Public broadcasters are ramping up efforts to secure support of their position in the Senate after the House of Representatives overwhelmingly approved legislation that could force the FCC to permit religious broadcasters to use reserved noncommercial educational channels without determining whether they carry educational programs or not.
The Noncommercial Broadcasting Freedom of Expression Act, H.R. 4201, passed the House 264-159 on June 20, with six Republicans and 153 Democrats opposed. The legislation, sponsored by Rep. Charles W. "Chip" Pickering (R-Miss.) but largely rewritten by House telecom subcommittee Chair Billy Tauzin (R-La.), gives nonprofit organizations the right to hold noncommercial educational (NCE) radio or television licenses if the station broadcasts material the organization itself deems to serve an "educational, instructional, cultural or religious purpose." The bill notes that religious programming "contributes to serving the educational and cultural needs of the public," and dictates that the FCC treat it the same way it treats educational programming.
Before the legislation's passage, the House rejected an alternative offered by Rep. Edward Markey (D-Mass.) that would have mandated the reserved channels be primarily educational. The amendment, which Markey had also offered in the House telecom subcommittee, failed again, this time by a margin of 174-250.
The Coalition to Defend Educational Broadcasting, organized by the Citizens for Independent Public Broadcasting, argues that the bill obliterates the requirement that broadcasting on these reserved noncommercial educational (NCE) channels must serve the public interest. Concerned that passage of the legislation will open the gateways for religious groups to dominate these licenses and "bring an end to educational programming as we know it," groups like the Alliance for Community Media, People for the American Way, Americans United for the Separation of Church and State, Interfaith Alliance, National PTA and the Department of Professional Employees of the AFL-CIO have joined together to lobby against the bill. They are meeting with senators and hoping to curb any further action on the legislation or a similar bill, S. 2215, authored by Sen. Tim Hutchinson (R-Ark.) which would keep reserved channels open for any purpose allowed for nonprofits under the tax laws.
Religious broadcasters wouldn't be new to the reserved band. They already hold 245 NCE radio licenses and 23 NCE television licenses. Much of their programming is syndicated by satellite, and a good portion of that current programming doesn't meet the FCC's minimal educational program requirements, says Jerold Starr, executive director of Citizens for Independent Public Broadcasting. Because the FCC only investigates such matters when there is sufficient community outcry, and because citizens have rarely challenged such programmers, the religious broadcasting on these channels has gone by unnoticed.
The legislation was spawned by an FCC ruling in December approving the transfer of WQED's second Pittsburgh frequency — a reserved NCE channel — to religious broadcaster Cornerstone TeleVision. The commission attempted to establish guidelines requiring that more than half of broadcasting on NCE licensed channels be used for "an educational, instructional or cultural purpose," and excluding "religious exhortation" from that category.
"In Pittsburgh we had a movement and forced the FCC to look at the type of programming Cornerstone would produce," Starr says. "They were forced to conclude it didn't measure up." But, under pressure from allies of religious broadcasters, the FCC soon vacated its new guidelines.
Washington attorney John Crigler, of Garvey, Schubert and Barer, explains that the FCC requires that applicants for NCE channels show why they are eligible for the licenses, which (when available) can be acquired at much less expense than commercial licenses. Television station applicants are asked to show that they would use the channel primarily for the advancement of an educational purpose, while radio applicants are simply asked to show that their station would be used for the advancement of an educational purpose (note the absence of the word "primarily"). Crigler says that licensees are asked to give this information to the commission in applications for new stations, for license transfers or for license renewals. At renewal time, applicants are subject to challenges but they rarely materialize, Crigler says.
It's difficult to predict what will happen with the House bill as the Senate hurries to finish before the summer break and the election campaigns of the fall. And even if the legislation were to become law, it is unclear how current pubcasters would be affected.
Whatever the outcome, it wouldn't be immediate. The FCC has instituted a freeze on allotting licenses to new television and radio channels. But when that is over, religious broadcasters can be expected to apply for more NCE licenses, Crigler said.
Jeneba Jalloh, of the Georgetown Law Center Institute for Public Representation, said the legislation is primarily going to affect how the FCC goes about determining NCE licenses in the future.
"It would allow people, who before wouldn't qualify, to get these NCE licenses really cheap," Jalloh said.
And once those licenses are assigned, challenging them may prove even more difficult. The commission will assume, rather than force the organization to prove, that it is qualified to have such a license, Crigler explained.
"It will make it even more difficult to even raise the issue of whether a religious organization is eligible," he said. "The commission is not going to look into that issue."
Starr also worries that such licenses could go to nonprofit affiliates of organizations already broadcasting on commercial bands. The allure of such inexpensive licenses may prompt some religious groups to devise such arrangements and even share programming with stations on reserved channels.
David Brugger, president of America's Public Television Stations (APTS), said he wants to keep stations responsible for airing educational programming in the reserved spectrum. He worried that the real long-term danger of the legislation would be money-crunched stations who realize they can make "an easy $20 million" by selling their licenses to other nonprofits, such as religious broadcasters, which tend to have greater capital reserves for buying stations than pubcasters do.
"Who knows what hard times a licensee may come upon," Brugger said, "and there's no safeguards left in place."