[House Report 106-662]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-662
======================================================================
NONCOMMERCIAL BROADCASTING FREEDOM OF EXPRESSION ACT OF 2000
_______
June 9, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bliley, from the Committee on Commerce, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 4201]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, to whom was referred the bill
(H.R. 4201) to amend the Communications Act of 1934 to clarify
the service obligations of noncommercial educational broadcast
stations, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 7
Committee on Government Reform Oversight Findings................ 7
New Budget Authority, Entitlement Authority, and Tax Expenditures 7
Committee Cost Estimate.......................................... 7
Congressional Budget Office Estimate............................. 7
Federal Mandates Statement....................................... 8
Advisory Committee Statement..................................... 8
Constitutional Authority Statement............................... 8
Applicability to Legislative Branch.............................. 8
Section-by-Section Analysis of the Legislation................... 8
Changes in Existing Law Made by the Bill, as Reported............ 10
Minority Views................................................... 13
Amendment
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Noncommercial Broadcasting Freedom
of Expression Act of 2000''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) In the additional guidance contained in the Federal
Communication Commission's memorandum opinion and order in WQED
Pittsburgh (FCC 99-393), adopted December 15, 1999, and
released December 29, 1999, the Commission attempted to impose
content-based programming requirements on noncommercial
educational television broadcasters without the benefit of
notice and comment in a rulemaking proceeding.
(2) In doing so, the Commission did not adequately consider
the implications of its proposed guidelines on the rights of
such broadcasters under First Amendment and the Religious
Freedom Restoration Act.
(3) Noncommercial educational broadcasters should be
responsible for using the station to primarily serve an
educational, instructional, cultural, or religious purpose in
its community of license, and for making judgments about the
types of programming that serve those purposes.
(4) Religious programming contributes to serving the
educational and cultural needs of the public, and should be
treated by the Commission on a par with other educational and
cultural programming.
(5) Because noncommercial broadcasters are not permitted to
sell air time, they should not be required to provide free air
time to commercial entities or political candidates.
(6) The Commission should not engage in regulating the
content of speech broadcast by noncommercial educational
stations.
SEC. 3. CLARIFICATION OF SERVICE OBLIGATIONS OF NONCOMMERCIAL
EDUCATIONAL OR PUBLIC BROADCAST STATIONS.
(a) Service Conditions.--Section 309 of the Communications Act of
1934 (47 U.S.C. 309) is amended by adding at the end the following new
subsection:
``(m) Service Conditions on Noncommercial Educational and Public
Broadcast Stations.--
``(1) In general.--A nonprofit organization shall be eligible
to hold a noncommercial educational radio or television license
if the station is used primarily to broadcast material that the
organization determines serves an educational, instructional,
cultural, or religious purpose (or any combination of such
purposes) in the station's community of license, unless that
determination is arbitrary or unreasonable.
``(2) Additional content-based requirements prohibited.--The
Commission shall not--
``(A) impose or enforce any quantitative requirement
on noncommercial educational radio or television
licenses based on the number of hours of programming
that serve educational, instructional, cultural, or
religious purposes; or
``(B) impose or enforce any other requirement on the
content of the programming broadcast by a licensee,
permittee, or applicant for a noncommercial educational
radio or television license that is not imposed and
enforced on a licensee, permittee, or applicant for a
commercial radio or television license, respectively.
``(3) Rules of construction.--Nothing in this subsection
shall be construed as affecting--
``(A) any obligation of noncommercial educational
television broadcast stations under the Children's
Television Act of 1990 (47 U.S.C. 303a, 303b); or
``(B) the requirements of section 396, 399, 399A, and
399B of this Act.''.
(b) Political Broadcasting Exemption.--Section 312(a)(7) of the
Communications Act of 1934 (47 U.S.C. 312(a)(7)) is amended by
inserting ``, other than a noncommercial educational broadcast
station,'' after ``use of a broadcasting station''.
