Concurring Statement of FCC Commissioner Harold Furchtgott-Roth. Re: FCC Order on Reconsideration of its religious broadcasting order. In re applications of WQED Pittsburgh and Cornerstone. Date: January 28, 2000. Source: FCC.

I concur in the Commission’s judgment to vacate the "additional guidance" section of the original decision in this matter. I do so because that guidance was wrong on the merits, raising the specter of viewpoint discrimination against religious broadcasters in violation of the First Amendment, not because it provided insufficient clarity. See Order on Reconsideration at para. 2 ("Regrettably, it has become clear that our actions have created less certainty rather than more, contrary to our intent."). 

Quite the opposite, it seems to me that the Commission’s further statements on the "educational" nature of religious programming were all too well apprehended by regulated entities, the public, and their elected representatives.[1] It was not for lack of clarity that these parties objected to the decision but for infringement of freedom of speech and freedom of religion – and rightly so.

Nor do I vote to vacate because the Commission’s error only became apparent after the original decision was adopted. See id. at para. 3 ("In hindsight, we see the difficulty of minting clear definitional parameters for ‘educational, instructional, or cultural’ programming. . .".)(emphasis added). The many and grave problems occasioned by direct review of religious programming for educational purpose were plainly perceptible when the Commission first set forth its "additional guidance." That is why I voted against it then, and why I vote to remove it from our books now.[2]

Finally, 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 -- suggesting, for instance, the addition of certain shows or the deletion of others from a programming schedule in order to obtain licensing approval. Instead, as this Order on Reconsideration states, 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. But anything more in the way of programming content review or programming quantification would be unwarranted, improper, and in derogation of this Order on Reconsideration.

Footnotes

[1]  Reaction against this decision was swift, strong, and voluminous.  In the past two weeks alone, I have received more than 1,000 messages from opposed citizens.  Many members of Congress have also voiced their strong objections in letters to the Commission; in fact, legislation to counteract the decision was introduced almost immediately after its release.

[2]  Fortunately for religious entities that intend to apply for low power radio licenses, which are available only on the noncommercial educational reserved band, this action makes it easier for them to receive such licenses.  Cf. Dissenting Statement of Commissioner Harold W. Furchtgott-Roth, In the Matter of Creation of Low Power Radio Service, MM Docket No. 99-25 (Jan. 20, 2000) (observing that under the WQED Order “the broadcast of religious services may not count towards the required amount of educational programming that [church groups] must air in order to retain their [low power] licenses” and noting that Commission’s “goal of creating low power stations for use by churches and church groups” was hampered by the decision).