Excerpt from the FCC's opinion regarding religious broadcasting.
Re: In re Applications of WQED Pittsburgh (Assignor) and Cornerstone Television, Inc. (Assignee) For Consent to the Assignment of License of Noncommercial Educational Station WQEX(TV), Channel 16, Pittsburgh, Pennsylvania.
Date decided: December 15, 1999.
Date released: December 29, 1999.
Source: FCC. The complete order in MS Word format is in the FCC web site.

COMPLIANCE WITH SECTION 73.621(A) – ADDITIONAL GUIDANCE

43.  We have now been faced squarely with the difficult balance between maintaining the educational nature of the reserved allocations and the First Amendment rights of  broadcasters on this band. We believe that it would be advisable to give this licensee, other potential applicants and licensees, as well as the Commission and its staff, additional guidance regarding the review of programs or programming proposals for the reserved NCETV channels.  In order to comply with the requirement that a NCETV station “be used primarily to serve the educational needs of the community,” we now clarify that this requirement is two-fold.  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. We “will defer to the judgment of the broadcaster unless” the broadcaster’s “categorization appears to be arbitrary or unreasonable.”[78]  Additionally, the overall context of the broadcast is important to evaluating the reasonableness of the judgment of the broadcaster.

44.  In assessing whether a program has as its primary purpose service to the educational, instructional or cultural needs of the community, “we will not disqualify any program simply because the subject matter of the teaching or instruction is religious in nature.”[79] We do not believe that the discussion of religious matters during a program that has as its primary purpose service to the educational, instructional or cultural needs of the broader community disqualifies the program from being a “general educational” program under Section 73.621. [80]  Conversely, however, 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.[81]  We reiterate that the reserved television channels are intended “to serve the educational and cultural broadcast needs of the entire community to which they are assigned,”[82] and to be “responsive to the overall public as opposed to the sway of particular political, economic, social or religious interests.” [83]

45.  Other Programming Related Matters. Stations operating on reserved channels are also required to provide a noncommercial service.  Alliance contends that Cornerstone intends to air commercial programming on Channel *16 in contravention of Section 399B of the Communications Act, and also to engage in prohibited fundraising.  In support, Alliance points to Cornerstone's proposal to retain most of its present programming and gives examples of programs aired on WPCB-TV in 1997 which would not meet the Commission's requirements for operation on a reserved noncommercial channel.  In its March 27, 1998 letter, the staff requested that Cornerstone review the programming it presently proposes to air on Channel *16, and, with respect to those programs which presently would not comply with the Commission's advertising and fund-raising restrictions on noncommercial, educational stations, to explain what steps it will take to monitor and adjust those programs to comply with the rules.  In response, Cornerstone states that it has undertaken a comprehensive program to ensure compliance with noncommercial educational rules and policies upon commencing operations on Channel *16, and detailed a number of steps it had taken to ensure its compliance with Section 399B in the event it is permitted to operate on Channel *16.[84]  Accordingly, based upon the information we have before us at present,  we see no reason for further inquiry into Cornerstone's commitment to operate Channel *16 in full compliance with the applicable rules and policies for noncommercial operations.

46.  Alliance also raises a number of other issues relating to Cornerstone's present operation of WPCB-TV, and its compliance with the Commission's general programming policies.  We have considered Alliance's arguments and conclude that it has failed to raise a substantial and material question of fact as to Cornerstone's qualifications to assign the license of WPCB-TV.  See Jefferson Radio v. FCC, 340 F.2d at 783.

47.  Alliance complains that Cornerstone's programming "promotes the adoption of a belief based on its own brand of evangelical Christianity," and that the alleged ideological nature of Cornerstone's programming raises an issue as to whether Cornerstone "is likely to give a fair break to others who do not share them."  In support of its assertion that Cornerstone's programming is unbalanced, Alliance refers to a number of programs aired on WPCB-TV which express views with which Alliance apparently disagrees.[85]  In response, Cornerstone asserts that its programming represents a wide variety of theological perspectives, including Sunday broadcasts of "traditional church services covering the spectrum of Christian denominations," and that it has adequately responded to community issues in the past.

