[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]





     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.'' 1 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.2
---------------------------------------------------------------------------
    \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.3
---------------------------------------------------------------------------
    \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.4 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.5 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.6
---------------------------------------------------------------------------
    \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.7
---------------------------------------------------------------------------
    \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.8 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, 2000.9 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.]
    [Additional material submitted for the record follows:]
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