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A long road for low-power FM stations

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Hundreds of applications available for nonprofits after year-long policy review From the Winter 2001 issue of The News Media &…

Hundreds of applications available for nonprofits after year-long policy review

From the Winter 2001 issue of The News Media & The Law, page 24.

The Federal Communications Commission continued its plan to license new low-power FM radio stations, and approved the application of a number of “microbroadcasters” in December. But the commission’s plan still faces opposition from the broadcast industry and Congress — and the commission itself, as new Bush Administration changes reshape the balance of power there.

If those hurdles are overcome, the number of voices on the airwaves will increase by the hundreds in the coming months as the FCC hands out licenses for two new classes of low power radio stations. Following rules adopted by the FCC last year, the applications of 255 nonprofit organizations were deemed eligible for the new licenses at the year’s end, and could receive construction permits by the end of January, despite recently passed legislation that attempts to thwart the FCC’s plans.

The FCC’s new low power rules have been in the making a long time. For years the FCC has battled with radio stations broadcasting without a license, giving warnings and sometimes confiscating equipment from what are often referred to as “pirate” radio stations. These microbroadcasters usually operate under 100 watts, cater to an audience within a radius of about three miles, and often play music and discuss issues that microbroadcasters say are not heard on traditional stations.

In the last few years, microbroadcasters across the country have mounted legal challenges against the FCC, charging that the licensing standards violate their First Amendment right to free speech and arguing for more room on the spectrum for people who want a piece of the airwaves.

In 1995, the station “Steal this Radio” went on the air without a license in New York City, using a building’s plumbing pipes as antennas. The FCC tracked down the station and ordered it to close in March 1998. In an attempt to stay on the air, Steal This Radio’s broadcasters sued the FCC for what they said is an unconstitutional licensing scheme. They contended that the radio broadcasting system is a public forum, which they have a First Amendment right to use.

In March 1999, federal district court Judge Michael Mukasey said the broadcast spectrum is not a public forum. Mukasey added that even if it was a nonpublic forum, the FCC’s regulations are constitutional because they do not restrict speech based on content or viewpoint. In October 1999, the U.S. Court of Appeals in New York (2nd Cir.) affirmed the district court’s ruling. (Free Speech v. Reno)

Steal this Radio, like many similar stations, gained momentum from the efforts of Stephen Dunifer, who has been called the “Johnny Appleseed of the micropower broadcasting movement.” Dunifer started “Free Radio Berkeley” in 1993 and a year later the FCC told him to shut down the station. During a case that lasted nearly six years, Dunifer also claimed that the FCC’s rules violated his First Amendment right to free speech. (United States v. Dunifer)

“Accelerated by the passage of the Telecommunications Act of 1996, the concentration of broadcast media resources into fewer and fewer hands has made the notion of ‘public service’ a bad joke,” Dunifer said in a 1997 statement. “Standing in the way of thousands of communities having their own voice is an entrenched federal agency serving not the public interest but corporate greed and influence.”

Former FCC Chairman William Kennard has acknowledged a useful purpose for the smaller stations.

“They have a legitimate issue in that there are, in some communities, not outlets for expression on the airwaves, and I believe that is a function in part of the massive consolidation that we are seeing in the broadcast industry,” Kennard said in a 1997 interview with Radio World.

The 1996 Telecommunications Act, in which the FCC significantly relaxed regulations on the number of stations one company or organization could own, has often been criticized for initiating the decrease in diversity on the airwaves. Since that time, corporations have been consolidating and buying out smaller stations, causing the number of station owners to decrease by 12 percent despite a 4 percent increase in the total number of stations. While some see this as resulting in less diversity, other organizations, such as the National Association of Broadcasters, see it as the opposite. According to a fact sheet on the NAB’s Web site, the 70 radio programming formats in 1996 has increased to 91 today, showing diversity is expanding.

In an effort to increase the number of radio outlets serving specific markets, the FCC in January 1998 announced a plan to create thousands of new licenses. The licenses were set aside for stations that wanted to operate on less than ten watts, reaching an area of one to two miles, or 50-100 watts, reaching an area of about three-and-a-half miles. The FCC public comment period lasted ten months because of the tremendous number of concerns about the plan.

After reviewing the comments and researching the effect of the new stations on existing stations, the FCC in January 2000 revealed its “Creation of a low power radio service” (MM 99-25). Under the new regulations, nonprofit groups intending to serve their communities could apply for the new stations. To create room on the spectrum, the FCC abolished its third-adjacent channel protection regulation. Previously, the regulations required three channels between each station. For example, if a station operated at 94.1, no station could operate at 94.3 (the first-adjacent channel), 94.5 (the second-adjacent channel) or 94.7 (the third-adjacent channel). Under the new regulations, stations would be allowed to operate on 94.7, the third-adjacent channel.

New stations would not pepper the radio dial everywhere as a result of the FCC’s change, however, as the radio spectrum in some cities is already too crowded to allow any new stations. Chances of granting licenses for stations in New York City, Los Angeles, Chicago and San Diego are slim.

