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FORDHAM UNIV. v. BROWN

June 28, 1994

FORDHAM UNIVERSITY, Plaintiff,
v.
RONALD H. BROWN, Secretary, United States Department of Commerce, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 Plaintiff Fordham University brings this suit to challenge a determination made by the Defendant Ronald H. Brown, Secretary of the Department of Commerce, that the Plaintiff's application for funding of certain broadcast facilities for its radio station is ineligible. The Government based this determination on the Plaintiff's weekly broadcast of Catholic Mass, and the Department's regulations barring the funding of sectarian programs. See 15 C.F.R. § 2301.5(d)(2)(xvi), § 2301.22(d) (1993). Fordham challenges this decision on the grounds that it violates the First Amendment; the Equal Protection Clause of the Fifth Amendment; Section 398 of the Communications Act of 1934, as amended, 47 U.S.C. § 398; the regulations governing eligibility under 47 C.F.R. § 2301.09; the priorities for funding under 47 U.S.C. § 391 and 15 C.F.R. §§ 2301 et seq.; and the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb.

 Before the Court are the parties' cross Motions for Summary Judgment. After careful consideration of the papers filed by the parties, the statements made by counsel at oral argument, the applicable law, and the entire record in this action, the Court shall grant the Defendant's Motion for Summary Judgment.

 I. FACTUAL BACKGROUND

 Radio station WFUV-FM is a noncommercial station licensed by the Federal Communications Commission ("FCC") to the Executive Committee of the Fordham Board of Trustees. WFUV broadcasts 24 hours a day, seven days a week, and is an affiliate of National Public Radio ("NPR") and American Public Radio ("APR"). It broadcasts music, news, information, ethnic service, and for the last 47 years, has broadcasted Catholic Mass from the Fordham University chapel on Sunday morning for one hour.

 Because the radio station's transmission facilities are situated on the roof of a classroom building on campus, WFUV cannot meet the radiation standards of the FCC and must relocate those facilities. Accordingly, Fordham obtained a permit from the FCC to build a transmission tower and related equipment elsewhere on campus.

 The National Telecommunications and Information Administration ("NTIA"), which operates within the Department of Commerce, administers the Public Telecommunications Facilities Program ("PTFP"). See 47 U.S.C. §§ 390 et seq. Through publication in the Federal Register on November 22, 1991, NTIA solicited proposals for applications for PTFP assistance for funding in 1992. The regulations governing the application process are contained in 15 C.F.R. § 2301 et seq. On March 5, 1992, Fordham submitted an application requesting $ 250,000 in federal funds to install a new transmission tower and antenna system, and $ 46,137 to rebuild its production control room. In its application, Fordham included a program guide which included the scheduling of a live broadcast of Catholic Mass from University Church on Sundays at 11:00 a.m. Additionally, the application also included an Assurance from the Director of Research that 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, whether or not this period extends beyond the ten-year Federal interest period following the completion of this project.

 On July 22, 1992, after negotiations with PTFP's program officers, the Plaintiff submitted its final 1992 grant request for the amount of $ 286,698. According to the Verified Statement of Ralph M. Jennings, WFUV's General Manager, Mr. Estep had advised Mr. Jennings that the negotiations did not indicate a funding decision, and that one issue that remained to be resolved prior to such a decision was whether the Catholic Mass program made Fordham ineligible for NTIA/PTFP funding.

 In a letter dated October 5, 1992, Fordham was informed that the NTIA was "unable" to fund Fordham's PTFP grant application. In its letter date October 9, 1992, Fordham responded that on October 7, 1992, the Federal Aviation Administration issued a "no hazard" determination for WFUV's proposed tower, and requested that NTIA reconsider its determination that Fordham's application was "ungrantable." By letter of October 19, 1992, Associate Administrator Dennis Connors of PTFP informed the Plaintiff that "at the time of the FY92 grant decisions, Fordham's application had not been classified as 'grantable' by the FCC," but that "certainly the Fordham application would be eligible for consideration if there is an award of deobligated funds." In his letter of January 6, 1993, Mr. Connors further informed the Plaintiff that NTIA had "completed its examination of the issue of sectarian programming and concluded that Fordham University's application to . . . PTFP would be eligible for funding," and encouraged Plaintiff to reapply.

 Plaintiff submitted the required documentation and assurances to reactivate its 1992 grant request for 1993, and also filed a request that its application be funded from deobligated 1992 funds. The 1993 application received basically the same priority classification as the 1992 application, in that the transmission facility was rated 1B and the studio renovation was rated 4B. The Plaintiff included an additional element of the application, requesting a total of $ 15,774 of federal funding, which was rated 4A. On February 12, 1993, the Plaintiff again requested funding of its deferred 1992 application from deobligated funds, which it did not receive.

