October 8, 2003                                                                                            AMENDMENT   ONE                                                                                                                                                                                                                           

THE GAME AT "HALF TIME"

by Don Schellhardt

 If Sessions of Congress were a football game, we would now be approaching "half time".   The metaphor is not that far-fetched, except for the fact that football players are far less devious than Senators and Representatives.  

Congress is nearing "half time" because the first Session of the 108th Congress is almost over   --   putting Congress on the brink of a 3-month break before the second Session begins in January.    

In fact, the original "target adjournment date", set by Congressional leaders, was Friday, October 3.    As this column goes to press, on Wednesday, October 8, Congressional leaders are planning to keep the legislators in Washington until at least Tuesday, October 14.     Nevertheless, most of the time that is left will probably be spent on appropriations for U.S. action in Iraq and Afghanistan, continuing negotiations between the two Houses over a possible prescription drug subsidy program and other matters unrelated to media reform.    With the possible-but-not-probable exception of further action on restoration of the FCC's previously applicable media ownership ceilings, it does not appear that the extra days of Congressional activity will result in any progress toward a more open mass media.

Thus:     

Action on EVERY media reform issue which is now before Congress, or which will be coming before Congress in the immediate future, is probably going to have to wait until January   --   or later.     

Here is a rundown on some specific issues.  

1.   MEDIA OWNERSHIP CEILINGS  

(a)    THE GOOD NEWS.     As I reported previously in this column, the Senate has voted, by 55-40, with 5 abstentions, to restore all of the FCC's previously applicable media ownership ceilings.    Had conditions been only slightly different, the Senate's vote for action could have been as high as 66-34:   that is, almost enough support to override a possible veto by President Bush.      

In The Meantime, the House of Representatives has voted, by 400-21, to adopt an Appropriations bill which contains language to restore the previous TV ownership ceilings.  

(b)    THE BAD NEWS.       While voting, by 400-21, to restore the previous TV ownership ceilings, the House has also voted, by 273-152, against restoring the previous ceilings on media cross-ownership.      

So far, the Republican leaders of the House are refusing to allow a re-vote that might restore the cross-ownership ceilings as well.      Meanwhile, Representative William J. "Billy" Tauzin, R-LA, who heads the House Committee on Energy and Commerce, continues to oppose any kind of corrective action at all.      

However, resistance from Representative Tauzin and the House leadership could be overcome if 50 percent of the Congressional Representatives are willing to sign a Discharge Petition.   Some of you may have seen this process demonstrated (with some technical errors) by Reese Witherspoon's character in the recent movie LEGALLY BLONDE 2.     The goal of 218 signatures on a House Discharge Petition, for a re-vote on media cross-ownership caps, is not beyond reach   --   IF legislators hear a sufficient howl from their constituents.  

The more serious setback is the stance taken by Senator John McCain, R-AZ, who heads the Senate's Committee on Commerce, Science and Transportation.    While supporting, in theory, restoration of the previous cross-ownership and TV ownership ceilings, Senator McCain has erected, so far successfully, various barriers to any corrective legislation that has not gone through his own Committee.    The Senator's Committee is friendly, and has in fact already approved an excellent bill:   S. 1046, introduced by Senator Byron Dorgan, D-ND.    Unfortunately, however, if the Senate votes to approve S. 1046, or any other bill that comes out of Senator McCain's Committee, the legislation will have to go through Representative Tauzin's fiercely hostile Committee once it arrives in the House.     

The legislative mechanisms which have been used for votes on media ownership so far   --   that is, a Resolution Of Disapproval in the Senate, and an Appropriations bill in the House    --    have been selected specifically because they bypass the normal Committee process, including Representative Tauzin's hostile Committee in the House.      By effectively blocking use of any procedural alternative to the normal Committee system in the Senate, Senator McCain is now limiting action to a procedural channel that will leave Representative Tauzin in charge of the process in the House.     

