Lawyer Article

Published in the November 2, 2005 issue of Southeast Tech Wire.

The Federal Communications Commission has requested comments by November 21 on a proposal to establish a new low power AM (“LPAM”) service.

Among the five proponents are the two who had initiated the proceeding that led to the controversial low power FM (“LPFM”) service, and so the current proposal should be taken quite seriously. Unlike LPFM, this is to be a commercial, non-local service with relaxed ownership, so as to encourage the development of new medium-sized groups which, the proponents feel, are necessary to fill a perceived gap between large corporations and stand-alone independents. Other reasons advanced for the new service are a need for additional stations in metro areas (especially in ones so congested that no LPFMs could fit), affordable advertising outlets for local businesses, and new opportunities for broadcast ownership that, in turn, would be expected to increase the diversity of broadcast information and ideas.

The specific proposals to be considered are the following:

Ownership and Eligibility – Twelve stations would be permitted per owner nationwide, but only one in any given metro area. Existing broadcasters would not be permitted to own, finance or invest in LPAM stations. Owners would be required to live within 25 miles of one of their LPAM stations. Although these are to be commercial stations, they would be exempt from FCC auctions. Mutually exclusive applications would be resolved through a point system based upon a public interest standard, but no specifics have been suggested so far as to appropriate criteria. However, “bonus points” would be awarded “for proposing to air worthwhile programming of a nature that is not found on the dial in the area being served.” Applications would be accepted during a series of filing windows, to begin with areas having the lowest availability of LPFM facilities and thus assumed to have the greatest need.

Technical Parameters – The petitioners agree upon the principle of a “safety margin” between assumed power (for the purpose of channel spacing) and power ceilings (for actual operation), so as to afford protection to existing full-power AM broadcasting. However, they disagree as to the standard to be applied. One of the petitioners proposes a uniform 100 watt maximum power ceiling, and 1,000 watts as the assumed power for channel spacing purposes. The other four request a 5:1 margin between assumed and authorized power, with 10 watt operation in so-called “urban frontier areas” having three or fewer LPFMs, up to 250 watts in areas outside any MSA or Micropolitan area, and 100 watts elsewhere. Unable to agree among themselves, the petitioners request the Commission to choose between their proposals. “Capacitance hats” would be permitted, horizontal antennas prohibited and three-foot perimeter fences and warning signs required around each LPAM transmitter. Operation with constant power would be permitted on a 24 hour basis.

Some aspects of this proposal seem unlikely to be adopted. For example, after vehemently resisting involvement in citizen complaints over format issues raised against license renewals, it seems inconceivable that the FCC would award bonus points for alternative format proposals.

The rationales cited by LPAM proponents undoubtedly will appeal to those who seek an antidote for the perceived detriments of industry consolidation. The proposed LPAM service may prove to be an appealing safety valve and may attract considerable public attention and political support on that basis. Despite strong and persistent broadcaster resistance, the onceseemingly improbable LPFM service became a reality.

It is expected that industry trade associations will oppose this proposal, but comments from individual station owners can play a significant role. The Commission often is impressed by anecdotal submissions, especially in response to a “grass roots” effort such as the one advocating LPAM, and particularly with respect to specific technical concerns such as the efficacy of the proposed LPAM protection to existing AM facilities.

If you would like a complete copy of the rulemaking petition, or if we can assist you in filing comments by November 21, please be sure to let us know.