 On June 1, 1993, Clarence L. "Larry" Irving was sworn in as the Assistant Secretary for Communications and Information. Mr. Irving told inquiring members of the New York congressional delegation the he was opposed to granting funds for a station which employed any sectarian programming whatsoever. On July 6, 1993, Fordham and PTFP staff representative Stuart Hallock negotiated a grant amount of $ 262,858. NTIA mandates that grant applications be submitted to the State Office of Educational Television and Public Broadcasting, and Plaintiff submitted its application to the New York State Office of Educational Television and Public Broadcasting. Upon review of Plaintiff's request, the New York State Office awarded it its highest priority designation of "Very Highly Recommended," one of only two New York PTFP applications to be so designated out of the nineteen that were submitted. These recommendations were forwarded to the NTIA for the NTIA's use in making decisions for the 1993 grants.

 On or about September 4, 1993, Plaintiff learned that its 1993 PTFP application would not be funded. In a telephone conversation on September 9, 1993, between Larry Irving and Ralph Jennings, Mr. Irving said that he personally directed the denial of the Plaintiff's application based on WFUV's weekly broadcast of the Catholic Mass. Larry Irving further informed Mr. Jennings that the NTIA policy against awarding PTFP grants to stations broadcasting sectarian programming was "absolute," and that Plaintiff would receive no funding until the religious service was removed from WFUV's schedule. On September 10, 1993, NTIA released a list of the 1993 PTFP grantees, which listed grants to projects of lower priority than that assigned to the projects in Plaintiff's application.

 On October 13, 1993, the Plaintiff filed a Verified Complaint with this Court, and filed a Motion for a Temporary Restraining Order ("TRO") on October 14, 1993. On October 25, 1993, the parties filed a Joint Stipulation and Proposed Briefing Schedule, in which the Plaintiff withdrew its request for a TRO and the Defendant agreed that "should the plaintiff ultimately prevail on the merits, and be awarded the grant at issue in this case, the defendant will make available funds to fund the grant." Joint Stipulation and Proposed Briefing Schedule, Order of October 2, 1993, PP 1,2. *fn2"

 In his letter of November 3, 1993, Dennis R. Connor notified Fordham that it was "ineligible under the PTFP rules, which provide that a 'grantee may not use or allow the use of the Federally funded equipment for purposes the essential thrust of which are sectarian'. 15 C.F.R. 2301.22(d)." WFUV's program schedule did not change in any material respect between the time it submitted its 1992 PTFP application and the November, 1993 determination of its ineligibility.

 II. DISCUSSION

 Fordham contends that the Government's determination of ineligibility is impermissible because it violates constitutional, statutory, and regulatory law. In making these arguments, the Plaintiff presents a broad attack implicating a variety of fundamental legal principles, and the Defendant responds on a similarly broad basis. However, in constructing their analyses, the parties stray from the actual controversy at bar. The question of whether the NTIA could have funded WFUV without violating the Establishment Clause is not before the Court, nor are the questions of whether, or under what circumstances, the Government may keep a radio broadcast off the air based on its programming content. Rather, the central issue in this action is whether NTIA's attempt to comply with the First Amendment by prohibiting the funding of facilities for a religious radio show in a discretionary grant program violates regulatory, statutory, or constitutional law. The Court concludes that there is no genuine issue as to any material fact that the NTIA's determination of WFUV's ineligibility for PTFP assistance is within the bounds of the law, and therefore grants summary judgment for the Defendant.

 A. THE GOVERNMENT DID NOT EXCEED ITS STATUTORY AUTHORITY IN PROMULGATING THE CHALLENGED REGULATIONS.

 The Public Telecommunication Financing Act of 1978, Pub. L. 95-567, 92. Stat. 2405 (1978), transferred the PTFP grant program from the Department of Health, Education, and Welfare to the control of the NTIA, which is within the Department of Commerce. The declared purpose of this program

 
is to assist, through matching grants, in the planning and construction of public telecommunications facilities in order to achieve the following objectives: (1) extend delivery of public telecommunications services to as many citizens of the United States as possible by the most efficient and economical means, including the use of broadcast and nonbroadcast technologies; (2) increase public telecommunications services and facilities available to, operated by, and owned by minorities and women; and (3) strengthen the capability of existing public television and radio stations to provide public telecommunications services to the public.