(c) Audit of Compliance With Donor Privacy Protection
Requirements.--Section 396(l)(3)(B)(ii) of the Communications Act of
1934 (47 U.S.C. 396(l)(3)(B)(ii)) is amended--
(1) in subclause (I), by inserting before the semicolon the
following: ``, and shall include a determination of the
compliance of the entity with the requirements of subsection
(k)(12)''; and
(2) in subclause (II), by inserting before the semicolon the
following: ``, except that such statement shall include a
statement regarding the extent of the compliance of the entity
with the requirements of subsection (k)(12)''.
(d) Implementation.--Consistent with the requirements of section 4
of this Act, the Federal Communications Commission shall amend sections
73.1930 through 73.1944 of its rules (47 CFR 73.1930-73.1944) to
provide that those sections do not apply to noncommercial educational
broadcast stations.
SEC. 4. RULEMAKING.
(a) Limitation.--After the date of enactment of this Act, the
Federal Communications Commission shall not establish, expand, or
otherwise modify requirements relating to the service obligations of
noncommercial educational radio or television stations except by means
of agency rulemaking conducted in accordance with chapter 5 of title 5,
United States Code, and other applicable law (including the amendments
made by section 3).
(b) Rulemaking Deadline.--The Federal Communications Commission
shall prescribe such revisions to its regulations as may be necessary
to comply with the amendment made by section 3 within 270 days after
the date of enactment of this Act.
Purpose and Summary
The purpose of H.R. 4201, the Noncommercial Broadcasting
Freedom of Expression Act of 2000, is to ensure that the
Federal Communications Commission (FCC) does not engage in
regulating the content of speech broadcast by noncommercial
educational stations, except by means of a formal agency
rulemaking.
Background and Need for Legislation
Since 1952, the FCC has reserved a limited number of
television channels for educational broadcasters, known as Non-
Commercial Educational channels (NCEs). Under Commission rules
(47 CFR Sec. 73.621(a)), applicants seeking to use NCE-reserved
television channels are required to demonstrate that their
programming will be ``primarily educational'' in nature and
thus serve the educational purpose for which the channel was
reserved. While many religious broadcasters hold traditional
commercial broadcast licenses, some religious broadcasters have
requested that they be certified as NCE-TV broadcasters and
thereby, become subject to the standards of an NCE television
station.
On December 29, 1999, the FCC issued a memorandum opinion
and order in the WQED Pittsburgh decision (FCC 99-393)
approving the application for an assignment of a license.
However, this order included a section entitled ``additional
guidance'' regarding noncommercial educational broadcasting.
This additional guidance essentially attempted to impose
content-based programming requirements on noncommercial
educational television broadcasters in three ways.
First, it quantified the obligations of noncommercial
licensees to ``primarily serve the educational needs of the
community'' by requiring that more than half of the hours of
programming aired on a reserve channel must primarily serve an
educational, instructional or cultural purpose in the station's
community of license.'' Second, the ``additional guidance''
concluded that ``a program must have as its primary purpose
service to the educational, instructional or cultural needs of
the community'' in order to be counted toward this new
benchmark. Third, it singled out religious programming and
essentially distinguished between programming that teaches
about religion (which would count toward the new benchmark) and
programming ``devoted to religious exhortation, proselytizing,
or statements of personally-held religious views and beliefs''
which would generally not qualify. The memorandum opinion and
order explicitly found that church services do not serve the
educational and cultural needs of the general public.
Controversy soon arose from many religious broadcasters
about the policy implications of this additional guidance
section, as well as about the process by which it was announced
by the Commission. Critics, including several newspaper
editorial boards across the country, questioned the FCC's
judgment in the decision. Congressional pressure increased,
including the introduction of H.R. 3525, the Religious
Broadcasting Freedom Act, with 59 original co-sponsors, which
set aside the FCC's Order. On January 28, 2000, the Commission
issued an order vacating the ``additional guidance'' section on
the original decision.
However, questions remained as to whether the FCC's
December 29th order was instituting new policy, or simply a
clarification of previous policy that had been implemented in
the past. Members continued to insist that, if the December
order was only a clarification of previous policy, then
vacating that clarification would not solve theunderlying
problem with the Commission's interpretation of the law. H.R. 4201, the
Noncommercial Broadcasting Freedom of Expression Act of 2000 seeks to
answer these policy questions in order to avoid future confusion
regarding the policy.
