Good News for Low Power FM!

Not only is it Friday (woohoo — the weekend!), but here at FMC we just got word that the U.S. Court of Appeals for the DC Circuit issued an important decision in support of Low Power FM radio. (Click here for the full PDF of the ruling.)

Just to catch up, LPFM stations are community-based, non-commercial radio broadcasters that operate at 100 watts or less and reach a radius of 3 to 7 miles. LPFM provides a platform for underserved musical genres, minority, religious and linguistic groups and offers a forum for debate about important local issues. LPFM also has a crucial role to play in disseminating public information for the welfare and safety of local communities. Did we mention that it’s great for local artists who rarely have a shot at getting airplay on their local commercial station?

If LPFM is so great (and it is), why don’t we have more stations like this? Well, earlier in the decade, the National Association of Broadcasters (NAB) – who represent commercial radio interests – successfully lobbied Congress to restrict LPFM stations to smaller communities, claiming that these stations’ tiny signals would cause “oceans of interference” with their own megawatt stations. These restrictions were embodied in the Radio Broadcasting Preservation Act of 2000. The Act limits community organizations’ ability to get LPFM licenses, and makes LPFMs secondary to full power stations. This means they are subject to getting knocked off the air if a full power station moves into the LPFM’s community.

In December 2007, the FCC revised some of it rules and policies in order to protect LPFMs from full-power FM stations that encroach onto the space currently occupied by existing LPFMs. The NAB filed a petition for review of these modifications, claiming they reduce the protections afforded to full power stations and violate the Radio Broadcast Preservation Act.

In a small, but decisive victory for existing LPFM stations, the U.S. Court of Appeals, DC Circuit dismissed the NAB’s petition for review and upheld the FCC’s December 2007 decision to protect LPFM stations. The DC Circuit held that the Radio Broadcast Preservation Act of 2000 did not prevent the FCC from taking measures to protect LPFM stations. Therefore, the FCC’s decision to modify its regulations to protect LPFM stations from encroachment by full-power stations was well within their authority. As the FCC has been a long-time supporter of LPFM, it’s great to have confirmation that the Commission can make decisions about how to protect these small but important broadcasters.

Now for some of that exciting legal detail. We completely understand if you wanna skip this section, but the Court’s ruling has some interesting aspects, so here ya go:

In their petition, the NAB also claimed that part of the FCC’s revised rules would result in the Commission “regulating content.” Here’s the background to their claim: the 2007 FCC modifications established a “presumption” in favor of LPFM stations when a new, full-power FM station and an existing LPFM station begin broadcasting too close to one another in violation of FCC minimum distance requirements (the space between stations that limits signal interference). Essentially, if the existing LPFM station has nowhere to move, but regularly provides “at least eight hours per day of locally originated programming,” the FCC will presume the public interest favors the LPFM station, and will not shut it down. The new, full-power FM station, however, is free to rebut this presumption.

The NAB claims that this presumption allows the FCC to regulate content by favoring local-oriented content over national-oriented content. The DC Circuit held that the FCC presumption in favor of “locally originated programming” is not equivalent to content-based regulation. In the absence of any other evidence from the NAB that the FCC would use the presumption to control content, the court said this issue was “unripe,” which is an odd little legal term that might as well mean “undercooked.”

Overall, the District Court’s decision was a strong one in favor of LPFM. Hopefully it will provide some incentive for Congress to adopt the Local Community Radio Act of 2009, which will be heard by the House Communications, Technology and Internet Subcommittee on June 11. We'll be there to report on the proceedings, so stay tuned. . .