FCC Recants Order Restricting Religious Broadcasters

(January 30, 2000) The FCC released an order on Friday, January 28, which vacated those portions of a previous order which restricted religious broadcasting. Last month the FCC issued an order in a license transfer proceeding that stated that much of the programming by religious broadcasters does not qualify as educational programming under FCC rules.

Related Documents
Original Order, 12/29/99.
Dissent of Furchgott-Roth and Powell, 12/29/99.
Order on Reconsideration, 1/28/00.
Concurring Statement of Furchgott-Roth, 1/28/00.
Statement of Powell, 1/28/00.
Dissent of Tristani, 1/28/00.
47 C.F.R. § 73.621.

The Federal Communications Commission (FCC) wrote in its Order on Reconsideration on January 28 that "we hereby reconsider and vacate our decision, insofar as it provided additional guidance regarding compliance with Section 73.621(a), 47 C.F.R. § 73.621, of the Commission’s rules."

The FCC vacated its original Order on its own motion. However, the FCC had been criticized in a dissent by two of its five Commissioners. Also, on January 24 Rep. Mike Oxley (R-OH) introduced the Religious Broadcasting Freedom Act, which would have the effect of reversing the FCC; it already has over 70 cosponsors. Finally, the FCC received considerable comment from the public.

Commission Harold Furchtgott-Roth noted in his concurring statement that "Reaction against this decision was swift, strong, and voluminous. In the past two weeks alone, I have received more than 1,000 messages from opposed citizens." The Order on Reconsideration also noted that "The Commission has already received many communications from members of the public and others concerning this proceeding."

The FCC issued its original decision on December 15, 1999 (which it did not release to the public until December 29) on the application to assign a reserved noncommercial educational (RNE) broadcast television license. WQED, one of two PBS stations in Pittsburgh, sought to assign its license to Cornerstone, a religious broadcaster.

TLJ Summaries
Summary of FCC Proceedings Pertaining to Content Regulation of Religious Broadcasters.
Summary of Bills Pertaining to FCC Regulation of Religious Broadcasting.

The FCC approved the transfer. However, the FCC added to its lengthy decision a section which it termed as "additional guidance" for religious broadcasters.

The license at issue in this matter was an RNE license, rather than a commercial license. By regulation (47 C.F.R. § 73.621) a station operating on a reserved channel must be "used primarily to serve the educational needs of the community." However, the rule does not define the term "educational".

The "additional guidance" portion of the December order construed this "educational" requirement in a way that would exclude much religious programming. It stated that "programming primarily devoted to religious exhortation, proselytizing, or statements of personally-held religious views and beliefs generally would not qualify as “general educational” programming."

Related Story: Oxley Will Introduce Bill to Reverse FCC Decision Restricting Religious Broadcasting, 1/14/00.

In issuing it "additional guidance", the FCC sharply departed from its long tradition of deferring to programmers as to what content constitutes educational programming.

The Order on Reconsideration stated that the reason for vacating the December order was that it created confusion. The Order on Reconsideration did not admit to unconstitutional content regulation. The Order stated:

"In an attempt to clarify what constitutes non-commercial educational programming, we offered additional guidance broadly, and attempted to apply that guidance to specific cases involving religious programming. Regrettably, it has become clear that our actions have created less certainty rather than more, contrary to our intent."

However, Commission Harold Furchtgott-Roth, who dissented from the December Order, persisted in arguing that the original order constituted impermissible content regulation. He wrote is a separate statement that:

"I concur in the Commission’s judgment to vacate the "additional guidance" section of the original decision in this matter. I do so because that guidance was wrong on the merits, raising the specter of viewpoint discrimination against religious broadcasters in violation of the First Amendment, not because it provided insufficient clarity."

He added that "It was not for lack of clarity that these parties objected to the decision but for infringement of freedom of speech and freedom of religion – and rightly so."

Commissioner Michael Powell, who also dissented from the December order, issued a separate statement in which he said that the original order "opened a Pandora's Box of problems. In today's decision we put the lid back on the box."

Gloria Tristani

The vote on the original order was 3-2, with William Kennard, Susan Ness, and Gloria Tristani voting in favor, and Furchtgott-Roth and Powell voting against. The vote on the Order on Reconsideration was 4-1, with Kennard, Ness, Furchtgott-Roth and Powell voting in favor, and Tristani voting against.

Commissioner Gloria Tristani issued a dissenting statement in which she argued vehemently for the original order.

"This is a sad and shameful day for the FCC", she wrote. She continued that "the freedom to believe in nothing at all, is one of our most precious freedoms".

Tristani also had harsh words for Kennard and Ness, with whom she normally sides in controversial matters.

"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."

Tristani added that "I doubt that a rulemaking on this subject will ever see the light of day."

In both the original order, and the Order on Reconsideration, there was no dispute among the Commissioners that the license transfer should be approved. The subject of the dispute was solely the portion of the order labeled "additional guidance" for religious broadcasters.

Rep. Mike Oxley (R-OH) issued a statement after the FCC released its Order on Reconsideration. In it he claimed "complete and total victory for free religious expression".

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

The cosponsors represent mostly southern, midwestern, and mountain state districts. None are from New England, New York, or California. Almost all are Republicans.