Hearings
The Subcommittee on Telecommunications, Trade and Consumer
Protection held a hearing on H.R. 4201, the Noncommercial
Broadcasting Freedom of Expression Act of 2000 on April 13,
2000. The Subcommittee received testimony from: Mr. Mark
Dreistadt, Vice President of Administration and Finance,
Cornerstone Television; The Honorable Harold Furchtgott-Roth,
Commissioner, Federal Communications Commission; Mr. E. Brandt
Gustavson, L.L.D., President, National Religious Broadcasters;
The Honorable Gloria Tristani, Commissioner, Federal
Communications Commission; and Mr. Don Wildmon, President,
American Family Association.
Committee Consideration
On May 10, 2000, the Subcommittee on Telecommunications,
Trade and Consumer Protection met in open markup session and
approved H.R. 4201, the Noncommercial Broadcasting Freedom of
Expression Act of 2000 for Full Committee consideration, as
amended by a record vote of 11 yeas and 5 nays. On May 17, the
Full Committee met in open markup session and ordered H.R. 4201
reported, with an amendment, by a voice vote.
Committee Votes
Clause 3(b) of Rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were no record votes taken in connection with ordering
H.R. 4201 reported. A motion by Mr. Bliley to order H.R. 4201
reported to the House, without amendment, was agreed to by a
voice vote.
The following amendments were agreed to by a voice vote:
An amendment by Mr. Oxley, #2, clarifying that the
requirements for non-commercial educational licensees
under section 396 of the Communications Act of 1934 (47
U.S.C. Sec. 396) are not affected by H.R. 4201; and,
An amendment by Mr. Oxley, #3, requiring an
independent biennial audit of public broadcasting
stations' compliance with the donor privacy protections
set forth in section 396(k)(12) of the Communications
Act of 1934 (47 U.S.C. Sec. 396(k)).
The following amendment was not agreed to by a record vote
of 14 yeas and 23 nays. The names of Members voting for and
against follow:
An amendment by Mr. Markey, #1, allowing only
nonprofit educational organizations eligibility to hold
noncommercial licenses and establishing the principle
that broadcast material must serve an educational,
instructional, cultural or educational religious
purpose in the station's community of license.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held a legislative
hearing and made findings that are reflected in this report.
Committee on Government Reform Oversight Findings
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, no oversight findings have been
submitted to the Committee by the Committee on Government
Reform.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
4201, the Noncommercial Broadcasting Freedom of Expression Act
of 2000, would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 25, 2000.
Hon. Tom Bliley,
Chairman, Committee on Commerce, House of Representatives, Washington,
DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4201, the
Noncommercial Broadcasting Freedom of Expression Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Kathleen
Gramp.
Sincerely,
Barry B. Anderson,
(For Dan L. Crippen, Director).
Enclosure.
H.R. 4201--Noncommercial Broadcasting Freedom of Expression Act of 2000
H.R. 4201 would limit the Federal Communications
Commission's (FCC's) authority to regulate the content of
noncommercial educational broadcast services. For example, the
commission could not require such stations to broadcast a
minimum number of hours of educational or similar programming.
Likewise, it could not set standards for the content of
noncommercial broadcasts that differ from the standards
applicable to commercial stations. (The bill would affirm,
however, that such stations must continue to comply with
statutory restrictions regarding advertising, political
editorials, and children's television programming.) Finally,
H.R. 4201 would require that the biannual audits of the
Corporation for Public Broadcasting include reports on its
compliance with statutory restrictions on disclosing the
identity of contributors and donors.
Based on information from the FCC, CBO estimates that
implementing this bill would have no significant effect on the
commission's workload or its discretionary spending. For
purposes of this estimate, CBO assumes that the legislation
would have little, if any, effect on the number of applications
for new noncommercial stations. Hence, we estimate that
enacting H.R. 4201 would have no significant effect on
offsetting receipts from the FCC's auction of spectrum
licenses. Because the bill could affect direct spending, pay-
as-you-go procedures would apply, but CBO estimates that any
such effects would be negligible.
