to look at the establishment clause. Yes.
Mr. Pickering. So license transfer equals endorsement of
the views expressed?
Ms. Tristani. No. Those are not my words, sir.
Mr. Pickering. But if you boil this down in simplicity,
that is what you are saying and then you go further. Let me
just use Justice O'Connor's words in relation to what you tried
to do. You can either endorse or oppose a particular religious
belief. Let me see if this would oppose or disfavor a
particular religious view.
For example, ``Programming primarily devoted to religious
exhortation, proselytizing, or statement of personally held
religious views and beliefs generally would not qualify as
general education programming.'' So you have just given a
guideline that opposes a particular religious expression and
then you try to qualify what is acceptable.
Ms. Tristani. No.
Mr. Pickering. So not only do you oppose specific religious
expression.
Ms. Tristani. Sir, I do not oppose specific religious
expression.
Mr. Pickering. These are your words, ``For example,
programming primarily devoted to religious exhortation,
proselytizing or statements of personally held religious views
and beliefs generally would not qualify as general education.''
Ms. Tristani. What the guideline said was that they would
not qualify for the part that is the general education
requirement because in my deeply held belief that because we
are such a religiously diverse society, what might be
educational for me in the religious context as a Catholic,
might not be educational for some of my staffers that are
Jewish.
Mr. Pickering. So we need a government commission to decide
what religion is educational, cultural or instructional?
Ms. Tristani. No, sir. I am concerned about non-adherence
and government sending the message that they favor a particular
religion or no religion.
Mr. Pickering. You specifically get into content regulation
of opposing what is, in your view, unacceptable and then giving
a category of acceptable speech. If you read the same court
decision from Justice O'Connor, I would argue that she
prohibits exactly what you cite as the basis for your decision.
You are favoring one set of speech and you are opposing or
prohibiting another set of speech.
Ms. Tristani. Sir, I would disagree with that. Everybody
interprets cases differently but I would again stress we are
talking about reserved channels here, a small sliver of the
spectrum that government has set aside for educational
purposes.
Mr. Pickering. But by your constitutional logic as I
understand it, license equals endorsement equals establishment,
you are setting a very dangerous precedent, not only for
noncommercial licenses but for commercial licenses. What is
also very offensive to me is that you are trying to change,
whether you try to minimize it by saying this is simply
guidelines or clarification, this is substantive constitutional
change of policy done in an undemocratic, closed process with
no public comment period, not following the Administrative
Procedures Act. It is classic, and unfortunately not the
classic liberal in the best sense of the word, but it is the
classic liberal tendency to try to get through government
procedures or court decisions what this country will not
tolerate, an end run around what we have set up as a
decisionmaking body, whether it is the legislative body or
trying to set some new constitutional interpretation of what is
or is not religiously acceptable speech.
Ms. Tristani. Sir, I was just trying to do the best I could
in a license transfer where we are charged with ensuring that
the channel is primarily educational.
Mr. Pickering. Let me say this. We are going to do
everything we can to keep your views from ever happening.
Mr. Tauzin. The Chair recognizes the gentleman from
Florida, Mr. Stearns.
Mr. Stearns. Thank you.
I want to thank the witnesses for coming and, Commissioner
Tristani, your courage in also expressing your views. It is
your right to do so.
Many of us feel that the FCC in itself as a body should be
reformed. Chairman Tauzin and others, and Mr. Gillmor from Ohio
have a bill to reform the FCC.
If you look at the computer industry and you talk about
what has happened there, the innovation, they did not have an
FCC. For many of us, the innovation that could occur in the
telecommunications industry could occur much rapidly without
the FCC as an oversight body, as a bureaucracy trying to
regulate and to endorse programming and to make decisions which
consumers could make.
In this case, I think as Mr. Pickering has pointed out, you
have misinterpreted the establishment clause which is part of
the First Amendment and I think in your quote of Justice Sandra
O'Connor, you have misinterpreted, at least from our standpoint
on this side, what she was saying.
I think what has touched me the most is when Commissioner
Furchtgott-Roth said that he felt chills when staff asked him
would you like to look at videos. Let me ask you, have you
looked at videos and made some decisions yourself, that would
say to yourself, this is not educational programming? Have you
made that in your own judgment?
Ms. Tristani. I did look at videos over a year ago and that
is when I thought this should go to an administrative law judge
to decide. I thought that was the proper procedure.
Mr. Stearns. Would it be appropriate for you to tell us
what videos you looked at?
Ms. Tristani. It was so long ago, I don't recall.
