Low‐​Power FM: Freedom Is Diversity

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Last month, the Federal Communications Commission collected yetanother round of public comments on the future of low-power FMradio (LPFM). The comments were submitted in response to a"Third Report and Order" concerning LPFM serviceissued late last year. Since the FCC's initial report was filed inearly 2000, the regulatory battle has been so fierce that this"third" report is actually the fifth proposed set of rules. Largecommercial broadcasters, National Public Radio, and communityactivists have all sought to bend the FCC's rules to theiradvantage. The twisted saga spotlights the need for a regulatoryapproach that is both hands-off and even-handed. Only this willencourage diversity and free choice in radio programming.

After years of playing cat-and-mouse with low-power "pirate"radio stations unlicensed by the FCC, the commission finallypublished proposed rules on issuing licenses to low-power FMstations and began receiving public comments in January 1999.Advocates of LPFM "microradio" argue that the start-up costs for afully licensed full-power FM station (which are in the sevenfigures) preclude smaller, independent individuals and groups fromgetting on the air. The Telecommunications Act of 1996, whichderegulated media ownership to allow one corporation to own morestations in a single city (and nationwide) than previously, furtherdrove up the demand for, and cost of, FM licenses.

The FCC issued its initial order on LPFM in early 2000, announcing thatit would start granting licenses for locally owned, nonprofit,10-watt and 100-watt LPFM stations. A 100-watt station cantypically broadcast over a radius of 3.5-5 miles. Seeking acompromise between demands from established broadcasters andmicroradio advocates, FCC set interference rules restricting newlicenses from second-adjacent stations on the FM dial. This meansthat if an FM station is already broadcasting at 90.1 FM, forexample, no LPFM licenses could be granted for adjacent FM stationson 90.5, 90.3, 89.9 or 89.7 FM.

Although many microradio enthusiasts argued at the time the rulewas too restrictive given modern technology, NPR and the commercialNational Association of Broadcasters immediately took their scarecampaign to Congress, which dutifully passed a law establishing athird-adjacent interference rule for LPFM licensees. The RadioBroadcasting Preservation Act of 2000 ruled out new LPFMstations two slots away-in our example precluding 90.7 and 89.5 FM.This left only one slot available in the country's 50 biggestcities, quashing potential new competitors.

But Congress also directed the FCC as a part of that law toprepare a report on the interference created by second-adjacentchannels. The FCC farmed the report out to the independentcontractor MITRE, and their report, issued in 2003, found that LPFMstations would not interfere with a full-power FM signal only twochannels away after all. The FCC is urging Congress to go back tothe second-adjacent rule in their latest report and bills currentlypending in the House and Senate would do just that.

The Senate Commerce Committee, however, added two restrictiveamendments to that body's version of the bill. One keeps thethird-adjacent rule in place for New Jersey (thanks to Sen. FrankLautenberg, D-New Jersey). The other is a punitive measure to keepanyone who has ever operated a "pirate" radio station fromobtaining an LPFM license-despite a near-identical provision in the2000 law having already been struck downin federal court.

While the FCC was spending 2003 reviewing and approving the MITRE report, it also opened a license window for "FM translator"stations. Translator stations simply translate the signal of anexisting station, whether AM or FM, onto another frequency. Theytypically ensure a local broadcaster's signal can be heardthroughout a community despite geographical features like mountainsor skyscrapers that block one signal from reaching the entirepopulace. These stations are technologically similar to LPFMstations, being low-wattage (up to 250 watts versus full-powerstations which range up to 100,000 watts). LPFM and translatorstations are both "secondary services" which must yield tofull-power "primary services" under FCC rules.

Noncommercial stations are allowed under the "FM translator"rules to have translators outside their primary coverage area. Andtranslator stations are not hobbled by the arbitrary third-adjacentrule, or even a second-adjacent rule, but instead can use "contourmapping"-that's a fancy way of saying that licensees should producean engineering study proving that the new translator would notinterfere with the signal of an established full-power station.FCC's latest report mercifully, if tentatively, recommends thatLPFM stations receive the same courtesy.

The FM translator license window obviously established a doublestandard on adjacent spectrum-with translators getting the besttreatment and LPFM held to the third-adjacent rule. But itunleashed some unintended consequences as well. About 3,500construction permits had been granted for translators when FCCsuspended application processing in 2005 because it realized thatthe vast majority of licenses had been given to squatters andspeculators with no intention of actually building radiotransmitters. The number of actual FM translators had increased byless than 100 over those two years.

The other surprise was that some Christian broadcasting groupswere "translating" the signal of a single full-power station todozens or even hundreds of low-power FM translator stations viasatellite, creating a national radio network (with 100-watttransmitters typically running no more than $10,000) for a muchlower cost than previously possible. This predictably enragedadvocates of low-power "localism" even as it gave more listeningoptions to the public. As a result, some microradio advocates aredemanding the FCC limit the number of FM translators one entity mayown to 10 nationwide.

NPR, which relies heavily on translators in rural areas,vehemently opposes such a restriction. On the other hand, NPRis asking the FCC not to require that a newlylicensed full-power station which creates interference for anexisting LPFM station be obliged to help the smaller entity moveits facilities or frequency. Some property rights are more equalthan others, apparently.

It is welcome that the FCC's latest LPFM "Report and Order"invites Congress to allow more small, independent broadcasters. Andthe rules move toward freedom and regulatory flexibility in otherways, too, such as by lifting restrictions on the transfer oflicenses, geographically expanding the definition of "local," andallowing two or more part-time LPFM stations to time-share on thesame frequency.

The FCC and Congress are both poised to further open up the FMspectrum. Both should ignore the pleadings of special interests onall sides as they do so. "Contour mapping" should replace arbitraryadjacent-channel restrictions for LPFM. Double standards betweenLPFM and translator stations should be ended and onerous ownershiprestrictions on both LPFM and FM translator stations should beeased.