48.  To the extent that Alliance alleges that Cornerstone has failed to meet its public interest obligations to present programming which is responsive to the needs and interests of its community of license, Commercial TV Stations, 98 FCC 2d 1075, 1091-92 (1984), thereby calling into question whether it can be expected to meet its public interest obligations as the licensee of Channel *16, we find that it has failed to make a prima facie case.  The Commission has granted licensees broad discretion to choose, in good faith, which issues are of concern to the community and to choose the types of programming to address those issues.  The Commission will defer to the broadcaster's judgment regarding its issue-responsive programming absent a showing that "the broadcaster was unreasonable or discriminatory in its selection of issues or that the licensee has offered such nominal levels of responsive programming as to have effectively defaulted on its obligation to contribute to the discussion of issues facing its community." License Renewal Applications of Certain Commercial Television Stations Serving Philadelphia, Pennsylvania, 5 FCC Rcd 3847, 3848 (1990).  While Alliance submitted affidavits from a few individuals who viewed several hours of programming on WPCB-TV and were critical of the content of the programs, we find these affidavits insufficient to support an allegation that Cornerstone "has offered such nominal levels of responsive programming as to have effectively defaulted on its obligation to contribute to the discussion of issues facing its community."  Id.

49.  We also conclude that Alliance has failed to raise a prima facie case that Cornerstone has been "unreasonable or discriminatory in its selection of issues," Philadelphia Renewal Applications, 5 FCC Rcd at 3848, or used WPCB-TV to "exercise[] for [its] own private interests in a grossly partial, discriminatory or unfair manner." WBNX Broadcasting Co., 12 FCC 837, 841 (1948).  With respect to Alliance's complaint that some of Cornerstone's programming included disparaging comments regarding certain religious adherents and other groups, these expressions of views, although clearly offensive to some viewers, do not rise to the level of repeated irresponsible, defamatory or discriminatory conduct which would warrant an inquiry into whether Cornerstone can be relied upon to administer fairly its responsibilities as a licensee.  We emphasize again, however, that noncommercial educational television licensees are expected to provide "a service that is responsive to the overall public as opposed to the sway of particular political, economic, social or religious interests."  Noncommercial Nature of Educational Broadcast Stations, 90 FCC 2d at 900.

50.  Similarly, in support of its contention that Cornerstone's proposed programming does not meet the educational needs of the Pittsburgh community, Alliance submitted affidavits from area educators who were critical of Cornerstone's programming.  For example, two local professors viewed an hour-long documentary aired on WPCB-TV on April 26, 1997 regarding issues affecting American public schools, and opined that the program had little or no educational value, describing the program as "extremist," "radically unbalanced," and presenting "misinformation as if it were accepted knowledge."[86] A professor at the University of Pittsburgh with extensive involvement in AIDS research and prevention efforts, and the Associate Director of the Pittsburgh AIDS Task Force, viewed an hour-long program aired on April 27, 1997, and concluded that the program presented a "distorted view" of AIDS Service Organizations, presented statements and opinions that were "inflammatory and false," and sought to undermine HIV prevention efforts by discouraging viewers from taking advantage of HIV educational efforts.  The Commission, however, "has long held that its function is not to judge the merit, wisdom or accuracy of any broadcast discussion or commentary," finding that "[a]ny other position would stifle discussion and destroy broadcasting as a medium of free speech." Anti-Defamation League of B'nai B'rith, 4 FCC 2d 190, 191-92 (1966), aff'd, Anti-Defamation League of B'nai B'rith v. FCC, 403 F.2d 169 (D.C. Cir. 1968), cert. denied, 394 U.S. 930 (1969).  Instead, "[i]t is the role of the public, critics, and students of the mass media, either to comment or to be critical with regard to [a broadcaster's coverage of issues.]"  Democratic National Convention Television Coverage, 16 FCC 2d 650, 658 (1969).  Accordingly, we encourage viewers to make their views regarding programming matters known to Cornerstone's Board and management.