Mr. Stearns. Let me give you a couple of examples and maybe
you could tell me. If I showed you a video in which a
television broadcaster and other individuals advocated
individuals in the audience to lead a life according to the
principles of the Ten Commandments, how would you view that? Do
you think that is educational or religious?
Ms. Tristani. It could be educational to some and religious
to others.
Mr. Stearns. To you, how do you feel that is?
Ms. Tristani. On a personal level? Having been brought up
as a Catholic?
Mr. Stearns. You are a Commissioner and you have looked at
videos and you made a value judgment that this was not
educational.
Ms. Tristani. No, the value judgment was that it did not
serve the primarily educational requirement.
Mr. Stearns. Let us keep your hat as Commissioner and I
have just showed you a video of an individual and others who
are advocating the use of the Ten Commandments to lead a life
according to the principles thereof, would you as a
Commissioner view that as educational, yes or no?
Ms. Tristani. I think I would have to see more of the
program, of the video because it could be in different
contexts.
Mr. Stearns. Say we had a noncommercial educational channel
providing teachings to the audience about collecting items,
collecting wrestling magazines or comic books, would you
consider that educational or not?
Ms. Tristani. Collecting magazines or wrestling. I would
again have to see more about the programming.
Mr. Stearns. I could make it more ridiculous and say what
about teaching the audience how to collect pet rocks. Is that
educational?
Ms. Tristani. Pet what?
Mr. Stearns. Pet rocks.
Ms. Tristani. I don't know what pet rocks are.
Mr. Stearns. That is probably another aspect about this. If
a person is going to make a decision on listening to a video or
watching it, he or she has got to be some kind of culturally,
educationally observer to even make a decision. So what I am
trying to point out in this discussion is you are taking a
bizarre position in which you as an individual can decide
whether the collecting of pet rocks, wrestling and comic books,
or people advocating the Ten Commandments as a way of life, you
can't make that decision yourself this afternoon, so it is
bizarre for you to come here----
Ms. Tristani. I said on the Ten Commandments I would have
to see the full context of that. I think what we are struggling
with here is that any standard is very hard. But we do have a
standard that programming should be primarily educational. We
have it, as Congressman Markey brought up in the children's
television guidance.
Mr. Stearns. You can't this afternoon tell me, out of the
three programs I gave you, whether they are educational or not.
Ms. Tristani. I think I would have to see them. Again, we
were giving guidance. If the questions came up and some
question whether they are meeting----
Mr. Stearns. I see you there. We have the program here, we
have five programs and you are sitting there as the FCC czar of
information and you say that program is no good, that program
is educational and this program is educational and this program
is not. Do you see how offensive that is?
Ms. Tristani. Sir, that is not how I see myself, as the
czar of anything. That is for sure.
Mr. Stearns. Mr. Wildmon, it is great to see you. I have
been on your program. How many religious broadcasters are
there?
Mr. Gustavson. 1,730 radio stations, AM, FM, educational,
commercial and about 245 television stations. By the way, 15 of
them operate in that noncommercial educational band that are
owned by christian organizations.
Mr. Stearns. What is the average number of hours of
programming a day, or week in some of these stations?
Mr. Gustavson. Many of them are 24 hours a day.
Mr. Stearns. And some are also less?
Mr. Gustavson. Oh, yes. Some of them are daytime, AM
stations and so on.
Mr. Stearns. Do you think it is possible the FCC could
quantify the difference between cultural and educational?
Mr. Gustavson. It has occurred to me as I have been sitting
here, operas, concerts, teachings on pets and animals and
cooking shows, would all be considered educational in nature on
a station but not religion. In other words, they would qualify
as being acceptable educational programming. It is very
confusing to us.
Mr. Stearns. My time is almost up. I would be glad to let
Mr. Wildmon speak.
Mr. Wildmon. What I heard started this whole thing was they
got some complaints from Pittsburgh from people there that
Cornerstone was going to go over and it was supposed to be 50
percent educational and cultural. Is the programming supposed
to be educational or cultural for all the people or all the
viewers?
Mr. Stearns. That is another problem with this because for
me, collecting pet rocks would not be educational, cultural or
meaningful but for some people in this country, it might.
Mr. Wildmon. What I heard said was that religion serves
only a small group of people. That may not have been the exact
words but that was the implication. Therefore, because you only
serve a small group of people, we have to regulate your license
and make sure you act like the government thinks you ought to
act.
I would ask the question, I don't speak a lot of good
English but I sure don't speak any Spanish. What about those
stations that are 24-hour, noncommercial Spanish speaking
stations, are they educational? Do you see the point? We are
opening a can of worms here.
