The Answer

To start, let's make a few distinctions. Organizations are regulated by the State they are based in, and they are separately regulated on a nationwide level by the Internal Revenue Service. Your state regulates your incorporation as an entity. The IRS decides whether you are "tax exempt" which means you can accept donations which the donor does not have to pay taxes on.

These are a few of the kinds of groups that exist in the world:

Unincorporated Associations

This is how nearly all groups start. This is basically any group of people who are somehow associated- the guys that hang out on the corner together and drink beer, the Beaver town Junior High School Paper Airplane Society, etc., etc. Unincorporated Associations may or may not have had any dealings with the government as an organization- for example, an unicorporated association may have received an "Employer Identification Number" from the IRS in order to open a bank account.

State incorporation as a non-profit

These groups are recognized by the state in which they are located. Every state has different requirements for not-for-profit organizations, but it is generally not all that difficult to get this legal status. For example, in the state of New York, you only need three people to incorporate, and the articles of incorporation are filed with the Attorney General, along with $125 filing fee. Bylaws must also be filed, but they don't need to be filed at the same time. Generally, such processing is routine and quick. The state sends back a certification, and bingo, you can function as a not-for-profit. This is the only requirement, and after that, each year you inform the Attorney General of your state that you are still in business. If the state doesn't hear from a corporation after 5 years, it might be declared legally defunct.

Tax Exempt Organizations

These are also commonly known as a non-profit or a 501c3. A 501c3 is a federal designation issued by the IRS, and it takes a minimum of 6 months to get one, sometimes it can take up to a year or longer, depending on the circumstances. For this certification, the non-profit has to complete a rather complicated application that involves not only legal documents but also budget information. The most important part is the political description of the mission, because in order to get this status, you have to fit into one of only 8 categories, and your papers all have to back up your claim. It isn't really that difficult, just a little time consuming, and of course, it is all government mumbo-jumbo just like filing an income tax return. All 501c3s must also be "not-for-profits" in the state in which they are based.

Question: I need a fiscal sponsor. do you know any good ones? As a matter of fact, we do. New Society Educational Foundation is a group specifically devoted to supporting small progressive organizations through fiscal sponsorship. You might also be eligible for a $500 start up grant to help your station get off the ground. Pete Tridish is on the board, please contact him if you are interested. http://www.nonviolence.org/issues/nsef/

Fiscal Sponsors

Many small, unincorporated associations have "fiscal sponsors." A fiscal sponsor is a 501c3 organization which receives money, tax exempt, for the smaller organization. The fiscal sponsor generally has a mission which is in harmony with the mission of the smaller group, and it files tax returns and so on behalf of the smaller organization in exchange for a percentage (often 5%) of the money that they receive from grants for the smaller organization.

You don't have to be a tax-exempt, 501c3 organization recognized by the IRS in order to apply for a LPFM license. Already existing non-profits, though, will have the least trouble demonstrating their qualification to hold a license to the FCC. You do need to be recognized by your state as a not-for profit organization with an educational purpose. If your group has not incorporated, it may be acceptable if you have a pending application to incorporate in your state. Some unincorporated associations, and some groups that have just applied for their non-profit incorporation status, have applied to the FCC to be license holders. We will see how the FCC rules on these applications- possibly they may decide to approve them, especially if there is no competition for the frequency. Particularly unincorporated associations which can prove that they have been operating for a while may have a chance- but it would be much better to simply file your incorporation papers. Why be a guinea pig?

Let's take an example:

At the most basic level , 3 guys with 3 fishing poles could, today, name themselves the Salmon County Fishing Association. They would need to draw up some documents explaining how their organization worked: their decision making process, their bylaws, their conditions for membership, etc. (You can see a stock, generic version of such things in the Media Access Project sample application that they filled out and put on line at this website. http://www.microradio.org/apply.htm ) These three guys would then appoint (perhaps themselves as) the board of directors. The board would vote upon the bylaws and a mission statement. These documents need to include the educational purpose of informing residents about issues of community concern, perhaps such as the current affairs related to fishing in Salmon County. They could then file an application for a low power fm radio station, submitting the relevant documents. This organization would not be eligible for the point related to community presence. To qualify for that point, you must be able to prove that you have existed for two years.

If this is as much as you can pull off in the short term, it is certainly worth applying because who knows- maybe no one else in your area is applying. I’d bet, however, that you will face competition, and if there is any competition from a group that has existed for two years or more, you will lose. Hands down. There are certain organizations (which shall remain nameless) which have engineers and organizers working full time to place a low power station that will carry their satellite fed Christian programming to every possible location in the United States. One organization has already filed over a hundred low power FM applications. You may have never heard of them, but they are probably looking right now at placing one of their stations in your community.