H.R. 4201 contains no intergovernmental or private-sector
mandates as defined in the Unfunded mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact is Kathleen Gramp. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short Title
This section provides the short title of the legislation,
the ``Noncommercial Broadcasting Freedom of Expression Act of
2000.''
Section 2. Findings
Section 2 sets forth certain findings.
Section 3. Clarification of Service Obligations of Noncommercial
Educational or Public Broadcast Stations
Section 3(a)(1) amends section 309 of the Communications
Act of 1934 (47 U.S.C. Sec. 309) by adding a new subsection
(m). This new subsection establishes the eligibility
requirements for nonprofit organizations to hold noncommercial
radio or television licenses. Under this section, these
licenses must be used to primarily broadcast material that the
organization determines serves an educational, instructional,
cultural or religious purpose in the station's community of
license. This new section also mandates that such determination
by the broadcaster may not be arbitrary or unreasonable. The
Committee does not intend to favor material with religious
purposes over any other type of educational, instructional or
cultural programming, but rather to allow religious content as
one type of acceptable material for broadcast for noncommercial
stations.
Section 3(a)(2) provides that the FCC is prohibited from
establishing additional content-based requirements on
noncommercial educational radio or television licenses. These
requirements include, but are not necessarily limited to:
quantitative requirements on the number of hours of programming
that serves educational, instructional, cultural or religious
purposes; or, any other requirements on a noncommercial
educational radio or television licensee, permittee, or
applicant that is not imposed or enforced on a commercial radio
or television licensee, permittee or applicant.
Section 3(a)(3) clarifies that nothing in subsection (a) is
to be construed as affecting any obligation of noncommercial
educational television broadcast stations under the Children's
Television Act of 1990 (47 U.S.C. Sec. Sec. 303A, 303B) or the
requirements of sections 396, 399, 399A, and 399B of the
Communications Act of 1934 (47 U.S.C. Sec. Sec. 396, 399, 399A,
399B). The Committee intends to make clear with this subsection
that the requirements for the Corporation for Public
Broadcasting, particularly; the biennial audit by independent
certified public accountants, the prescribed accounting records
will not be affected in any way. Furthermore, the Committee
intends to ensure that the noncommercial educational
broadcasting rules for supporting or opposing political
candidates, and the underwriting/advertising activities also
are not affected by this subsection. Furthermore, the Committee
does not intend the displacement of any existing public
broadcast station from their current spectrum allocation
following enactment of this legislation.
Section 3(b)amends section 312(a)(7) of the Communications
Act of 1934 (47 U.S.C. Sec. 312(a)(7)) by clarifying that a
noncommercial educational broadcast station may not have its
license revoked for failure to allow reasonable amounts of time
to candidates for Federal elective offices. Because commercial
stations are subject to such rules, the Committee intends to
make statutorily clear that noncommercial educational stations,
are not included as well.
Section 3(c) amends section 396(l)(3)(B)(iii) of the
Communications Act of 1934 (47 U.S.C., Sec. 396(l)(3)(B)(iii))
to include in the biennial audits of the Corporation for Public
Broadcasting by independent accountants, a determination of
compliance with the donor privacy protection requirements, laid
out in section 396(k)(12) (47 U.S.C., Sec. 396(k)(12)). The
donor privacy protection requirements set forth that public
broadcasting entities that disclose contributor or donor names
must inform the donor that personal information may be
disclosed to a third party, give the donor the opportunity to
opt out of such a disclosure before the fact, and explain how
the donor may exercise that nondisclosure option. The
requirements further prohibit any public broadcaster from
renting or exchanging donor names to any political candidate,
party or committee. The Committee intends that biennial audits
of public broadcasters include a determination of compliance
with these requirements, in addition to the other areas of
auditor review.
Section 3(d) directs the FCC to amend sections 73.1930
through 73.1944 of its rules (47 CFR 73.1930-73.1944) to
provide that those sections do not apply to noncommercial
educational broadcast stations.
