[Federal Register Volume 60, Number 118 (Tuesday, June 20, 1995)]
[Notices]
[Pages 32142-32143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15039]



-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
[Docket Number 950613151-5151-01]
RIN 0660-XX02


Public Telecommunications Facilities Program (PTFP), National 
Endowment for Children's Educational Television (NECET), 
Telecommunications and Information Infrastructure Assistance Program 
(TIIAP)

AGENCY: National Telecommunications and Information Administration, 
Department of Commerce.

ACTION: Notice; request for comments.

-----------------------------------------------------------------------

SUMMARY: The National Telecommunications and Information Administration 
(NTIA) administers a number of grant programs providing financial 
assistance to eligible entities. The Public Telecommunications 
Facilities Program (PTFP) and the Telecommunications and Information 
Infrastructure Assistance Program (TIIAP) each fund facilities (for 
public broadcasting and connection to computer networks, respectively), 
while the National Endowment for Children's Educations Television 
(NECET) funds the creation of new children's programming. To ensure 
compliance with the First Amendment, NTIA has had a long-standing 
policy of not allowing PTFP equipment acquired with grant funds to be 
used for any purpose the essential thrust of which is sectarian. This 
policy was also recently adopted for two newer assistance programs, 
NECET and the TIIAP. NTIA has applied this policy in a ``bright-line'' 
fashion: It does not permit a PTFP grantee to broadcast any sectarian 
program using PTFP-funded equipment, a NECET grantee to include any 
sectarian material in a children's program funded by NECET, or a TIIAP 
grantee to transmit any sectarian information by means of facilities 
funded by TIIAP. NTIA has received a number of inquiries regarding the 
continued application of its current policy. Accordingly, the purpose 
of this proceeding is to allow for a full range of public comment on 
whether NTIA's current policy, as applied to all three grant programs, 
should be continued or whether alternative approaches are also 
consistent with the First Amendment and sound public policy. NTIA will 
consider these comments in determining whether to change its policy, 
its application procedures, and/or its enforcement of each of the three 
grant programs prospectively.

DATES: Comments should be submitted on or before August 21, 1995.

ADDRESSES: Persons interested in commenting must send an original plus 
two copies of any comments to: Department of Commerce, Office of the 
Chief Counsel, National Telecommunications and Information 
Administration, 14th and Constitution Avenue, NW., Room 4713, 
Washington, D.C. 20230.

FOR FURTHER INFORMATION CONTACT: Jana Gagner, (202) 482-1816.

SUPPLEMENTARY INFORMATION:

Background

    On May 29, 1979, the PTFP issued a final rule and policy in a 
Report and Order on sectarian activities.1 The Report and Order 
contains a full discussion of NTIA's rationale for originally 
establishing its policy and related procedures, including a discussion 
of applicable Constitutional law. PTFP's regulation regarding sectarian 
activities, in effect continuously since 1979, provides that: ``During 
the period in which the grantee possesses or uses the Federally funded 
facilities (whether or not this period extends beyond the Federal 
interest period), the grantee may not use or allow the use of the 
Federally funded equipment for purposes the essential thrust of which 
are sectarian.'' 2 ``Sectarian'' has been defined as having ``the 
purpose or function of advancing or propagating a religious belief.'' 
3

    \1\ Public Telecommunications Facilities Program; Report and 
Order, 44 FR 30,898 (1979) [hereinafter Report and Order].
    \2\ 15 C.F.R. 2301.22(d) (1995).
    \3\ 15 C.F.R. 2301.1 (1995).
---------------------------------------------------------------------------

    The Report and Order further provided that the rule regarding 
sectarian activities was not meant to affect ``presentation in an 
educational or cultural context of music or art with a religious theme, 
nor of programs about religion. * * * [nor] preclude distribution of 
instructional programming of a secular nature to church-related 
educational institutions.'' 4 The Report and Order specifically 
explained how NTIA would determine the eligibility of applicants with 
religious affiliations.5 NTIA made clear its intent not to become 
a ``super-programmer'' by inquiring into the content of particular 
programs on a routine basis.6

    \4\ Report and Order, supra, note 1 at 30,902 para. 26.
    \5\ Id. at 30,900-904.
    \6\ Id. at 30,901-902. In fact, NTIA requires PTFP grantees to 
certify that the grant funds are not being used for sectarian 
purposes.
---------------------------------------------------------------------------

    NTIA's two newer grant programs, the TIIAP and the NECET, currently 
follow the same policy with regard to Federal support of sectarian 
activities. The following provision, which references 
[[Page 32143]] the current PTFP rule, was included in the Notice of 
Availability of Funds for each program:

    The Department of Commerce has a long standing policy of not 
funding projects for purposes the essential thrust of which is 
sectarian. Consistent with this policy, TIIAP [and NECET] will not 
fund projects the essential thrust of which is sectarian. Sectarian 
organizations, however, are eligible applicants and may request 
funds for non-sectarian purposes.7

    \7\ See 60 FR 8,156 (February 10, 1995) and 60 FR 15,636 (March 
24, 1995), respectively.