Senator McCain is, saying, in effect, that he supports restoring the previous media ownership ceilings, but ONLY if the restoration is done his way, through his Committee's stamp of approval on the legislation.    This means, in practice, that Senator McCain would have rather have the legislation die in the House, as a lost cause with his own name on it, than see some or all of it pass both Houses of Congress, with someone else's name on it.  

Senator McCain is acting like the mother, in the famous Biblical story, who told King Solomon that she would rather possess half of a dead, disputed baby than see another woman take custody of the living child.      

The Senator's apparent willingness to elevate jurisdictional "turf" and personal ego above all else is regrettable, but typical in a politician.    It is inexcusable, however, in a statesman.    That is what Senator McCain so often claims to be, and what he occasionally shows glimmers of becoming, but this time he is falling far, far short of his "higher self".     I urge the Senator to do some serious soul searching before he runs for President again   --   particularly if he wants to run as a reformer.  

Senator McCain's roadblocks can be busted wide open IF two thirds of his fellow Senators are willing to vote to override him.     Fortunately, just as persuading 218 of 435 Representatives to sign a Discharge Petition in the House is not beyond the reach of a suitably vocal electorate, so it is also feasible for a chorus of outraged voters to persuade 67 of the 100 Senators to override Senator McCain.      Unfortunately, while both goals are achievable over time, it is unlikely that either can be achieved before Congress begins its 3-month break.  

**** MAKE A NOTE ****:     These are the 5 Republican Senators who currently join Senator McCain in supporting restoration of all the previous media ownership ceilings, but ONLY if the restoration is done on Senator McCain's ultimately unworkable terms:     from ALASKA, Senators Ted Stevens and Lisa Murkowski    ...   from MONTANA, Senator Conrad Burns   ...   from MINNESOTA, Senator Norman Coleman    ...    and from GEORGIA, Senator Saxby Chambliss.   Letters to these legislators, from people who live in their States, would be very helpful right now.  

**** PLEASE ALSO NOTE **** that Senators McCain and Murkowski are running for re-election, from Arizona and Alaska respectively, in 2004.  

(c)     THE POSSIBLE BAD NEWS.      The Third U.S. Circuit Court in Philadelphia, acting in response to a Motion filed by MEDIA ACCESS PROJECT of Washington on behalf of THE PROMETHEUS RADIO PROJECT of Philadelphia, has barred the FCC from implementing the media ownership regulations that it adopted, by a 3-2 party line vote, on June 2.     However, the court's Order is based on its desire to keep the previous restrictions in place until:   (i) Congress resolves the situation by either overriding the Commission and/or enacting its own new media ownership mandates; or  (ii) the court, in the absence of Congressional action, makes its own decision on the merits of the legal arguments which have been made against the FCC's new media ownership rules.  

With respect to a possible decision on the legal issues by the Third U.S. Circuit Court, the court will begin to hear oral arguments on Wednesday, November 5.    It is very unlikely that the court will conclude its decision-making process, or that the U.S. Supreme Court will rule upon an almost inevitable appeal of the Circuit Court's decision by whichever side loses, before Congress re-convenes in January.    Nevertheless, IF the judicial process ultimately concludes before Congress is willing and able to enact new legislation, the FCC's media ownership policies could end up being written by appointed judges instead of elected legislators.     

(d)    RELATED MATTERS.     We KNOW that a majority of Congressional legislators, in BOTH Houses of Congress, support restoring at least SOME of the previously applicable media ownership ceilings.   We also KNOW that the will of the majority, in BOTH Houses of Congress, is being blocked by a literal handful of less than 10 individuals, including the 2 key Committee Chairmen and a few Republican leaders in the House.      

Perhaps, it is finally time for CONGRESS to consider whether it has allowed its Committee Chairmen to acquire too much power.    

For sure, it is time for VOTERS to consider whether they have erred in allowing the Republican Party to control the House of Representatives   ...   given the kind of people that Republican legislators in the House have voted to elect as their leaders.     