 47 U.S.C. § 390.

 Consonant with these goals and judicial guidance in federal funding, the NTIA has published a variety of rules and regulations that seek to implement Congress' objectives while maintaining a healthy separation between Church and State. In declaring Fordham's application ineligible, Larry Irving stated that be based his assessment of the ineligibility of Fordham's application on 15 C.F.R. § 2301.22(d), specifically entitled "Conditions attached to the Federal grant," which provides that a "grantee may not use or allow the use of the Federally funded equipment for purposes the essential thrust of which are sectarian." The regulations outlining the application procedures echo this provision, stating that an application must include an "Assurance that during the period in which the applicant possesses or uses the Federally funded facilities . . . the applicant will not use or allow the use of the Federally funded equipment for essentially sectarian purposes." 15 C.F.R. § 2301.5(d)(2)(xvi).

 Fordham asserts several challenges regarding the validity of the Department's issuance of these regulations. According to the Plaintiff, the Government issued its regulations without any explanation, and, by prohibiting grants for essentially sectarian purposes, went beyond the bounds of the underlying statute and impermissibly altered the statutory criteria for eligibility. However, in light of the extensive analysis and explanation rendered by the NTIA in formulating these regulations, the reasonableness of them, and the deference which this Court must give the agency's interpretation under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), the Court rejects this argument and concludes that there is no inconsistency with the agency's statutory authority. *fn3"

 The Plaintiff argues that the NTIA failed to offer an explanation for its proscriptive construction of the rule. Fordham cites SEC v. Sloan, 436 U.S. 103, 118, 56 L. Ed. 2d 148, 98 S. Ct. 1702 (1978), for its contention that because this Court must speculate as to NTIA's basis for arriving at the conclusion that it reached, the Government's regulations are impermissible. Nonetheless, the Plaintiff does not dispute the applicability of Chevron, which states that "the power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Chevron, 467 U.S. at 843 (quoting Morton v. Ruiz, 415 U.S. 199, 231, 39 L. Ed. 2d 270, 94 S. Ct. 1055 (1974)).

 In arguing that the NTIA has failed to offer an explanation for its reading of the rules, the Plaintiff is mistaken. On May 29, 1979, in the form of a Report and Order, the NTIA interpreted its final rule regarding the PTFP grant program. See Report and Order, 44 Fed. Reg. 30,898 (1979) ("Report and Order"). This Report and Order not only shows that the regulations are reasonable and consistent with the program's goals, but also indicates that the Government adopted a thoughtful approach to the problems inherent in delineating the parameters of funding only non-sectarian broadcasts:

 
It is obvious that we are faced here with striking a difficult and delicate balance between competing considerations. We have a responsibility to see that this program is not turned to narrow, private purposes in contravention of the letter and intention of the Act, a responsibility which assumes Constitutional dimensions where use of facilities for sectarian purposes would violate the Establishment Clause of the First Amendment. However, we, as a government body, must also, to the extent possible, avoid becoming "superprogrammer" by inquiring into the content of particular programs. . . .
 
. . . .
 
Applicants with religious affiliations will be expected to show that both the applicant organization and its proposed services will be nonsectarian in nature. By "nonsectarian" we mean that they do not have the function or purpose of advancing or propagating a religious belief. See Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971); and Tilton v. Richardson, [403 U.S. 672, 29 L. Ed. 2d 790, 91 S. Ct. 2091 (1971)]. . . .
 
In response to the concerns of those who feared we were banning all programs with religious themes, we stress that we are not doing so, and have changed the Rule to read: "In addition, facilities purchased in whole or in part with program funds may never be used for purposes, the essential thrust of which are sectarian." . . . We have also applied the rule to all applicants, since Federal assistance to sectarian efforts violates the Establishment Clause regardless of who is involved.

 Report and Order PP 21, 22, 24, 26. (emphasis supplied). In a notable example of Chevron gap-filling, this Report and Order indicate that the promulgated regulations are an attempt to codify and implement the Constitution's requirements and existing jurisprudence. In the context of recent cases in which the judiciary has struck down agencies' enforcement of the First Amendment, NTIA adequately explains its preference for a consistent policy over an ad hoc approach to First Amendment problems that its grant program may implicate, and therefore the Court must defer to this reasonable and long-standing policy choice. *fn4"

 The Plaintiff contends that the NTIA's adoption of the "essentially sectarian purposes" restriction exceeds the limits of its statutory authority. Reading the provisions regarding applicant's assurances in its own favor, Fordham contends that the agency "chose . . . to require certification by applicants, and in so doing it elected to rely not on the personal opinions of politically appointed government officials but on the judgment of licensees as to whether the purposes to which they intend to put their federally funded equipment are 'essentially sectarian' or essentially secular." Plaintiff's Motion at 13.

 The Court does not agree. According to the plain language of the statute, the governing regulations are well within the boundaries of the Secretary's administrative discretion. Through a variety of provisions, Congress emphasized the Secretary's authority to issue regulations requiring certain information and his discretion:

 
(a) Applications for grants
 
For each project for the construction of public telecommunications facilities there shall be submitted to the Secretary an application for a grant containing such information with respect to ...

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