NOTICE OF PROPOSED RULE MAKING
Adopted: January 28, 1999 Released: February 3, 1999
Comment Date: April 12, 1999
Reply Comment Date: May 12, 1999
By the Commission: Chairman Kennard and Commissioner Tristani issuing a joint statement; Commissioners Ness and Powell issuing separate statements; and Commissioner Furchtgott-Roth dissenting and issuing a statement.
I. INTRODUCTION
1. By this Notice, we are proposing to establish rules authorizing the operation of new, low power FM (LPFM) radio stations. In particular, we are proposing to create two classes of low power radio service, both of which would operate in the existing FM radio band: a 1000-watt primary service and a 100-watt secondary service. We also seek comment on whether to establish a third, "microradio" class of low power radio service that would operate in the range of 1 to 10 watts on a secondary basis. These proposals are in response to two petitions for rule making and related comments indicating substantial interest in, and public support for, increased citizens' access to the airwaves. We believe that these new LPFM stations would provide a low-cost means of serving urban communities and neighborhoods, as well as populations living in smaller rural towns and communities. In creating these new classes of stations, our goals are to address unmet needs for community-oriented radio broadcasting, foster opportunities for new radio broadcast ownership, and promote additional diversity in radio voices and program services. We are proposing that LPFM stations not be subject to certain technical rules currently applied to other classes of radio service. In particular, we believe that current restrictions on third-adjacent channel operations are not needed for LPFM stations, and we believe it may be possible to disregard second-adjacent channel interference for these stations as well. We address below how we may be able to do this. At the same time, we are also proposing new technical rules and geographic spacing requirements to ensure that new LPFM stations do not cause interference to existing full service FM radio stations. In adopting any rules and requirements, we will also be wary of any provisions that would limit the development of future terrestrial digital radio services.
2. In this Notice, we review formal petitions we have received and the principal arguments of commenters supporting and opposing new low power radio service, and we provide our initial assessment of those arguments. We describe three types of low power service of varying power levels which, in each case or together, could meet local needs. As a general matter, we seek comment on whether any new services established should be operated strictly on a noncommercial basis. The Notice also addresses related matters such as service rules, ownership issues, and application processing procedures for LPFM services. We also welcome commenters to bring to our attention any alternatives or additions to our proposals that would serve our goals of encouraging community participation and the proliferation of local voices, while protecting the integrity of the spectrum.
B. Comments
8. Small businesses, community groups, cities, and the hundreds of citizens who commented support the creation of a low power radio service, although not all agree on the parameters of such a service. The petitions are also supported by some small (often AM) broadcasters and by some noncommercial educational radio broadcasters. Petitioners and their supporters argue that consolidation has made radio stations too expensive for most individuals, and that because new voices are being priced out of the market, the public is being deprived of diverse, local voices. They criticize the loss of certain less profitable formats in their listening areas, and they contend that low power radio could serve the needs of small, niche groups, including minority groups (particularly linguistic minorities), that they believe are often ignored by full power stations.
9. The National Association of Broadcasters ("NAB"), National Public Radio, Inc. ("NPR"), other radio broadcaster organizations, and a number of individual licensees oppose the petitions, claiming that existing radio stations are already serving the myriad needs and interests of their communities and must do so in order to remain competitive, thus making low power radio unnecessary. According to some of these opponents, the Commission's diversity concerns are more appropriately addressed through the ownership rules than by creating a new service. Several opponents of the petitions also take issue with the supporters who decry the effects of consolidation, contending that group ownership can foster important services to listeners because it allows for more efficient operations. NAB adds that there is no indication that the diversity of station formats is decreasing. NPR claims that there is no evidence that small geographic areas in fact have sufficiently common programming interests such that the desired niche programming will develop. Finally, a number of opponents of the petitions assert that the range of options for the future development of terrestrial digital radio would be unduly limited by the addition of numerous new facilities operating on the FM band.
III. SERVICE PROPOSALS AND ISSUE ANALYSIS
A. Need for Low Power Radio Service
10. As discussed in our 1998 Biennial Review of broadcast ownership regulations, liberalization of our local radio ownership rules over the past few years has led to increasing ownership consolidation. See Notice of Inquiry in MM Docket No. 98-35, 13 FCC Rcd 11276, 11281-83 (1998) ("Biennial Review"). The Commission has acknowledged the benefits to the public that may accrue from the economies of scale made possible by group station ownership. However, we are concerned that consolidation may have a significant impact on small broadcasters and potential new entrants into the radio broadcasting business by driving up station prices, thereby exacerbating the difficulty of entering the broadcast industry and of surviving as an independent operator.
