Full Commission upholds WARN dismissal in LPFM public safety abuse case
The full Commission finds that WARN does not truly have jurisdiction in the areas where they originally proposed new stations.
The Federal Communications Commission has upheld the Media Bureau’s denial of a Petition for Reconsideration in respect to the dismissal of 106 LPFM construction permit application filed during the 2023 Third Generation LPFM Filing Window by Weather Alert Radio Network (WARN).
§73.853(a)(2) of the FCC Rules extends eligibility for LPFM ownership to “[s]tate and local governments and non-government entities that will provide non-commercial radio services” where the applicant meets a specific localism requirement. For applicants proposing a public safety radio service, §73.853(b)(3) requires that the applicant has “jurisdiction” within the service area of the proposed station. §73.855 permits not-for-profit organizations and governmental entities with a public safety purpose may be granted multiple licenses if one of the multiple applications is submitted as a “priority” application and the remaining applications do not face a mutually exclusive challenge. REC refers to these rules as “the public safety loophole”.
In their original applications, WARN stated that they would use these LPFM stations to “provide current local weather information, preparedness information and local resource information 24 hours a day and 7 days per week.” WARN claimed that they had been in contact with various public safety entities that “hold[s] jurisdiction as a local, county, state or national government agency” and that these groups had “agreed to work with” WARN and “have received information and correspondence regarding the programming and proposed communication’s plans of [WARN’s] proposed LPFM stations”. The Commission noted that WARN did not provide any supporting documentation regarding its communications with government organizations other than listing the names or types of organizations they had contacted.
On February 23, 2024, the Media Bureau dismissed the applications, finding that WARN did not propose to provide a public safety radio service and did not meet the requirements for being a local organization. After the dismissals, WARN had timely filed a Petition for Reconsideration arguing that their operations would be in the public interest and requested a waiver of the rules.
On July 30, 2024, the Media Bureau denied the Reconsideration petition by letter, denying WARN’s waiver requests and affirming that the entity is not local. The Bureau noted that for an applicant proposing a public safety radio service to be considered a local organization, it must demonstrate that it has jurisdiction within its proposed service area. For a non-government entity, to have such jurisdiction, it must provide written evidence that a government entity has contracted with it, designated it, or otherwise authorized it to provide public safety radio services and the governmental entity has jurisdiction in the service area of the LPFM station. The Bureau depended on a definition of public safety radio services in §309(j)(2)(A) of the Communications Act, a section which states that public safety radio services are exempt from spectrum auctions.
On August 28, 2024, WARN filed the Application for Review that the full Commission had considered in this decision. WARN accuses the Media Bureau of effectively adopting new regulations in violation of the Administrative Procedures Act, exceeded its delegated authority by promulgating new rules and deciding novel questions of fact, law or policy and unlawfully imposed retroactive obligations and restrictions on WARN. In this decision, the Commission had determined that the Media Bureau did not error in their decision.
As a part of this decision, the Commission expanded on the definition of “jurisdiction” by using the definition shown in the 7th edition of Black’s Law Dictionary, which defines “jurisdiction” as “a government’s general power to exercise authority over all persons and things within its territory.”, among definitions from other sources.
Prior to the 2023 LPFM Filing Window, REC had expressed concern informally to Commission staff that the public safety loophole could be abused in the window citing cases from 2018 and 2020 involving Estero Bay Community Radio, who had attempted to obtain a second station using the public safety loophole citing that the county government funded the purchase of their Emergency Alert System decoder. REC had considered addressing this through a Petition for Rulemaking, but decided to hold back as to not delay a well-needed filing window for new LPFM stations.
In the In re: Delete, Delete, Delete proceeding, REC filed comments to address our concerns over the public safety loophole (see REC Comments, paragraphs 84~88). Specifically, we supported the definition previously reached by the Media Bureau by depending on §309(j)(2)(A) of the Communications Act, further stating that “[j]urisdiction is related to those entities that roll the police cars and fire trucks.”
As a part of the Delete proceeding, REC had proposed a restructure of the eligibility requirements by separating eligibles into two groups: (1) public and private sector nonprofit educational entities proposing an education radio service; and (2) public sector entities that are not educational institutions proposing a one-way broadcasting service to listeners in their jurisdiction without a specific “public safety” requirement. (see paragraphs 90~97 in REC’s Delete comment filing) REC had rolled applications that are Tribal governments into the public sector category that would also allow for Tribes to obtain as many stations that they need to cover their Tribal lands.
WARN’s only recourse now is to take the case to the Court of Appeals for the DC Circuit, which normally hears these types of cases.
REC is aware of some LPFM stations that have been seeking channel changes due to interference but were being blocked by the WARN applications while they were in this appeals process. Potential applicants should monitor the FCC’s LMS public view to see if the facility record in question is currently in an “inactive” status. You can also check this in FCCdata. If the station’s facility ID comes up in FCCdata and determine, without clicking anything extra, notices that the full engineering section showing in REC’s FCCdata.
REC supports the full Commission’s action in this manner and we hope that the Commission makes an effort to revamp the LPFM rules in time for a future filing window.