One further option for an organization that has existed for two years, but has not existed formally, is to sign an affadavit. This option has not been tested legally, but we think it is worth a try if it is your only choice. The FCC will eventually decide what criteria it will use to decide the validity of your claims. Don’t be afraid to try- as long as you are honest, you can not get into any trouble. The worst that can happen is that they will reject your application if it does not meet their standards, or disqualify you for the preference point. Simply have several members sign and notarize a description of the informal operations of your organization, their participation, and notarize the document. For example:

Parent Organizations:

A more effective strategy is to persuade an already existing organization to take responsibility for the radio station. It must be a group that has existed for more than two years to qualify for the point for community presence. It must be a local organization, 75% of whose board of directors should live within ten miles of the proposed transmitter site. It should also be a group that is willing to take legal responsibility for the radio station. The board of directors of that group do not have to be actively involved in deciding who gets a show, paying the electric bill, etcetera of the station- they can delegate that stuff to a committee (probably you!) of the organization that will manage all of the operations of the station. The people that do the actual work of running the station will have to have to promise to the directors of the parent organization that they will make sure that all of the legal obligations of the board of directors of the parent organization are met: the station will not operate in a technically deficient manner, the station will follow the rules of broadcasting, yada, yada, yada.

Many parent organizations are concerned about their potential liability as a result of operating a radio station. This concern is valid, but easy to blow out of proportion. The FCC rules governing LPFMs are fairly minimal, and are basically easy to comply with. These are mostly rules you would never think of breaking anyway- common sense things like not pulling a broadcast hoax and causing a public disturbance with false information. The FCC is generally fairly generous with broadcasters. If there are minor rule violations, the broadcaster is commonly let off with a warning, and perhaps a deadline to bring itself into compliance. Major, repeated rule violations can sometimes incur fines. These are really pretty rare. Of the 11,000 radio stations in the country, only a handful are fined each month. Usually this is for only the most egregious behavior- shock morning jocks who throw live chickens out the fourth story window of the station onto the sidewalk below for a cheap laugh-etcetera . I know of no case in which criminal charges of any kind have been brought against a broadcaster by the FCC. Another issue is libel and slander, and violations of these rules are fairly easy to avoid with proper training of station staff.

Broadcasters liability insurance is available, if that makes a parent organization more comfortable. We are not sure of the exact costs yet, but NPR quotes annual coverage for its’ affiliates for $1,225. Their coverage pays for:

• liability arising out of any form of defamation

• any form of invasion, infringement or interference with rights of privacy or publicity

• infringement of copyright or trademark

• plagiarism, piracy, or unfair competition resulting from unauthorized use of titles, formats, ideas, characters, plots, performances or artists or performers.

We will write more about the subject of insurance in the near future, after we get some quotes for low power radio stations. We expect the prices to be lower than what is listed above, because of the relatively small listener base of low power stations. If the parent organization does not already have an "educational purpose" written into its mission and its bylaws, it must follow the legal procedures to amend its bylaws and mission statement to include the educational element of its operations. Some states may have additional requirements for radio stations which must be researched on a state by state basis. Generally speaking, broadcasting is solely regulated by the federal government. Your state government may have some jurisdiction over your non-profit organization paperwork, and your local government has jurisdiction over zoning issues.

It's also important to think about whether you will co-exist with this group well on a long term basis. Let's say you have the local animal rights group (let’s call them Save the Furries, Inc) as your stations parent organization, but you want the doors of the station to be open enough so that the local possum shooting club (let’s call them Pry My Gun, Inc) can have an hour long show each week. You should make sure that Save the Furries, Inc. is open-minded enough to resist the temptation to use their legal authority over the station to bully Pry My Gun, Inc off the air. Unfortunately, many people (even activists whose free speech rights are often under attack) do not immediately see the value in being the guardian of a forum for unfettered speech. For some excellent discussion about how to handle these issues, I recommend the writings of Lorenzo Milam. His books are available at http://www.ralphmag.org/mho.html

In my experience, most well meaning people, when they really think about it, decide that the benefits of community based media are so great that they are worth the occasionally challenging questions raised in the course of operating a community media venture. People who are responsible for a radio license should realize that the FCC rules about these subjects are actually very beneficial in clearing up some of these questions that come up. Slander and libel are illegal, as is inciting a riot over the airwaves. So if some irresponsible wingnut one day came along and insisted on doing something destructive on your radio station, you have every right (and in fact the responsibility) to tell them, quite simply, "No, you can't do that." A station has every legal right to hold its programmers liable for the content of their programs that they produce, and to terminate a programmer if they disregard the basic rules of broadcasting. Those individuals who are accountable to the FCC for the operation of the station are well empowered by law to handle the occasional difficult situation appropriately.

Operating a radio station is an exciting, challenging project for a community organization. One of the worst things that has happened to the communications infrastructure of American society is that community organizations have been frozen out of the role of operating our broadcast stations. That role is overwhelmingly filled by for-profit corporations who are probably the least capable of doing an adequate job of operating to serve the community. Instead, these corporations always play it safe by playing top 40 music and Howard Stern’s fart jokes. Tell your local non-profit groups that you know that they can do a better job then corporate America at running the people’s airwaves, and it’s time for them to step to the plate!