Section 4. Rulemaking
Section 4 establishes that the FCC may not modify any
requirements to the service obligations of noncommercial
educational radio or television stations without conducting a
formal rulemaking. Section 4 further prescribes that the FCC
make the necessary revisions to its regulations, in order to
comply with section 3 within 270 days after the date of
enactment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
COMMUNICATIONS ACT OF 1934
* * * * * * *
TITLE III--PROVISIONS RELATING TO RADIO
PART I--GENERAL PROVISIONS
* * * * * * *
SEC. 309. ACTION UPON APPLICATIONS; FORM OF AND CONDITIONS ATTACHED TO
LICENSES.
(a) * * *
* * * * * * *
(m) Service Conditions on Noncommercial Educational and
Public Broadcast Stations.--
(1) In general.--A nonprofit organization shall be
eligible to hold a noncommercial educational radio or
television license if the station is used primarily to
broadcast material that the organization determines
serves an educational, instructional, cultural, or
religious purpose (or any combination of such purposes)
in the station's community of license, unless that
determination is arbitrary or unreasonable.
(2) Additional content-based requirements
prohibited.--The Commission shall not--
(A) impose or enforce any quantitative
requirement on noncommercial educational radio
or television licenses based on the number of
hours of programming that serve educational,
instructional, cultural, or religious purposes;
or
(B) impose or enforce any other requirement
on the content of the programming broadcast by
a licensee, permittee, or applicant for a
noncommercial educational radio or television
license that is not imposed and enforced on a
licensee, permittee, or applicant for a
commercial radio or television license,
respectively.
(3) Rules of construction.--Nothing in this
subsection shall be construed as affecting--
(A) any obligation of noncommercial
educational television broadcast stations under
the Children's Television Act of 1990 (47
U.S.C. 303a, 303b); or
(B) the requirements of section 396, 399,
399A, and 399B of this Act.
* * * * * * *
SEC. 312. ADMINISTRATIVE SANCTIONS.
(a) The Commission may revoke any station license or
construction permit--
(1) * * *
* * * * * * *
(7) for willful or repeated failure to allow
reasonable access to or to permit purchase of
reasonable amounts of time for the use of a
broadcasting station, other than a noncommercial
educational broadcast station, by a legally qualified
candidate for Federal elective office on behalf of his
candidacy.
* * * * * * *
PART IV--ASSISTANCE FOR PUBLIC TELECOMMUNICATIONS FACILITIES;
TELECOMMUNICATIONS DEMONSTRATIONS; CORPORATION FOR PUBLIC BROADCASTING
* * * * * * *
Subpart D--Corporation for Public Broadcasting
SEC. 396. DECLARATION OF POLICY.
(a) * * *
* * * * * * *
(l)(1) * * *
* * * * * * *
(3)(A)
* * * * * * *
(B) Each public telecommunications entity receiving funds
under this subpart shall be required--
(i) * * *
(ii)(I) to undergo a biennial audit by independent
certified public accountants or independent licensed
public accountants certified or licensed by a
regulatory authority of a State, which audit shall be
in accordance with auditing standards developed by the
Corporation, in consultation with the Comptroller
General, and shall include a determination of the
compliance of the entity with the requirements of
subsection (k)(12); or
(II) to submit a financial statement in lieu of the
audit required by subclause (I) if the Corporation
determines that the cost burden of such audit on such
entity is excessive in light of the financial condition
of such entity, except that such statement shall
include a statement regarding the extent of the
compliance of the entity with the requirements of
subsection (k)(12); and
(iii) * * *
* * * * * * *
MINORITY VIEWS
H.R. 4201, the ``Noncommercial Broadcasting Freedom of
Expression Act,'' purports to correct an unwise decision made
by the Federal Communications Commission last year.
Unfortunately, the bill itself is controversial, has not been
constructed in a bipartisan fashion, and, we believe, takes
precisely the wrong approach to dealing with a serious and
difficult issue.
In December 1999, the FCC assigned a noncommercial
educational broadcast license to a religious programmer, which
was, by itself, entirely proper under existing rules. However,
the Commission blundered badly when it supplemented its Order
with what it called ``additional guidance'' on what kind of
religious programming would be considered by the government to
be educational in nature. As one would expect, the agency was
attacked from both sides of the political spectrum for
injecting itself into the business of evaluating program
content.
