FCC101: NCE/LPFM, Project 2025 and another Trump administration
Love him or hate him.. Trump is the next President. Here is our perspective for potential things to come and what community radio and other NCE/LPFM stations can do to stay compliant.
Since the results of the 2024 Presidential Election, I have been hearing a lot of feedback from stations and others with many concerns about what broadcasting will be like under the next administration based on various statements made by President-Elect Donald J. Trump. Due to the unpredictability of this person, many of those concerns are valid ones, but whether they ever come to fruition is still unknown. Let’s discuss how a Trump administration could impact the FCC including how the Heritage Foundation’s Project 2025 playbook document may play a role.
About the FCC
The FCC is made up of five Commissioners with one who is considered the Chairman/Chairwoman. Of the five Commissioners, three of them represent the majority party and the other two represent the minority party. Commissioners are nominated by the President must be confirmed by the Senate. They serve 5 year terms that may be extended to the end of the session of Congress. They may serve up to two terms but will have to go through another confirmation hearing and vote before they can serve the additional term.
Who will be on the next FCC?
The writing has been on the wall for years now that if Trump was to win the 2024 Election, that Brendan Carr would be the next FCC Chairman. Carr wrote the FCC section in Project 2025 and is the most senior of all Republicans on the Commission. While the Chair position must be specifically confirmed, we envision seeing him as “acting Chairman” on day one.
For the majority, we will also likely see Nathan Simington remain at the Agency. Simington, who replaced former Commissioner Michael O’Reilly was nominated by Trump (45) and was confirmed in 2020. Simington was chosen mainly because of the Republican positions on Section 230 of the Communications Act. Section 230 deals primarily with internet decency but it also states that internet service providers (which can include social media platforms such as Facebook and Twitter/X) will not be held liable for traffic that violates copyright law under the Digital Millennium Copyright Act and as such are just channels of communications. The GOP feels that social media sites should lose their Section 230 protections because the sites have been accused of showing political bias by allegedly blocking some views and not giving certain news sources the same amount of prominence in algorithms. Recently, Simington surprised us all by dissenting on a PIRATE Act forfeiture order questioning whether the FCC is authorized to impose forfeitures citing the recent Supreme Court decision on the Chevron deference. Simington will be up for reconfirmation during this administration and we feel that he will be reconfirmed.
On the minority side, we will likely see Chairwoman Jessica Rosenworcel resign from the FCC at the end of 2024 this leaving an empty seat on the bench. Rosenworcel is the longest currently-seated Commissioner on the FCC for the minority. Geoffrey Starks was recently confirmed for his second term at the same time that Brendan Carr was reconfirmed. Starks term will end officially on July 1, 2027 but could potentially be extended to the end of the year. Anna Gomez is the most recent Commissioner to be confirmed. She assumed office in September, 2023 for a term ending in 2026. She is eligible for reconfirmation. Gomez was originally confirmed with bipartisan support.
Possibility of a “2-2” Commission to start
For a significant portion of Biden’s term in office, the FCC had only four members. This was caused in part by the controversy regarding his original nominee Gigi Sohn who had strong opposition from both sides of the aisle, in part due to her involvement in Locast, a company that streamed local television services outside of their respective markets in violation of copyright laws. This created a two and a half year gap from the time when Ajit Pai left the FCC and before Anna Gomez would eventually be confirmed.
With the fifth seat being vacated by Jessica Rosenworcel during the transfer of power, the Republicans will be in a similar situation, at least from the start.
While the Commission is at 2-2, there is a deadlock. Any items that are voted on by the Commission would need to have support by at least one Democrat Commissioner in order to be adopted.
It is difficult to predict yet who will fill the fifth seat. All of the news reports so far have been speculation that Carr will become Chairman. Until Trump picks another nominee and they are confirmed, the FCC will remain in this 2-2 deadlock.
What does Project 2025 say about the FCC?
There are fears among many that Trump will develop his policies based on the information from Project 2025. Even though Trump disavows the document, there are many who have had their doubts. In the Heritage Foundation’s Project 2025 playbook, policies that impact the FCC and specifically broadcasting are mentioned in two places. The FCC portion, which was written by Commissioner Carr and the section on the Corporation for Public Broadcasting (CPB), which writing was led by Mike Gonzalez. While the Carr-led section on the FCC mainly deals with broadband policy, it does also tread on local ownership caps of commercial broadcast stations. The section on the CPB should be of great concern to noncommercial educational broadcast stations, including LPFM stations (NCE/LPFM).