Mr. Stearns. Anyone else?
Mr. Dreistadt. Just a couple of points I would like to
speak to. In the application process, Cornerstone demonstrated
meticulously that we had over 100 hours of qualified
programming under the established standards. That was
acknowledged in the decision of December 29. Under the
Additional Guidance, we applied those standards to the same
programming and reduced it down to about 30 hours per week,
which was no longer able to allow us to qualify.
Our mission is to broadcast the gospel. That is something
we do 24 hours a day, 7 days a week. To comply would have meant
that we would have had to abandon our mission 49 percent of the
time. There are already 15 other noncommercial television
broadcasters who are already broadcasting christian
programming, 15 applications have already been approved.
Because of the opposition, the complaints raised from the
Pittsburgh groups, this application was singled out for special
scrutiny that we believe was inappropriate. It is interesting
to note that of all those complaints that were raised, my
understanding is that none of those complaints were justified
and all of them were dismissed.
So in spite of the fact there were complaints, none of them
had any credibility. This whole decision, frankly, put us in a
catch 22. We wonder if the FCC or members of the FCC did not
understand that because they found themselves between a group
that was protesting and a group that was applying. This
decision would appear to get them off the hook because we were
in a position they knew had to be untenable for religious
broadcasters.
A final comment. I do find it offensive to be categorized
in the same group of those who are evaluated for indecency and
obscenity. Religious programming is the very moral fiber of our
Nation and has no place to be compared to indecent and obscene
programming.
Mr. Stearns. Thank you, Mr. Chairman. I yield back.
Mr. Tauzin. Thank you, Mr. Stearns.
The Chair recognizes the gentleman from Illinois, Mr.
Shimkus.
Mr. Shimkus. I apologize. I was at another illuminating
meeting with Administrator Browner and the EPA, so I come from
the fire into the frying pan here. I do appreciate those in
attendance.
Mr. Dreistadt, you explained your testimony. You were
starting to talk about it in the last part of Mr. Stearns'
time. As a result of the national attention to this issue at
the FCC, Cornerstone was forced to terminate the proposed
transaction and the corresponding sale of the television and
lose financial benefits of $17.5 million in addition to over 3
years of time and resources dedicated to the project?
Mr. Dreistadt. Correct.
Mr. Shimkus. What effect do the witnesses think--this is
for everyone--that this proceeding will have on religious
broadcasters' speech operating on the FM band?
Mr. Gustavson. That was what our members were afraid of,
sir, that it would go then from the television reserved
channels into the 88-92 on the FM band and we have hundreds of
stations that use those frequencies.
Mr. Shimkus. Mr. Wildmon?
Mr. Wildmon. This was what disturbed me when I first
learned of this. It would be bad enough saying we only have 16
televisions in the United States this would apply to. The
standard would have been established. In my mind, the logic
would have said the next step would be this same rule applies
to the FM broadcaster.
You hate to accuse before it happens, but government has a
way of taking an inch and an inch and an inch until the whole
foot is gone.
Mr. Shimkus. To the Commission, you have stated that you
fear that religious speech will be chilled based on this. Can
you elaborate on that?
Mr. Furchtgott-Roth. Yes, you are exactly right. If someone
has a message whether they are broadcasting it, whether they
are speaking it, whether they are writing it, they will behave
differently if they think there is someone in a government
agency looking over their shoulder reviewing what they are
saying and making decisions based on what they say.
It is beyond belief that it does not have a chilling effect
to know that there is someone who is going to be reviewing a
videotape of what you are broadcasting and deciding whether it
falls into one category or another, and based on which category
it falls into, whether your license is potentially going to be
threatened with revocation. That is not the proper role of
government.
Mr. Shimkus. I got in on the last part of Congressman
Pickering's First Amendment emotions. Commissioner Tristani, do
you agree with what you just heard as far as the chilling
aspect on free speech?
Ms. Tristani. No, I don't because the first, as to FM radio
or now vacated Additional Guidance, applied only to the
noncommercial television reserve channels.
For the other, it applied to a very limited, as we have all
heard, I think 14 or 15 stations. It did not say you cannot
broadcast certain types of speech. It said that a certain
amount of programming had to meet the educational requirement.
We have many religious broadcasters on commercial channels,
we have a lot of non-religious broadcasts that occur even on
the commercial channels. If you turn on the television on
Sunday morning, you have broadcasts all over, so I don't see
the chilling effect.