The Commission's decision was imprudent at best. But,
unlike some other notable FCC foul-ups, the agency admitted its
error and did something about it. Less than one month after
issuing its ``additional guidance,'' the Commission officially
rescinded that portion of its Order. It would seem that a
reasonable response by this Committee would be to declare
victory and move on to address other matters important to the
people.
But this Committee has developed a penchant for fixing
problems that do not exist. Just this week, the House passed a
Commerce Committee bill dealing with Internet access charges
that can only be described as ``virtual legislation.'' Kafka
himself could only appreciate the manner in which the House
fabricated a solution--to an imaginary problem--that was
created by a make-believe Congressman. And now, just days
later, we address yet another non-existent problem--one that
was completely mooted back in January when the FCC repealed its
controversial Order.
There is, however, an important distinction to be drawn
between these two bills. The Internet bill was completely
innocuous. While it was entirely unnecessary, it caused no
direct or collateral damage, and the minority was able to
support it. On the other hand, the bill before us today is ill-
conceived, poorly vetted, and poses a dangerous threat to the
future of noncommercial educational broadcasting in this
country.
Regrettably, the majority refused to accept a perfecting
amendment, offered by Mr. Markey, that simply would have
clarified that the primary purpose of a ``noncommercial
educational license'' is to provide educational programming.
This important amendment was voted down along party lines.
The Markey amendment was a simple, but significant,
clarification. Without this correction, the fundamental nature
of public broadcasting is drastically changed. No longer will
the availability of these specially reserved licenses be
limited to nonprofit groups with an educational mission. This
bill would allow any cult group in America to qualify for a
free broadcast license--at the expense of the American
taxpayer--and program anything that it sees fit, whether
educational or not.
In fact, under the rubric proposed here, Jim Jones would
have been eligible for a public broadcasting license simply by
asserting a primarily religious purpose. David Koresh could
have received this special license to broadcast his doomsday
prophecies. The Heaven's Gate cult could have extended its
reach significantly if it had been armed with a public
broadcasting license in the State of California.
This legislation makes clear that the majority intends to
change the fundamental character of public broadcasting in
America. No longer will these special channels be required to
carry educational material. Any license applicant that regards
his or her programming to be ``religious'' in nature--whether
it contains an educational component or not--now will be
eligible for a free public television channel.
Moreover, the bill suffers from a multitude of infirmities
and inconsistencies. It contains no definition of ``nonprofit
organization'' or ``religious broadcasting'' to assist in
determining who is eligible to receive this special licensee
status. The practical effect of these omissions is to extend
the eligibility for a public broadcasting station to a sweeping
new class of broadcast applicants, many of whom may not be
operating in the public interest of their community of license.
The bill contains absolutely no criteria or guidance for
the government, i.e., the FCC, to select a licensee from among
competing applicants. While the majority ostensibly seeks to
prevent the FCC from ever discriminating against a license
applicant on the basis of the religious nature of its
programming, it may be forcing precisely that result.
Since the longstanding educational programming requirement
has been eviscerated by this bill, an applicant now would be
eligible on the basis that it intends to broadcast 100%
religious programming. Ironically, if two (or more) religious
broadcasters are vying for a single license, the FCC now may be
forced to choose between them based solely on the nature of the
religious content.
The government should not be in the position of conferring
any special status to one religious broadcaster over another,
but that is just what this bill requires. It is clearly an
unconstitutional encroachment on the establishment clause of
the First Amendment, but the majority insists that it be rushed
through the legislative process apparently with little regard
for that important matter. In our view, this kind of
legislating simply tarnishes the reputation of this great
institution, and serves none of us well.
Although we may fundamentally disagree on the underlying
need for this legislation, it is unfortunate that the majority
refused to work with us in any way to produce a compromise
product--one that could have addressed the majority's concerns
while protecting the integrity of the broadcast spectrum,
maintaining a cohesive telecommunications policy, and, above
all, honoring the Constitution.
John D. Dingell.
Ed Markey.
Frank Pallone, Jr.
Lois Capps.
Ron Klink.
Eliot L. Engel.
Tom Sawyer.
Karen McCarthy.
Diana DeGette.
Anna G. Eshoo.
Sherrod Brown.