FCC101: Understanding Regulations and Laws

The FCC Rules must remain within the laws passed by Congress, as well as international agreements and standards.

With the FCC’s recent “in re: Delete Delete Delete” proceeding announced, I have witnessed a lot of speculation, conspiracy theories, “gloom and doom” YouTube videos and many comments from people recommending various FCC regulations and policies that should be changed or eliminated. I think I would be right to predict that this proceeding is going to get inundated with comments, from simple “express” comments, to those that insult the current administration to well thought out and well prepared comments from industry stakeholders with some real insights to share. This is the nice thing about the United States, every citizen has a seat at the table and can speak their mind. While they can speak, there is no guarantee that it will be taken seriously by the agency.

The one common denominator that I have witnessed over these past few days, is there are a lot of ideas out there that cannot be changed through regulations because of other factors, such as underlying laws which the FCC cannot change. With that, I do feel that it is time to release a new FCC101 on understanding of the concept of regulations and how they fit into the overall legal framework of the FCC.

In 1934, Congress passed the Communications Act. This legislation would create the Federal Communications Commission, an independent agency that would combine the radiocommunications responsibilities of the Federal Radio Commission as well as the telephone and telegraph responsibilities of the Interstate Commerce Commission. The 1934 Act empowered the FCC to create regulations within the agency, however those regulations were subject to the will of Congress as set out in the Act.

Regulations are created by the FCC. Those regulations are created through a public participation process that is outlined in the Administrative Procedure Act. The APA also has protections to assure that agencies do not create regulations that are “arbitrary and capricious”. Regulations for the FCC can be found in Title 47 of the Code of Federal Regulations (CFR).

The “guard rails” for new regulation

With that said, the regulations that are created by the agency are not a “free for all”, but instead, they are bounded by various “guard rails” that assure that agencies, like the FCC “stay in their lane”. These guard rails include:

Laws - Laws are passed by Congress. While most laws passed by Congress for the FCC are in Title 47 of the United States Code, they can exist in other Titles of the USC as well as alone in public laws. A good example of the latter, is the Local Community Radio Act of 2010. All Orders to amend the CFR that are adopted by the agency must remain within the authority of the Communications Act and other laws. Laws passed by Congress can have a direct impact on the subsequent regulations. It is the responsibility of the FCC to properly interpret these laws to assure that the resulting regulations conform with them. The FCC cannot amend the Communications Act. That is the job of Congress.

Standards - The FCC may, through regulation, adopt specific standards that are adopted by other government and nongovernment organizations. These standards can include those from ANSI, NRSC, ATSC, etc. Resulting regulations may be limited to those standards. While the FCC may have influence, they cannot directly change those standards, especially those that are accepted internationally.

Treaties - The United States is a member of the International Telecommunications Union. The ITU includes 194 member states around the world who are signatories. The ITU works in three sectors: Radiocommunication, Standardization and Development. The ITU serves as an international body for radiocommunications regulation, establishing regulations and standards (such as the assignment of call sign prefixes) as they relate to international communications. The United States is also a member of the Inter-American Telecommunication Commission (CITEL), which is recognized by the ITU as a Regional Telecommunication Organization. CITEL is a part of the Organization of American States and has member states throughout the Western Hemisphere. As such, any regulations that are adopted by the FCC must be consistent with the ITU and CITEL. Once very four years, all nations gather for the World Radio Conference. During a WRC, each delegation may bring proposals to the table regarding spectrum usage. These decisions are normally reflected in the ITU’s Radio Regulations, which are published every four years.

International Agreements - In addition to the ITU and CITEL, the United States may also enter into bilateral agreements with other nations. For example, the United States has separate bilateral agreements with Canada and Mexico. Regulations adopted by the FCC must be consistent with the terms of those agreements.

Other Federal Agencies - Sometimes, the FCC’s actions may be limited by the actions of other Federal agencies. For example, the FCC is not the only agency responsible for managing the electromagnetic spectrum in the United States. Spectrum management for the Federal Government, everything from the military to the national forests are managed by the National Telecommunications and Information Administration (NTIA). NTIA is a cabinet agency under the Department of Commerce. The NTIA authorizes government radio users and is responsible for managing the spectrum that appears on the Table of Frequency Allocations as “Government”. Unless the FCC and NTIA are working jointly to permit sharing of Government spectrum by non-Government users, the FCC cannot make allocations within spectrum allocated exclusively to the Government.

