Two recent FCC cases set confusing and perhaps dangerous precedents for the use of Low Power FM stations. In one case, the FCC allowed a pirate operator that they had shut down for an illegal operation to then resume operations under Special Temporary Authority (apparently following Congressional intervention). In another case, where protests were lodged about the sale and probable format change of a noncommercial station, the FCC directed the opening of a special filing window for an LPFM in that community to provide a replacement service. While the motivation of the FCC in each case may have been laudable, do these cases establish expectations on the part of other similarly situated parties that cannot be met in future cases?
According to a news article, the FCC, at the urging of Senator Harry Reid, the Senate Majority Leader, authorized a pirate radio station to continue operations under Special Temporary Authority until the next low power FM application window opens. After first shutting the station down for operating without a license, the FCC then permitted the station to resume operations to provide a local service to a small Nevada community. According to the article, the expectation is that the operator would file for a permanent license once the FCC opens a window for filing applications for new Low Power FM stations. While service to the Nevada community may be laudable, doesn’t this decision encourage others to start pirate stations in unserved communities, and then ask that their service be permitted to continue under temporary authority if the FCC finds them and shuts them down? And even if the FCC would allow such operations, these process puts the parties operating at risk, as they may continue to operate stations, and then they may face a competing applicant during the next LPFM window. Under the FCC’s policies for picking between mutually exclusive applicants, the established party could still end up not being the preferred applicant, and would have to shut the station down – taking away a service that the STA has allowed to become even more established in the community.
In another case, one in which we were involved, the FCC opened a special filing window for a LPFM in the community of Kilgore, Texas. There, the sale of a noncommercial classical radio station to an operator of noncommercial contemporary Christian stations brought protests from station listeners about the probable loss of the classical programming. While the FCC has for over 30 years stated that they will not dictate format choices by the buyer of a broadcast station, the FCC found in this case that the community interest in classical service justified the immediate opening of a filing window for a new LPFM station. The FCC decision implies that the window would be for listeners of the station to provide a replacement service, though the details have not been made clear as to whether the only applicants that will be allowed must be former listeners, or whether only applicants proposing classical music will be permitted.
The decision also seems to set a precedent that could cause future issues. If a party doesn’t like a sale and potential format change, will an LPFM always be available to provide alternate service? And could an entity that wants to file for an LPFM station, but cannot because their is no open window in which to file, find a local sale of a station to protest in an attempt to convince the Commission to open a special window for that community?
In short, both are noble decisions that could create unreasonable expectations for LPFM operators in the future.