Here are some of the things that I have found concerning and some thoughts where needed:
The educational nature of NCE/LPFM stations
Project 2025 claims that NPR, PBS, Pacifica and “the other leftists broadcasters” should no longer be qualified as NCE stations. NPR, Pacifica and other radio ventures have “zero claim on an educational function” (citing Lyndon B. Johnson’s original vision for educational/public broadcasting). This could suggest that a new FCC could go after NCE/LPFM stations that are “leaning left” such as being a Pacifica Network affiliate, airing Democracy Now! or similar programming. The language directly states that any NPR or PBS affiliate should lose their NCE status.
Section 73.503(b) of the Commission’s Rules states that NCE/LPFM stations may transmit programs directed to specific schools in a system or systems for use in connection with the regular courses as well as routine and administrative material pertaining thereto and may transmit educational, cultural, and educational programs to the public. Paragraph (d) further states that NCE/LPFM stations shall furnish a nonprofit and noncommercial broadcast service.
It’s important to realize that educational stations (the predecessor name to NCE) existed for decades before the LBJ administration. Educational radio can trace its roots all the way back to the formation of the FCC in 1934. In fact, the first broadcast related general order was for the agency was a statutory review to look at reserving broadcast spectrum for educational broadcast stations. (1 FCC 25 (select page 25))
Originally, the FCC limited educational licenses to public school systems given the §73.503(b) language that has pretty much existed the whole time. In the 1950s, these rules would be challenged by religious interests, such as the Moody Bible Institute who claimed that religious institutions that are not a school system are just as capable of providing education. The FCC at that time agreed and the scope of educational/NCE radio would be expanded. There were religious radio stations before these decisions, but they were not entitled to use reserved spectrum.
Program content provided by any radio station is protected by the First Amendment and that the right for a station to determine its choice of programming format was upheld in the 1981 US Supreme Court case FCC v. WNCN Listeners Guild.
Whether the current SCOTUS would even attempt to encroach on WNCN is difficult to say, but it does raise some concerns that a hard line FCC may go after NCE/LPFM stations that are not carrying what the current administration may perceive as “educational”.
LPFM stations who are not doing any real educational programming any time in their schedule (yes, I am talking to all of you doing your all classic hits, all hip hop and other full music jukebox formats) should seriously reconsider the programming that you are carrying and make sure that you include some educational and informative programming in addition to what you are already doing.
Even though they may be up to a constitutional challenge, the FCC could crack down on your station based on that original educational statement you provided in the application to get the station. The last sentence of the section on CPB gives it to us straight up:
“The next President should instruct the FCC to exclude the stations affiliated with PBS and NPR from the NCE denomination and the privileges that come with it.”
Don’t think they will stop at just NPR and PBS.
The NCE FM reserved band (88~92 MHz)
Project 2025 recognizes that NCE stations have the 20 channels from 88.1~91.9 reserved for NCE use. It erroneously claims that the FCC set these channels aside because they are “lower frequency”, “can be heard farther away” and are “easier to find as they lie on the left end of the radio dial (figuratively and ideologically)”.
Some have speculated that a future administration may attempt to take these 20 channels away from NCE reservation and make them available for commercial use.
While §307(c) of the original Communications Act of 1934 ordered a study on reserving broadcast spectrum for educational service, I am not aware of any current statute that mandates reserved spectrum for educational use. The reservation of the 20 FM channels and various TV channel allotments across the country for NCE use is a FCC thing but it can be driven by §307(b) of the Act which calls for the fair distribution of broadcast licenses and §307(a) which calls for licenses to be granted in the public interest.
Could an ultra conservative administrative make an attack on the reserved spectrum? I think they could. However, if they do so, they will be also throwing Calvary Chapel of Twin Falls and American Family Association, two of the most conservative broadcasters on the dial along with many other national and regional religious broadcasters who have taken advantage of the “Moody doctrine” and have set up shop in the reserved spectrum free of filing and regulatory fees. I am having a hard time stomaching the thought that they would throw their own under the bus in that way. I see things more to be an attack on content rather than on spectrum.
Now, I saved the worst one for last…
NCE/LPFM stations airing content that can be considered as “commercials”
In the last paragraph of the CPB section, Project 2025 states “NPR and PBS stations are in reality no longer noncommercial, they run ads in everything but name for their sponsors.”
If a Carr-led FCC follows the Project 2025 doctrine to the letter, this is one issue that can be very easily addressed and enforced without the need for any Congressional action nor any new rulemaking to amend the rules requiring the full scrutiny of the Commission, including the minority members.
I have heard my share of NPR programming and have watched my share of PBS programming and I do agree, a lot of what they are airing does cross the line into what would be considered under Section 399b of the Communications Act to be commercials. I have heard my share of it on non-NPR NCE/LPFM stations too.