I don't see that government's role to go and review
programming that occurs on the broadcasts. But we do do it in
some circumstances. I brought up the indecency and obscenity
regulations that we have as an example, not to compare in any
way, shape or form this review but just as an example that we
do look at tapes at times when citizens complain that there has
been an indecent or obscene broadcast over the airwaves or the
TV waves. So I brought that up as an example.
We have the childrens' television guidelines where we
require 3 hours of childrens' television which is supposed to
be primarily educational. This is another example where that
comes up. We don't go out and review everything but if people
complain or question a transfer of a license, we have to see
whether it is arbitrary or unreasonable.
Mr. Shimkus. That is probably the reason why because many
of us disagree with your evaluation of what happened. So we
have two bills proposed of which I am a co-sponsor of each.
To the broadcasters, do you feel that either of these bills
will provide sufficient protection from any further similar FCC
action that may impede you from expressing yourselves over the
air waves?
Mr. Dreistadt. I believe that both bills address the
concerns that we, as broadcasters, would have about this area.
Certainly H.R. 4201 is the more comprehensive and sweeping
bill. That would be the one that, from a broadcasters' view
point, we would like to see enacted because it would give us
that safety.
When the language was vacated, I think it is important to
note, there was considerable questioning and pressure for
Cornerstone to reenter the transaction that we had terminated.
It would appear to some that once the language was vacated,
there was no reason not to move forward. However, as we read
the decision, as we sought counsel on the decision, it became
apparent to us that although the language was vacated, it was
not disavowed. There was no change of principle or heart. In
fact, we are seeing that to some degree today.
Because of that, without legal remedy, without legislative
remedy, I believe it is a slippery slope for broadcasters who
choose to use this noncommercial band for their mission.
Mr. Gustavson. Yes, we would essentially feel the same way.
Mr. Wildmon. The same way.
Mr. Shimkus. I appreciate that. It has been an enlightening
hearing and I will yield.
Mr. Tauzin. For the record, Mr. Dreistadt, how long was the
application upon which this guidance was issued pending?
Mr. Dreistadt. It was in excess of 3 years.
Mr. Tauzin. I was around for a long, long time?
Mr. Dreistadt. We felt like it was forever.
Mr. Tauzin. The letters the FCC received were urging action
on the application?
Mr. Dreistadt. Correct. Our understanding was the letter
did not suggest one solution or the other but just finally----
Mr. Tauzin. Is that correct, Ms. Tristani?
Ms. Tristani. As I recall, no letter suggested any
solution.
Mr. Tauzin. But it asked to do something about it?
Ms. Tristani. One letter actually said act by December 15.
Mr. Tauzin. In fact, we have some legislation pending that
is going to tell the Commission to act on a certain date every
time?
Ms. Tristani. yes.
Mr. Tauzin. So that is all the letters you got from Members
of Congress.
Ms. Tristani. I am saying as a result of that, we voted it
when we did.
Mr. Tauzin. The gentleman yields?
Mr. Shimkus. I will finish up by saying 3 years is a
terminally long period of time. I am in my fourth year as a
Member of Congress. I have already been through one election by
the time you made a decision on this hearing. I think if
members can seek reelection and go out before the voters. That
will address the entire FCC restructuring issue that eventually
we will get to.
With that, I will yield back.
Mr. Tauzin. The Chair would like to make a series of
unanimous requests.
First of all, the letters referred to by Mr. Oxley, by
myself, to the Commission in response to its decision be made a
part of the record. Without objection, so ordered.
Second, the Chair would like to submit for the record a
defense of the Pickering legislation on the establishment
clause question which has been prepared by staff. Without
objection, that will be a part of the record.
[The information referred to follows:]
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We are getting into some very thorny questions here in
terms of the identity of a community when individuals are
religious with lots of money and want to buy stations in
communities that might not in any way represent the tenets of
that religion. Would the community begin to feel that station
has now been taken over and is not reflective of the balance of
views in that community?
How do we deal with that issue, Commissioner Tristani? How
is this something that we would deal with if that should so
occur under the proposals that are being propounded by
opponents of your position on this issue?
Ms. Tristani. Under the proposals, my understanding is you
wouldn't be able to deal with that issue.
Mr. Markey. In other words, we would wind up with a station
owned by someone who had a religion that was a complete
minority, that is 1 percent of the population being able to
broadcast all day long, one religion on the only noncommercial
educational station in town?
Ms. Tristani. You could.
Mr. Markey. As a Catholic, I would just have to watch that
TV station all day long as one of only four or five in town and
have no way of influencing them to put on a broader spectrum of
views under this particular legislation, is that correct? Is
that your interpretation?
