The assault on educational licenses by conservative religious broadcasters has its roots in the Reagan Revolution, when then-FCC Chairman Mark Fowler pledged "to take deregulation to the limits of existing law." Fowler's FCC abolished the guidelines for local, news and public-affairs, and nonentertainment programming and dropped almost all public interest standards in deference to the "property rights" of broadcasters. By 1989 one of three network affiliates offered no public-affairs programs, and one of six no news. Limits on prime-time advertising were rescinded, commercial time was doubled, and by the end of the 1980s, a new format--program-length infomercials--consumed 3 percent of broadcast time.
Pursuing their "defund the left" strategy, Reagan's allies in Congress rescinded appropriations for the Corporation for Public Broadcasting while the FCC loosened PBS program underwriting guidelines to allow "trade names," "logos or slogans," and "product symbols" to appear before and after programs. Increasingly dependent on commercial sponsorship, public broadcasters dropped experimental television and programs aimed at poor and minority viewers. And Fowler actively facilitated the religious right's access to previously reserved educational licenses.
The Republican Party benefited greatly: The attack on public broadcasting gave economic libertarians a chance to take swings at one of their favorite targets, while religious broadcasters got an unprecedented opportunity to proselytize--both for their sectarian faiths and, more importantly, for their conservative one. Reagan praised religious broadcasters' stands on right-to-life, voluntary school prayer, and the balanced budget amendment as "helping to change the world for the better." Religious broadcasters must "make the Reagan Revolution prevail," White House Communications Director Pat Buchanan told a 1986 convention of the NRB. The Republican Party "needs to draw ... more recruits" from America's religious revival, to "tap into this new patriotism and [convert] it into a new nationalism."
And they have: In the intervening years, the religious right has made television and radio broadcasting its most important tool. Since Reagan's deregulation, the number of Christian radio stations has doubled to 1,731, and the number of Christian television stations has tripled to 285, almost all of them conservative evangelical. Christian radio stations account for 8 percent of the total in 1981, 10 percent in 1990, and 14 percent today. With an audience of 20 million, religious programming is now the third-largest radio format in the nation.
And while most religious stations are on commercial frequencies, 23 television stations and well over 700 radio stations have been awarded noncommercial licenses. According to a recent petition on behalf of public radio's Station Resource Group, the religious right has flooded the FCC with applications for noncommercial licenses, accounting for up to two-thirds of pending applications for some 750 noncommercial frequencies.
Hogging the microphone
The specific genesis of the current legislative assault was an attempt by public TV station WQED Pittsburgh to commercialize and sell off its popular second station, WQEX, to cover debts incurred through admitted mismanagement and alleged embezzlement. In 1996, with help from Republican Senator Arlen Specter and Democratic Representative Jack Murtha, WQED received unprecedented authorization for the action, giving the FCC only 30 days to decide what normally takes months or years. A community group called Save Pittsburgh Public Television (SPPTV) and several commercial broadcasters opposed the petition, and in July 1996, the FCC ruled that WQED had not made a sufficient case to warrant depriving Pittsburgh of a reserved noncommercial frequency.
A year later, WQED went to its Plan B, capitalizing on the desire of Lowell "Bud" Paxson--chairman of Paxson Communications--to acquire a Pittsburgh outlet for his religious-themed Pax TV network. Paxson agreed to bankroll a deal whereby WQED would swap the noncommercial license of WQEX for a commercial license owned by the gospel-dedicated Cornerstone TeleVision. WQED would then sell its newly acquired commercial license to Paxson and split the take with Cornerstone. Technically, Pittsburgh would still have two noncommercial licenses, but Pittsburghers would tune into Cornerstone programming where WQEX had been.
Many Pittsburghers were not happy, and with good reason. Programs carried by Cornerstone, most of them syndicated across the country, have been documented as calling Mormons promoters of "divorce, teenage pregnancy, and venereal disease," Unitarians a "cult," Hinduism "the Kingdom of the enemy," Buddhism and Shintoism "satanically inspired," and Episcopalians, Presbyterians, and Methodists "[groups with] the spirit of the Antichrist." The SPPTV campaign submitted thousands of letters and petition signatures and numerous declarations from prominent academics and clergy in the community documenting Cornerstone's bias against the usual right-wing targets--public school teachers, the United Nations, environmentalists, and gays and lesbians.
The FCC took up WQED and Paxson's proposal, focusing primarily on whether Cornerstone's governance and programming met the eligibility requirements for a noncommercial license. While religious programming is permitted, it cannot take up more than half the schedule of a noncommercial license, and the FCC observed that, according to Cornerstone's own presentation, 70 percent of its schedule consisted of religious programming. The FCC also found that Cornerstone's governing board was insufficiently accountable to and representative of the community. Several of the board's seven members were related to one another and also served as officers and programmers.
