September 21, 2003                                                                                AMENDMENT   ONE                                                                                                                                                                                                                           

"After The Senate Vote    ...     What We Need To Do Next!"

by Don Schellhardt  

      There is certainly cause for jubilation over the Senate's 55-40 Senate vote, on September 16, to overturn ALL of the FCC's June 2 media ownership decision.    The vote came on Senate Joint Resolution 17 (aka S.J. Res. 17), introduced by Senator Byron Dorgan (D-ND).  

      Please see this month's SPECIAL SUPPLEMENT for an analysis of patterns in the Senate   --   AND a list of which Senators voted how. 

      The Senate's action, IF seconded by the House of Representatives and not vetoed by President Bush, would restore ALL of the previously applicable media ownership ceilings.   

       Unfortunately, for those of us who strongly favor more room for more companies (and more non-profits) in the mass media business, neither a favorable vote in the House nor the absence of a Presidential veto can be taken for granted.     WE NEED TO MAKE THE MOST OF THE SENATE VOTE    --    BY MAKING MORE CONTACTS WITH CAPITOL HILL.  

FYI    --    IMPORTANT POINTS TO NOTE  

         For additional details of the overall political situation   --   regarding BOTH the FCC's media ownership decision AND the MITRE Corporation Report's recommendations for Low Power FM channel spacing reform    --     please see the "STRATEGIC SITUATION" portion of this month's SPECIAL SUPPLEMENT. 

         Here in the column itself, let me emphasize 3 key points about the current situation:  

         1.     THE CLOCK IS TICKING.      The leaders of both Houses of Congress have set a "target adjournment date" of FRIDAY, OCTOBER 3.    Whatever doesn't happen by that date will likely have to wait for 3 months   --   until the NEXT Session of Congress convenes in JANUARY.  

          It is true that Congress often misses its "target adjournment date", sometimes by days and less frequently by weeks.    It would be foolish, however, to COUNT ON a delay in the schedule.      For planning purposes, we MUST assume that we now have LESS THAN 2 WEEKS   --   that is, until Friday, October 3    --    to get the legislation we want out of Congress and on its way to the White House.     Otherwise, the next  "window of opportunity" could be 3 months away, or more.  

         2.      "MIX AND MATCH" IS POSSIBLE.       ALL of the FCC's media ownership decision was targeted by the Senate in its 55-40 vote.    

         In addition, ALL of the FCC's media ownership decision has been "stayed"    --    not overturned, but suspended for an indefinite period    --    by a recent order of the Third U.S. Circuit Court in Philadelphia, acting in response to a Motion filed by MEDIA ACCESS PROJECT on behalf of PROMETHEUS RADIO PROJECT.  

         Nevertheless, the FCC's media ownership decision can be, and has been, sub-divided into 3 major components:  

         O      RADIO ownership ceilings, which the FCC left in place   --   while making some minor changes in how markets are defined

         O      TELEVISION ownership ceilings, which the FCC increased    --   while leaving untouched the controversial UHF Discount

         O      Media CROSS-ownership ceilings (ownership of TV/radio/cable/newspapers in the same area), which the FCC increased  

         While the Senate and the Third U.S. Circuit Court have both treated the FCC's media ownership decision as a single package, the House of Representatives has voted to overturn only ONE part of the FCC's decision:     that is, the increase in the TELEVISION ownership ceilings.     The House voted in July to reject, by 273-152, an amendment    --    offered by Representative Maurice Hinchey (D-NY)   --    that would have overturned the increase in the CROSS-ownership ceilings as well.      

          So far, there has been no House floor vote, either way, on whether or not to overturn the FCC's minor "market definition" changes for the RADIO industry.       In the Senate, however, 6 Republican Senators have apparently voted "No" on S.J. Res. 17 SOLELY because it would have overturned the FCC's minor changes in radio regulation, along with its override of the increases in television and cross-ownership ceilings.   

          While this nitpicking may simply be camouflage for other motivations, it raises   --   at least in theory   --   the possibility that the Senate vote MIGHT have been 61-34 with 5 abstentions, instead of 55-40 with 5 abstentions, IF the radio ownership changes had been deleted from the scope of Senator Dorgan's override Resolution.    

           I should add that the deletion of radio ownership regulation from S.J. Res. 17 was procedurally impossible, given the legal requirements of the "Joint Resolution Of Disapproval" mechanism, but radio COULD be deleted from a possible future amendment to the Appropriations bill for the FCC and certain other agencies.     A SECOND Senate vote, probably tied to the Appropriations bill, is in fact likely.  

