Prometheus intervenes on behalf of FCC

Today, the Federal Court of Appeals for the District of Columbia Circuit is hearing oral arguments in a lawsuit brought by the National Association of Broadcasters (NAB) against the Federal Communications Commission (FCC). The lawsuit alleges that the FCC defied the Radio Broadcasting Preservation Act when it granted waivers to keep low power radio (LPFM) on the air. Were the FCC not to intervene, these low power stations would be forced off the air by full power stations wanting to change their broadcasting location.

Prometheus Radio Project, represented by Media Access Project attorney Parul Desai, is an intervenor in the case on behalf of the FCC and the threatened LPFM stations.

Full power broadcasters currently have the right to demand that any low power stations that are in the way of their expansion or relocation plans must turn off their stations. While the rule allowing this has been on the books since 2000, displacements happened quite rarely until a rule streamlining full power station relocation was issued in 2006. Soon after the streamlining order, hundreds of LPFM stations faced a loss in signal coverage, and 40 stations were slotted to be wiped off the dial entirely. Some of these low power stations were alerted of their demise when they had only been on the air for months.

The FCC took action in December of 2007 to give threatened LPFMs more options to stay on the air. One of the methods approved was to allow LPFMs to use a more accurate form of engineering criteria for predicting interference than they are ordinarily allowed to use in order to search for a new slot on the dial. These engineering methods, which are only used for LPFMs in dire straits, are the same methods that are used as a matter of routine to give out full power and repeater stations. "The FCC acted within their authority to grant waivers for LPFM stations, they only took measures that were allowable under the RBPA. In fact, there are many more steps that the FCC really should take in order to treat LPFMs more fairly." said Pete Tridish, a broadcast engineer with the Prometheus Radio Project.

"The NAB has filed suit in a spiteful effort to make sure that LPFMs lose their channels," said Sakura Saunders, a board member of the Prometheus Radio Project. One of the 40 stations that could lose their signal as a result of this lawsuit is KDRT-LP in Davis, CA, a station that Sakura herself helped start in her old college town.

"KDRT negotiated with the full power stations and other stations in the area – a new process made possible by the FCC waiver policy – to ensure that everyone was happy with the outcome; KDRT found a new frequency on which to broadcast and the full power station got to move their transmitter. Now, the NAB is threatening the very existence of KDRT, despite the fact that no harm was done to any broadcaster in granting KDRT the waiver."

Much of the lawsuit revolves around questions of whether the FCC violated the Radio Broadcast Preservation Act (RBPA) of 2000, a bill that put restrictions on the licensing of the LPFM service because of interference claims put forth by the NAB. This bill included a stipulation that the issue of interference would be studied further, resulting in the multi-million dollar congressional study contracted out to the MITRE corporation. The results of this study were given to Congress in 2004, and found that interference concerns raised by incumbent broadcasters were largely baseless and recommended explicitly that restrictions on LPFM be lifted.

Since that time, bills have been introduced by three consecutive Congresses to repeal the RBPA. A current bill, the Local Community Radio Act, was recently introduced in the House by Congressmen Mike Doyle and Lee Terry, and an identical companion bill is in the Senate with Senators Maria Cantwell and John McCain as lead co-sponsors. This bill has widespread bi-partisan support and is widely believed to be ripe for passage in the coming months. "The NAB's arguments against low power radio lack any legal merit in the first place, and will be even more irrelevant once the Local Community Radio Act is passed. At this point, we can only surmise that the NAB is just trying to create further confusion and hassle for LPFMs," said Pete Tridish.

for more info see Prometheus Defends the FCC in Court Against NAB Laws