But when challenged to respond, Cornerstone simply added two members to its seven-member board. It also followed FCC instructions in reformatting its program presentation, but made no changes, finally attacking the FCC for religious discrimination. Meanwhile, WQED hired the powerful corporate lobbying firm of Patton Boggs to press its case, splitting the cost with Paxson. Patton Boggs assigned Clinton adviser Lanny Davis, who successfully solicited the support of four Democratic congressmen and Republican Billy Tauzin of Louisiana, who in turn sent letters to Susan Ness, recently re-appointed as FCC commissioner but facing confirmation by the Senate Commerce, Science, and Transportation Committee--chaired by Senator John McCain.
McCain on the Case
McCain's involvement initially came under the spotlight during the Republican primaries, when reporters unearthed his memos written to the FCC on behalf of Paxson, urging the commission to resolve the pending applications. The media focused on McCain's travels in Paxson's private jet and on his receipt of $20,000 in presidential campaign contributions from Paxson's family, associates, and attorneys. However, they failed to examine the nature of the deal itself--or why, at the time, it had been stalled before the FCC for two and a half years.
McCain's directive in December 1999 spurred the FCC to vote, by a narrow three-to-two majority, to approve all pending applications, including Paxson's. The two Democratic appointees, William Kennard and Gloria Tristani, voted against approval, explaining that "there are simply too many unresolved questions of fact regarding whether the proposed programming is primarily educational or primarily something else." But the swing vote in favor of approval came from Ness, who said she based her decision "in significant part on the absence of clarity" in the guidelines and also on promises by Cornerstone that it would "broaden" its board and program schedule in the future. When questioned by New York Times reporter Stephen Labaton, Ness declined to discuss either the case or her pending confirmation before McCain's committee.
Paxson had won approval for his new acquisition--but now the religious broadcasters and their allies faced a new hurdle. Ness, Kennard, and Tristani had also voted in a three-to-two majority to clarify the eligibility requirements for noncommercial licenses, arguing that, by itself, "the majority's decision to grant this application would eliminate all eligibility standards for the reserved band." Ness added that commissioners "have an obligation to provide additional guidance ... if we are to assess whether a broadcaster's judgment is reasonable." The majority agreed that the "additional guidance" would include the understanding that "programming primarily devoted to religious exhortation (e.g. preaching), proselytizing or personal statements of belief [while permitted] generally [would] not qualify as educational programming."
The two Republican commissioners dissented, claiming the guidelines would "open a Pandora's box of problems." And it did, in a way: The NRB alerted its 1,200 members to this "dangerous precedent," telling them that the "net effect" of the ruling would be "less preaching of the gospel, less programming of church services," the primary staple of syndicated religious right programming. Conservative newswires promoted the misinformation that "more than 125 noncommercial television broadcasters may be forced to drop religious broadcasting."
On January 6, at Paxson's urging, four Republican congressmen, led by Republican Representative Michael Oxley of Ohio, sent a letter to FCC Chair Kennard advising him "to reverse this ruling, or stand by and see it overturned legislatively or in court," while five conservative Republican senators wrote to Kennard accusing the FCC of suppressing "religious speech on the basis that it may not be 'educational' or 'cultural.'" Kennard responded by pointing out that Paxson's applications had been approved, that the standards do not prohibit religious programming, and that they apply only to noncommercial licenses.
It wasn't the first time Republicans had criticized the FCC. But Kennard probably didn't count on opposition from Vice President Al Gore, who also received a letter from the four Republicans urging him "to condemn the FCC's actions and counsel the Commission to withdraw its order." Gore replied that such intervention "with respect to an individual broadcaster's license application" would be "inappropriate." But he affirmed support for "the First Amendment rights of broadcasters" and suggested that relief may be sought "before the Commission" or "in the courts."
The FCC Caves
Thus emboldened, Oxley and 42 co-sponsors introduced the Religious Broadcasters Freedom Act to strike the language in the Pittsburgh decision and prevent the FCC from making such decisions on future applications. Republican Sam Brownback of Kansas introduced a companion measure in the Senate. In response, Citizens for Independent Public Broadcasting--of which I am executive director--organized the Coalition to Defend Educational Broadcasting, consisting of several organizations, including the National Education Association, People For the American Way, the National Council of Churches, and Americans United for the Separation of Church and State. Coalition members expressed concern about the use of educational broadcasting stations as extensions of religious ministry and geared up to defend the FCC's Pittsburgh decision.
At the last moment, however, Kennard and Ness caved, vacating the two paragraphs in their decision that spelled out what it meant for a license to be used for "primarily educational" purposes. Why the about-face? In January The Washington Post reported that Kennard and Ness had responded to pressure from presidential candidate Gore to rescind the guidelines, quoting Oxley's boast that "Al Gore's people saw this as a huge liability politically and they wanted to lance that boil."
