LPFMs win DC Circuit battle


The National Association of Broadcasters tried and failed to overturn FCC waivers of 2nd-adjacent channel spacing requirements that protected about 40 existing LPFM stations from full power stations that were coming into their coverage area via facilities modifications. The decision was hailed as a huge victory by LPFM activists.

The US Court of Appeals for the District of Columbia Circuit tossed part of NAB’s challenge of the FCC action and said it was too early to rule on other parts.

NAB argued that the FCC went beyond the pale of Radio Broadcasting Preservation Act of 2000. That would include honoring separation requirements for FMs that are new or in the act of moving.

The Court explained its decision for the FCC, saying, “We hold that the Preservation Act did not bar the Commission from reducing or eliminating interference protections other than third-adjacent channel minimum distance separation requirements, and that the NAB’s challenges under the APA are either unripe or unpersuasive. Accordingly, we deny the petition in part and dismiss it in part.”

NAB had argued that the bill required the FCC to honor 3rd adjacent protection as instructed by Congress, and that it was absurd to then issue a waiver that did away with 2nd adjacency protection in certain situations. The Court ruled, however, that the FCC was also correct in doing what it could to promote the new LPFM service, also as instructed by Congress.

Acting FCC Chair Michael Copps said, ‘We must continue to look for ways to promote and expand this most local radio service which holds such great promise in expanding radio ownership to under-represented stakeholders and in meeting the needs of under-served communities.  In this regard, I look forward to working with my fellow Commissioners in finishing work on the pending LPFM Second Further Notice of Proposed Rule Making.  I also respectfully renew my recommendation to Congress that it eliminate existing statutory LPFM third-adjacent channel spacing requirements.”

“MAP strongly applauds the Court of Appeals for upholding the Commission’s public interest authority to protect and promote low power FM,” said Media Access Project VP Parul P. Desai. “The decision is a critical win for the future of LPFM and the preservation of local, diverse viewpoints in communities throughout the nation.”

“This is terrific news for the low power radio community,” said Sakura Saunders, a board member of the Prometheus Radio Project. “The few protections offered to these small stations were threatened by this lawsuit. Now, these stations can focus on serving their local communities, rather than live in fear of displacement due to the whims of their full-powered neighbors.”

RBR/TVBR observation: In the LPTV world, the unfortunate stations in that secondary service could be swatted away by a full power station with upgrade ambitions, so this ruling upholds what is essentially a novel new way of approaching conflicts between full- and low- power stations. And third adjacency protection is sure to come under attack in the House Subcommittee on Communications, Technology and the Internet. NAB will have its work cut out to overcome this setback.