Ms. Tristani. That could happen, yes.
Mr. Markey. That could happen. I think these are very
thorny questions, these are very difficult questions, very
difficult. I know the reason I was sent to Catholic schools for
20 years was that religion wasn't taught in public schools
because that is in the Constitution, we keep it separate. My
religion is over here and the public schools are over here and
there is a Jewish temple.
As I am asked now to cross this divide, it raises very real
questions in my mind to be honest with you in terms of peoples'
right not only to speak but also their right not to hear if
they don't want to, especially on stations that are reserved
for educational purposes. If a station begins to proselytize a
religion that I don't happen to subscribe to, and that is the
only noncommercial educational station in town, then I think
without question there are going to be some who are going to be
offended by that, especially if there was an ability for that
religion to purchase another station that was reserve for that
purpose, for religion.
So if we are going to break down this barrier, that is a
big moment. I think we would probably be better off discussing
some way in which we could put religious broadcasting into a
completely different category so that all faiths could then
compete for stations reserved for that purpose. To take the
noncommercial educational area and begin to try to draw lines,
the questions that are being posed to the Commissioner are
thorny ones but a similar set of questions can come right back
at the other side once they decide they are going to break new
constitutional ground in terms of what could be allowed by one
minority religion in a community dominated by another religion.
I want to give you a little time, Commissioner, to comment
on what I just said.
Ms. Tristani. I think you raised very legitimate concerns
and it not only applies in your hypothetical where the
community where you grew up was all Catholic. What if it was 80
percent Catholic and 10 percent Jewish, 5 percent Baptist, 3
percent Islamic?
Mr. Markey. That was my community in fact. That is the
exact community I grew up in.
Ms. Tristani. You have a Methodist station. It is not only
the majority that may be offended by the fact that the one
reserve channel is just Methodist. But the Jewish community,
the others I mentioned could be offended. You can come up with
a lot of hypotheticals.
Mr. Markey. Thank you, Mr. Chairman.
The Chair recognizes himself briefly. Let me, on the
contrary, talk about the thorny question that is raised when
the agency of our government decides to begin deciding what is
acceptable educational, cultural programming as it relates to
religious broadcasting.
What is so thorny about that, Madam Commissioner, is that
when the Commission decides, as a matter of enforceable law, it
will determine whether a person keeps a license or not, the
church services generally will not qualify as general
educational programming. The Commission, by setting a numerical
standard, 50 percent plus 1, of qualifying programming, in
effect limits the religious programming that might be conducted
on a station.
In effect, our government begins limiting the expression of
religious content in our society. I may be offended, as one of
the witnesses said, when one of those stations in my community
is an all foreign language station that I don't speak, I might
like it when it is French or Cajun, I might like it better when
it is a Cajun Catholic the way I was raised, but I could be
offended if it was all Spanish as well.
The thorniest problem for us not whether we might be
offended because we can't understand or we don't agree with the
tenets being expressed in that programming, to me the real
thorny problem is when government begins deciding what is and
what is not culturally attractive and educational to me in
religious programming.
The question Mr. Stearns asked was interesting, whether a
program that admonished me to live by the Ten Commandments
would or would not be considered by any one of you to be
educational. Suppose I didn't know the Ten Commandments and it
would be very educational, or as if I didn't know what pet
rocks were, it would be somewhat educational for me to learn
what they were. I don't know that any government agent or
government institution can make that distinction.
As I read the retraction of the Commission of its guidance,
it says, ``We vacate this Additional Guidance and we defer
instead to the educational judgment of the licensee unless such
judgment is arbitrary or unreasonable,'' in effect returning to
an age old policy, that correctly decided not to try to define
with clear definitional parameters what was or was not
educational about religious programming.
I agree with my colleagues, that is the most slippery slope
I think our government could ever find itself on. I think the
Commission found itself there and quickly retreated. I frankly
am glad the Commission was assaulted by so many who found it
offensive because I think our government needs to stay out of
that.
One of my colleagues talked about the need for an FCC in
general. I want to make a case here. The First Amendment
respects freedom of speech in our society. It is so sacred that
our founding fathers wrote it into the First Amendment. They
didn't mention anything about the free right to truck in
America but we deregulated trucking. We even abolished the
agency which used to regulate trucking, the ICC. For some
reason, we have maintained in our society an agency to regulate
free speech.
We ought to always think about why we did that and why we
need that. We always ought to think about when it exceeds
whatever minimal authority it ought to have in an area so
sacred as free speech.
