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Localism and time sharing: Low Power FM faces tricky questions

Prometheus Project

I’ve been reading through the Federal Communications Commission’s proceeding on how to reward Low Power FM radio stations to applicants. It’s pretty clear from some of the filings—the latest from the Prometheus Radio Project—that the Commission still faces some complicated questions about how to pick the applicant winners, especially when it comes to localism criteria and applicant time-sharing.

Tricky question number one: localism

For example, earlier this month, Brandy Doyle and Cheryl Leanza of Prometheus met with an attorney for the FCC via telephone conference. Here is the Prometheus August 10 summary of the conversation, which included a proposed local programming mandate for LPFM stations:

This mandate would require broadcasters to originate local programming for at least twenty hours per week. Ms. Leanza explained that such a mandate is a logical outgrowth of the proceeding, passes constitutional muster and enables the LPFM service to fulfill its intended goals of prioritizing locally-originated programming. She noted that the Commission already offers a preference to LPFM applicants pledging to originate local programming, and argued that shifting from a preference to a requirement should not trigger a higher level of scrutiny. She argued that local origination is a technical rather than content based requirement, and does not prioritize any viewpoint nor does it require that programming be about local issues.

That last sentence speaks to the FCC’s aversion to getting involved in any regulation that would require the agency to make subjective calls about programming, thus being accused by the usual paranoids of trying to sneak the Fairness Doctrine in through the back door. I’m very sympathetic to Leanza’s idea, which indeed does not compel applicants to adopt a predisposed political or cultural perspective. And what’s the point of these radio stations if they mostly run syndicated content?

On the other hand, I wouldn’t be surprised if some applicants are wondering where they’d get all this locally-originated programming all at once.

Tricky question number two: time sharing

Tricky Question Number Two is, well, even trickier, since it involves implementing the FCC’s system for “time-sharing” deals among LPFM applicants. The Commission will probably get a lot of requests for LPFMs in bigger metropolitan areas, and the application “point system” that the agency plans to use might result in ties among one, two, or three license seekers. That’s because many worthy non-profits will probably merit all the application window’s Brownie points, such as established community presence and commitment to localism, etc.

The FCC’s practice in these tie instances is to issue a public notice acknowledging the tie, and give the tied bidders a chance to engage in “voluntary time-sharing arrangements” among themselves.

But what if one of the applicants drops out of the consortium? “Should we open a ‘mini-window’ for the filing of applications for the abandoned air-time?” the FCC asks in its March/April Order and Notice on LPFM. “Could we limit eligibility to unsuccessful applicants from the same mutually exclusive group in the initial window?”

Prometheus responded to this idea on August 8:

Good faith applicants form voluntary settlements on the basis of a shared vision for a station or shared target audience, business practices, or values. Although attempted abuses of the voluntary settlement rules are possible, in many situations good faith licensees may drop out of voluntary settlements for legitimate reasons. The mini-window proposal would unfairly penalize the timeshare partners of those who drop out legitimately by requiring them to form timeshares with other applicants not of their choosing. This would essentially generate mandatory timeshares, which are often unworkable.

It would be better to “reduce the number of timeshares in the first place by adopting a mutually exclusive application evaluation system that results in fewer ties,” Prometheus adds, “and that to do so the Commission must adopt more points and evaluate them in a way that results in the emergence of clear winners.”

Indeed, time-sharing sounds pretty gnarly. It’s sometimes hard enough for community radio stations to develop a coherent mission with one governing board, much less two or three. On the other hand yet again, any time sharers out there who have made it work? Send us a comment.

Other issues raised in the Prometheus filing—concerns about giving “consortia” extra points (“the award of extra points to consortia may disadvantage minority groups. A large organization with a wider support base is more likely to be in contact with partner organizations willing to form a consortium with it than a smaller organization representing minority interests”).

None of the aforementioned even deals with the FCC’s ongoing effort to reconcile Low Power FM and radio translator applications, but this is enough complexity for one post. When is an application window for LPFM actually going to open? I hear conflicting reports. Some say as early as September; others say some time next year. One thing for sure: before the Big Day arrives, the FCC has a lot of questions to resolve.

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