    NTIA's long-standing regulation in 15 CFR 2301.22(d) was recently 
challenged for the first time in the case of Fordham University v. 
Brown. There a PTFP applicant argued that NTIA's policy on sectarian 
broadcasting violated its right to free exercise of religion and 
freedom of speech under the First Amendment of the Constitution. The 
Fordham court rejected this challenge and held that NTIA's policy was 
not violative of the First Amendment. In dicta, however, the court 
noted that it was not addressing whether there were alternative 
interpretations of this regulation which could also be implemented by 
NTIA consistent with the First Amendment.8

    \8\ Fordham University v. Brown, No. 93-2120 at 25 (CCR)(D.D.C. 
June 29, 1994) (appeal docketed, No. 94-5229, August 22, 1994). PTFP 
refused a grant to Fordham University's public radio station because 
it broadcast a Catholic mass every Sunday. In addition, the Supreme 
Court has before it the case of Rosenberger v. Rector and Visitors 
of the University of Virginia, No. 94-329 (oral arg. held Mar. 1, 
1995). The Rosenberger case raises the constitutionality of a state-
supported university's refusal to make a student activities fund 
grant to a Christian journal. A decision in the Rosenberger case is 
expected by the end of this Supreme Court term.
---------------------------------------------------------------------------

Requests for Modification

    NTIA has received a number of requests to consider modifying its 
policy. Various public broadcast stations have indicated concern 
because they wish to include in their schedules some individual 
programs that could be considered ``sectarian'' under PTFP's regulation 
as currently interpreted and applied. Accordingly, while our current 
approach has been ruled constitutionally permissible, we seek to 
determine whether we can and should modify our policy prospectively to 
permit some limited amount of sectarian programming or information via 
Federally-funded projects.
    In considering whether the essential thrust of a project is 
sectarian, NTIA is considering whether to look to the overall purpose 
of the entire project rather than looking to individual components of 
the project. Under this approach, if the primary purpose of the overall 
project is non-sectarian, a grant applicant would no longer be 
considered ineligible, nor would a grant recipient be found to be in 
violation of the grant conditions, due to use of Federal funds for a 
project with only a limited amount of sectarian programming or 
information.
    Differences among the programs warrant close examination in 
adopting a new policy. For example, PTFP grantees, as broadcasters, 
have editorial control over the content of their transmissions, and 
NECET grantees control the subject matter of the children's programming 
that is funded, TIIAP grantees may have no or little control over 
transmissions sent by others via computer networks.9 On the other 
hand, NECET funds specific programs and/or series, and TIIAP may also 
fund the creation of content for transmission over interactive 
networks, rather than facilities only, as with PTFP. While the current 
``bright-line'' approach is applied to all three programs alike, we 
will examine the impact of the programs' differences on proposals to 
modify our current approach and allow a limited amount of sectarian 
programming or information.

    \9\ Because TIIAP funds facilities used for transmission of 
information via interactive networks, some transmitted information 
may be under the control of the grantee and some may be under the 
control of end users.
---------------------------------------------------------------------------

    We also recognize that the proposed modification to our current 
approach, or any other alternative approach, must pass muster under the 
First Amendment of the U.S. Constitution.10 Therefore, NTIA is 
providing an opportunity for interested parties to comment on the 
following issues: (1) Whether allowing a limited amount of sectarian 
programming to be broadcast using PTFP-funded equipment, a limited 
amount of sectarian material to be included in a children's program 
produced using NECET funds, or a limited amount of sectarian 
information to be transmitted electronically over a network using 
TIIAP-funded facilities would be permissible under the First Amendment, 
if so whether there are sound policy reasons for such an approach, and 
what implementation issues are raised; (2) whether any other 
alternatives to NTIA's current approach have a sound policy basis and 
could be adopted consistent with the First Amendment and current 
jurisprudence, including how such a policy could, as practical and 
constitutional matters, be implemented and enforced; (3) whether the 
same policy can and should be applied to all three NTIA grant programs, 
and if the same policy cannot be applied to all three NTIA grant 
programs, what policy should pertain to each grant program; and (4) 
whether the current definition of ``sectarian'' continues to be 
supportable if NTIA's current policy is modified.

    \10\ U.S. Const. amend. I.
---------------------------------------------------------------------------

    This notice has been determined to be not significant for purposes 
of Exec. Order No. 12,866.
Larry Irving,
Assistant Secretary for Communications and Information.
[FR Doc. 95-15039 Filed 6-19-95; 8:45 am]
BILLING CODE 3510-60-P