But the Republicans weren't done. FCC commissioner Tristani had inveighed passionately against Kennard and Ness's retreat, deploring the commission's "capitulation to an organized campaign of distortion and demagoguery" and promising that she would continue to cast her "vote in accordance with the views expressed in the additional guidance and in this statement." This was a red flag to the religious right, which along with its congressional allies undertook to strip the FCC of all discretion in the assignment of noncommercial licenses.
At each phase of the legislative process, the Republican majority controlled public input and media oversight by giving only two days meeting notice and submitting new or revised bills at the last minute. On April 13, five Republican members of the House Telecommunications Subcommittee substituted Mississippi Republican Charles Pickering's H.R. 4201, the Noncommercial Broadcasting Freedom of Expression Act, for Oxley's H.R. 3505. Representatives Clifford Stearns, John Shimkus, Tauzin, Oxley, and Pickering held a lopsided hearing that consisted mostly of attacking the FCC and grilling the diminutive Tristani. Tauzin ranted that "the FCC is infamous for imposing its own opinion," and Shimkus characterized Tristani as "an FCC czar of information" who would allow programs about "collecting pet rocks" before those advocating "the Ten Commandments." The FCC's original decision represents "the classic liberal tendency to try to get through government procedures or court decisions what this country will not tolerate," Pickering told Tristani. "We're going to do everything we can to keep your views from ever happening."
The lone Democrat attending the subcommittee hearing, Representative Edward Markey of Massachusetts, found himself mounting a futile defense. Protesting that leaving out the word "educational" in defining eligible applicants would open up the spectrum to "scam artists" and "hate groups," Markey declared, "I don't want Bob Jones University owning the only noncommercial educational station in my hometown and telling me that Catholics are a cult, telling me that the Pope is the emissary of Satan." Tauzin, who had already rejected examination of videotaped programs in evaluating Cornerstone's or any other broadcaster's qualifications, nevertheless responded that there were no "examples of abuses or shams in the past or in the present" by religious organizations operating on noncommercial licenses.
Proselytizing as "education"
One crucial maneuver by the Republicans was to reframe eligibility in terms of the tax code, permitting a noncommercial license to any station "used primarily to broadcast material that the organization determines serves an educational, instructional, or religious purpose"--thus seeking to pre-empt a potential legal challenge based on the First Amendment's establishment clause. Another change specified that religious programming is to be treated "on a par with educational and cultural programming," while a further addition exempted noncommercial licensees from any requirement to allow "free air time to commercial entities or political candidates."
Indeed, throughout mark-up, the act's supporters downplayed concerns over its constitutionality. Twice Markey sponsored amendments that inserted the word "educational" as a qualifier after "nonprofit" and before "religious," arguing that these licenses were intended to serve the "entire community" and "what is educational to one is not educational to another, especially those of another religion." Twice they were voted down. Similarly, the Republicans ignored Michigan Representative John Dingell's observations that the act would not only permit a noncommercial licensee 100 percent religious programming and deny the FCC any objective criteria to choose between competing religious applicants, but would also allow any extremist group claiming to be religious, like that of David Koresh or Jim Jones, to get a noncommercial license. In late June, H.R. 4201 came up for a House vote--and passed by a margin of 263-159, with 56 Democrats voting in favor.
A companion bill introduced in the Senate by Arizona Republican Tim Hutchinson has not been scheduled for Senate action, but opponents worry that the House sponsors could attach it to a must-pass appropriations bill. But even if the measure fails this session, conservatives have given the FCC an object lesson in power politics it is not likely to forget. In fact, shortly after the FCC reversed itself, Roy Stewart, chief of the FCC's Mass Media Bureau, spoke at the NRB's annual meeting to reassure members that the FCC would not be making any more clarifications of educational guidelines in future decisions regarding license applications. The net result of all this will be more control of mass communications by the right and waning fortunes for the Democrats, too many of whom have been complicit in this capitulation.
The FCC, of course, is a creature of Congress. Both parties have been heavily influenced by the commercial broadcasting industry, which is why the FCC, ironically enough, has always been notoriously lax in investigating and enforcing standards for licensees. In its entire history, the FCC has denied only three license renewal applications; it has never denied a local license transfer application and did not even do so in the Pittsburgh case. The battle over H.R. 4201 illustrates that the current eligibility guidelines are so vague as to be unenforceable, but while the FCC has the authority to call a rule-making to resolve such confusion, it has thus far declined to do so.
But the battle also shows that the only break in business as usual for broadcasters comes when the community, like Paxson's opponents in Pittsburgh, mounts a significant challenge and appeal to the FCC to recognize its charter's stated mission to "protect the public interest, convenience and necessity." In Pittsburgh the public interest did prevail. In the midst of all the furor, on January 19, 2000, Cornerstone abruptly filed with the FCC to withdraw its transfer application. Cornerstone President Oleen Eagle explained that "Cornerstone is called by God" to serve as a "media ministry" and could not "jeopardize" that "mission." When ordinary citizens choose to fight for truly public broadcasting, they can stop multimillion-dollar deals in the name of the public interest. ¤
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