When it begins, as an agency of government, to define what
is not exceptional speech, when it comes to religious
broadcasting and whether or not a church service qualifies
under a quantifiable percentage, under some judgments made by
bureaucrats, not even elected by the people of this country, I
think we have gone much too far.
I have submitted to the record a statement prepared by
staff defending the sanctity of the Pickering bill. It defends
it on the three grounds established by the Supreme Court, that
the bill must have a secular legislative purpose. This bill
does. I simply says the Commission shall not prevent religious
programming, including religious services from being determined
and it covers all noncommercial programming.
It is not intended specifically to overtly give religious
message preferential treatment. It simply says don't
discriminate against them. That is consistent with the
Constitution. It requires all noncommercial programming be
treated the same. That is consistent with the Constitution. It
neither advances, advantages nor disadvantages religion. It
doesn't entangle the government with religion as the action by
the Commission almost did, I think. I think it is far
preferable.
The Chair wishes to publicly thank Mr. Oxley for his effort
at addressing this in legislative form as rapidly as he and my
colleagues who joined him did. The Chair wishes to thank Mr.
Pickering for working with the Chair and his staff, and the
staff of our committee for improving upon the original draft so
that it covers not only television but radio licenses, and so
that it not only prohibits the FCC from doing what it attempted
to do without a rule and comment but prohibits them from doing
it again, in fact insisting upon the longstanding rule of the
Commission to defer to the judgment of the licensees in regard
to what is and is not educational about religious programming.
I commend this bill to the members of the committee and as
soon as we return after Easter recess, we intend to come
together and mark up this bill and move it on to the full
committee.
The Chair will yield to Mr. Oxley.
Mr. Oxley. Briefly, this whole issue is really about
reestablishing congressional intent as it relates to whether in
fact any government agency can control or direct content as
relates to broadcasting. Stripped down that is what this issue
is about, that is why we were able to secure so many co-
sponsors so quickly and so easily on this legislation because
it really does get at the heart of the issue as to whether the
government can determine content under the First Amendment
protections afforded.
The gentleman from Massachusetts mentioned these are
difficult questions and that is true but I think this is clear.
This issue is clear that before the FCC, not an elected,
independent agency makes a determination that goes well beyond
the issue of swapping licenses and really gets at the heart of
what broadcasters, in this case, religious broadcasters, can or
cannot establish as religious broadcasting given educational
content and the like, this issue gets down to whether those
kinds of fundamental decisions should not be made over the
holidays or whenever but in fact, made in a standard rulemaking
procedure where by the public has an opportunity as they do in
virtually all of these kinds of matters that are of fundamental
importance to have public input. That is why we specifically
put that in that bill to make certain that was recognized.
It seems to me that is about as democratic as we can make
it. I would daresay that there aren't too many people who have
followed this issue that would indicate or would think that
given the circumstances to do over again and having a hearing
like this that would change fundamental policy out in the open
in a rulemaking procedure where the public could have input,
there is absolutely no way you would have the same result as
you had the first time. Absolutely not.
The vote to rescind the Order, I would indicate is clearly
an example of that. The majority of the FCC Commissioners, with
the exception of Ms. Tristani, recognized the error of their
ways, recognized those decisions were far more important to
everyone to be determined in a closed hearing without public
comment. That really reflected reality.
Our bill basically says you can't do that again, you can't
control content or attempt to control content in those kinds of
decisions. I am sure the gentleman from Pittsburgh had to be
shocked at the way the entire issue unfolded. He thought
everything was up to normal, that the swap would take place and
he wouldn't have to be subjected to these kinds of decisions by
the FCC.
That will never happen again, I guarantee you. We will pass
this bill, we will reestablish congressional intent, we will
make it very clear to the FCC and anybody else that is
listening, that we are the elected representatives of the
people. I don't say this in an arrogant way, but we are people
who are responsive, who are elected, who are accountable to our
constituents.
With all due respect, Ms. Tristani, that distortion and
demagoguery talked about was really about freedom, about
democracy, about speaking one's mind. That is the essence of
our system as long as all of us live and far beyond that. We
are going to make certain by passing this legislation that
those kinds of activities don't take place again.
I thank the Chair for his leadership on this issue.
Mr. Tauzin. I thank the gentleman.
Mr. Pickering?
Mr. Pickering. Let me just add that the gentleman from
Massachusetts raised the complexity of these issues and I
agree, they are complex, but I think this case embodies
probably best what Steven Carter described in his book ``The
Culture of Disbelief,'' where we have a group that not only
wanted to bring balance in the establishment clause but they
actually wanted to ban the religious voice from the public
square or the public airwaves.
