Broadcasters lose in court over low-power FM radio

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Supporters of low-power FM (LPFM) radio won a victory on Friday when a federal appeals court rejected a lawsuit to stop the Federal Communications Commissions from protecting LPFM stations from full power station signal interference.

"This is terrific news for the low power radio community," declared Sakura Saunders of the Prometheus Radio Project, which helps LPFMs. "Now, these stations can focus on serving their local communities, rather than live in fear of displacement due to the whims of their full-powered neighbors."
On the other hand, the advocacy group that defended the LPFM service was circumspect about the win. "The decision in the courts merely protects the status quo," noted the Media Access Project in a statement sent to Ars. "Congress still must pass legislation to allow more low-power FM station to operate nationwide."

There's also the question of how to ensure the funding these stations need to more effectively serve their signal areas. More about that later, though. First let's look at the nuts and bolts of this case.
Free and local?

Although when battling artist performance fees the National Association of Broadcasters touts the "free and local" nature of over-the-air radio, the trade association is an ardent enemy of the most local and accessible part of the FM dial, the FCC's LPFM service. These approximately 800 educational stations, operating at 10 or 100 watts, commit to eight hours of local programming a day in exchange for their licenses. That's probably much more than your typical big-signal commercial license provides, even though many of them operate at one hundred times the power of LPFMs.

There could be a lot more of these stations on the FM dial, but when the FCC first authorized the service in 2000, the NAB and National Public Radio claimed that they would interfere with full-power signals, and got Congress to force a "third adjacent rule" on the service. No LPFMs could be licensed within three channels to the left or right of a big signal station, for the most part limiting the concept to less urbanized areas.

But this victory wasn't enough for commercial broadcasters and NPR. While invoking the threat of interference from LPFMs, they also insisted that the FCC not protect these smaller stations from signal "encroachment" by new full power licenses that established themselves nearby. In December of 2007 the Commission did so anyway, setting up new rules that limited "the responsibility of LPFM stations to resolve interference caused to subsequently authorized full-service stations," specifically when that alleged interference took place on a second adjacent channel.

Second adjacent Special Temporary Authorizations would be available (essentially waivers; see paragraph 67) to LPFMs, the FCC decided, when the encroaching station could not demonstrate that an STA was not in the public interest. The NAB quickly sued the FCC over this move in the United States Court of Appeals for the District of Columbia Circuit.

The NAB charged that the agency's Order violated the "Radio Broadcasting Preservation Act," by which Congress forced the FCC to stick that third-adjacent rule in its LPFM service. "It would make no sense to conclude that Congress meant to prohibit the [Commission] only from eliminating third-adjacent protections," the group's attorneys argued," while leaving the Commission free to reduce interference protections from channels closer on the dial that would cause even greater interference."

But the court noted that Congress authorized the FCC to commission a study determining whether the third adjacent rule was really necessary (the agency did, and the study concluded that it wasn't). The "plain text" of the statute, the judges noted, indicates that lawmakers "did not intend to restrain the Commission’s authority to respond to new circumstances potentially threatening LPFM stations" besides the third-adjacent concern.

The broadcasters also insisted the FCC had not provided a reasoned explanation for its new policies regarding LPFM, thus violating the Administrative Procedures Act. The DC Circuit's judges politely brushed this claim aside. "The Commission explained that its staff had identified approximately 40 LPFM stations that could be forced to cease operations under Section 73.809 because of increases in fullpower FM station modification applications," they noted. "The Commission’s discussion of the changed circumstances and minimal predicted interference satisfy the APA's requirement that an agency justify a reversal in course."
What's next?

All this is music to the ears of Congressmember Mike Doyle (D-PA), who, along with Lee Terry (R-NE), has a bill pending that would dump that third-adjacent rule once and for all. There's a parallel proposal in the Senate backed by Maria Cantwell (D-WA) and John McCain (R-AZ). No big surprise what Doyle thinks should happen now: "Congress should enact the Doyle-Terry-McCain-Cantwell legislation," he told Ars, "to dramatically expand the number of low-power FM stations the FCC is allowed to license."

The problem is that these bills have yet to get out of committee, although Doyle aides say there's a hearing in the House on LPFM scheduled for Thursday. Why so little movement on this issue? Aside from NAB opposition, perhaps because the LPFM question doesn't have the backing of any faction in big media. When Google wanted the FCC to authorize unlicensed broadband devices for the TV channels (aka "white space"), it launched a campaign based on alliances with prominent grassroots media groups like Joshua Breitbart of New York City's People's Production House, Tessie Guillermo of Zero Divide, and Matthew Rantanen, Director of Technology for the Tribal Digital Village. Their testimonies spoke to the democratic potential of white space devices.

But Google et al rarely reciprocate by endorsing other potentially democratizing media/telecom causes, especially ones that won't enhance their bottom line. And so the LPFM crusade pretty much gets its energy from groups like Prometheus and the Future of Music Coalition. While they're terrific advocates, media regulation movements rarely get to the finish line based solely on non-profit power.

There's also a perception that over-the-air radio is yesterday's technology. That's just not true. While conventional radio is in trouble, especially with the young, millions of people still tune in. Ars bets a whole lot of them will rediscover radio after Friday, June 12, when their analog-only television sets stop picking up full power signals.

Can LPFM, freed of third-adjacent shackles, help save "free and local" radio? To some degree, but there's another problem: funding. Classified as educational stations, LPFMs pretty much run on charity, non-profit support, and the very occasional Corporation for Public Broadcasting grant—exactly one applied for CPB money in 2006.

Most everybody loves the concept of the struggling, volunteer-driven, community radio station, but these low power signals almost never command audiences remotely comparable to commercial licenses. Obviously, wattage plays the leading role here, but so does money.

Given the furious resistance that commercial broadcasters put up against any regulations requiring them to expand their local reach, it makes sense to explore not only ways to boost the number of LPFMs, but also ways that they could get cash. One possibility would be to make it easier for LPFMs to get CPB grants. A very different approach would be to redefine them as something akin to Class A television stations: smaller-signal commercial entities that have to fulfill baseline local programming requirements.

But whatever happens, Friday's court decision is clearly part of a momentum building towards an expanded LPFM service. Ars asked the NAB for a comment on the ruling. We received no reply.