          As for the Senators who were absent for the vote, 4 of them    --    including 3 Presidential candidates    --    were Democratic Senators who had actually co-sponsored S.J. Res. 17 and/or S. 1046, the nearly identical legislation that was approved by the Senate, Commerce & Transportation Committee.      Presumably, they would have voted "Yes" if they had been present.    Had ALL of the absent Senators shown up to vote, the vote would then have been 59-41 or 60-40, depending on whether absent Senator Gordon Smith (R-OR) voted "No" or "Yes".  

           The point is that 6 Republican Senators would have voted "Yes" if the proposal on the floor had been only slightly different    ..   4 Democratic Senators would, presumably, have voted "Yes" if they had shown up for the vote    ...    and 1 fence-straddling Republican Senator MIGHT have voted "Yes" as well, if he had appeared for the vote.     

            The distinction is NOT academic or hypothetical    --    because procedural considerations may well lead to a SECOND Senate vote on media ownership, perhaps in the context of an Appropriations bill, within the next few weeks.      THERE ARE NOW "11 SENATORS IN PLAY" FOR A POSSIBLE SENATE RE-VOTE:    THAT IS, THERE ARE 11 SENATE VOTES THAT COULD CHANGE FROM "NO" TO "YES", OR FROM "ABSENT" TO "YES", IN THE IMMEDIATE FUTURE.    

             3.      "OUR SIDE" MAY BE OFFERED "A DEAL"   --   WHICH WE **SHOULDN'T** TAKE.      After the Senate vote, Representative W.J. "Billy" Tauzin (R-LA), Chairman of the House Energy & Commerce Committee, joined Representative Fred Upton (R-MI), Chairman of the House Subcommittee on Telecommunications & The Internet, issued a haughty press release that basically told the Senate to give up.    

The Dynamic Duo stressed that:   (1) President Bush has promised to veto any legislation which would override any or all of the FCC's media ownership decision; and adding that  (2) the 55-40 vote in the Senate fell short of the two-thirds majority required to override a Presidential veto (that is, 65 of the 95 Senators who actually voted on September 16, or 67 votes if all 100 Senators had been present).    

              In effect, The Powerful Pair were stealing a tag line from The Borg:    "Resistance is futile."   Fortunately for us, however, the press release was more a case of bravado than confidence.     Its two key assertions were, respectively, a half-truth and a falsehood.  

              (A)     THE WHITE HOUSE VETO THREAT.    Regarding the White House veto threat, the statement was issued by members of the White House STAFF, not by the Commander-In-Chief himself.     NEW YORK TIMES columnist William Safire, so far as I can tell, was the first reporter to point this out   --   and he rightly noted that OPENLY staff-authored veto threats are unusual.       Also unusual was the wording of the statement.    There was no pledge that President Bush would veto such a bill:    there was only a statement that the President's "senior advisors" would RECOMMEND that he should veto such a bill.  

              This is, in short, a veto threat with an escape hatch    --    implying that the President wants the OPTION of backing down IF it becomes politically necessary.  

               It is OUR job, of course, to MAKE IT politically necessary.  

               (B)     THE "VETO PROOF" VOTES IN CONGRESS.     It is flatly false that the Senate vote proves an inability to override a possible  Presidential veto.  

               First of all, as I have noted, 2 highly variable factors    --    placing the FCC's minor changes in radio regulation outside the scope of  the media ownership override legislation, AND persuading 4 supportive Democratic Senators (3 of whom want to be President) to actually show up for the vote   --    would likely have changed the Senate's vote from 55-40 to 65-35, or even 66-34 if Senator Gordon Smith (R-OR) had climbed off the fence and voted "Yes".     65-35 or 66-34 would have put the vote right on the doorstep of "veto proof" status.  

               Second, the Senate's vote was nearly "veto proof" while attempting to overturn BOTH the television ownership ceilings AND the media cross-ownership ceilings.      Had there been a vote ONLY on repealing the television ownership ceilings, all available evidence indicates that the "Yes" votes would have soared well above a two-thirds majority.    In fact, over in the markedly more "party line" House of Representatives, an Appropriations bill which ONLY contained an override of the television ownership ceilings was passed by the dramatic margin of 400-21.  

