The recent FCC approval of the controversial license swap between TV stations WQEX and WPCB came on a 3-2 vote, according to the full text of the decision, released yesterday.
The dissenters, who included FCC Chairman William Kennard, wanted to hold a hearing on the case, which could have left the $35 million proposal "dead in the water," according to one of the principals in the deal.
The question came down to whether Cornerstone TeleVision, which owns WPCB and operates it as a religious broadcaster, qualified for the noncommercial educational license held by WQEX, a public broadcaster owned by WQED Pittsburgh.
Kennard and Commissioner Gloria Tristani wrote: "There are simply too many unresolved questions of fact regarding whether the proposed programming is primarily educational, or primarily something else." However, they were outvoted by the other three commissioners.
The pair suggested the "right solution would have been ... not to give this applicant a free pass. The people of Pittsburgh -- who are counting on the commission to preserve the integrity of channels reserved for educational use -- deserve no less."
While the Federal Communications Commission approved the license swap, it also voted to set new ground rules on how a broadcaster, religious or otherwise, can qualify for an educational license. It also tries to clarify thorny issues about whether religious programming -- such as church services -- would be considered educational.
Commissioners Michael K. Powell and Harold W. Furchtgott-Roth, who voted to approve the license transfer, suggested the new guidelines could "open a Pandora's box of problems."
But Kennard and Tristani insisted that, "standing alone, the majority's decision to grant this application would eliminate all eligibility standards" for noncommercial educational licensees. "To avoid this result, we join in that part of the order which sets forth clarified programming standards" for such broadcasters.
Commissioner Susan Ness, who voted for the license transfer and for the new guidelines, agreed that eligibility standards for educational stations would be eliminated without the clarifications. Her vote to approve the transfer was based on application of the FCC's "overly general guidelines" regarding educational and religious programming.
"My conclusion is based in significant part on the absence of clarity in our definition of 'general educational programming' and our guidelines for determining what is 'religious' but not 'educational," she wrote.
Ness also wrote that Cornerstone's "apparent willingness" to modify its programming to meet current FCC requirements for non-commercial educational broadcasters "should include any clarification we provide," an apparent reference to the new guidelines set out in the decision.
All of this springs from FCC approval earlier this month of a deal that would: permit WQEX to disappear, WPCB to take over Channel 16 and its non-commercial educational license and Paxson Communications Corp. to buy Channel 40 for $35 million.
That money will be split between Cornerstone TeleVision, which operates the religious WPCB, and WQED Pittsburgh, parent company of WQED-TV, WQEX-TV, WQED-FM and Pittsburgh magazine. This plan has been before the FCC for 2 1/2 years.
If the FCC had voted for a hearing, the delay could have meant the deal was "dead in the water," George Miles, president of WQED Pittsburgh, said yesterday.
Calling yesterday a "very critical day," Miles was elated to see that the FCC had rejected virtually all arguments from the Save Pittsburgh Public TV campaign. "All that stuff they threw up against the wall didn't stick," he said of the Alliance for Progressive Action and QED Accountability Project, working under the Save Pittsburgh Public TV umbrella.
WQED's attorney, Steve Lerman of Washington, D.C., said his client was "completely and totally vindicated."
One of the leading opponents of the deal, Jerry Starr of Save Pittsburgh Public TV, said he and his colleagues remain convinced, despite the FCC decision, that Cornerstone does not qualify for the non-commercial educational license.
"We will continue to monitor them to ensure to the extent possible that they refrain from commercialism and hate-mongering," said Starr, who is also executive director of Citizens for Independent Public Broadcasting, located in Washington, D.C.
That group, he said, "will be addressing the larger policy questions, including the one raised by this decision about how do you determine what is educational programming and whether a station's schedule meets the standard of providing a majority of primarily educational programming."
As for any further challenges to the FCC vote, he said opponents will decide today whether to go forward.
"We note it was a highly controversial decision decided by the narrowest of margins -- which in itself is unusual since the FCC has never denied a license transfer application," Starr said.
No closing date for the deal has been set.
"Under this order, you could close tomorrow. The order is effective and permits closing tomorrow, if that were the desire of the parties. But, having said that, there are things to do," Lerman said. In fact, Miles said the three parties to the deal likely will talk by phone in the next 24 to 48 hours.
Lerman said he knew the commission vote would be close, considering the length of time the decision took. "The bottom line is the commission found all of the parties legally, technically and financially qualified. So as far as we're concerned, it's a victory."
It was unclear yesterday what effect the clarified programming guidelines would have on Cornerstone's lineup, but the order seems to indicate that some changes may be required.
The order states that for a station to qualify for a noncommercial license, more than half its programming must serve an educational, instructional or cultural purpose. As to the definition of those terms, the order states, "a program primarily devoted to religious exhortation, proselytizing or testimonials regarding personal religious faith generally will not qualify" as educational.
The order goes on to say: "As even Cornerstone recognizes ... it will be obligated to comply with any clarifications ... including those that are evident from this decision." Furthermore, it says that if Cornerstone is shown to violate the new rules after it begins broadcasting on Channel 16, the FCC can take appropriate action.
Cornerstone President Oleen Eagle could not be reached yesterday for comment on how the station's current lineup squares with the new ruling, whether some preaching or witnessing segments would have to be dropped and other non-proselytizing show added. The station's attorney, Margaret Miller, did not return phone calls.
The document also reveals:
The FCC received 300-plus letters from WQEX viewers, plus thousands of form letters, mostly opposing the deal. Another 1,500 telephone calls from subscribers of Working Assets, a long-distance telephone provider, were also registered in opposition to the deal.
While the FCC weighed the arguments from the Save Pittsburgh Public TV camp, it sided with WQED, Cornerstone or Paxson on virtually all counts. The document addresses everything filed in the past two-plus years, from whether WQED files were easily available to viewers to charges that WQED misled the FCC.
The FCC turned down WQED's request to censure the groups behind the Save Pittsburgh Public TV campaign and its attorneys. WQED argued that the opponents were primarily interested in delaying the deal, but the FCC found otherwise.
Although no fines were levied, the commission admonished WQED for airing announcements touting the Regional Renaissance Initiative.