Noncommercial Broadcasting Freedom of Expression Act of 2000: Summary and Background of Related Legal Issues

Noncommercial Broadcasting Freedom of Expression Act of 2000: Summary and Background of Related Legal Issues

CRS Report for Congress
Received through the CRS Web
Order Code RS20603
June 19, 2000
Noncommercial Broadcasting Freedom of
Expression Act of 2000: Summary and
Background of Related Legal Issues
Kevin Greely
Legislative Attorney
American Law Division
Summary
On December 29, 1999, the Federal Communications Commission (FCC) released
an order approving the license transfer of WQEX–a noncommercial educational
television station–from WQED (the license holder) to Cornerstone Television, Inc, a
broadcaster that engages primarily in religious programming. In approving the transfer,
the FCC issued “additional guidance” on the educational programming requirements
applicable to noncommercial educational (NCE) television licensees and concluded 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.” Amid a firestorm of complaints and criticism over the
order, the FCC reconsidered and vacated the “additional guidance” on January 28, 2000.
Despite the recission, there has been continuing concern over the remnants of the
analysis underlying the FCC’s ruling and its potential impact on future decisions by the
agency to grant NCE licenses to religious broadcasters. In response, H.R. 4201–the
“Noncommercial Broadcasting Freedom of Expression Act of 2000 ”–seeks to
statutorily “clarify the service obligations of noncommercial educational broadcast
stations.” This report will provide a summary of the bill and background on the issues
that led to its introduction. The report will be updated as warranted by legislative action.
Background: FCC Licensing of NCE Broadcast Stations and the “Additional
Guidance” on NCE Programming Obligations
The FCC derives its authority to grant licenses for noncommercial educational
broadcasting from section 303 of the Communications Act of 1934, which authorizes the
Commission to prescribe “the nature of the services to be rendered by each class of
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licensed station.”1 Under its rules governing NCE television stations, such licenses are
granted only to “nonprofit educational organizations” upon a showing that the station will
be used “primarily to serve the educational needs of the community; for the advancement
of educational programs; and to furnish a nonprofit and noncommercial television
broadcast service.”2 NCE stations are permitted to transmit “educational, cultural and
entertainment programs, and programs designed for use by schools and school systems”;
and may broadcast programming produced by others so long as no consideration is
excepted by the station. In addition, NCE licensees are restricted from broadcasting
promotional announcements on behalf of for-profit entities in exchange for any
remuneration.3
The controversial “additional guidance” on NCE programming responsibilities was
incorporated within an order approving the license transfer of WQEX–a NCE
station–from WQED (the license holder) to Cornerstone Television, Inc., a religious
broadcaster in exchange for a commercial station held by Cornerstone.4 During the FCC’s
review of the transfer application, objections were raised by parties opposing the transfer
that the NCE station would not be used “primarily to meet the educational needs of the
community,” as Cornerstone’s proposed programming for the station was primarily
religious in nature. In addressing this issue, the FCC examined previous precedent in
which it concluded that some religious programs could be characterized as “general
educational” for purposes of its rules. With respect to Cornerstone, the Commission
concluded that the broadcaster had made a sufficient showing and deferred to its
judgement that its programming, although primarily religiously oriented, would “serve
the educational needs” of the community.
The “additional guidance” attached as part of the WQED application was issued,
according to the FCC, as an attempt to clarify the requirements applicable to the
programming of NCE television stations set out in its rules. Under the guidance
statement, the Commission noted that the requirement that the NCE station “be used
primarily to serve the educational needs of the community” was two-fold. With respect
to a licensee’s overall weekly program schedule, “more than half of the hours of
programming aired... must primarily serve an educational, instructional, or cultural
purpose in the station’s community of license.” To qualify as a program which is
educational, instructional, or cultural, the program must have “as its primary purpose
service to the educational, instructional or cultural needs of the community.”
With respect to religious programming, the FCC stated that it would not disqualify
any program “simply because the subject matter of the teaching or instruction was
1 47 U.S.C. § 303(b). The FCC first set aside channel capacity in the FM radio band for
noncommercial educational radio broadcasting in 1945; and reserved 252 channels for
educational television service in 1952.
2 See 47 C.F.R. §73.621(a).
3 Id.
4 See Applications of WQED and Cornerstone Television, Inc. for Consent to the Assignment of
License of Noncommercial Educational Station WQEX (TV), 15 FCC Rcd 202 (December 29,
1999).

