Public Telecommunications Facilities Program (PTFP), National Endowment for Children's Educational Television (NECET), Telecommunications and Information Infrastructure Assistance Program (TIIAP)

DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket Number 950613151-5151-01]

RIN 0660-XX02

Public Telecommunications Facilities Program (PTFP), National

Endowment for Children's Educational Television (NECET),

Telecommunications and Information Infrastructure Assistance Program

(TIIAP)

AGENCY: National Telecommunications and Information Administration,

Department of Commerce.

ACTION: Notice; request for comments.

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SUMMARY: The National Telecommunications and Information Administration

(NTIA) administers a number of grant programs providing financial

assistance to eligible entities. The Public Telecommunications

Facilities Program (PTFP) and the Telecommunications and Information

Infrastructure Assistance Program (TIIAP) each fund facilities (for

public broadcasting and connection to computer networks, respectively),

while the National Endowment for Children's Educations Television

(NECET) funds the creation of new children's programming. To ensure

compliance with the First Amendment, NTIA has had a long-standing

policy of not allowing PTFP equipment acquired with grant funds to be

used for any purpose the essential thrust of which is sectarian. This

policy was also recently adopted for two newer assistance programs,

NECET and the TIIAP. NTIA has applied this policy in a ``bright-line''

fashion: It does not permit a PTFP grantee to broadcast any sectarian

program using PTFP-funded equipment, a NECET grantee to include any

sectarian material in a children's program funded by NECET, or a TIIAP

grantee to transmit any sectarian information by means of facilities

funded by TIIAP. NTIA has received a number of inquiries regarding the

continued application of its current policy. Accordingly, the purpose

of this proceeding is to allow for a full range of public comment on

whether NTIA's current policy, as applied to all three grant programs,

should be continued or whether alternative approaches are also

consistent with the First Amendment and sound public policy. NTIA will

consider these comments in determining whether to change its policy,

its application procedures, and/or its enforcement of each of the three

grant programs prospectively.

DATES: Comments should be submitted on or before August 21, 1995.

ADDRESSES: Persons interested in commenting must send an original plus

two copies of any comments to: Department of Commerce, Office of the

Chief Counsel, National Telecommunications and Information

Administration, 14th and Constitution Avenue, NW., Room 4713,

Washington, D.C. 20230.

FOR FURTHER INFORMATION CONTACT: Jana Gagner, (202) 482-1816.

SUPPLEMENTARY INFORMATION:

Background

On May 29, 1979, the PTFP issued a final rule and policy in a

Report and Order on sectarian activities.1 The Report and Order

contains a full discussion of NTIA's rationale for originally

establishing its policy and related procedures, including a discussion

of applicable Constitutional law. PTFP's regulation regarding sectarian

activities, in effect continuously since 1979, provides that: ``During

the period in which the grantee possesses or uses the Federally funded

facilities (whether or not this period extends beyond the Federal

interest period), the grantee may not use or allow the use of the

Federally funded equipment for purposes the essential thrust of which

are sectarian.'' 2 ``Sectarian'' has been defined as having ``the

purpose or function of advancing or propagating a religious belief.''

3

\1\ Public Telecommunications Facilities Program; Report and

Order, 44 FR 30,898 (1979) [hereinafter Report and Order].

\2\ 15 C.F.R. 2301.22(d) (1995).

\3\ 15 C.F.R. 2301.1 (1995).

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The Report and Order further provided that the rule regarding

sectarian activities was not meant to affect ``presentation in an

educational or cultural context of music or art with a religious theme,

nor of programs about religion. * * * [nor] preclude distribution of

instructional programming of a secular nature to church-related

educational institutions.'' 4 The Report and Order specifically

explained how NTIA would determine the eligibility of applicants with

religious affiliations.5 NTIA made clear its intent not to become

a ``super-programmer'' by inquiring into the content of particular

programs on a routine basis.6

\4\ Report and Order, supra, note 1 at 30,902 para. 26.

\5\ Id. at 30,900-904.

\6\ Id. at 30,901-902. In fact, NTIA requires PTFP grantees to

certify that the grant funds are not being used for sectarian

purposes.

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NTIA's two newer grant programs, the TIIAP and the NECET, currently

follow the same policy with regard to Federal support of sectarian

activities. The following provision, which references

[[Page 32143]] the current PTFP rule, was included in the Notice of

Availability of Funds for each program:

The Department of Commerce has a long standing policy of not

funding projects for purposes the essential thrust of which is

sectarian. Consistent with this policy, TIIAP [and NECET] will not

fund projects the essential thrust of which is sectarian. Sectarian

organizations, however, are eligible applicants and may request

funds for non-sectarian purposes.7

\7\ See 60 FR 8,156 (February 10, 1995) and 60 FR 15,636 (March

24, 1995), respectively.

