CIPB Lost the Battle, but Not the War

Comment by Jerold Starr, CIPB Executive Director

Taking advantage of a 3-1 FCC Republican majority, WQED Pittsburgh finally got approval to dereserve (commercialize) and sell the public license for Channel 16 (WQEX) for $20 million to ShootingStar, a California-based commercial operator. It was the first time in history that a noncommercial license was taken away from a community without being replaced by another.

WQED's first two attempts to cash in its second public license were thwarted by CIPB Pittsburgh and it allies. From 1996 to 2002, tens of thousands of letters, e-mails, and petitions from outraged Pittsburghers and media activists across the country flooded the FCC. In a meeting with CIPB representatives in January 2002, Commissioner Kevin Martin's aide advised him that community sentiment ran largely against the deal.

Coming close to a decision, however, the FCC was interested only in which national politicians had weighed in on the matter. With abundant resources for lobbying, WQED had won the support of Republican Pennsylvania Senators Arlen Specter and Rick Santorum and Democratic Pennsylvania Representatives Mike Doyle, Frank Mascara and John Murtha while formerly critical Rep. Bill Coyne remained silent. Likewise, Rep. John Dingell (D-MI) and Ed Markey (D-MA), who had opposed the two earlier petitions (calling it a reward for wasteful mismanagement at the expense of the public), declined to join the community opposition on this last occasion.

CIPB Pittsburgh had created a not-for-profit corporation, Pittsburgh Educational Television, and developed a professional business plan to operate Channel 16 in the public interest. Its attorneys met with WQED's attorneys and a representative met with Diane Sutter of ShootingStar to see whether a compromise might be possible. In the end, however, WQED had eyes only for the big windfall. Pittsburgh now is one of the few major cities in the country that is served by only one public station.

Commissioner Michael Copps, the lone Democrat on the FCC, dissented to the majority opinion. He judged WQED's case to be insufficient. Indeed, CIPB had mounted a very effective opposition, led by attorneys from Georgetown University's Institute for Public Representation and supported by expert opinion and relevant data. The FCC deliberated the case for almost 20 months, despite numerous appeals from WQED and ShootingStar for quick approval.

In justifying its ruling, the FCC accepted as fact certain key representations by WQED that were not documented in any way, especially concerning the corporation's debt and the attitude of its funders. The FCC also cited WQED's argument that no major not-for-profit had offered to take over the license, a self-fulfilling prophecy since WQED CEO George Miles was on record as discouraging any such interest because it would not bring as much money as would a commercial bid.

Commissioner Copps stated that the burden of proof was on WQED: "…the record does not demonstrate a sustained attempt to sell WQEX to a state entity, a university, or any other non-commercial, educational entity which would be eligible to operate the station." Copps considered it "too early to throw in the towel."

In principle, Copps objected both to the dereservation and permission for WQED to transfer the license directly to ShootingStar for payment. Under existing FCC regulations, the dereservation, represented "an unprecedented waiver of our policy" with "potentially far-reaching and dangerous" consequences. Moreover, if granted, the license should have been opened for general application with the proceeds going to the federal government, holder of the license "in trust" for the American public.

CIPB might have lost this battle, but certainly not the war. The FCC took pains to preempt a precedent, stating that this decision "did not signal a relaxation of Commission policy disfavoring dereservation…" Instead, the FCC claimed that WQED's "severe financial distress" constituted "special circumstances," justifying a "deviation" from established policy. The fact that WQED's claimed debt was self-inflicted by wasteful mismanagement and possible embezzlement was not considered a factor. Neither was the fact that the debt had been significantly reduced since a 1996 FCC decision that WQED had failed to make the necessarily "compelling" case justifying dereservation.

Privately, CIPB heard from several in the public broadcasting community that they disagreed with WQED's initiative to cash in a public license for a private windfall. However, none of them were willing to go on the record. In contrast, many PBS member station CEOs and the heads of CPB, PBS and APTS at one time or another wrote in support of WQED's petition. Such cronyism in the face of a potentially dangerous precedent reflects poorly on U.S. public broadcasting officials.

Was this truly a special case or the first of many efforts to cash in the public's airwaves for private profit? Despite the FCC's attempt to limit its decision, many fiscally challenged state legislatures and universities may well consider commercializing and selling off some of their public licenses for a quick fix of capital. At the same time, CIPB will continue to oppose such efforts wherever they might occur. In fact, the six year battle, huge legal and lobbying fees, and tremendous public esteem that this gambit cost WQED might well stand as a cautionary tale to any such new adventures elsewhere.

Since the decision, Pittsburgh Educational Television has shifted its focus to developing and distributing new programs through cable access and small local stations (see www.pittedtv.org). A great many artists and activists have rallied to this challenge to create innovative cultural and public affairs programming to serve the full diversity of the Pittsburgh community. As such, the struggle, while it failed to save Channel 16, has and will bear fruit for public broadcasting in Pittsburgh.