The FCC limited ownership of low power FM stations, which would operate on a noncommercial basis, to nonprofit government, educational or community organizations that had a campus, or that were physically located near or had 75 percent of their board members living within ten miles of the station. No organization currently owning a station would be eligible, nor would one organization be allowed to own more than one station. The FCC also limited some former “pirate” broadcasters from owning a low-power station. Anyone warned by the FCC to stop broadcasting and did so within 24 hours would be eligible to apply, as would those who voluntarily ceased operations by Feb. 26, 1999. Anyone who continued broadcasting illegally would be ineligible for a license.

Opposition to the FCC’s decision to grant the new licenses, led by the National Association of Broadcasters and National Public Radio, resulted in heavy lobbying on Capitol Hill to prohibit the relaxed spectrum proposal.

Rep. Michael Oxley (R-Ohio) introduced the Radio Broadcasting Preservation Act of 2000 to stop the implementation of the FCC’s plan. The bill called for the reinstatement of third-adjacent channel protections and suggested a pilot program in which the distance separations be dropped in nine markets to test for interference with existing stations. After the experimental period, the FCC could ask to waive the distance separations nationwide. After it passed in the House of Representatives, Sen. Rod Grams (R-Minn.) introduced a companion bill to the Senate.

While the NAB lobbied for the passage of this bill, Sen. John McCain (R-Ariz.) introduced his own bill, one that would allow the FCC to continue its efforts to bring low power radio to the airwaves. McCain pushed to let the FCC implement its program, but added a clause allowing stations that experience interference from LPFM stations to petition the agency to remove the interfering station.

“By permitting special interests to stifle these voices we are truly compromising the most fundamental principles of our party and our nation,” McCain said in a letter to President Bill Clinton about the bill opposing the FCC’s plan.

McCain’s bill did not muster enough votes and on Dec. 21, the Radio Broadcasting Preservation Act of 2000, buried in the Departments of Commerce, Justice, and State, the Judiciary, and Related Appropriations Act of 2001, was signed into law. (P.L. 106-553)

NAB President Eddie Fritts said he was pleased Congress passed the bill restricting the FCC’s plan for low-power stations.

“We are pleased that Congress has protected radio listeners against additional interference that would have been caused by the FCC low-power FM radio initiative,” Fritts said in a press release. “The compromise legislation allows LPFM to go forward, while minimizing interference for millions of radio listeners.”

Clinton, in a statement following the signing of the bill, expressed his disappointment in the act being attached to the bill.

“I am deeply disappointed that Congress chose to restrict the voice of our nation’s churches, schools, civic organizations and community groups,” Clinton said. ” I commend the FCC for giving a voice to the voiceless and I urge the Commission to go forward in licensing as many stations as possible consistent with the limitations imposed by Congress.”

The FCC took the president’s advice. Six days later, the FCC announced its intention to move forward with LPFM licensing by making 255 organizations eligible for licenses in the 50-100 watt range. More stations could be added soon as the FCC resolves applications from organizations competing for the same frequency. These stations are from the first round of applications the FCC received. Applications from other filing windows were being considered by the FCC in January. The future stations will comply with the new legislation by recognizing the third-channel protection requirement.

“The licensing of these first low power radio stations will benefit our communities and enhance the diversity of our society,” Kennard said in a statement. “I predict that as these first stations go on the air, we will see more and more applications from schools, churches and community-based organizations. And these new LPFM stations will not create any harmful interference problem for existing radio service.”

FCC Spokesman David Fiske said it is hard to say how many fewer low power licenses the FCC will be able to grant because of the legislation.

“The effect it has depends on where people are filing in the first place,” Fiske said. “The chairman and supporters were very pleased that there were, out of the first two groups, even with the third adjacent channel restrictions, 255.

“This is the first step. Low-power TV started out kind of small and was opposed by a lot of people, but then some local communities realized that there were tremendous local benefits that were totally different from what the major area-wide TV stations were doing, and we’re confident that that same effect will happen once (low power radio) starts,” Fiske said.

Fiske said the FCC is working out the details for the experimental markets testing second adjacent channel protections, but in the meantime is moving ahead with LPFM plans using third adjacent channel protections.

The NAB not only lobbied on Capitol Hill, it also took its case to the courts. The U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) on Nov. 28, listened to the FCC, NAB and lawyers on behalf of microbroadcasters make their comments on the LPFM plan. While the NAB continued protesting the FCC’s decision to relax spectrum protections, lawyers for former “pirate” broadcasters took issue with the FCC’s decision to prevent those who once broadcast without a license from obtaining a LPFM license. The court has not made a ruling. (NAB v. FCC)

Low-power radio could possibly find opposition in one more place — within the FCC itself. Kennard resigned as chairman of the FCC on Jan. 19 and on Jan. 22 newly inaugurated President Bush appointed Commissioner Michael K. Powell as the new chairman. Powell was one of two commissioners to dissent in the FCC’s low power radio ruling. With Kennard gone, the FCC is split, with two in favor and two in opposition. President Bush will appoint one more commissioner and this person will have the power to tip the scale — but whether it will be in favor of low power radio or against it remains to be seen.

The Penobscot School in Rockland, Maine, is one of the organizations that received word its application is eligible for a low power license.

“It can only work if it’s really a place where everybody feels that their point of view gets expressed, and the things that they’re interested in get talked about, and the kind of music they like, they get to hear,” Joe Steinberger of the Penobscot School said. “There is so little local information that gets out in any media because everything has become so centralized, so the idea is for this to be a real meeting place for people in the community.”