2.    LOW POWER FM CHANNEL SPACING REFORM  

(a)     THE GOOD NEWS.      In May, THE AMHERST ALLIANCE and 18 other parties filed a Freedom Of Information Act (FOIA) Request with the FCC, seeking release of the MITRE Corporation's long overdue Report to the Commission.    The MITRE Report contained the results of field testing to determine whether or not  Low Power FM stations actually pose a threat of significant interference with other radio stations.  

In July, the FCC finally responded to the 19-party FOIA Request by releasing the MITRE Corporation's Report.    Release of the Report made it public knowledge that MITRE Corporation had found NO evidence that LPFM stations pose any risk of  "significant interference" to other radio stations.    In the process, this Report  by an independent consulting firm confirmed what LPFM supporters had been saying all along    ...    and what the FCC itself had concluded, through its own field testing, in 1999.    Blown to ribbons were assertions by THE NATIONAL ASSOCIATION OF BROADCASTERS (NAB) that licensing of LPFM stations would cause ruinous interference.  

Under legislation enacted by Congress in December of 2000, the Commission must officially apprise Congress of  the MITRE Corporation's field test results.   In addition, the FCC must submit its own recommendations regarding whether Congress should revise the current channel spacing requirements for LPFM   --   notably including the requirement that LPFM stations must be placed no less than 3 frequencies away from any other stations on the dial.    Hundreds of additional LPFM stations could find room on the dial, especially in the large metropolitan areas where LPFM stations are now under-represented or absent, IF the statutory mandate for "third adjacent channel spacing" were replaced with a statutory mandate for "second adjacent channel spacing"   --   or less.  

Following release of the MITRE Corporation Report on July 10, the FCC invited any and all interested parties to submit Written Comments on:   (i) the substance and/or quality of the MITRE Corporation Report; and/or  (ii) whether the FCC should recommend statutory changes to Congress, including repeal of the third adjacent channel spacing requirement.    REC NETWORKS of Arizona, an energetic non-profit provider of information services to the LPFM community, has already submitted a 124-page filing    --   complete with data, conclusions and recommendations that many readers of this column may find of interest.  

Written Comments on the MITRE Corporation Report, and/or related LPFM matters, should be filed electronically in FCC Docket 99-25.    All filings should be made before Midnight Eastern Time on Tuesday, October 14.  

(b)       THE BAD NEWS.    Written Comments on the MITRE Corporation Report were originally due before Midnight Eastern Time on Friday, September 12.    However, the deadline was moved back to Tuesday, October 14 in response to a Motion filed by NATIONAL PUBLIC RADIO (NPR).    Even though the NAB's old  charges of  "interference" from LPFM have been disproven by the FCC's technical experts in 1999, and again by MITRE Corporation's independent technical  experts in 2003, NPR still says that it needs time for further "study" of  LPFM's potential for interference.    In fact, NPR, in its Motion, asked the FCC for a 3-month extension of the deadline, rather than the 1-month deadline extension it received.  

However, even the 1-month extension may have done some damage to the cause of LPFM channel spacing reform.     Back when the FCC's deadline for Written Comments was September 12, the staff of the Senate Commerce, Science and Transportation Committee spread the word informally that Senator McCain would hold Committee Hearings on LPFM during the month of September.      These plans apparently evaporated after the FCC decided to extend the deadline until mid-October, by which time Congress hopes to be heading home.      Thus, NPR has effectively leveraged a 1-month delay into a 4-month delay.     

NPR's skillful but ruthless maneuver, justified solely by the last tattered remnants of  "interference" claims which have now been thoroughly discredited, demonstrates that the current leadership of NPR will stop at nothing in its efforts to place all of community radio broadcasting under NPR control.    Neither the intellectual anemia of its claims about "interference", nor the hypocrisy of its simultaneous posturing as a friend of community radio, appear sufficient to shame the national NPR organization into living up to its own stated ideals.      