Because of laws, international treaties and agreements as well as interaction by the NTIA, there are substantial limitations on what the FCC can and cannot do through regulation. Any recommendation to the FCC to change a regulation that does not conform to these things cannot be accommodated.

In other words, the FCC cannot create or change a regulation if it violates the Communications Act or other law, involves Federal spectrum, as well as whether it violates any international treaty or agreement.

Some real world examples of what cannot be changed by regulation

Let’s look at some possible scenarios, including those that have already been suggested in the comments of various social media sites to see what cannot be changed through regulation and therefore in this “Delete Delete Delete” proceeding. We’ll stick with topics that are likely of interest of those who read material from REC Networks.

LPFM

Making LPFM a commercial service. While there are some LPFMs that would like to be able to carry commercials, allowing LPFM stations to become commercial would have some very unintended circumstances. There is a general legal opinion that if LPFM was allowed to go commercial, it would mean that LPFM stations would have to surrender their licenses and reapply for them under policies that require auctions. There is no guarantee that the original station or another community-focused organization would win. The auctions are required due to provisions in the Balanced Budget Act. In addition, if LPFM was commercial, the Telecommunications Act of 1996 would prohibit the ownership caps and cross-ownership rules that the service enjoys today. In other words, iHeart would be allowed to own LPFM stations. Making LPFM commercial would completely decimate the service.

Make LPFM protection rules like translators. By statute, this can be done if the only stations needing protection are FM translators and other LPFM stations. The Local Community Radio Act of 2010 specifies the use of distance separation to protect domestic full-service stations and the distances cannot be reduced from those that existed in the rules in 2011 when the legislation was enacted.

Make LPFM a primary service. Making LPFM a primary service where stations cannot be “bumped” by new and modified full-service stations cannot be done due to Section 5 of the Local Community Radio Act.

Allow an LPFM station to displace a translator, or vice versa. This also cannot be done due to Section 5 of the LCRA.

Other Broadcasting Related

Using spectrum under 88 MHz for FM broadcasting. This cannot be done within 402 km of Canada or 320 km of Mexico due to existing international television broadcast agreements.

Amateur Radio

Eliminate licensing/not require a test to get a license. The International Radio Regulations (RR 25.6) requires that persons wishing to operate amateur stations must meet “operational and technical qualifications”.

Outsource licensing to the ARRL or NCVEC. Section 307 of the Communications Act gives the FCC the exclusive right to grant licenses.

Exempt amateur radio from application fees. The requirement for a fee is in Section 158 of the Communications Act. The exceptions do not include amateur radio. In contrast, Section 159, which is for annual regulatory fees, does include an exemption for amateur radio.

Make all amateur bands “primary” status. While some bands already are considered as primary others are not primary due to their status on the International Table of Allocations or they are otherwise secondary due to spectrum sharing, especially with Federal Government services that are administrated by the NTIA.

Require HOAs to accommodate amateur radio.

The FCC has no specific authority to allow for this as it interferes with a private covenant between the homeowner and a homeowner association (HOA). This is in contrast with the previous “PRB-1” decision, which addresses the federal superiority to preempt state and local laws in order to require reasonable accommodation. The FCC was given authorization to create these rules for TV receive antennas pursuant to Section 207 of the Telecommunications Act of 1996. Similar legislation would be needed in order to extend this to amateur radio.

Encryption

Prohibited in international communications. (ITU RR 25.2A)

So, what if I want to make my own comments?

You can do so, just keeping in mind that the FCC cannot change the Communications Act, international agreements or step on the toes of the NTIA.

Make sure you clearly state what rules you would like to see removed or changed, provide a compelling reason why and state how that change would fully comply with the Communications Act and all other applicable laws.

You can access the FCC’s Electronic Comment Filing System (ECFS). The proceeding is 25-133. Comments are due by April 11, 2025. If, after reading the comments filed, you wish to make a reply to one or more commenter, you can file Reply Comments by April 28, 2025.

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