                  (C)    THE PROBABLE "DEAL".      Given the current alignment of forces, I believe that President Bush will quietly offer the following deal to Senate and House supporters of media ownership reform:  

                  "The House version of the Appropriations bill, to fund the FCC and several other agencies, ALREADY contains language which overrides the television ownership ceilings.    IF the Senate refrains from trying to add to the Appropriations bill an override of the media cross-ownership ceilings, OR adds such an override but then quietly agrees to drop it from the House-Senate Conference Report version of the bill, I will agree not to veto the bill in question.    In Other Words:   I will sign an override of the television ownership ceilings into law, but I will draw the line at an override of the media cross-ownership ceilings."  

                   I suspect this offer will be made, whether or not you and I ever hear of it, but I HOPE those who speak for us in the Senate and the House will reject it.        

                  The offer to sign a "TV ownership only" bill will not give the media reform supporters ANYTHING they do not have already.     We already know that the Senate and the House support restoration of the TV ownership ceilings by a margin that is MORE than "veto-proof".    A Presidential veto of a "TV ownership only" override will only place the President more visibly than ever on a wildly unpopular side of the media ownership issue, AND hurt his image among additional voters by holding up part of the Federal budget, in a battle he will not win anyway.  

                  In short:     

                  We should NOT give up on pushing for an override of the media cross-ownership ceilings in exchange for avoiding a veto of the television ownership override.      We would be giving in on the more important of the two issues   --   in response to a BLUFF.  

                   Even if ONLY a television ownership override is politically feasible right now, we should still fight hard for the media cross-ownership override as well.     If we win on the television ownership override this fall, and lose on the media cross-ownership override after a bruising fight,  we will have more momentum behind us when we raise the cross-ownership issue again in January.      

                   In The Meantime, we will have made President Bush and the House Republican leaders pay a public relations price for opposing us.  

****   ACTION   ****:     SHORING UP THE SENATE  

                   As noted above, a SECOND vote on the FCC's media ownership decision is likely to occur in the Senate before the "target adjournment date" of October 3.     The issue of the FCC's minor changes in radio ownership regulation, which may have cost media reform forces the votes of as many as 6 Republican Senators, may be excluded from the scope of the re-vote.  

                  As was also noted above, as many as 11 Senators may be "in play" for the Senate re-vote.     If we can persuade some or all of these Senators to shift from "No" or "Absent" to "Yes", we will be close to reaching the 67-vote threshold for having a "veto-proof" vote.     At that point, we could go over the top if only a few of the other Senators who voted "No" had a change of heart   --   OR just happened to be absent from the Senate floor at the time of the vote.  

                  Even without the full 67 votes:    THE HIGHER THE MARGIN OF VICTORY IN A SECOND SENATE VOTE, THE LOWER THE ODDS  FOR A PRESIDENTIAL VETO    --     ** AND ** THE BETTER THE ODDS THAT THE HOUSE WILL GO ALONG WITH THE SENATE.  

                  Letters to the WASHINGTON office of your U.S. Senator(s) can be addressed to:  

                  Senator    ________

                  United States Senate

                  Washington, D.C. 20510  

                  The LOCAL office(s) of your U.S. Senator(s) should be listed in your local phone book.  

                   REGARDING PRESIDENTIAL CANDIDATES:    Should you wish to contact a Presidential campaign organization, your best bet is probably the use of a Search Engine, such as www.google.com or yahoo.com.     Alternatively, in the case of a U.S. Senator, you could probably obtain the campaign address from the Senator's Washington office or local office(s).  

                  When Senate Joint Resolution 17, introduced by Senator Byron Dorgan (D-ND), was adopted, 55-40, by the U.S. Senate:  

                  PRESIDENTIAL CANDIDATE JOSEPH LIEBERMAN (D-CT) voted FOR the Joint Resolution Of Disapproval

                  PRESIDENTIAL CANDIDATE JOHN KERRY (D-MA) was ABSENT FOR THE VOTE  PRESIDENTIAL CANDIDATE JOHN EDWARDS (D-NC) was ABSENT FOR THE VOTE  PRESIDENTIAL CANDIDATE BOB GRAHAM (D-FL) was ABSENT FOR THE VOTE

                   IF you are writing to the campaign Headquarters of a particular Presidential candidate, or to the LOCAL office of a U.S. Senator, snail mail letters are fine.  