It is not only a position of neutrality but a position of
hostility and discrimination and bias against the religious.
That is why I think we have to take the action in the
legislation so that we can make sure that does not happen.
Let me just say to the gentleman from Massachusetts, if you
look at when the Constitution was written, we didn't have
public schools. Our educational institutions, the great
educational institution of Harvard was a religious institution
founded by religious people to instruct, to teach, to bring
culture and to get to the point where we are today in history
to say that the religious voice is not educational, it's not
instructional, it is not cultural. That is a very disturbing
and sad place to be but some take that view, that somehow they
are mutually exclusive, you cannot be both religious and
educational or instructional or and cultural.
I just do not believe we should separate our history and
our heritage by having the types of decisions the FCC
originally proposed and then rightfully rescinded.
I look forward to working with the Chairman, Mr. Oxley and
the other members of this committee. I want to assure the
gentleman from Massachusetts that we did not intend or do not
intend to do anything that would harm children's broadcasting.
I would be glad to work with you on that.
Thank you.
Mr. Tauzin. Mr. Markey?
Mr. Markey. I thank the gentleman from Mississippi because
I know there is a legitimate debate that has raged in this
country for 213 years over this subject. It is one that we will
be debating for the next 213 years as well. It is not an easy
one to resolve but at the same time, it is not one that has all
truth on one side which I think is really one of the tenets of
the legislation.
When I went to Catholic school, I was educated in the
history of the United States and the world. I am sure those of
other religions would be shocked at the roles the Catholics
played in every key part of the history of the world and the
United States.
It is completely appropriate for Catholics to have their
education laced with these religious overtones. It is both. I
was learning, they were teaching, it was educational, but I am
not so sure the Jews or Methodists or an Islamic parent would
feel comfortable listing to the role.
I learned more about Roger B. Tauney being the first
Catholic Supreme Court Chief Justice than I did about what the
impact of the Dred Scott decision was made by Roger B. Tauney.
That is fine, that is the right. If you are going to teach, be
educational and link it with religion, you get that result. It
is an absolutely appropriate result in a Catholic school, in a
christian school, in a Jewish school, in an Islamic school.
Every parent has every right to put their child into a school
that is going to lace education and religion together.
All I am saying is that if the only noncommercial
educational station in town is owned by one religion and they
are lacing education and religion together that way, and it is
the minority religion in town, it is going to cause real
problems in that town. If we take the language, which is in the
legislation being proposed, it changes the definition under
which licenses are granted from nonprofit educational
organizations to the words ``nonprofit organization or entity''
and leaves out the word education.
We are not only going to open it up to the good but we are
going to open it up to the scam artists as well. There won't be
any standards, there won't be any requirements and we will
enter a whole new world where education itself may not be
predominant. It is just nonprofit and that is very dangerous.
In addition, the impact which the legislation has upon the
Children's Television Act, which was no simple thing to get put
on the books just to get these commercial broadcasts put on 3
hours a week, there are significant issues that are raised.
So I am very cognizant of the fact these stations don't
have to go to auction, that the noncommercial stations are
exempt, that there are real risk that sham or scam artists can
use the new definition to take over the only noncommercial
educational station in scores of communities across the
country, and I am also afraid of what the potential is for
proselytizing by religions that more properly belong in a
religious educational setting or in a church or synagogue.
I think we have to be very careful if we go down this line
of invoking the alarm and its intended consequences. I think
this was a very good hearing. I am glad the issues have been
aired and I look forward to any activity on it.
Mr. Tauzin. Let me say that I think the gentleman is
perhaps wrong when he alleges that because something I hear is
disturbing to me or that I don't agree with, that it is not
educational or cultural.
I used to disagree with my professors vehemently, got in
big trouble for it occasionally. They taught me things I
thought were wrong, challenged them on it, and sometimes came
out good and sometimes didn't.
I went to Catholic school too, Mr. Markey. I remember in my
confirmation lessons in the little Catholic church, I got into
an argument with my parish priest because he was trying to tell
me that the only way a person could get to heaven was by
becoming a Catholic. I thought that was rather strange. I
thought there were a lot of people who might not be Catholic
who followed their faith and maybe some people who didn't learn
about a faith but who had lived a good life. I couldn't imagine
God saying, you are not entitled to share eternity with us
because you didn't join my religion. I almost didn't get
confirmed.
Because I don't understand a Spanish broadcast station
because I have not learned Spanish and I should, my mother is a
Martinez and I should learn but because I don't understand it
doesn't mean it is not educational. Because some in my district
might understand it and enjoy it and be educated from it, does
that qualify it as one of the witnesses said when all the
people in my district are not Spanish-speaking.