Most NPR and PBS stations have been able to dodge the bullet where it comes to underwriting violations because they normally air programming that “stays in its lane” and does not compete with commercial broadcasters. Also, while these stations do air corporate underwriting acknowledgements, they also receive significant listener support. Educational Media Foundation, the largest NCE broadcaster out there (K-Love and Air1) does not carry much, if any such underwriting acknowledgements as they have been able to garner a dedicated and supportive audience that directly supports EMF’s ministry.
Traditionally, enforcement of the noncommercial nature of educational broadcasting is complaint driven. Those complaints usually come from commercial stations. Statistically, the NCE/LPFM stations that are enforcement action are those that are in smaller markets and those that carry formats that directly compete with commercial stations. There are a lot of LPFM stations that run all country, all hits, classic hits and all hip hop formats that provide little to no educational content. Stations that do this have a target on their backs.
All it takes is for some kind of a “call to action” to religious broadcasters or the community at large to monitor, record and file complaints against so-called “leftist” radio stations that are crossing the line on the underwriting guidelines.
NCE/LPFM stations need to take the policy guidelines for underwriting acknowledgements very seriously going forward. Especially those stations that do not fit the mold of being a true noncommercial “community” or “faith-based” station. This means dusting off your old Donna DiBianco training documents or reading the REC Compliance Guide (which is based in part on DiBianco’s training) as well as the FCC’s Policy on the Noncommercial Nature of Educational Broadcasting and Section 399B of the Communications Act.
If your station is doing live reads of underwriting announcements.. STOP. Only use prerecorded announcements that are cleared by someone at your station who has been trained the REC Compliance Guide or other similar training. Don’t base your policy decisions on “word of mouth of others” or think that prohibited announcements are just “calls to action”.
If your station is doing live remotes for a paying underwriter who paid for the remote and expects some “mentions”.. STOP. That can open you up to a ton of problems. First of all, when you mention the underwriter live from the remote, you are not interrupting programming to do that. You are also walking into the risk of saying something live that your station may regret later. It could also be seen as a “time purchase”, which is not allowed.
If your station is doing sponsored PSAs… STOP. Sponsored PSAs (such as “Joe’s Crab Shack reminds you that school is back in session, watch for children.”) are time purchases. They sound great on commercial radio but have no place in NCE/LPFM.
If you are selling time to DJs to put their show on the radio… STOP. That’s a time purchase. It’s not allowed.
If you are allowing your air staff to promote their book, music or products on the air.. STOP. Pacifica just got dinged 5-figures for doing that. The same thing goes for paid interviews that sound like a bona-fide interview with a guest but are sponsored by the interview guest for the purpose of selling something, whether it’s financial or real estate services, nutritional supplements, etc. This is not within the educational and noncommercial nature of the service.
If you have a rate card on your website.. TAKE IT DOWN and don’t use them at all. This is a huge red flag that will attract unneeded attention to your station. You are not “selling underwriting”. Your are promoting a relationship with a for-profit business that feels that your station’s programming is compelling and the station’s involvement with the community is so deep that they want to be associated with the station. Plus, if your organization is a 501(c)(3), they also want the tax write off. Likewise, make sure those people who are doing fundraising are not using titles with sales related words in them (Sales Manager, Account Executive, etc.). Anyone who does fundraising should never say that underwriting on a NCE/LPFM station is an alternative to traditional radio advertising. The idea is people who underwrite NCE/LPFM stations are doing so because they support what the station is doing, not to advertise their mattress sale. You want to target those businesses that would not normally do radio advertising. The mention of the business on the air should be a “benefit” and not the “reason” for that business to underwrite the station.
I know this will be hard for many stations, but many LPFM stations are not operated by well funded educational institutions, ministries with deep pockets or well funded civic organizations that gain their revenues from activities outside of broadcasting. A lot of stations are started by common people who saw a need in their community for a local radio station. A need that was created by the massive media consolidation that Brendan Carr seeks to make even worse. Yes, the road ahead is steeper, but these are the rules we need to follow.
With the potential of a Project 2025-focused FCC, every NCE/LPFM station, even those that are not NPR or Pacifica affiliates are targets that can be hit at any time. Please play it safe out there and be prepared for the unexpected.
While the Administrative Procedures Act could slow down or even prevent certain radical changes that may try to take place; some things, like the enforcement of commercial advertising on NCE can happen as soon as right now.
I understand this article may come across as alarmist; but with the uncertainty for what may lie ahead; we must be prepared for anything. Everyone, please stay safe out there. Keep the First Amendment alive and let’s continue making great radio!