Fordham University v. Brown

Decision Date29 June 1994
Docket NumberCiv. A. No. 93-2120 (CRR).
Citation856 F. Supp. 684
PartiesFORDHAM UNIVERSITY, Plaintiff, v. Ronald H. BROWN, Secretary, United States Department of Commerce, Defendant.
CourtU.S. District Court — District of Columbia

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Katrina Renouf and Margot Polivy of Renouf & Polivy, Washington, DC, for plaintiff.

Eric H. Holder, Jr., U.S. Atty., John D. Bates, Asst. U.S. Atty., and Sally M. Rider, Asst. U.S. Atty. Of Counsel: Stacia Davis LeBlanc and Brian Harris, U.S. Dept. of Commerce, for defendant.

Timothy B. Dyk and Eric Grant of Jones, Day, Reavis & Pogue, Washington, DC. Of Counsel: Theodore A. Miles, National Public Radio; Thomas E. Harvey, Sylvia S. Winik, and Pamela J. Brown, Corp. for Public Broadcasting, for amici curiae National Public Radio and the Corp. for Public Broadcasting.

Eugene F. Mullin of Mullin, Rhyne, Emmons and Topel, P.C., Washington, DC, for amicus curiae National Council of Churches.

Mark E. Chopko, Gen. Counsel, and Katherine G. Grincewich, Asst. Gen. Counsel, for amicus curiae U.S. Catholic Conference.

MEMORANDUM OPINION

CHARLES R. RICHEY, 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.

Charles Estep, the PTFP Program Officer who reviewed Fordham's application, indicated on an Acceptance Processing Checklist that the application may not be acceptable for filing on the basis of the Sunday Mass, and recommended a legal determination regarding whether that program precludes the request for equipment.1 On March 20, 1992, the Government sent the Plaintiff a request for further information, including questions about such items as the breakout of tower costs reflecting nonapplicant usage. Fordham responded on March 25, 1992. On May 8, 1992, while the sectarian issue was being reviewed, Expert Panel favorably evaluated the application, and Mr. Estep assigned the tower and antenna a priority rating of 1B and the production equipment a priority rating of 4B, on a scale of 1A down to 5B. These ratings do not constitute guarantees or privileges by themselves, and are to be used for comparative purposes.

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 that 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, ¶¶ 1, 2.2

In his letter of November 3, 1993, Dennis R. Connor notified Fordham that it was "ineligible...

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    ...___ U.S. ___, 115 S.Ct. 54, 130 L.Ed.2d 13; Bd. of Educ. of City of Chicago v. Alexander, 983 F.2d 745 (7th Cir.1992); Fordham Univ. v. Brown, 856 F.Supp. 684 (D.D.C.1994); Clever v. Cherry Hill Bd. of Educ., 838 F.Supp. 929 (D.N.J.1993). Accordingly, the statutes in question will be examin......
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    ...impact on the operation of schools, but will not prevent those schools from observing their religious tenets"); Fordham University v. Brown, 856 F.Supp. 684 (D.D.C.1994) (government's failure to subsidize broadcast of religious mass by radio station was not burden, much less substantial bur......
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    • Harvard Journal of Law & Public Policy Vol. 24 No. 2, March 2001
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    ...OF RELIGIOUS ORGANIZATIONS AS RECIPIENTS OF GOVERNMENT ASSISTANCE 13 (1996). (112.) See id. at 13-14. (113.) See Fordham Univ. v. Brown, 856 F. Supp. 684 (D.D.C. (114.) See Blocker v. Small Bus. Admin., 91 F. Supp. 37 (D.D.C. 1996); see also Frank J. Murray, Christian Day Care Center Chief ......

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