                   However, IF you are writing to the WASHINGTON office of a U.S. Senator:     Please avoid sending letters by snail mail, since Capitol Hill security measures in the wake of September 11 can delay such letters for weeks   --   if they ever arrive at all.  

                   E-Mail Messages are better than snail mail letters.    However, in order of their value, the BEST choices    --   if you can afford them   --   are:   (1) letters sent by 2-day USPS Express Mail (usually $4.00 per envelope); or  (2) Faxes (usually $1.00 per page).  

****  ACTION   ****:    YOUR STATE MAY BE STRATEGICALLY LOCATED!!!!  

                    We have mentioned, above, 11 Senators who are "in play" for a probable Senate re-vote on media ownership.  

                    If YOUR State is represented by one of these 11 Senators, you can A SPECIAL IMPACT ON EVENTS by contacting the Senator in question.     A list of "THE 11 IN PLAY" is set forth below, in Sections A through C.      

                   Section D lists "No"-voting Senators whose seats are up for election in 2004.    Section E lists "Yes"-voting Senators whose seats are up for election in 2004.      The Section D Senators may be especially responsive to pressure from those they represent   --   while the Section E Senators could undoubtedly use some reassurance from those they represent.     

                    ANY letter to ANY Senator is helpful.     

                    Still, if you live in a State represented by one of the Senators listed below, YOUR letter could pack an EXTRA wallop.  

                     (A)     THE SIX "NITPICKERS".    These 6 Republican Senators have all co-sponsored S. 1046, introduced by Senator Byron Dorgan (D-ND).     S. 1046 is ALMOST IDENTICAL to S. J. Res. 17, which was also introduced by Senator Dorgan.    Yet these 6 Senators all voted AGAINST S.J. Resolution 17    --    reportedly following the lead of Senator John McCain (R-AZ), Chairman of the Senate Commerce, Science & Transportation Committee.     Despite his public support for an EXTREMELY similar proposal by Senator Dorgan, Senator McCain opposed S.J. Res. 17 on the grounds that it would undo certain minor changes in radio ownership regulation that S. 1046 would leave untouched.  

                     Check below to see whether you vote in a Nitpicker's State:  

                     ALASKA     --         Senator Ted Stevens (R)

                                                      Senator Lisa Murkowski (R)

                     MONTANA    --       Senator Conrad Burns (R)

                     ARIZONA      --        Senator John McCain (R)

                     MINNESOTA   --     Senator Norman Coleman (R)

                     GEORGIA     --        Senator Saxby Chambliss (R)  

                     (B)     THE INVISIBLE FOUR.      These 4 Democratic Senators (3 of them Presidential candidates) all co-sponsored S. J. Res. 17,  or the nearly identical S. 1046, or  (in 3 of 4 cases) BOTH proposals.     Yet they had all "gone fishin'" when the vote came up on S. J. Res. 17.  

                     Check below to see whether one of The Invisible Four represents you:  

                     FLORIDA     --                      Senator Bob Graham (D), also a Presidential candidate      ...     Seat up for election in 2004

                     NORTH CAROLINA    --      Senator John Edwards (D), also a Presidential candidate   ...     Seat up for election in 2004

                     MASSACHUSETTS   --      Senator John Kerry (D), also a Presidential candidate

                     VERMONT    --                     Senator Patrick Leahy (D)                                                        ...      Seat up for election in 2004                 

                     (C)       THE QUESTION MARK.      This is the one Senator whose views on media ownership are still unknown.   If you live in his State, maybe YOU know:  

                      OREGON    --      Senator Gordon Smith (R)  

                      (D)       "NO" VOTERS WHOSE SEATS ARE UP FOR ELECTION NEXT YEAR.    The Senators set forth below voted "No" on S.J. Res. 17 AND ALSO hold seats which are up for election in 2004.    The order of presentation illustrates my "best guess"    --    based on personal characteristics, overall political philosophy, geographical patterns and the values of voters in their States   --   as to which Senators may be most open to changing their minds IF they hear from you and others.  

