It ain't over 'til it's over.
Opponents of the sale of WQEX asked for an investigation Monday, sending a letter to FCC general counsel Christopher Wright in which they claim intervention by U.S. Sen. John McCain, R-Ariz., violated FCC rules against partiality.
Last week the FCC approved the elimination of WQEX and the transfer of its educational license and Channel 16 dial position to Christian broadcaster WPCB. Paxson Communications Corp. will buy Channel 40, now home to WPCB, for $35 million. That money will be split between WQED and Cornerstone TeleVision, which operates WPCB.
McCain, a presidential candidate and chairman of the U.S. Senate Committee on Commerce, Science and Transportation, sent letters to the FCC in November and again earlier this month urging a vote on the swap-sale without taking sides in the issue.
"He's obviously doing it on behalf of the applicants," said Jerry Starr, one of the leaders of the Save Pittsburgh Public Television campaign. "The only one who contacted McCain for the letter is the other side and they wanted a decision now. We did not contact McCain and we were not served or apprised of this letter so we had no opportunity to respond."
WQED Pittsburgh president George Miles said he had not contacted McCain, but noted it was possible other proponents of the sale may have spoken to him.
"I'm not sure how McCain got involved in the process," Miles said. "Everybody in Congress knew this was going on and we talked to a number of people about this. McCain was not on our list," but Paxson Communications chair Lowell "Bud" Paxson may have made contact.
Mark Buse, staff director for the Senate committee, said yesterday that McCain "feels it is unfortunate that some disagree with what the commission did, but that McCain's actions were fully appropriate as the chairman of the committee that has oversight over this agency."
Buse emphasized that McCain urged the commissioners to act but "he did not, in any way, tell them how to act or that they should approve or disapprove of this license transfer."
Asked how McCain became aware of this pending deal, Buse said staffers read about it in the trade press and "he's been made aware of this by the companies involved and by individuals in Pittsburgh." Buse said the fact that the applications had been pending since June 1997 prompted the inquiry.
"There are people's lives involved and business decisions that legitimately need to be made," Buse reasoned. The Arizona Republican has been concerned for some time about the backlogs at the FCC. In fact, a letter to the FCC's Wireless Bureau about pending matters produced a list of 63,000 items an inch and a half thick.
McCain had urged the commissioners to act, either in a regular monthly meeting or by voting individually and tallying those results. The actual FCC order, which spells out how the commissioners agreed and dissented, has yet to be released.
In Monday's letter to the FCC, opponents' attorney Angela J. Campbell suggests McCain's letters were more than a status inquiry because they asked for a resolution to the FCC's deliberation by a certain date. Campbell argues McCain's letters constitute "presentations," which the FCC is required to share with opponents of the WQEX sale because she says he called for "the date by which a proceeding should be resolved."
In McCain's first letter he asked "that the Commission act on these applications at its regularly scheduled monthly meeting in December ..." In his second letter, McCain asked the FCC commissioners to notify him by Dec. 14 whether they "have acted upon these applications" and, if not, whether they would vote on the sale at the FCC's open meeting on Dec. 15.
"The clear implication is the commission should decide it by Dec. 15," Campbell said.
Steve Lerman, a Washington-based communications attorney for WQED, said letters that come into the FCC are reviewed as a matter of course. Lerman said if the general counsel judged McCain's letters in violation of the rules, they would have been returned to McCain and not passed on to the FCC commissioners.
"Obviously there wasn't anybody at the general counsel's office who thought these letters violated the rules and therefore the commissioners felt they could respond to them," Lerman said. "To me this is grasping at straws."
Lerman said McCain's letters specifically disclaimed an interest in whether or not the FCC approved the WQEX sale and that McCain did not demand an answer.
"I think what he was saying is, you have a meeting coming up, try to resolve this," Lerman said. "He didn't tell them they had to act by the meeting. He asked whether [they'll] be prepared to act and if not, tell me why not."
Starr said McCain urged the FCC to make a decision by the end of December when the three-way sales agreement involving WQED, Cornerstone and Pax TV would have expired. A similar deal lapsed at the end of 1998 and was renewed until Dec. 31, 1999.
"We're saying, in effect, that the rules have been broken and that the decision was forced and that it's not in the best interest of the community," Starr said. "We would like sanctions imposed, including an order to show cause why the application [for license transfer] should not be dismissed or denied."
Miles said he anticipated objections from WQEX sale opponents.
"I expect those guys will be fighting this all the way to the end and then probably still fight it," Miles said. "Nothing surprises me."