FCC vacates order that many said infringed on religious broadcasters

Monday, January 31, 2000

The Federal Communications Commission has unexpectedly voted to vacate an order issued last month that religious broadcasters and some congressmen had assailed as an unconstitutional and hostile attack on religious content on the airwaves.

Last December, the FCC issued an order in a license swap of noncommercial broadcasters in Pittsburgh. Cornerstone Television Inc., a nonprofit Christian broadcaster, applied for and was granted a noncommercial educational license. Within that order, however, the FCC attempted to lay out what it described as guidance for its pre-existing policy of not granting such licenses to every religious group that applied for one.

According to the FCC policy, “while not all religious programs are educational in nature, it is clear that those programs which involve the teaching of matters relating to religion would qualify” for a noncommercial license. In the December order, the FCC stated that programming “primarily devoted to religious exhortation, proselytizing, or statements of personally held religious views and beliefs” could not be considered educational.

It was that statement which set off a torrent of criticism from lawmakers, televangelists, and nonprofit, religious-based organizations.

First, Rep. Michael G. Oxley, R-Ohio, and several other representatives introduced to Congress the Religious Freedom Broadcasting Act, an effort to vacate the FCC order. Oxley said the FCC “has no business suppressing the expression of religious belief” and that the agency's guidance on the matter “was wrong, and it cannot stand.”

Religious broadcasters also described the FCC order as a hostile government action toward believers that was unconstitutional and un-American.

Jerry Falwell, during a Jan. 21 broadcast of his “Old-Time Gospel Hour,” accused the FCC of going to “great lengths to expunge Christian religious expression from the public space.”

Falwell then told his viewers that “we have become Red China” and urged them to call Oxley and other representatives in support of their attempt to overturn the FCC order.

In a three-page order issued late Jan. 28, the FCC vacated its December action.

“In an attempt to clarify what constitutes non-commercial educational programming, we offered additional guidance broadly, and attempted to apply that guidance to specific cases involving religious programming,” the new FCC order states. “Regrettably, it has become clear that our actions have created less certainty rather than more, contrary to our intent. In hindsight, we see the difficulty of minting clear definitional parameters for 'educational, instructional or cultural' programming, particularly without the benefit of broad comment. Therefore, we vacate our additional guidance.”

Commissioner Gloria Tristani, the lone dissenter against issuing the new order, derided her colleagues for succumbing to outside pressure and failing to understand the First Amendment.

“This is a sad and shameful day for the FCC,” Tristani wrote. “In vacating last month's 'additional guidance' on its own motion, without even waiting for reconsideration petitions to be filed, this supposedly independent agency has capitulated to an organized campaign of distortion and demagoguery.”

Tristani said that the guidance offered in December was an attempt to clarify FCC policy precedents, not an attack on organized religion.

“Perhaps the most disturbing charge leveled against the Commission is that its decision reflects an 'anti-religion bias' at the agency,” Tristani wrote. “I reject and resent this type of attack, reminiscent of a witch-hunt. It is precisely because of my deep respect for religion, and my deep appreciation for the religious diversity of America, that I supported our additional guidance. Religion is not merely an educational 'interest' like cooking or computers that may appeal to only a subset of the population. Religion is much more than that.”

In a prepared statement, Oxley praised the FCC's reversal.

“Religious broadcasters and their listeners were a target for an FCC that sought to limit their freedom to express religious faith,” Oxley said. “It was wrong, and I'm thrilled that the FCC has seen the error of its ways.”

Charles Haynes, the First Amendment Center's senior scholar and author of several books and guides on religious liberty, also lauded the FCC's latest action.

“The reversal by the FCC is welcome news for advocates of religious freedom,” Haynes said. “In my view, the First Amendment prohibits a federal agency from defining what is or is not 'educational' religious speech. Religious broadcasters should be free to decide the content of their educational programming.”