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

None of the Alliance’s proposals is explored in particular detail in its petition. The Alliance urges simply that “locally originated programming” be permitted on translators. In other words, all translators could become originating LPFM stations, at least part-time. (More on the “part-time” aspect below). In the Alliance’s view, this would increase the potential for more local programming pretty much everywhere. Moreover, since the Alliance would apparently not limit the originated programming to purely non-commercial fare (a limitation which has historically been imposed on LPFM stations), this change could lead to a “revival of ‘Mom and Pop’ commercial radio”. According to the Alliance, such small, local operations were muscled into virtual extinction by media consolidation in the 1990s.

And to incentivize existing translator licensees to start originating local programming, the Alliance asks the Commission to create a “lower priority” secondary FM service. The “lower priority” service would consist of translator stations which are fed, “exclusively or primarily”, either with satellite programming or with programming originated from a studio more than 120 miles from the translator. If such stations – which the Alliance creatively dubs “satellators” – don’t begin to originate at least a minimum amount of local programming, they would . . . well, it’s not exactly clear what regulatory limits would be imposed, but at a minimum such satellator stations would not be deemed to be the equivalent of real LPFM or translator stations.

Recognizing that some start-up time might be necessary to get the origination ball rolling, the Alliance suggests that satellators be given an initial deadline by which they would have to broadcast at least two hours a day of locally originated programming. Within a year of that initial deadline, the amount of such programming would have to double; within two years it would have to have reached at least six hours a day; and thereafter it would have to be at least eight hours a day. Failure to meet any of these benchmarks would result in the satellator station being relegated to a new class of service, i.e., “Auxiliary Secondary Service”, which would have a “lower priority” vis-à-vis other secondary service stations such as originating translators and LPFM stations.

The Alliance’s proposal is an obvious response to one aspect of the LCRA that presumably disappointed the Alliance. The Act requires that “FM translator stations, FM booster stations, and low-power FM stations remain equal in status and secondary to existing and modified full service FM stations.” That language seems to say that translators – including 100% non-originating translators – are no better and no worse than LPFMs when it comes to licensing priorities, regardless of any lack of local program origination.

The Alliance, however, chooses to read that particular statutory language to refer only to “new” stations. (It finds the restriction to “new” stations in some language that appears in an introductory section.) In other words, the Alliance figures that the Commission remains at liberty to alter the relative status of any translator stations already licensed as of the day when the LCRA became law. And, since the Alliance clearly thinks that stations that originate are more deserving than stations that don’t, the Alliance’s proposal is geared toward lowering the status of the latter in favor of the former.

It’s not at all clear that the Alliance’s reading of the statute is correct. While the word “new” (referring to licenses) for sure appears in the prologue of Section 5 of the LCRA, that word does not show up in the subsection in which Congress mandates that all secondary FM services (translators, boosters, LPFMs) “remain equal in status”. That can hardly be seen as a Congressional green light for the FCC to treat some some of those services unequally.

And even if the Alliance’s reading were supported by the statute, its proposal still raises a host of practical problems that the Alliance doesn’t even acknowledge, much less attempt to resolve. For example, precisely how would regulatory treatment of “auxiliary secondary services” differ from treatment of non-auxiliary secondary services? 

And how would the Commission be expected to assess whether any particular programming was sufficiently “local” to avoid demotion to “auxiliary” status – any First Amendment problems there? How about the definition of “origination” for purposes of the proposal? Ordinarily, origination refers to the fact that the programming is not being transmitted, seamlessly and simultaneously, as it arrives from some other source – but what if a “satellator” operator were to record programming delivered by satellite and then replay the recording the following day. Would that constitute “origination”? (Our guess is that this isn’t what the Alliance had in mind, but its petition doesn’t delve into such niceties.) And if translators are allowed to air commercial programming, would LPFM’s be permitted to do the same?

Since the Commission is already facing the tough task of adjusting its rules to the terms of the LCRA, the arrival of the Alliance petition is probably not a welcome development, since the petition advances seriously complicating concepts without suggesting solutions. Of course, the Commission is under no obligation to address the petition – witness the fact that the Commission has for more than five years already ignored a proposal that the public file rule be eliminated – but the LPFM lobby obviously has historically managed to get itself heard, so it might not be easy to ignore the Alliance petition. Suffice it to say, though, that the petition is not likely to speed up the ultimate resolution of the translator/LPFM face-off.

For the time being, though, the Commission has not yet given the proposal a file number or opened even a preliminary opportunity to comment on it. Check back here for updates.

The Court also disagreed with NAB’s attack on the “rebuttable non-binding presumption” which (to the passing eye, at least) appears to be purely content-based, since it is triggered by the LPFM’s claim of having provided “locally originated programming”.  But in the Court’s view, the term “locally originated programming” refers to the “geographic location of the production of programming”, not the “substantive content of the programs.” (The Court did keep the NAB’s content-based argument alive for another day by dismissing it as unripe because “there is no clear indication that the Commission will regulate content in applying the presumption”.)

One more interesting point: the Court again cites the Supreme Court’s Fox opinion to give the Commission broad protection against garden-variety APA arbitrary-and-capricious arguments. We predicted such increasing reliance on the new APA standard articulated by the Supremes back in April.