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

Federal RegisterDec 22, 1995

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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

15 CFR Part 2301

[Docket Number 950613151-5304-02]

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,

Commerce.

ACTION: Final Policy Statement and Conforming Rule Amendments.

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SUMMARY: The National Telecommunications and Information Administration

(NTIA), U.S. Department of Commerce, is publishing a Final Policy

Statement modifying the interpretation of its policy on the use of

NTIA-funded equipment and materials in connection with sectarian

activities and making conforming rule amendments.

Effective Date: December 22, 1995.

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

SUPPLEMENTARY INFORMATION:

I. Introduction

On June 20, 1995, the National Telecommunications and Information

Administration, U.S. Department of Commerce (NTIA), published a notice

in the Federal Register proposing to modify NTIA's interpretation of

its policy regarding the use of Federal grant funds awarded by NTIA in

connection with sectarian activities.1 Eight parties filed

comments in response to the Notice.2 Based on these comments and

current jurisprudence, NTIA is hereby modifying its prior

interpretation of its rules, which prohibited the use of NTIA-funded

equipment, facilities, and materials in connection with any sectarian

activities, no matter how incidental.

\1\ 60 FR 32,142 (1995).

\2\ The following eight parties filed comments in response to

the Notice: Representative Richard Burr, the Corporation for Public

Broadcasting, Fordham University, National Public Radio, North

Carolina Public Radio Association, Lisa Owens, Southern Public

Radio, and Wake Forest University.

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Under its new interpretation, NTIA will retain its present

requirement that grant funds not be used for purposes the ``essential

thrust of which are sectarian,'' 3 but will modify its

interpretation of this requirement as follows. No more than an

attenuated or incidental benefit may inure to a sectarian interest if a

grantee uses NTIA-funded facilities in connection with a sectarian

activity. In addition, the use must fall within the broad scope of a

grant program's statutory purposes. A grantee cannot, however, use NTIA

grant funds primarily to support sectarian interests.

\3\ 15 CFR 2301.22(d). ``Sectarian'' is defined at 15 CFR 2301.1

as ``that which has the purpose or function of advancing or

propagating a religious belief.'' The PTFP regulation at 15 CFR

Sec. 2301.22(d) provides, ``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.'' NTIA

considers these phrases to mean the same thing.

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For the reasons discussed below, NTIA believes that this approach

is consistent with current jurisprudence.4 We also discuss below

in greater detail the issues raised in the June Notice regarding NTIA's

policy on sectarian activities,5 NTIA's interpretation of its

prior policy, comments received by NTIA in response to the Notice, and

the application of NTIA's new policy to each of its grant programs. Our

discussion is informed by relevant First Amendment jurisprudence,

including the recent Supreme Court holding in Rosenberger v. Rector and

Visitors of the University of Virginia, 115 S.Ct. 2510 (1995).

\4\ See Rosenberger v. Rector and Visitors of the University of

Virginia, 115 S.Ct. 2510 (1995); Zobrest v. Catalina Foothills Sch.

Dist. (Zobrest), 113 S.Ct. 2462 (1993); Witters v. Washington Dep't

of Services for the Blind, 474 U.S. 481, 487 (1986); Mueller v.

Allen, 463 U.S. 388 (1983).

\5\ Notice, supra note 1.

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II. Background

NTIA's Prior Policy. In 1979, the Public Telecommunications

Facilities Program (PTFP) of the NTIA adopted a rule prohibiting

funding for any equipment, facilities, and other materials that would

be used for any purposes the essential thrust of which is

sectarian.6 NTIA's interpretation of this rule has prohibited use

of NTIA-funded facilities and materials in connection with any

sectarian activity.7 In implementing this ``bright-line'' policy

interpretation, NTIA relied upon Lemon v. Kurtzman.8

\6\ See 44 FR 30898 (1979) for explanation of NTIA's previous

policy. PTFP's regulation regarding sectarian programming appears at

15 CFR 2301.22(d).

\7\ This interpretation stems from policy statement, infra fn.

11 and was applied in the Fordham case.

\8\ 403 U.S. 602 (1971). The constitutional test set forth in

Lemon--and the consistency between NTIA's new policy interpretation

and that test--are described in section III.A. of this policy

statement, infra.

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NTIA's policy interpretation did, however, permit the

``presentation in an educational or cultural context of music or art

with a religious theme [or] of programs about religion. It [also did]

not preclude distribution of instructional programming of a secular

nature to church-related educational institutions.'' 9 In

addition, sectarian-affiliated organizations could generally apply for

grant funds,10 subject, of course, to the prohibition on the use

of NTIA-funded equipment, facilities, and materials for purposes the

essential thrust of which is sectarian. NTIA's two newer grant

programs, the National Endowment for Children's Educational Television

(NECET) and the Telecommunications and Information Infrastructure

Assistance Program (TIIAP), also adopted the same policy and

interpretation.11

\9\ Public Telecommunications Facilities Program; Report and

Order, 44 FR 30898, 30902 (1979) (Report and Order).