The problem I have, and it is difficult to get into all
this and this has been a difficult hearing although a good one,
is again the very difficult problem we have when we try to
define the parameters of what is cultural and what is
educational when it comes to religious teachings and church
services, music and all the things that are part of the
cultural, social religious life as it is broadcast over a
station.
I think we are always safer by not trying to get into it
and trying to define it as a government. I think that is what
our forefathers meant when they told us to separate, told us to
do our business. I believe Christ had it right when he said,
``Render to Caesar the things that are Caesar's, and things
that are God's to God.'' I think that basically ought to be the
thing that decides it for us. Keep our hands off trying to
define this stuff. That ought to be for the people of our
country and the religious broadcasters to do, withholding
always to the Commission's prerogative if in fact some scam
artist should clearly, unquestionably as a standard has always
existed, unreasonably, interpret that right to use those
stations in a way that does operate as a sham.
Mr. Markey. Would you yield?
Mr. Tauzin. Yes. I would be glad to yield.
Mr. Markey. Again, you get into this area where Mr.
Furchtgott-Roth and Ms. Tristani would have to look at the
films to see what is unreasonable under that test as well.
Mr. Tauzin. That has always been the law.
Mr. Markey. Mr. Furchtgott-Roth doesn't feel comfortable at
any time looking at film, it is chilling to him to have to look
at it.
I will be blunt about it, I don't want Bob Jones University
buying the only noncommercial educational station in my
hometown and telling me that Catholics are a cult, telling me
that the Pope is the emissary of Satan.
Mr. Tauzin. I think he called him an Antichrist which I
found offensive too.
Mr. Markey. I don't like it but because Bob Jones has the
money to buy a station and to come to my hometown and that is
the only station in town and I am going to have to listen to
this message although it is laced with the history of our role
in society and a little bit else about their university, that
may satisfy the test to some but I don't want that.
I don't think it is unreasonable for people to be
apprehensive of that guy coming to our town.
Mr. Tauzin. Here is the problem, if all of us in government
starting regulating speech in our society based upon what we
like to hear or what we agree with, we are in deep trouble. I
don't like Bob Jones calling my Pope, the head of my church,
the Antichrist. I think he is wrong to do that and I would love
it if he would apologize instead of going on Larry King and
admitting he said that or that he continues to believe that. I
am troubled by that. I think people of faith ought to be a lot
more tolerant than that. We ought not do that. I am offended by
that too.
The fact that speech offends me does not give me the right
to regulate it or limit it the way I think this order attempted
to do. That is what I found so offensive.
Mr. Pickering. My understanding of the current practice and
the history of these noncommercial licenses and those who
happen to be religious in mission is that we do not have
examples of abuses or shams in the past or in the present. Our
proposed legislation does not change the practice of the FCC in
granting or transferring these licenses in any shape or form.
The definition will not change the practice in any way. Let
that be clear. This has nothing to do with Bob Jones or any
other fringe group. This is simply about whether the FCC can
regulate the content of programming and we say it cannot. It
cannot do what it attempted to do earlier by favoring or
endorsing or opposing, in the words of Justice O'Connor, one
religious speech over another.
So our bill does not change current practice, it will not
result in any sham group or any fringe group of getting
something they do not have today. The definition is taken from
the IRS Code which includes educational and nonprofit and
religious. That is the only change and that would not affect
who is eligible yesterday, today or tomorrow.
The gentleman from Massachusetts proposed earlier having a
separate category for religious broadcasters, a segregation of
the religious, this is too hard, this is too complex--we just
really don't like those people, let us put them over here where
their voice isn't heard or doesn't intrude upon us. I think
that is the heart of this question, a question of bias and
discrimination against the religious voice.
We did not change today's practice or yesterday's practice,
we simply say the FCC cannot regulate content.
Mr. Tauzin. Thank the gentleman.
Let me thank the witnesses. Ms. Tristani, we obviously have
a difference of opinion and that is part of what America is all
about too. That is part of what I guess we are trying to
protect, the right to have a different opinion and different
religions, different expressions and not for me to shut you
down or you to shut me down in any way. Thank you for coming
and for expressing your opinion, albeit one we disagreed with.
Commissioner Furchtgott-Roth, we always thank you for
coming back to what we consider part of your home here at the
Commerce Committee.
Gentlemen, we also thank you for educating us and adding
some culture to this committee.
The committee stands adjourned.
[Whereupon, at 3:24 p.m., the subcommittee was adjourned.]
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