Personally, although I have contributed to NPR in the past, rest assured that it will never receive another dime from me until and unless it ceases its campaign to crush any community radio station that it cannot control.     Nor, until and unless that policy change is made by the national NPR organization, will I ever again sign a letter or Petition to save NPR from the budget-cutters in Congress.    I will not lift a finger to help NPR survive while the national organization is consciously trying to choke the life out of fellow branches of community radio.    And I will not distinguish between local NPR affiliates and the national organization until I can see those affiliates VISIBLY challenging the national leadership to change, instead of simply whispering to me in private that they really do not agree with their national CEO.  

Personally, I oppose Representative Tauzin, but I despise the national leadership of NPR.   Representative Tauzin has been an open and honest adversary, while the national NPR organization has slithered in the darkness like slime, paying lip service to the ideal of community radio while taking every opportunity to betray it.  

An enemy, after all, is only an opponent    --   but a false friend is an outrage, because he or she has broken a sacred trust.     A false friend combines disagreement, which may well be reasoned and sincere, with betrayal:    a vice that no decent system of ethics will countenance.    

There is a reason why, during times of war, enemy soldiers are treated less harshly than traitors.    That is why, personally, I would shake, and in fact have shaken, the hand of Representative Tauzin   --    and would even shake the hand of Eddie Fritts    --    but I would not touch the hand of Kevin Klose.    Those who fight me in the open deserve my respect, not those who creep in the shadows.  

The national NPR organization has been a backstabber of LPFM from the beginning of this fight   --  and the Karma which it deserves right now is total desertion by all of the natural allies it has so coldly and consciously chosen to betray.  

**** MAKE A NOTE ****:    E-Mail GLENN AUSTIN of Minnesota, at glenaus@bitstream.net, to request a copy of his latest letter to NPR of Minnesota, in which he protests efforts to derail LPFM by the national NPR organization.    You may want to send a similar letter of your own to your local NPR affiliate.  

(c)     THE POSSIBLE GOOD NEWS.      The probable delay in Congressional action on media ownership ceilings, coupled with the definite delay in Congressional action on the MITRE Corporation Report, could mean these two matters will come up in Congress at the same time instead of sequentially.    In this case, the strategies of the delaying parties could backfire   --   because the similar but separate forces favoring LPFM and media ownership ceilings could converge on the Capitol at the same time.    A synergy could develop, with each side assisting the other to an extent that might not occur under different timing.  

3.    OTHER LOW POWER RADIO ISSUES  

(a)     THE GOOD NEWS.    A number of other issues, involving or affecting Low Power Radio, have been rising slowly toward greater visibility at the FCC.  

O      TRANSLATOR REFORM   --   that is, action to "freeze", restrain and/or roll back the proliferation of satellators and other long-distance translator  stations   --    has been proposed in various spring 2003 Written Comments filed in FCC Docket RM-10609, including those filed by REC NETWORKS,

         THE NATIONAL TRANSLATOR ASSOCIATION, THE AMHERST ALLIANCE, WVJW-LP of West Virginia and WKJCE GLBT RADIO of   Pennsylvania  

O      TRANSLATOR REFORM has also been proposed in an April 2002 Petition For Rulemaking, filed by THE AMHERST ALLIANCE and several  other parties, and even earlier in late 1999 Written Comments filed in FCC Docket 99-25 by THE AMHERST ALLIANCE  

O      The FCC's October 2002 "interim authorization" of  IN BAND ON CHANNEL (IBOC) DIGITAL RADIO has been challenged by 40 different parties,  led by THE AMHERST ALLIANCE, in an October 2002 Petition For Reconsideration, filed in FCC Docket 99-325   --   and also by LEONARD  KAHN, P.E. of New York's KAHN COMMUNICATIONS, in a February 2003 Petition For Rulemaking (re-submitted in amended form in April 2003)  

O      A LOW POWER AM SERVICE has been formally proposed in a Petition For Rulemaking, not yet Docketed, which was filed in June 2003 by FRED BAUMGARTNER, P.B.E. of Colorado   --    who serves as an officer in THE SOCIETY OF BROADCAST ENGINEERS and also leads the newly   formed NATIONAL ANTENNA CONSORTIUM  