                       If you live in one of these States, maybe you can inspire one of these Senators to think again:  

                       PENNSYLVANIA       --       Senator Arlen Specter (R)

                       ALASKA                     --       Senator Lisa Murkowski (R), also a Nitpicker

                       ARIZONA                    --       Senator John McCain (R), also a Nitpicker

                       COLORADO              --       Senator Ben Nighthorse Campbell (R)

                       ILLINOIS                      --       Senator Peter Fitzgerald (R)

                       KANSAS                    --        Senator Sam Brownback (R)

                       MISSOURI                  --        Senator Christopher Bond (R)

                       IOWA                           --       Senator Charles Grassley (R)

                       LOUISIANA                --        Senator John Breaux (D)

                       GEORGIA                  --        Senator Zell Miller (D)

                       OKLAHOMA              --        Senator Don Nickles (R)

                       NEW HAMPSHIRE   --        Senator Judd Gregg (R)

                       KENTUCKY               --        Senator Jim Bunning (R)  

                      (E)     "YES" VOTERS WHOSE SEATS ARE UP FOR ELECTION NEXT YEAR.      The Senators set forth below voted "Yes" on S.J. Res. 17 AND ALSO hold seats which are up for election in 2004.   

                      If you live in one of these States, you owe one of these Senators a "Thank You"   --   AND encouragement to "stick to his or her guns":                     

                      NORTH DAKOTA      --     Senator Byron Dorgan (D), also Sponsor of S.J. Res. 17 AND S. 1046

                      SOUTH DAKOTA      --     Senator Tom Daschle (D)

                      NEVADA                    --     Senator Harry Reid (D)

                      WASHINGTON          --     Senator Patty Murray (D)

                      HAWAII                       --     Senator Daniel Inouye (D)

                      ALABAMA                 --     Senator Richard Shelby (R)

                      SOUTH CAROLINA  --     Senator Ernest "Fritz" Hollings (D)

                      ARKANSAS              --      Senator Blanche Lincoln (D)

                      WISCONSIN              --      Senator Russell Feingold (D)

                      INDIANA                    --       Senator Evan Bayh (D)

                      OHIO                          --       Senator George Voinovich (R)

                      NEW YORK               --       Senator Charles Schumer (D)

                      CONNECTICUT        --       Senator Christopher Dodd (D)

                      MARYLAND              --       Senator Barbara Mikulski (D)                 

**** ACTION ****:    ENERGIZING THE HOUSE OF REPRESENTATIVES  

                    I urge each and every one of you to write to the person who represents you in the House of Representatives.  

                    Letters to the WASHINGTON office of your Congressional Representative can be addressed to:  

                    Representative  _____________   

                    U.S. House of Representatives

                    Washington, D.C. 20515  

                    The LOCAL office(s) of your Congressional Representative should be listed in your local phone book.  

                    REGARDING PRESIDENTIAL CANDIDATES:     Should you wish to contact a Presidential campaign organization, the best bet is probably use of a Search Engine, such as google.com or yahoo.com.     Alternatively, in the case of a Congressional Representative, you could probably obtain the campaign address from the Representative's Washington office and/or local office(s).  

                    When the Hinchey (D-NY) amendment, to override the FCC's increase in media cross-ownership ceilings, was rejected, 273-152, by the House of Representatives:  

                    PRESIDENTIAL CANDIDATE DENNIS KUCINICH (D-OH) voted FOR the Hinchey Amendment  

                    PRESIDENTIAL CANDIDATE RICHARD GEPHARDT (D-MO) was ABSENT FOR THE VOTE  

                    Please see the "tips", regarding written communications to Congress, in the section immediately above.  

                    The House of Representatives has already voted, by 400-21, FOR overriding the FCC's increase in television ownership ceilings.   However, as noted above, the House rejected, by 273-152, an opportunity to override the increase in media cross-ownership ceilings as well.  

                    Please mention the Senate's September 16 vote, by 55-40, to override the FCC's actions on BOTH television ownership ceilings AND media cross-ownership ceilings.     Urge your Representative to press House leaders for a RE-VOTE on the media cross-ownership ceilings, through the Appropriations Conference Report process AND/OR through action on S.J. Res. 17, before the "target adjournment date" of October 3.     Needless to say, please also urge him or her to vote for both overrides if there is a re-vote in the House.  

FYI:      BEYOND THE NEXT FEW WEEKS  

                     Before Congress begins its 3-month break, on or shortly after October 3, a great deal could happen.     Your willingness to contact your Senators and Representatives NOW could have a major impact on the course of coming events.  

                     After Congress leaves Washington, and your Congressional legislators return home to YOUR State, there will be FURTHER OPPORTUNITIES for you to influence events for the better.       NEXT MONTH:    What We Can Do When The Legislators Come Home.

COPYRIGHT 2003 BY DON SCHELLHARDT