Oral arguments took place at the DC circuit court of appeals. The Judges were: Judith W. Rogers, Merrick B. Garland, and Janice Rogers Brown. Prometheus was an intervenor to the case, and a brief was filed on our behalf by Parul Desai at Media Access Project. We did not make an oral presentation.

Much of the substance of the case revolves around whether the FCC violated the Radio Broadcasting Preservation Act when it made new policies to protect LPFMs.

What the FCC did:

In these rules, the FCC did three things:

1) The situation up till 2007: Existing full power stations can be assumed to meet the "distance spacing rules" to all other stations on their own channel and also to the various adjacent channels. But if the full power station wants to move, their new location may not be far enough away from existing stations. The full power station, when selecting its new location, has to follow the distance rules with regard to other full power stations. But with low power stations that happen to be in the way, they can simply call the FCC and ask them to make the low power station to turn off.

What the FCC changed was that in cases where the full power station was moving its transmitter site, the FCC eliminated the second adjacent channel distance limit. This meant that existing low power broadcasting two channels away would no longer be ordered off the air ( though LPFMs that were on the same channel or the first adjacents would still be ordered off the air). The FCC did this because the potential for second adjacent channel interference from a hundred watt station was so low that it was not worth ordering the LPFM off the air, especially when the LPFM had done nothing but stay where it was.

2) If a full power station wished to move and the existing low power station became too close to that station's new location, the FCC allowed for the LPFM to have more flexibility about other channels on the dial that they could switch to. If no fully suitable channel could be found( as is often the case, since there are very few options that meet every single spacing rule), the LPFM was allowed to get waivers from the second adjacent channel protection rule on a new slot on some other part of the dial. The new channel assignment would allow the LPFM to locate closer to some other station on the second adjacent channel than is ordinarily allowed-- if they could show that this new channel would cause very little or no interference, generally to a zone of a short distance immediately around the transmitter.

3) Finally, if the first two measures did not work to resolve the encroachment, the FCC would take account of whether the LPFM was really providing local service. They made a "rebuttable presumption" that if the LPFM station was creating 8 hours or more per day of locally originating programming, then accommodating the desire of the full power station to move move was not as important as allowing the LPFM station to stay on the air. The full power station would then have an opportunity to prove that they did, in fact, do more public service than the LPFM if they wanted to appeal that decision.

While these measures did not take care of every situation where a LPFM could be bumped, they were a marked improvement of the situation for LPFMs that were faced with encroachment. The NAB claimed in this lawsuit that all three of these measures somehow violated the Radio Broadcasting Preservation Act (RBPA) of 2000, the law they passed to limit LPFM on the third adjacent channels.

I've looked at law from both sides now:

The crux of the case is the following passage in the RBPA which both the FCC and the NAB have exactly opposite interpretations of.

SEC. 632. (a)(1) The Federal Communications Commission shall

modify the rules authorizing the operation of low-power FM radio

stations, as proposed in MM Docket No. 99–25, to—

(A) prescribe minimum distance separations for third-adjacent

channels (as well as for co-channels and first- and secondadjacent

channels); and

(2) The Federal Communications Commission may not—

(A) eliminate or reduce the minimum distance separations

for third-adjacent channels required by paragraph (1)(A);

The NAB claims that the meaning of this passage is that the FCC should not, in any circumstance, reduce or eliminate interference protections on any adjacent channel. However, the plain text of the statute says that the FCC may not eliminate or reduce the minimum distance separations for third adjacent channels. Thus in the FCC's view, the FCC retains its discretion about reducing the second adjacent channel protections, which is what they did to save the LPFM stations threatened by encroachment. There is a great deal of argument about what the legislators were thinking when they used the word "prescribe" in the earlier part of the law.

The NAB claimed that the FCC's interpretation would produce a ridiculous result that there would be third adjacent protections, but the FCC would be free to reduce second adjacent protections. It is true that this appears a bit ridiculous on the surface, but a closer look reveals that it is actually by far the most sensible approach. When Congress writes laws, there is an important legal principle that when there is no ambiguity in the plain language of the statute, then the law means exactly what it says and does not mean whatever people feel like would suit their needs. Congress was looking at the problem of whether the FCC erred in allowing LPFM on third adjacent channels. While it could be argued that they were concerned about interference in general, the law that they wrote and passed and is on the books addresses third adjacents, not anything else.

