Under a new FCC rule, Native American tribes will have preference over all other applicants for new AM and FM stations which would serve communities located on tribal lands. But, will the new rule stand up in court?
Groups which filed comments opposing the unprecedented preference for a single group had argued that it amounts to uncontitutional discrimination. Others had argued that the proposal is simply unworkable for the AM band and would create havoc.
In rejecting the discrimination issue, the FCC order cited the “unique legal status of Indian tribes under federal law.” The news release announcing the new rule noted that only 41 US radio stations are currently licensed to native tribes.
Commissioners Michael Copps (D), Robert McDowell (R) and Mignon Clyburn (D) all issued statement applauding the action. “Increased tribal ownership of radio staqtions furthers the Commission’s core goals of competition, localism and diversity,” Copps declared.
The tribal preference would apply to the allocation phase for new commercial stations, which would then go to auction, and for non-commercial stations would virtually guarantee the award to a tribal applicant so long as its doesn’t already have a station in the community.
In a continuing action, the FCC says it will consider whether tribal applicants should also receive auction bidding credits when seeking new commercial stations. It also wants to look into how to extend the tribal preference to recognized tribs which don’t actually own any tribal lands.
RBR-TVBR observation: Assuming that this is headed to court – which is a pretty safe assumption – what will that do to the process of awarding new CPs? Will wide swaths of the nation, particularly in the West, be put under a virtual freeze until the constitutionality of this rule is decided by the courts?