NTIA's long-standing regulation in 15 CFR 2301.22(d) was recently

challenged for the first time in the case of Fordham University v.

Brown. There a PTFP applicant argued that NTIA's policy on sectarian

broadcasting violated its right to free exercise of religion and

freedom of speech under the First Amendment of the Constitution. The

Fordham court rejected this challenge and held that NTIA's policy was

not violative of the First Amendment. In dicta, however, the court

noted that it was not addressing whether there were alternative

interpretations of this regulation which could also be implemented by

NTIA consistent with the First Amendment.8

\8\ Fordham University v. Brown, No. 93-2120 at 25 (CCR)(D.D.C.

June 29, 1994) (appeal docketed, No. 94-5229, August 22, 1994). PTFP

refused a grant to Fordham University's public radio station because

it broadcast a Catholic mass every Sunday. In addition, the Supreme

Court has before it the case of Rosenberger v. Rector and Visitors

of the University of Virginia, No. 94-329 (oral arg. held Mar. 1,

1995). The Rosenberger case raises the constitutionality of a state-

supported university's refusal to make a student activities fund

grant to a Christian journal. A decision in the Rosenberger case is

expected by the end of this Supreme Court term.

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Requests for Modification

NTIA has received a number of requests to consider modifying its

policy. Various public broadcast stations have indicated concern

because they wish to include in their schedules some individual

programs that could be considered ``sectarian'' under PTFP's regulation

as currently interpreted and applied. Accordingly, while our current

approach has been ruled constitutionally permissible, we seek to

determine whether we can and should modify our policy prospectively to

permit some limited amount of sectarian programming or information via

Federally-funded projects.

In considering whether the essential thrust of a project is

sectarian, NTIA is considering whether to look to the overall purpose

of the entire project rather than looking to individual components of

the project. Under this approach, if the primary purpose of the overall

project is non-sectarian, a grant applicant would no longer be

considered ineligible, nor would a grant recipient be found to be in

violation of the grant conditions, due to use of Federal funds for a

project with only a limited amount of sectarian programming or

information.

Differences among the programs warrant close examination in

adopting a new policy. For example, PTFP grantees, as broadcasters,

have editorial control over the content of their transmissions, and

NECET grantees control the subject matter of the children's programming

that is funded, TIIAP grantees may have no or little control over

transmissions sent by others via computer networks.9 On the other

hand, NECET funds specific programs and/or series, and TIIAP may also

fund the creation of content for transmission over interactive

networks, rather than facilities only, as with PTFP. While the current

``bright-line'' approach is applied to all three programs alike, we

will examine the impact of the programs' differences on proposals to

modify our current approach and allow a limited amount of sectarian

programming or information.

\9\ Because TIIAP funds facilities used for transmission of

information via interactive networks, some transmitted information

may be under the control of the grantee and some may be under the

control of end users.

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We also recognize that the proposed modification to our current

approach, or any other alternative approach, must pass muster under the

First Amendment of the U.S. Constitution.10 Therefore, NTIA is

providing an opportunity for interested parties to comment on the

following issues: (1) Whether allowing a limited amount of sectarian

programming to be broadcast using PTFP-funded equipment, a limited

amount of sectarian material to be included in a children's program

produced using NECET funds, or a limited amount of sectarian

information to be transmitted electronically over a network using

TIIAP-funded facilities would be permissible under the First Amendment,

if so whether there are sound policy reasons for such an approach, and

what implementation issues are raised; (2) whether any other

alternatives to NTIA's current approach have a sound policy basis and

could be adopted consistent with the First Amendment and current

jurisprudence, including how such a policy could, as practical and

constitutional matters, be implemented and enforced; (3) whether the

same policy can and should be applied to all three NTIA grant programs,

and if the same policy cannot be applied to all three NTIA grant

programs, what policy should pertain to each grant program; and (4)

whether the current definition of ``sectarian'' continues to be

supportable if NTIA's current policy is modified.

\10\ U.S. Const. amend. I.

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This notice has been determined to be not significant for purposes

of Exec. Order No. 12,866.

Larry Irving,

Assistant Secretary for Communications and Information.

[FR Doc. 95-15039 Filed 6-19-95; 8:45 am]

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