In fact, the FCC knows that with modern receivers, radio stations on second and third adjacent channels cause barely any interference in the real world. So in the limited circumstances when full power stations are moving their towers, it was senseless to let an arbitrary distance separation on second adjacent to hold that up, especially with a signal as small as an lpfm's, which are always 100 watts or less.

In the situation where the LPFM is changing channels when it gets second adjacent channel waivers, the LPFM must show an engineering study that is much more accurate than the minimum spacing rules to show that the interference will be negligible. So the FCC's rule changes are not nearly as absurd as the NAB makes them out to be- they actually just use the minimum spacing rules for the "broad brush strokes" of their policy (i.e. licensing large numbers of applicants), and the more sophisticated techniques of allocation for more particular cases that spacing rules were not designed to resolve.

The NAB would like the court and the public to think that the minimum spacing rules are the venerated, normal way that radio stations get licensed. But in fact, this has not been the case for decades.

On the form for applying for a commercial station Form 301, Section IIIb question 16 – fullpower stations are offered the choice of whether they want to use the "minimum spacing rules" or the "contour rules." Unless you are in the middle of the desert with no radio stations within a hundreds of miles, full power applicants always use the contour method. Virtually no stations are available in populated areas of the United States if you just use the minimum spacing method. The FCC keeps the minimum spacing method on the forms because it is convenient and less work when they are analyzing extremely rural stations, but for practical purposes they almost always do the more accurate contour analysis when they are dealing with new commercial radio allocations today.

Absurd is the word that was heard:

In the oral arguments, the NAB went first, and their case was presented by their attorney, Jack Goodman. His main assertion was that the statute could not be read to allow the FCC to reduce protections on other channels like second adjacent while keeping the third adjacent channel protection, because that sounds absurd. He claimed that when Congress said that the FCC shall "prescribe minimum distance separations for third-adjacent channels (as well as for co-channels and first- and second adjacent channels);" what they really meant is that they can not reduce or eliminate them, which is actually addressed in the other section. But in fact Congress only said there that the FCC was forbidden from reducing or eliminating third adjacent channels.

The FCC's attorney went next. The questioning from the judges focused a great deal upon whether the result of the FCC's interpretation was in fact absurd. Unfortunately there are rules about these types of arguments, and the FCC was not allowed to argue on questions that were not found in the briefings leading up to the case. It seemed apparent to me that the judges were having trouble understanding the engineering and were quite confused by the NAB's assertions. The FCC lawyer, in the limited time available to him, basically argued that it was true that the law was written in a way that could create absurd results. But, the FCC's implementation of the flexibility that was left to them by the exact words of the statute was not absurd- he FCC was following the exact letter of the law, and then following their best available engineering judgement. I was concerned that the FCC did not get the opportunity to clear up some of the confusion exhibited by the judges about the engineering. On the other hand, the judges are not really supposed to be ruling on the engineering issues, the question before them is whether the FCC followed the letter of the law. From the oral arguments, it is very difficult to predict the outcome of a case like this.

One good sign is that the issues that Media Access Project brought up were at least briefly mentioned. One of the key points that we made in our intervening was that the whole case was not " ripe" for review by the court – since the FCC has not issued formal rules yet, and the procedures are still interim pending completion of the low power rulemaking, the court really should not even be considering this yet until the FCC has published its final order, or some individual full power station cites some actual harm to themselves. We hope that the court picks up on this and realizes that the FCC should be allowed to complete the proceding before the court takes any action on this.

Cases like these have no formal schedules or time limits. Most cases are decided within about 120 days. If the FCC is vindicated, then nothing will change. If the FCC is overruled, it is hard to say exactly what will happen. It is possible that the judges will overrule parts of the decision, but not others. Many LPFMs that have been saved could be at risk. Prometheus will, of course, follow the case very closely and update as the situation develops.

Importantly, the vast majority of the issues in this case disappear if the Radio Broadcasting Preservation Act is repealed. The best thing you can do if you want to protect your station from encroachment is to join the campaign to pass the Local Community Radio Act of 2009. For info about the campaign contact: Scott ( scott at prometheusradio.org), Cory (Coryfh at prometheusradio.org), or Diane ( Diane at prometheusradio.org)

For more background, you can see our recent articles on the website at :
Prometheus Defends the FCC in Court Against NAB Laws and
NAB sues FCC on low power radio displacement

To learn more about the lawsuit, talk to petri ( petri at prometheusradio.org) or Sakura sakura at prometheusradio.org