Editorial: Be careful what you ask for
LPFM's biggest "dead horse" issue has creeped its way into the GN Docket 25-133 comments. The LPFM community cannot allow it.
Good Saturday morning from Riverton.
This is one of those times that I must address an issue that is a dead horse; deader than Seabiscuit.
I have been reviewing the FCC’s Electronic Comment Filing System (ECFS) at the comments filed in GN Docket 25-133, the infamous “in re: Delete Delete Delete” proceeding. While we are seeing a ton of comments from hams who think that the FCC has the authority to impose PRB-1 style requirements on HOAs to providing reasonable accommodations for antennas. This is an example of regulations that cannot be established because there is no underlying law, such as in the Communications Act, that authorizes the FCC to adopt such regulations.
Hams and HOAs is not the dead horse issue I am referring to.
I am starting to see comments in ECFS that is endorsing the ability for low-power and full-service noncommercial educational stations (NCE), in general, to be able to broadcast commercials.
Could the FCC make LPFM a commercial service in regulations and within the bounds of federal statutes? This may come as a shock to some of you, but the answer is yes. This is because there is no federal law that limits LPFM stations to NCE operation.
But wait, isn’t that in the Local Community Radio Act of 2010? No, it’s not! In the original Radio Broadcast Preservation Act of 2000, in section 632(a)(2)(B), Congress did require that the FCC may not “extend the eligibility for application for low-power FM stations beyond the organizations and entities as proposed in MM Docket 99-25 (47 CFR §73.853)”. That language can be interpreted to state that (1) Congress did not want LPFM stations to be licensed to commercial entities in order to compete with big broadcasters and/or (2) they did not want stations licensed to individuals in order to address the late 90s pirate radio issues that were still fresh in the minds of a turn-of-the-century Congress. In the enacted version of the LCRA and in the past attempts that died in Committee, the language that specified eligibility limitations was never carried over. Because of the lack of that requirement in the new law, the Commission was able to expand §73.853 to open a third category of eligible applicants, Tribal entities.
First of all, if LPFM stations were suddenly allowed to start running commercials, they would no longer meet the definition of a “public broadcasting station”1, pursuant to §397(6) of the Communications Act (Act) as they would not be able to comply with §399B of the Act, which prohibits public broadcasting stations from carrying commercials.
If LPFM is permitted to operate in a way where it is no longer considered a public broadcasting station under §397(6), this opens up an avalanche of new complications:
Spectrum auctions. On August 10, 1993, the Omnibus Budget Reconciliation Act of 1983 amended §309(j) to the Communications Act that gives the Commission authority to use “competitive bidding” (auctions) to choose between mutually exclusive applications for initial licenses. Further, Title III of The Balanced Budget Act of 1997 expanded the FCC’s authority and required the use of auctions for commercial spectrum uses, including FM and AM broadcasting. This was exactly what the FCC needed to settle mutual exclusivity in the commercial broadcast services in the wake of the 1993 Bechtel v FCC decision, which declared the previous comparative review process for selecting the winner of an MX group to be illegal. Because the Balanced Budget Act did not require auctions for NCE stations, the point system as we know today was established and was first utilized for LPFM in 2000 and then eventually for full-service NCE in 2007 and never used for FM translators (which is a different issue that REC is addressing).
It is important to remember that in cases where, during a filing window, mutually exclusive applications are filed and if an application proposing NCE service is competing with one or more applications proposing commercial service, the NCE application would be removed from consideration and the commercial applications would go to auction.
Ownership caps and eligibility. One of the “creature comforts” is that for most LPFM entities, ownership of LPFM stations are limited to those entities where there are no attributable holdings of other broadcast stations. In other words, the LPFM station cannot have influence from a much bigger broadcaster (even though we know it happens under the table, but that’s an issue for another day).
Section 202 of the Telecommunications Act of 1996 eliminated the nationwide ownership cap on AM and FM broadcast stations. Therefore, it could easily be interpreted that LPFM’s national ownership cap of one station (or even two) would violate the law. Therefore, if LPFM was allowed to go commercial, say goodbye to local ownership, oversight and accountability and hello to the biggest names in both commercial and noncommercial radio entering the LPFM space.