51.  Cornerstone's Board of Directors.  Noncommercial television applicants which are non-profit organizations, such as Cornerstone, must submit "evidence that officers, directors and members of the governing board are broadly representative of the educational, cultural and civic groups in the community." (FCC Form 340, Section II, Paragraph 11(a)).  Prior to the filing of the assignment application, Cornerstone's Board of Directors was comprised of Reverend R. Russell Bixler and Oleen Eagle, who had served continuously as directors and chief officers since 1978, when Cornerstone acquired the WPCB-TV construction permit, Reverend Mitchel Nickols, who had served on the Board since 1989, Linford S. MacDonald, a director since 1992, and Reverend Gary Tustin.  The remaining officers of Cornerstone were also long-time employees of the company:  David Skeba, Vice President-Programming and Mrs. Eagle's nephew, had been employed full-time since 1979, and Blake A. Richert, Vice President-Engineering, had been employed since 1983.[87]  While Cornerstone named three new directors to its Board the month preceding the filing of the assignment application,[88] based upon the information provided in the assignment application, the staff could not reach a determination as to whether Cornerstone's Board was sufficiently representative.[89] Accordingly, the staff gave Cornerstone the opportunity to provide additional information regarding the steps it had taken, and further steps it intended to take, to ensure that its Board and management were broadly representative of the educational, cultural and civic groups in the Pittsburgh community.

52.  Cornerstone amended its application on April 27, 1998, to provide further information regarding its directors and the organizations with which they are affiliated.  Cornerstone also stated that it had hired a Station Manager, whose responsibilities include "the creation and oversight of the station's participation in cultural and educational activities . . . and for the administration of a Community Advisory Board for Channel *16" which "will be made up of individuals from the Channel *16 coverage area from these categories:  Civic, Cultural (Ethnic), Cultural (Arts), Business, Senior Citizens, Youth, Service Organizations, Local Education, Media and Labor."  Cornerstone filed a second amendment to the assignment application on June 12, 1998, to report that two additional board members -- William F. Roemer and William W. Pendleton, Sr. -- have agreed to join Cornerstone's board should Cornerstone become the licensee of Channel *16.

53.  We have reviewed all of the materials and conclude that Cornerstone's Board of Directors and management are sufficiently representative of the Pittsburgh community.  With the exception of the Reverends Tustin and Simmons,[90] the remaining ten officers and directors reside in the Pittsburgh area.  Mr. Roemer is Chairman of the National City Bank of Pennsylvania, a Governing Board member of the United Way of Allegheny County, Pittsburgh 2000 and the Coalition for Christian Outreach, and the President of the Board of Trustees for the Episcopal Diocese of Pittsburgh.  He is also a former director of the Pittsburgh Branch of the Federal Reserve Bank of Cleveland, the Pittsburgh Symphony and the Allegheny Trails Council of the Boy Scouts of America.  Mr. Pendleton, a former member of the Pennsylvania House of Representatives representing Pittsburgh and Allegheny County, is on the Board of Directors of Grove City College, the Pittsburgh Advisory Economic Development Committee, Forbes Hospital HMO, Ronald McDonald Charities, and the Saltworks Theatre Company in Pittsburgh.  He is also a member of the NAACP and Urban League, and serves on advisory boards to the Pittsburgh Board of Education and Catholic Diocese.  Dr. Kofmehl, who received a Ph.D. in Education from the University of Pittsburgh, is the Chairman of the Board of Directors of the Lutheran Service Society of Western Pennsylvania, and the Executive Director of the Allegheny County Literacy Council/Christian Literacy Associates, an organization that trains volunteer tutors and provides literacy programs in the United States and overseas.  He is also on the faculty of local community colleges, supervises student teachers at Pittsburgh inner-city schools, and was a member of a local school board for a number of years.  Reverend Nickols, who also received a Ph.D. in Education from the University of Pittsburgh, is the Founder and Pastor of Bibleway Christian Fellowship, Inc., a church in a Pittsburgh suburb, and serves as a member of the Citizen's Advisory Committee and Human Relations Committee of the Highlands School District, and of the Council of Graduate Students in Education at the University of Pittsburgh.  He also teaches courses in African-American History, Philosophy and Religions of the World at Allegheny Community College, is a regular speaker at area schools regarding "valuing diversity," and is a member of various professional educational organizations, the League of Voter Education, and the NAACP.  While the remaining officers and directors are somewhat less involved with local organizations,[91] we believe, on balance, that Cornerstone has adequately demonstrated that its Board and management are representative of the community.

