When the Boston Globe broke the story of John McCain's phone call to the Federal Communications Commission on behalf of a campaign contributor, the media briefly savored the spectacle of America's chief campaign finance reformer caught in a little old-fashioned influence peddling. What they didn't do was read the decision the FCC had coughed up in response to McCain's strong-arm tactics.
They should have, for the real story of FCC Order 99-393 is not McCain's letter at all, but the bombshell buried deep in the innocuous-sounding "Additional Guidance" portion of the ruling: the imposition of unprecedented content restrictions on noncommercial religious broadcasters.
The ruling came in the case of two Pittsburgh television stations -- one public (WQED), the other a commercial religious broadcaster (Cornerstone TeleVision) -- that had applied to swap licenses. After the swap, McCain supporter Lowell "Bud" Paxson planned to buy the public station's license for use by his family-friendly network (Pax TV). The commission consented to the swap and purchase, but 43 paragraphs into the routine ruling, it announced that henceforth 50 percent of all noncommercial religious programming must serve "an educational, instructional, or cultural purpose in the station's community of license" -- and programming cannot qualify as "educational, instructional, or cultural" if it includes "religious exhortation, proselytizing, or statements of personally-held religious views or beliefs."
The commission was taking direct aim at that minority of religious broadcasters who operate under "educational" licenses, some 95 stations. According to the new rules, 50 percent of the programming on these noncommercial stations must be free of what is their stock in trade: church services, sermons, Bible study, prayer, and all manner of discussion by believers, including syndicated talk shows hosted by the likes of James Dobson and D. James Kennedy. The ruling goes on to insist that programs may explore religion in relation to science, technology, or culture; apply religious principles to real-life ethical dilemmas; probe the psychological effects of prayer; and even discuss religious texts from a historical viewpoint -- so long as the purpose is not to convince listeners that religious teachings are true.
The commissioners express the hope that their decision will clarify the rules for noncommercial broadcasting. Plainly, it does the opposite. Even apart from First Amendment concerns, problems of interpretation loom. It's hard to imagine, for example, how one might apply biblical principles to ethical dilemmas without tipping one's hand as to whether one subscribes to the Ten Commandments.
Moreover, members of the board issued a flurry of separate dissents and concurrences that further cloud the regulations. Commissioner Susan Ness, in a concurring opinion marked by handwringing about "tread[ing] carefully to preserve . . . cherished objectives," wonders, for example, whether a "performance of Handel's Messiah [would] be primarily educational if it were performed at the Kennedy Center, but not primarily educational if it were performed in a church." The implication is that the FCC will be forced to consider not just the content but the context of tens of thousands of hours of religious programming.
The decision brings to an abrupt halt the FCC's years of fastidious refusal to base licensing decisions on programming content. The programming on noncommercial religious television channels, almost all of them run by evangelical Christians, has long been offensive to separation-of-church-and-state activists. Similarly, the airing of such programs as the documentary It's Elementary, advocating pro-gay indoctrination in grade schools, on public "educational" channels draws protests from evangelicals. But when the use of reserved federal channels for such purposes has been challenged, the FCC has consistently sided with the broadcasters on free-speech grounds.
For the same reason, the FCC heretofore has given broadcasters latitude in interpreting its rules. In fact, a good-faith clause protecting broadcasters' "reasonable judgment" is standard in FCC decisions. Order 99-393, however, adds a warning that broadcasters' judgments will be evaluated in "the overall context of the broadcast." Broadcasters, in short, may be liable for violating the spirit of the new regulations even if they live up to the letter.
Finally, as startling as the abruptness of the FCC's policy shift is the stealthy way it was accomplished. By issuing the new guidelines in an adjudicatory proceeding, the FCC avoided the hearings normally used to elicit public comment before broad regulatory changes are enacted. And the decision was released on December 29, 1999, when public attention was focused on the turn of the millennium and Y2K.
Despite the commissioners' reassurances -- "discussion of religious matters during a program," they say, does not necessarily "disqualify the program from being a 'general educational' program" -- the vagueness of the regulations leaves many uneasy. Commissioners Harold Furchtgott-Roth and Michael Powell note in their dissent that the guidelines "invite unnecessary battles over the content of noncommercial programming." They provide groups like the American Civil Liberties Union the chance to tie up noncommercial licensing applications in drawn-out legal maneuvers, as lawyers parse programs for signs of proselytizing. Few noncommercial religious broadcasters can afford protracted legal battles, and many may decide not to take the risk.
Caught in the middle, the broadcasters face two equally unpalatable choices: secularizing their programs, and attempting to comply with vague regulations almost certain to yield lawsuits. No one knows, for instance, whether the new guidelines apply to future licensees or stations already in operation. The latter prospect has the National Religious Broadcasters Association itself mulling legal action.
With a year to go before a new president could reorient the Democrat-controlled FCC, the broadcasters' best hope lies in congressional action. On January 11, representative Michael Oxley (R-Ohio) unveiled legislation reversing Order 99-393 and requiring the FCC to use its normal rule-making procedures, with opportunity for public comment, should it seek to regulate in this area in the future. As of this writing the half-dozen co-sponsors include House majority leader Dick Armey and one Democrat, Ralph Hall of Texas.
Riding a wave of support from evangelicals, Oxley is undeterred by FCC chairman William Kennard's disingenuous protestation that the guidelines merely clarify existing policy. The FCC, for now, is standing firm. And why not? It has no constituency to please but the administration.
Justin Torres is senior staff writer of CNSNews.com.