\10\ Id. at 30,900-30,901. Previously, organizations organized

for primarily religious purposes were ineligible to apply for a PTFP

planning grant, although their affiliates were eligible to apply.

See 15 CFR 2301.4(b)(2). We are revising this rule to be consistent

with the new policy adopted herein, such that applicant eligibility

will be the same for both construction and planning grants. See the

conforming amendments to Sec. 2301.4 (a) and (b).

\11\ 60 FR 15636 (1995); 60 FR 8156 (1995).

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In enforcing this policy over the years, NTIA required grant

applicants to certify that they would comply with its policy by signing

an assurance to that effect.12 By relying upon this assurance,

NTIA avoided evaluating programming schedules for sectarian content as

a routine practice. Such evaluation occurred only if information

contained in the application itself suggested that the applicant would

violate NTIA's policy, a complaint was filed with NTIA, or NTIA

otherwise became aware of information that suggested that its policy

was being or would be violated. By not routinely evaluating program

content and information transmitted using NTIA-funded equipment and

materials, NTIA avoided excessive Government entanglement with

religion,

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as proscribed by the Supreme Court in Lemon v. Kurtzman.13

\12\ The applicant ``will not use or allow the use of the

facilities for essentially sectarian purposes for as long as the

Applicant possesses or uses the facilities . . . .'' Public

Telecommunications Facilities Program, Grant Application,

Assurances, no. 30, at 9.

\13\ For a discussion of this point, see Section III.A. of this

policy statement.

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The Challenge by Fordham University. In 1993, Fordham University

sued the Department of Commerce, alleging that NTIA's policy on

sectarian broadcasting violated its right to free exercise of religion

and its freedom of speech rights under the First Amendment of the

Constitution. In Fordham University v. Brown, the court upheld NTIA's

bright-line approach with respect to the PTFP as consistent with the

First Amendment.14 In dicta, however, the court noted that it did

not consider whether there were other acceptable interpretations of the

Establishment Clause.15

\14\ 856 F. Supp. 684 (D.D.C. 1994), appeal docketed, No. 94-

5229 (D.C. Cir. Aug. 22, 1994).

\15\ Id. at 697-698.

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Since the Fordham decision, NTIA has become aware that some public

broadcast stations include in their schedules programs that might

constitute impermissible sectarian programming, which could make them

ineligible for PTFP grants. This was highlighted, in fact, following

the Fordham decision, when NTIA received several requests to modify its

policy.

Issuance of the Notice. As a result, NTIA sought comment on whether

it should modify its policy regarding sectarian programming and

information. Specifically the Notice sought comment on: (1) Whether the

current prohibition on using NTIA grant funds in connection with any

sectarian activities should be continued, or whether there are

alternative approaches that would also be consistent with the First

Amendment; (2) the underlying policy rationale for a given approach;

(3) how such policy would, as practical and constitutional matters, be

implemented and enforced; (4) whether the same policy could and should

be applied to all three NTIA grant programs (PTFP, TIIAP, and NECET)

and, if not, what policy should pertain to each grant program; and (5)

whether the current definition of ``sectarian'' would continue to be

supportable if NTIA's current policy were modified.

The Rosenberger Decision. Subsequent to the issuance of NTIA's

Notice, the Supreme Court decided Rosenberger v. Rector and Visitors of

the University of Virginia,16 which further supports NTIA's

announced policy interpretation change. The Supreme Court held in

Rosenberger that a state university had erred in relying on the First

Amendment's Establishment Clause to deny grant funding to a student

group publisher of a Christian magazine, when that student group

otherwise satisfied neutral funding criteria applied by the university

in making financial grants to other student organizations. As discussed

in more detail below, this decision serves as a basis, in part, for the

new policy approach adopted by NTIA.

\16\ 115 S.Ct. 2510 (1995).

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Comments Filed in Response to the Notice. All but one of the eight

commenters supported a change in NTIA's policy interpretation. The one

commenter favoring retention of NTIA's long-term policy objected to a

religious organization receiving any benefit, however incidental, from

NTIA's grant programs.17 A majority of the supporting commenters,

however, relied upon the recent Supreme Court case, Rosenberger, in

arguing that a policy change was warranted. Most agreed that

Rosenberger requires that the Federal government behave in a neutral

manner toward religion. Two commenters recommended that NTIA adopt a

specified or maximum percentage for the amount of permissible sectarian

programming.18 Other commenters recommended allowing a

``reasonable minimal amount of sectarian programming.'' 19 Two

other commenters expressed some concern that the proposed change in

policy could result in excessive government entanglement with

religion.20

\17\ Comments of Lisa Owens.

