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Feature: The McCain Mystery

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5/28/00

On May 30, the FCC will begin taking applications for the first new low power FM radio licenses to be issued since the agency initially banned them more than 30 years ago. Would-be broadcasters in 11 states and the Mariana Islands will get first crack at the 100-watt LPFM licenses; the first station could go on the air as early as August.

Yet a battle rages in Congress to kill the service before it even gets off the ground. So far, 34 Senators have signed onto anti-LPFM legislation that the House of Representatives overwhelmingly approved (with some changes) in mid-April.

But the broadcast lobby's momentum appears to be slowing. It only takes 51 votes to pass a bill in the Senate (compared to 218 needed in the House) and the number of Senators committed to the bill stalled at around 30 for nearly a month.

Can the last 17 votes be secured? The margin is too close to call, but the winds are shifting in LPFM's favor. The reason? Senator John McCain.

McCain is back at work in the Senate after taking most of the year off to campaign for the Republican presidential nomination. He was on Capitol Hill for the last month or so of House activity leading up to its passage of the anti-LPFM bill, and has been the focus of intense lobbying since then by both broadcast interests and media activists.

Their interest in McCain is understandable: not only does the Arizona Senator enjoy a higher-than-normal position in the public eye right now because of his run on the campaign trail, but he's also chairman of the Senate Commerce Committee - the Committee any anti-LPFM legislation will have to pass through before coming to a vote on the Senate floor.

A Historical Foe

McCain's past history shows he's no friend of free radio. He's been a long-standing critic of the FCC. And he was chair of the Senate Commerce Committee while the Telecommunications Act of 1996 - which sparked the grassroots movement leading to the LPFM rule - made its way through Congress.

McCain wanted the Act to deregulate the cable and telephone industries; he traded the free broadcast spectrum given to television stations and the promise of a consolidated radio industry to reach those goals. And while he ultimately voted against the Telecom Act because it was so laden with special interest provisions, he could afford to do so, because the Act already had enough votes to pass.

Such a move allowed McCain to save face and keep his "maverick reformer" image intact, although it came at the expense of the public interest. His record hasn't improved much since then.

In late 1997, McCain authored and introduced the Newspaper Ownership Act, which allowed print and broadcast media interests to mingle by allowing companies to own both newspapers and radio or television stations in a single outlet. Claiming that "diversity of viewpoints is as close as clicking on the Internet," McCain's bill caused further consolidation among traditional media outlets.

In 1998, McCain was a pivotal lawmaker in the drive to ban the FCC's "free time" provision for political candidates on television stations. He even attached this to an unrelated spending bill to get it into law.

And just last year, McCain gave a rousing speech to the National Association of Broadcasters, where he harshly derided the FCC's LPFM proposal. While he might have opposed the gains given to the broadcast industry in the Telecom Act, it's clear that he's perfectly satisfied to let it keep them.

"A majority of this Commission starts with anachronistic concepts of outlet and viewpoint scarcity," McCain declared in his speech, "adds a dash of unreality in assuming that radio station ownership is still the way to break into the telecom industry, half-bakes the technical and political problems, and cooks up -- microradio. Frankly, a Web page or a leased access cable channel would get the job done better."

Later in 1999, McCain was pushing a bill that would restrict the FCC's ability to regulate mergers between companies.

Maybe the fresh air on the campaign trail did something to his head, because McCain seems to have changed his tune.

Present-Day Friend?

On May 8, Senator John McCain introduced the FM Radio Act of 2000. Instead of restricting the FCC from going ahead with its LPFM station rollout, McCain's bill would allow the new stations to take to the air - but he's created a potentially deadly loophole in the process that would allow Big Broadcasting to shut the stations down themselves.

Whether or not these new LPFM stations will interfere with existing broadcasters has been a very contentious point of debate. The notion that they will is what led the House to pass the bill to further reduce the crumbs the FCC threw to the public in its initial plan.

McCain's bill prefers instead to let the courts sort it all out. Under the FM Radio Act, if a commercial broadcaster thinks they're being interfered with by a new LPFM station, they can file a lawsuit against the low power broadcaster for damages.

The ultimate investigation into whether or not there's really interference would be carried out by the National Academy of Sciences, but in the meantime a big broadcaster could tie an LPFM station up in the courts, slowly draining the fledgling operation of its funds.

McCain's move caught the NAB off guard. While the Senator's bill would still give radio station owners the upper hand in keeping LPFM off the air, the lobby had invested so much in its original "Radio Broadcasting Preservation Act" that it had no choice but to oppose McCain's initiative.

The FM Radio Act of 2000 has divided media advocates in Washington: some see McCain's bill as a measure designed to draw off support from the NAB-sponsored anti-LPFM proposal, while others think McCain's "poison pill" is no better than the NAB's plan.

It could very well be possible that McCain intends to bottle up both bills. Just last week, he co-authored a "Dear Colleague" letter with Nebraska Democrat Bob Kerrey that urges other Senators to oppose "S. 2068 (the NAB-sponsored initiative) or any other efforts to limit the Federal Communication Commission's decision to open up the airwaves."

It goes on: "In creating a new class of Low Power FM radio stations, the FCC was clearly responding to a public need. The Commission used its technical expertise carefully and exercised its discretion reasonably in finding that Low Power FM radio stations will not significantly harm the integrity of full-power FM radio service. We hope that you join us in opposing any efforts to limit this important initiative."

John McCain could very well be man that swings any Senate vote on LPFM. There are several tricks the broadcast lobby can still try to play to circumvent his Commerce Committee and get something designed to kill the service signed into law. But, at this point, it appears a long-time foe of access to the airwaves may finally be coming around.

The deciding factor here will be the clock. If enough LPFM stations take to the air and Congress can't act fast enough, it may be too late to turn back what's already been unleashed.

That being said, it appears McCain's playing both sides of the LPFM fence. His recent moves on the issue don't necessarily make him a friend, but at least he's temporarily less of an enemy.