In late December 1999, the Federal Communications Commission issued a ruling that would have vastly restricted broadcasted religious speech. The ruling arose in a case involving Cornerstone Television, a nonprofit religious broadcaster that has a license to operate a commercial channel near Pittsburgh. Cornerstone sought to swap that license for another, also in Pittsburgh, reserved for noncommercial educational purposes.

    A coalition of activist groups known as the Alliance for Progressive Action challenged the proposed deal, contending that Cornerstone’s religious programming was not primarily educational. Indeed, the alliance submitted affidavits from professors calling Cornerstone’s programming "highly ideological" and "extremist."

    The Commission approved the proposed transaction in December 1999. WQED Pittsburgh & Cornerstone Television, Inc., FCC 99-393, 1999 FCC LEXIS 6623 (rel. Dec. 29, 1999). However, it did so on the condition that Cornerstone -- and all other noncommercial educational television licensees -- satisfy a new programming content obligation. The Commission’s new policy would have required all such licensees, whether religious or secular, to devote at least 50 percent of their regularly scheduled weekly broadcast hours to "educational, instructional, or cultural" programs. According to the FCC, religious exhortation, proselytizing, or statements of personal religious belief did not satisfy this definition.

    With the exception of religious programming, the definition of qualifying "general educational" or "cultural" broadcast material was vague. Programs would have satisfied the standard if their "primary purpose" was to serve "the educational, instructional, or cultural needs of the community." But the policy would have barred noncommercial educational television stations from using "programming primarily devoted to religious exhortation, proselytizing, or statements of personally held religious views and religious beliefs" to meet the educational programming requirement.

    The Commission sought to draw a line between programs that teach about religion -- which the Commission deemed acceptable -- and programs devoted to religious "exhortation" or statements of personal religious belief -- which it did not. In an effort to explain the murky line, the FCC gave examples of religious programming that would qualify as educational. Programs analyzing the role of religion in connection with historical or current events, various cultures, or the development of the arts, or exploring the connection between religious belief and physical or mental health, would qualify.

    Similarly, programs examining the apparent dichotomy between science, technology, and religious tenets, or studying religious texts from an historical or religious perspective, would not have violated the FCC’s new restrictions. The FCC also gave examples of religious fare that would not qualify as educational. For example, programs airing church services that were not part of an historic event not meant to serve the educational, instructional, or cultural needs of the entire community would not qualify.

    The Commission’s policy sparked considerable furor, not only among religious broadcasters and their audiences but among other supporters of free speech rights generally. The FCC in late January 2000 deleted the controversial language from the Cornerstone Order. While the Commission’s retraction pleased proponents of religious speech, broadcasters and others familiar with the FCC’s operations have not been content to leave the matter there. The possibility remains that the policy could be quietly resurrected at some later date, perhaps as informal staff "processing guidelines" for handling noncommercial television applications involving religious broadcasters. Statements issued by two commissioners at the time of the January vote foresaw such a revival, although they strongly disagreed as to whether the action would be lawful.

    Members of Congress were among the most vocal critics of the FCC’s initial action in the Cornerstone Order, with respect to both the substance of the policy and the procedure by which it arose. Perhaps this is because it is unusual for the Commission to establish any broad policy in a case involving only a few parties to a station sale; the Commission typically establishes new obligations of general applicability through a notice-and-comment rulemaking proceeding. Although the FCC recanted its policy, the legislative response continued even though no legislation was passed before Congress recessed in 2000. It is likely that similar legislation will be introduced in the next Congress.

    Specifically, within weeks of the FCC’s December 1999 ruling, three different measures were circulating -- the "Noncommercial Broadcasting Freedom of Expression Act," sponsored by Rep. Charles Pickering (R-Miss.); the "Religious Broadcasting Freedom Act," spearheaded by Rep. Mike Oxley (R-Ohio); and the "Noncommercial Broadcasting Eligibility Act," drafted by Sen. Tim Hutchinson (R-Ark.).

    The Pickering bill, H.R. 4201, took the most comprehensive approach. It passed the House of Representatives in June on a bipartisan vote of 264 to 159, and was formally "read" to the Senate for the second time in early September. The bill died in the Senate. H.R. 4201 confronted both components of the Cornerstone issue, and would have prohibited the Commission from attempting to restrict both the amount and content of religious programming aired by noncommercial educational television stations. First, it would have barred the FCC from requiring that noncommercial broadcasters, religious or secular, devote a specified number of hours to "educational, instructional, cultural, or religious" programming. Second, the measure would have made plain that the Commission must treat religious programming in the same manner as it does other educational programming under the noncommercial licensing rules. The bill would have also clarified that these protections apply to both noncommercial educational radio and television stations.

    Rep. Oxley’s proposal, H.R. 3525, addressed only the procedural aspects of the Cornerstone issue. Rep. Oxley’s bill would have required the FCC to follow normal rulemaking procedures in establishing additional requirements for noncommercial educational television broadcasters. The bill was introduced in January 2000, and was immediately referred to the House Committee on Commerce. In April, the Commerce Committee’s Telecommunications, Trade, and Consumer Protection Subcommittee held hearings on the bill, but the bill was never reported out of committee.

    S. 2215, drafted by Sen. Hutchinson, dealt only with the substantive portion of the Cornerstone issue. Hutchinson’s proposal sought to require the FCC to treat nonprofit private foundations as noncommercial educational broadcast stations for the purpose of the Communications Act. This bill was introduced in the Senate in March 2000, and was referred to the Senate Committee on Commerce, Science, and Transportation, where no further action was taken.