LPFM, Translators Read Local Community Radio Act Differently
When it comes to FCC implementation of the Local Community Radio Act signed into law by President Barack Obama this month (CD Jan 6 p8), low-power FM (LPFM) and translator representatives told us they have different recommendations while relying on the same section of the legislation for authority. A commission official encouraged the submission of recommendations on how HR-6533 -- meant to make it easier for LPFM seekers to get new station licenses in urban areas where spectrum is scarce -- affects a proceeding on implementing a 2003 auction of translators, said Womble Carlyle broadcast lawyer John Garziglia, representing a dozen radio companies. That group and Prometheus Radio Project filed comments posted Monday to docket 99-25, both citing Section 5 of the act.
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The section says translators, boosters and low-power stations on the FM band are equal in status to each other and secondary to existing full-service FM broadcasters. “Section 5 of that Act directs the Commission to ensure spectrum availability for LPFM,” said Prometheus. The legislation bars the commission from disposing of applications from the 2003 auction that don’t “address local demand for LPFM,” the group said. “Conversely, we do not believe that this legislation prohibits the Commission from taking some action or making modifications” to a 2007 LPFM order “to ensure LPFM availability,” it added.
Broadly moving forward with Auction No. 83, as the dozen broadcasters seek, before giving LPFM stations a chance to seek their own construction permits, would run counter to the act’s spirit, said Prometheus Policy Director Brandy Doyle. “We do think the law is a mandate to the FCC to make sure that the channels are available.” Prometheus and Educational Media Foundation, with several hundred FM translators, want the commission to instead allow some applicants to get one translator right now through the auction. That recommendation “does follow the spirit of the law,” Doyle said.
The commercial broadcasters contend Section 5, which they say is the only part of the act affecting FM translator request processing, has a “plain and straightforward reading.” The commission can’t reject or not license an application from the auction if the agency “'ensures’ that there is spectrum space for a low-power FM license and a FM booster in that same community,” said Cool Radio, Cromwell Group, East Arkansas Broadcasters, Sierra Broadcasting and others. “When spectrum space for licensing a low-power FM station and an FM booster station is shown by a new translator applicant, the comparison required by Section 5(2) of the new law is not invoked, and the FCC may immediately license a new Auction #83 FM translator station in communities” that have space for both a translator and an FM booster, it said.
"There are a multitude of frequencies for everybody,” to accommodate translator and LPFM stations, Garziglia said. “So why are we advocating the FCC wait a number of months, if not years, to incorporate an FCC rulemaking process?” Getting such a translator on-air soon may help a struggling AM station use an FM translator to serve its entire coverage area so it doesn’t “fail,” he said. The dueling filings show the Media Bureau “has a lot of practical problems” in executing on the act, said broadcast lawyer Harry Cole of Fletcher Heald. “Congress didn’t give them a specific road map for how to deal with this situation.” Cole thinks Prometheus and the commercial broadcasters are “reading too much into the language of the act": the LPFM group that such the FCC should take an area’s need for such stations into account when considering translators stations there, and the broadcasters that there can be an ensurance test.