54.  Alliance complains that various segments of the community are not presently represented on Cornerstone's Board.  It also acknowledges, however, that "no one group is entitled to representation."  Here, Cornerstone's Board includes representatives of the business community, local government (through membership on boards of education and various advisory committees), religious organizations (including two religious Dioceses in Pittsburgh), a health care organization, various charitable organizations, institutions of higher education, numerous professional organizations, and organizations committed to the interests of minorities (NAACP and Urban League).[92]  In this regard, it is also important to recognize that Cornerstone has operated on a nonreserved channel allocated to Greensburg for more than twenty years, during which time it was not required to have a board broadly representative of a major city.  Moreover, Cornerstone has begun taking the necessary steps towards converting from a commercial to a noncommercial educational operation, including expanding its Board to add five new directors, hiring a station manager responsible for community and cultural outreach, and committing to form a broadly representative CAB to provide general input into the station regarding programming.[93]  In the event that Cornerstone becomes the licensee of Channel *16 at Pittsburgh, we fully expect that it will continue to broaden the representative nature of its Board of Directors and management over the course of its operation on Channel *16, consistent with its obligations as a noncommercial educational licensee in a community as large and diverse as Pittsburgh.

55. Cornerstone's Qualifications as an Educational Organization With an Educational Purpose.  Noncommercial educational broadcast stations will be licensed only to "nonprofit educational organizations upon a showing that the proposed stations will be used primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a nonprofit and noncommercial television broadcast service."  47 C.F.R. § 73.621(a).  Until immediately prior to the filing of the above-referenced assignment application, Cornerstone's Articles of Incorporation stated that it was organized as a "religious corporation for the purpose of bringing glory to Almighty God . . . [and] the promulgation of the Gospel of Jesus Christ and the truths of the Holy Bible by whatever means possible," and required that the corporation's authorized business "shall be exclusively for religious purposes, in furtherance thereof, and for no other purpose."  While Cornerstone amended its Articles in May 1997, to change its designation from a "religious corporation" to a corporation "organized exclusively for religious, charitable, educational and distinct ecclesiastical purposes," and to expand the permitted purposes of the corporation to include education, based on the totality of the record before it, the staff was unable to determine to what extent Cornerstone intended to pursue its largely unidentified educational purposes on reserved Channel *16.[94]  Accordingly, the staff requested further information regarding Cornerstone's specific educational goals and its commitment to the advancement of an educational program, in accordance with Section 73.621 of the rules.

56.  In its April 1998 amendment, Cornerstone more fully described its educational objectives and program to include, inter alia:  (1)  advancing an overall educational program schedule to teach basic moral and ethical principles derived from Judeo-Christian ethics, as set forth in the Bible; (2) providing programming that instructs in everyday activities of life, such as exercise, gardening, home remodeling, cooking, computers, personal finance, health and nutrition; (3) providing programming to meet the educational and informational needs of children and teenagers; (4) offering college course credit programming and related correspondence courses; (5) providing an educational program series on basic adult literacy for the community at large; (6) providing entertaining educational programming with a moral and ethical emphasis which utilizes and fosters an appreciation for the arts, music and history; and (7) providing public affairs programming, including local programming, to meet the needs and interests of the community.  Based upon the foregoing, we believe that Cornerstone has now adequately articulated specific educational programs and goals.

Footnotes

[78]  Way of the Cross, 102 FCC 2d at 1372 n.8, citing Guidelines, 43 Fed. Reg. at 30844-45.

[79]  Id.

[80]  Examples would include 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.  In this regard, we agree with Cornerstone that if we conclude that a program “parsing the language and meaning of the literature of Shakespeare is ‘educational,’ then a program parsing the language and meaning of the Bible” also similarly can be “educational.”  See April 27, 1998 Reply Pleading, at 10.  As the Commission stated in Way of the Cross, while “not all religious programs are educational in nature, it is clear that those programs which involve the teaching of matters related to religion would qualify.”  Id.

[81]  Thus, church services generally will not qualify as “general educational” programming under our rules.  However, a church service which is part of an historic event, such as the funeral of a national leader, would qualify if its primary purpose is serving the educational, instructional or cultural needs of the entire community.

[82]  Fostering Expanded Use of the UHF Television Channels, 2 FCC 2d at 542 (emphasis supplied.)