11. Additionally, the Commission received over 13,000 inquiries in the last year from individuals and groups showing an interest in starting a low power radio station. Furthermore, as noted above, hundreds of commenters have urged the Commission to create opportunities for low power, locally oriented radio service. These demonstrations of interest in low power radio service indicate that new classifications of service could be outlets for new voices and program services to serve the public. Moreover, it appears that the variety of demands may best be met by more than one station type, as urged by many commenters. For example, a low power station could be designed to operate similar to a full-power station but on a smaller scale, as a service for an ethnic community dispersed throughout an entire city, as a supplementary commercial or noncommercial service, or simply as a low cost community service used principally to convey information to listeners, without concern for financial support.
12. Accordingly, we seek comment on whether a low power radio service could provide new entrants the ability to add their voices to the existing mix of political, social, and entertainment programming, and could address special interests shared by residents of geographically compact areas. Numerous commenters state that alternative sources of information and entertainment are not readily available to dissatisfied speakers and listeners through the acquisition of an existing frequency, leased time from full power stations, an internet website, or internet webcasting, the last three of which do not require a license. Commenters note that the first alternative is too restrictive and provides insufficient access and control to the speaker to meet the demand that has spawned this rule making proceeding. The consistent demand for various forms of low power radio stations, including microradio stations, indicates that many people interested in community broadcasting cannot afford either their own full power stations or whatever limited access to established stations may be available. Moreover, people with non-mainstream interests or unconventional views would have access to the airwaves only with the consent of a full power station owner, which could severely limit their range of expression. We recognize that the internet offers unprecedented opportunities to communicate inexpensively to others around the world and to receive information or programming of interest. However, at this time, internet access is not sufficiently mobile and ubiquitous to be considered a substitute for radio broadcasting's capability to reach the public, despite some opponents' contentions to the contrary. Thus, it appears that low power radio offers opportunities to potential broadcasters and listeners for which there are currently no comparable alternatives. Commenters are invited to address these issues.
F. Ownership and Eligibility
57. Local and Cross Ownership. We see the increased opportunity for entry, enhanced diversity, and new program services as the principal benefits of a new low power service. These goals may be hard, if not impossible, to achieve if LPFM stations are made available to existing broadcasters, or if a number of the new LPFM facilities in an area are under common control. Accordingly, we tentatively conclude that strict local and cross-ownership restrictions would be appropriate for the low power radio service. First, we propose not to permit a person or entity with an attributable interest in a full power broadcast station to have any ownership interest in any LPFM (or microradio) station in any market, and to prohibit joint sales agreements, time brokerage agreements, local marketing or management agreements, and similar arrangements between full power broadcasters and low power radio entities. As a corollary to this proposal, we are not proposing to give an application preference to AM station licensees, as urged by Crusading Broadcasting Ministry, Inc. and Robert M. Stevens. We do seek further comment on this issue, and on whether we should permit AM licensees to file applications contingent on the divestiture of their AM station in the event they are successful in obtaining an LPFM station. In addition to this cross-ownership rule, we propose to limit multiple ownership by prohibiting any individual or entity from owning more than one LPFM (or microradio) station in the same community. These restrictions would seem to obviate any arguable benefit from the restriction urged by some commenters on the form of business entity that could be an LPFM licensee. We have used various designations for applying our multiple ownership rules for full power radio services, including signal overlap, Designated Market Area, and markets designated by the commercial audience ratings services. We seek comment on the appropriate definition of "market" or "community" for purposes of the restriction proposed here, as well as on what other interests or relationships (if any) should be attributable in the context of low power radio.
58. We seek comment on whether the proposed cross-ownership restriction will unnecessarily prevent individuals and entities with valuable broadcast experience from contributing to the success of the service, or whether it is necessary to keep the service from being compromised or subsumed by existing stakeholders. Commenters should also address the alternative of permitting individuals and entities with attributable involvement in broadcasting to establish LPFM (or microradio) stations in communities where they do not have an attributable interest in a broadcast station. We also seek comment on whether the cross- ownership restriction should be extended to prevent common ownership of LPFM or microradio stations with newspapers, cable systems, or other mass media.
IV. SUMMARY
112. With this Notice of Proposed Rule Making, we explore the possible establishment of new classes of FM radio service to respond to the increasing demand by the public for additional outlets of popular expression which could increase the diversity of voices, views, and sources of information and entertainment available to the American public. This proceeding will explore the appropriate technical parameters for such a service. We will also examine potentially conflicting demands for such a service and the means to accommodate any such conflicting demands to the extent possible and appropriate. In addressing these issues, we are and will remain mindful of the technical requirements necessary to protect existing radio services and are concerned with preserving the excellent technical quality of radio service available today which has been fostered and maintained by our existing rules. We hope to receive comment from a wide range of existing and potential users of the FM spectrum regarding the nature and extent of different and possibly conflicting demands for this spectrum, and technical analysis to assist us in best resolving those conflicts for the benefit of the public.