CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Commission adjusts FM translator application caps as process to clear FM translator backlog looms; LPFM window tentatively set to open in October, 2013

It looks like the long-running tug-of-war for spectrum between low-power FM (LPFM) advocates, on the one hand, and FM translator advocates, on the other, may be close to wrapping up, at least as far as the FCC is concerned. With a “Fifth Order on Reconsideration and Sixth Report and Order” (we’ll just refer to it as the 6th R&O), the Commission has tied up some loose ends remaining from last March’s “Fourth Report and Order and Third Order on Reconsideration” (4th R&O) and adopted new rules and policies governing LPFM applicants.

With these changes, the Commission is positioned to move forward on two related fronts. First, it should be able to clear the logjam of 6,000 or so translator applications remaining from the 2003 FM translator window. And second, it can establish a timeline for the first LPFM window filing opportunity in more than a decade.

Anyone new to the LPFM/FM translator imbroglio – or anyone who may not recall the monumental effort the Commission made earlier this year to solve that seemingly insoluble conundrum – may want to take a quick look at our coverage of that effort. You can find some relevant posts from last April, here, here and here. Having dealt with all that heavy regulatory lifting, the Commission was able to make the 6th R&O relatively straightforward and limited in scope (although it still weighs in at a hefty 83 pages, not counting appendices and Commissioners’ statements). In it, the Commission fine-tunes its approach to the translator backlog and sets the stage for a window for new LPFM applications tentatively set to open on October 15, 2013.

Here are the highlights:

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Blunt talk about marijuana spots

Back in the day, the mere broadcast of a song which might have something to do with drugs could bring the Feds down hard on a station. You old-timers might remember back that far. (You young ‘uns should check out 28 FCC2d 409 and 31 FCC2d 377 if you have any questions.)

 What a difference a couple of decades make! Now not only can you play songs about marijuana, but you might even be able to advertise the stuff. Is this a great country or what?

 There are, of course, all sorts of catches, so read on.

Marijuana is a controlled substance and its sale or distribution is prohibited under Federal and state narcotics laws. However, last October the Department of Justice announced formal guidelines governing its enforcement policy with respect to medically-prescribed marijuana in those states where medical use of the drug is now legal. (About a dozen states have legalized medical marijuana so far.)  In those grass-friendly states the DOJ has ceased prosecutions of legitimate growers and distributors of marijuana intended for medical use.

Legalizing some weed sales has, logically enough, opened up the possibilities for trying to promote such sales through advertising. And sure enough, a number of broadcasters have been asked to run spots for distributors of marijuana, including doctors’ offices and retail outlets. Unlike cigarette advertising, there is no FCC rule or policy that prohibits such advertising (although the Commission has long demonstrated a serious antipathy to drug use and distribution generally). In view of the DOJ enforcement policy, it appears that the current Administration is not likely to impose extra burdens on legitimate, state-sanctioned marijuana use – which suggests that advertising dope for such use should not cause problems (just as promotion of gambling in jurisdictions where it’s legal has long been approved).

However, anyone considering acceptance of medical marijuana ads should pay careful attention to factors such as the following:

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