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religious in nature.”5 The Commission, acknowledged that the “discussion of religious
matters during a program that has as its primary purpose service to the educational,
instructional or cultural needs of the broader community” could be considered “general
educational” programming for purposes of its rules.6 However, the Commission noted
that “programming primarily devoted to religious exhortation, proselytizing, or statements
of personally held religious views and beliefs” would not qualify as “general educational”
programs.7 Accordingly, while church services would not qualify as “general
educational” programming under the rules, such services which are part of an “historic
event,” such as a funeral of a national leader would so qualify if the primary purpose is
to serve the educational, instructional and cultural needs of the entire community.
Amid numerous complaints from religious broadcasters and members of the public,
the FCC issued a subsequent order vacating its “additional guidance” statement.8 The
Commission conceded that its attempt to clarify NCE programming obligations and to
apply the guidance to specific cases involving religious programming had “created less
certainty, rather than more.”
Despite the revocation of its guidance statement, there remains continuing concern
over the administrative process by which the FCC set out the policy and the underlying
premise, apparently held by the agency, that certain types of religious programming does
not qualify as “educational”. Given the characterization of its order as a “clarification”
of its existing policy, the possibility remains that the agency could apply these principles
in subsequent proceedings involving the licensing of NCE stations to religious
organizations. In addition, the FCC’s attempted imposition of quantitative programming
standards; the categorization of programming; and the exclusion of certain types of
religious programmers from eligibility for NCE licensing raises constitutional concerns
related to the free speech and free exercise [of religion] clauses of the First Amendment.9
H.R. 4201: The “Noncommercial Broadcasting Freedom of Expression Act of 2000"
Introduced by Representative Pickering on April 6, 2000, H.R. 4201 seeks to “clarify
the service obligations of noncommercial educational broadcast stations.”10 The bill
would amend section 309 of the Communications Act of 1934 to statutorily authorize
5 Id.
6 Id. The Commission listed examples of such programming including “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 beliefs and physical and
mental health; and examining the apparent dichotomy between science, technology and
established religious tenets...” Id.
7 Id..
8 See Applications of WQED, Pittsburgh and Cornerstone Television, Inc. For Consent to the
Assignment of License of Noncommercial Educational Station WQEX (TV), 15 FCC Rcd 2534
(Order on Reconsideration)(January 28, 2000).
9 For a more general discussion of the underlying First Amendment issues involved, see Freedom
of Speech and Press: Exceptions to the First Amendment, CRS Report 98-815; The Law of
Church and State: Developments in the Supreme Court Since 1980, CRS Report 98-65.
10 H.R. 4201, 106th Cong. 2d Sess. (2000).

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nonprofit organizations to hold a noncommercial educational radio or television license
“if the station is used primarily to broadcast material that the organization determines
serves an educational, instructional, cultural or religious purpose... in the station’s
community of license, unless that determination is arbitrary or unreasonable.”11
In addition, H.R. 4201 would prohibit the FCC from imposing additional content-
based requirements on NCE licensees, namely: quantitative standards “based on the
number of hours of programming that serve educational, instructional, cultural or
religious purposes” and any other content-based requirement not imposed on commercial
licensees. The bill clarifies however, that NCE licensees remain subject to applicable
provisions of the Children’s Television Act and the requirements of the Public
Broadcasting Act.12
Moreover, the bill exempts NCE stations from provisions under section 312(a)(7)
of the act, requiring broadcasters to allow “reasonable access” to the broadcast station by
legally qualified candidates for Federal elective office. Also included are provisions to
require public broadcast stations to be audited to determine their compliance with donor
privacy protection requirements and to direct the FCC to amend its rules governing
political broadcasting (sections 73.1930 through 73.1944) to render them inapplicable to
NCE licensees.13
11 Id. (emphasis added).
12 Id.
13 Sections 73.1930 through 73.1944 impose various requirements on broadcasters governing
political editorials; equal opportunities for legally qualified candidates for public office; rates
charged to candidates for use of the broadcast station; maintenance of “political files” for
requests for broadcast time made by candidates; and reasonable access by candidates for Federal
elective office, respectively. 47 C.F.R. §§ 73.1930-73.1944.

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