2 of these 3 issues    --    that is, TRANSLATOR REFORM, and interference with LPFM stations from IBOC DIGITAL RADIO   --   are directly relevant to the prospects for LPFM.    Therefore, both subjects can be raised legitimately by those of you who file Written Comments, regarding the MITRE Corporation Report and related issues affecting LPFM, in FCC Docket 99-25.    These Written Comments are also a good opportunity to remind the Commission that it is overdue for issuance of the long-awaited "window" for filing of LP-10 applications (to establish new, licensed LPFM stations of 1 to 10 watts).  

Just remember that the deadline, for all Docket 99-25 filings, is Midnight Eastern Time on Tuesday, October 14.  

In addition, ALL 3 of these issues, along with "the 10-watt window", are clearly relevant to the FCC's recently launched NOTICE OF INQUIRY ON LOCALISM.    A special Task Force On Localism, composed of a diverse group of Commission staffers, was formed this week within the FCC.    

Starting immediately, Written Comments, suggesting ways in which the FCC can and should promote local radio, may be filed in FCC Docket RM-10803.     The first public Hearing will be held in Charlotte, on a currently unannounced date in OCTOBER.     A second public Hearing will be held in San Antonio, on a currently unannounced date in DECEMBER.     Other Hearings, throughout the United States, will follow.

The full schedule of Localism Task Force Hearings, along with other important information, can be found at the new Task Force's Web Site:  

www.fcc.gov/localism  

I strongly encourage those of you who have something to say to request, IMMEDIATELY, an opportunity to speak at the regional Hearing of your choice.    Requests to participate, which should be respectful and polite, may be E-Mailed to localism@fcc.gov   --   while similarly respectful and polite phone calls may be made to the Localism Task Force Office at (202) 418-7777.  

(b)    THE BAD NEWS.     The Localism Task Force Hearings will continue into June 2004.    This completion date suggests, in turn, that actual regulatory changes may not be proposed until the fall of 2004, or later, and may not be adopted in final form until 2005.    By that time, a new President may be in office.

Some might argue that having a new President preside over the implementation of  localism initiatives would be a plus.    However, a possible change of Presidents is far from a certainty.     Even if it were a certainty, however, there is a real risk that some small, existing radio stations   --   including some current and aspiring LPFM stations   --   may not survive to 2005 unless translator proliferation and/or IBOC Digital Radio can be suspended, or otherwise restrained, before then.  

(c)     THE POSSIBLE GOOD NEWS.      If a "parallel track" effort is made to address some or all of these issues through Congressional legislation, AS WELL AS through advocacy before the FCC, the lobbying efforts may gain a boost from the possible synergy discussed in Section 2(c), above.  

4.   THE OVERALL OUTLOOK  

Other than the risk that the Third Circuit Court's Order To Stay might erode away, the 3-month delay in Congressional action is not necessarily a bad thing    --    IF those who favor media reform are willing to educate their Congressional legislators over the 3-month break.      

Given the relatively complex and technical nature of media reform issues other than media ownership caps   --    that is, adjacent channel spacing, translator stations (both satellite-fed and otherwise), Low Power AM and certainly IBOC Digital Radio   --    media reformers can use a gift of 3 months to begin "backgrounding" Congressional legislators on these matters.  

However, the 3-month break COULD be a very bad development indeed, IF the legislators do not hear voters pressing for media reform while they are back home.     

Silence from those voters who favor media reform would be widely interpreted by legislators as a loss of voter interest in the subject.     

Also, as a practical matter, it is an absolute certainty that these legislators will continue to hear, throughout the whole 3 months, from 24/7 lobbyists for the media megacorporations.    Silence from the voters would only leave these views uncontradicted.  

The Moral Of The Story is:     Don't be silent.     Next month's article:    TOOLS YOU CAN USE FOR LOBBYING.

COPYRIGHT 2003 BY DON SCHELLHARDT