\18\ Comments of National Public Radio at 2,5; Comments of Wake

Forest at 2-3.

\19\ Comments of North Carolina Public Radio Association at 1;

Comments of Honorable Richard Burr at 1; Comments of Southern Public

Radio at 1.

\20\ Comments of Corporation for Public Broadcasting at 3;

Comments of National Public Radio at 3.

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As noted above, we solicited comments on whether the definition of

``sectarian'' needed to be altered in light of a possible policy

change. Most commenters agreed that no change in the definition of

``sectarian'' was required to allow NTIA to modify its policy

interpretation. One commenter contended, however, that the definition

of ``public telecommunications services'' had to be redefined because

it provides that public telecommunications services ``[do] not include

essentially sectarian programming.'' 21 This commenter also

maintained that NTIA's prior policy should be changed because it

burdened individuals' free exercise of religion in violation of the

Religious Freedom Restoration Act.22

\21\ Comments of Fordham University at 16-17.

\22\ Comments of Fordham University at 9.

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III. Application of the Modified Policy To NTIA'S Grant Programs

As indicated, NTIA's new policy will retain the requirement that

grant funds not be used for purposes the essential thrust of which is

sectarian. The interpretation of that requirement will be modified,

however, such that as long as the grant funds are used to fulfill the

statutory purposes of the grant programs, attenuated or incidental

benefits to sectarian interests will be permissible.

A. Constitutional Basis for Modified Policy

We believe the alternative approach we are now adopting passes

constitutional muster under First Amendment case law. Having analyzed

our new approach in light of Lemon v. Kurtzman,23 we conclude that

our new policy is consistent with Lemon and other Supreme Court

jurisprudence. Lemon established a three-prong test to determine

whether government action would have the ``primary effect'' of

establishing religion in violation of the Establishment Clause. Under

Lemon, the constitutionality of a statute, regulation, or funding

policy depends on whether: (1) it has a secular legislative purpose;

(2) its principal or primary effect is one that neither advances nor

inhibits religion; and (3) it avoids ``an excessive government

entanglement with religion.'' 24 If any one of these three

questions is answered in the negative, government action is deemed

unconstitutional.

\23\ 403 U.S. 602 (1971).

\24\ Id. at 612-613.

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Each of NTIA's grant programs has a secular purpose, which remains

unchanged under the new policy, and thus NTIA's change in policy

interpretation passes the first prong of the Lemon test. PTFP promotes

public broadcasting, NECET supports development of children's

programming, and TIIAP promotes new telecommunications technologies.

Each grant award will be reviewed to ensure it meets the appropriate

statutory purpose.

NTIA's new policy interpretation also satisfies the second prong of

the Lemon test as NTIA grant funds still may not be used primarily to

advance or inhibit religion. As recently underscored by the Rosenberger

court, programs that neutrally extend benefits to recipients pass

Establishment Clause muster, if religious interests are only

incidentally served:

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[T]he [constitutional] guarantee of neutrality [toward religion]

is respected, not offended, when the government, following neutral

criteria and evenhanded policies, extends benefits to recipients

whose ideologies and viewpoints, including religious ones, are broad

and diverse. . . . More than once have we rejected the position that

the Establishment Clause even justifies, much less requires, a

refusal to extend free speech rights to religious speakers who

participate in broad-reaching government programs neutral in design.

115 S.Ct. at 2521-22 (emphasis added).

NTIA's new policy interpretation will ensure both that the program

funds are neutrally provided and that any benefit to religion will be

attenuated or incidental. NTIA will behave neutrally toward all grant

applicants. All grant applicants (including sectarian organizations)

will be eligible for funding (assuming they meet NTIA's other

eligibility requirements), provided they comply with the policy that

NTIA grant funds will not be used for purposes the essential thrust of

which is sectarian.25 If, as we discuss further below, questions

arise regarding compliance, however, NTIA will determine whether the

recipients' use of grant funds has the primary, and thus impermissible,

effect of advancing or inhibiting religion. Where some benefit appears

to inure to a sectarian interest, further analysis of the potential

benefit will be undertaken to determine whether it is merely

incidential or attenuated and thus permissible.

\25\ The PTFP regulation at 15 C.F.R. Sec. 2301.22(d) provides:

``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.'' The assurance contained

in the PTFP application kit provides that the applicant certify that

he/she ``will not use or allow the use of the facilities for

essentially sectarian purposes for as long as the Applicant

possesses or uses the facilities, whether or not this period extends

beyond the ten-year Federal interest period following completion of

this project.'' NTIA considers these phrases to mean the same thing.