[83]  Noncommercial Nature of Educational Broadcast Stations, 90 FCC 2d 895, 900 (1982).  As Cornerstone recognizes, it is obligated to comply with Section 73.621.  Cornerstone also will be obligated to comply with any clarifications to Section 73.621(a), including those provided in this decision.  If Cornerstone’s operation of a NCETV station is shown to violate Section 73.621 after programming is actually broadcast on Channel *16 by Cornerstone, the Commission can take appropriate action at that time.

[84]  For example, Cornerstone states that it has hired a station manager whose basic duty is to ensure that Cornerstone complies with the noncommercial educational rules and policies, that staff members have attended briefing sessions on these rules and policies, and that it has undertaken a review of its program-related documents and agreements to ensure that all programs aired on Channel *16 comply with Section 399B of the Communications Act and applicable rules and policies.

[85] Examples include programs in which the Unitarian Church is identified as a "cult," the Church of Latter Day Saints is described as the cause of serious social problems in Utah, and adherents of Hinduism are referred to as part of "the Kingdom of the enemy."  Alliance also submits affidavits from several Pittsburgh scholars, alleging, inter alia, that Cornerstone's programming includes "attacks on other segments of the community, including homosexuals and non-Christian faiths," is offensive to Jews, and fails to address problems and concerns of the African-American community.

[86]  One of the educators stated that in his opinion, this program was "propaganda" and "would have been more appropriately presented as a 'paid political message.'"  As a commercial licensee, Cornerstone is not prohibited from accepting and airing paid political programs.  Noncommercial educational licensees, however, may not broadcast "any message or other programming material . . . in exchange for any remuneration, and which is intended . . . to express the views of any person with respect to any matter of public importance or interest; or to support or oppose any candidate for public office."  47 U.S.C. § 399B.

[87]  The only information provided about Dolores Richert, the Secretary of the corporation, is that she is married to Blake Richert.

[88]  Richard Simmons, William E. Kofmehl and Michelle D. Agatston replaced Mr. MacDonald, who was named a member of Cornerstone's Advisory Board.

[89]  For example, few of the directors appeared to be affiliated with secular organizations in the Pittsburgh area, nor did it appear that the Board included representatives from local civic organizations, local government, cultural institutions or organizations, local universities or boards of education, professional groups, labor organizations, environmental or recreational groups, or organizations dedicated to the needs and interests of various segments of the Pittsburgh community, including senior citizens, the disabled, women, children, minorities and ethnic groups.

[90]  Reverend Tustin resides within the service area of WKBS-TV, Channel 47, Altoona, Pennsylvania, which is licensed to Cornerstone, and has no involvement with Pittsburgh area organizations.  Reverend Simmons resides in Washington, D.C. and his involvement with Pittsburgh organizations has been minimal.

[91]  Ms. Agatston oversees a day care center for an area church, is a member of the Pittsburgh 2000 Women's Steering Committee and Hosanna House Advisory Committee, and is said to be active in the African-American community.  Mrs. Eagle is a member of several area chambers of commerce and the Pittsburgh Steering Committee for the March for Jesus, and also is involved with international ministry projects.  Reverend Bixler, Mr. Skeba, and Mr. and Mrs. Richert apparently have no present formal involvement with any local organizations.

[92]  With respect to other areas, such as the arts, organized labor, and the specialized needs of children and the elderly, Cornerstone has promised that representatives of these interests, as well as other interests in the community, will be invited to participate in the station's community advisory committee.

[93]  While the make-up of an advisory board is not considered in determining if the board of directors and management of a noncommercial educational applicant is broadly representative, the Commission recognizes that the existence of an advisory board is indicative that the station is responsive to local needs and interests.

[94]  The staff noted that the fact that an applicant's Articles of Incorporation may "permit ‘charitable, educational, religious and scientific’ activities tells us nothing as to which of these activities will, in fact, be pursued, and to what degree," and thus, standing alone, does not establish an applicant's qualifications as an educational organization.  See Way of the Cross, 101 FCC 2d at 1375.  Moreover, while Cornerstone stated in the application that it would fulfill an educational purpose "by operating Channel *16 as a noncommercial educational station that values education of children, teens, and adults on moral, ethical and community issues through lifelong learning and through the teaching of matters related to religion and practical Christian living," the staff did not consider this general statement sufficient to document a specific educational purpose or program.