Fees! Fees! Fees! As a commercial service, LPFM would instantly lose the protections of §158 and §159 of the Communications Act. This would mean that commercial LPFM stations would have to pay every time they file an application with the FCC (§158) and then have to make an annual payment to the FCC for regulatory fees (§159). If we were to put LPFM at the same level as low power television (LPTV), we would find that LPTV stations have a $245 annual regulatory fee. The application fee to start a new station, depending on how far the application goes, can range from $910 to $2,025.2
Let’s not forget other things. Commercial stations do not enjoy the same statutory rates where it comes to the performing rights organizations, such as ASCAP, BMI, SESAC and GMR. Expect to pay rates based on revenues, but even with that, the bottoms are still more considerable than LPFM rates.
There may be other implications outside of the FCC, such as federal and state tax implications, local permitting requirements, different rates for services provided by third party vendors.
NCE was designed for well-funded schools. Let’s face the facts, NCE broadcasting, which LPFM found its way under, has historically never been intended to be nothing more than just a part of a broadcast education program for public and private schools.3 In the old days when radio was considered more relevant, high schools and universities would fund broadcasting programs, which funded the station’s operations. Many faith-based ministries are very good at fundraising among their followers and are able to fund the radio station(s) as part of their overall ministry. Look at the huge ministry that we know as Educational Media Foundation, who is better known to many as K-LOVE and Air1 They have been able to build a massive network of stations across the country. Much of their funding comes directly from listeners.
Secular nonprofit organizations that were started for the sole purpose of running an LPFM station do not have those same luxuries. Some stations start as the dream of one person wishing to have a radio station while others are a group effort of people who feel that the area needs a true community station. These organizations do not have the funding that comes from non-broadcast sources (such as the underlying non-broadcast nonprofit or educational institution that is the licensee) and they are on their own.
Running a noncommercial radio station is not cheap. It’s not as simple as the pirate way of thinking by just putting up an antenna and turning on the transmitter. There are a lot of gears in the system that need to be turned. Many new LPFM grants end up failing because of sticker shock once they realize how much it really costs.
We, as a community, cannot allow LPFM to become a commercial service. LPFM was originally created to “include the voices of community based schools, churches and civic organizations.”4 Many of those who are voicing concerns about wanting commercials on LPFM do not fall under those categories. Therefore, as an entity that does not have the backing of a school district or a major civic organization that is involved in mostly non-broadcast activity but allocates budget for the radio station outreach, you have a much bigger hurdle to cross.
It is already well proven that if an organization is running a station with programming that is compelling and directly responsive to community needs, there will be businesses wanting to support the station because they are associated with the station, not to announce the mattress sale. Myself, when I am looking for a local business, I am more likely to use the one that supports the local NCE station. There are many LPFM community stations out there that have embraced this model and are successful.
LPFM stations that run mainly jukeboxes with commercially viable formats have a much bigger hill to climb. Unless they have a rich uncle or a bigger Powerball win, they will continue to struggle, or as we have seen in several situations, resorted to violating the law and running commercials and we have seen our share of enforcement activity over the years on this. The fact that some LPFM stations are violating the law and running commercials is one of the many reasons why LP250 has not advanced. Simply put, LPFM (and full-service NCE) stations should not be stepping on the toes of the domain of commercial radio. We need to be unique, not like all the others, all the others, all the others.
REC will do everything within our resources to block any attempts to make LPFM a commercial service. We will not sit back and see this service destroyed and handed over to commercial entities. While I do assure that there is no known appetite at the FCC to allow commercial LPFM.
Time to get ready to go to Las Vegas to attend the 2025 NAB Show to educate the exhibitors and to learn about new things coming down the road.
While when we think of “public broadcasting” we think of NPR and PBS in mainstream culture, the Communications Act considers all noncommercial educational broadcasting (secular and faith based) to be considered “public broadcasting”.
$2,025 consists of the long form construction permit fee (if application goes to auction) of $1,585; $190 for a call sign and $250 to file the license to cover.
When “educational broadcasting” was first implemented in the 1940s, eligibility was limited to “school systems” for the purpose of delivering in classroom lectures. It was the earliest form of what we call today, “distance learning”.
Creation of a Low Power Radio Service, Report and Order, 15 FCC Rcd. 2205, 2209-2210 (2000) at paragraph 5.