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6/18/00

It was less than three years ago that Nick Leggett, Judith Leggett and Don Schellhardt officially filed the first Petition for Rulemaking (RM-9208) that led to the Federal Communications Commission's ultimate creation of the new low power FM (LPFM) radio service.

What a difference three years can make. During that time, Schellhardt co-founded the Amherst Alliance, one of the most vocal and notable pro-LPFM groups in the nation.

Amherst was very active during the FCC's LPFM proceedings, and Schellhardt even testified in front of a Congressional subcommittee defending the agency's plan against the industry push to legislatively abort the service.

Even so, as it appeared the service was being watered down, Schellhardt and Amherst were not short on questions and criticism. In February, the Amherst Alliance filed a Motion for Reconsideration of the new LPFM rule.

And as the first filing window for LPFM licenses opened and closed earlier this month, Amherst filed yet another petitioners with the FCC. Don and company were joined by Nick and Judith Leggett on this filing as well.

The Virginia Center for the Public Press, who caught the NAB in the act of a lie at a congressional hearing on low power radio, has also filed its own Motion in support of Amherst's.

In short, the Motion is a notice to the FCC that everyone signed onto it formally reserves the right to sue the agency if it interprets its new LPFM rule extremely narrowly - and there's a chance that that just might happen.

The Amherst Alliance has discovered information that suggests the FCC may only hand out licenses to "established" community groups and may also be intentionally narrowing potential LPFM candidates by limiting the number of open frequencies they can apply for.

Allegations and Impact

Amherst notes that the FCC has failed to act on its February 2000 filing, where it asked the Commission to formally take a second look at the new LPFM rule. This, in itself, is unusual, as the Commission is legally bound to respond to such filings in a timely manner.

But what Amherst and its motion co-signatories are most concerned about is new FCC information unearthed in a conversation one Wesle Dymoke with Providence (Rhode Island) Community Radio had with the FCC's Peter Doyle.

According to the Motion, Doyle "is reportedly the primary staff person in charge of structuring the license allocation process and interpreting the [FCC's] basic regulations on [LPFM]." Doyle's name is also listed as a primary FCC contact at the bottom of most of its LPFM news releases to-date.

In this conversation, Doyle laid out some ominous notions of how he planned to "interpret" the new LPFM rules. There were two red flags.

The first is that "the FCC staff does not plan to allow newly-incorporated non-profits to meet the 'maturity' criterion" - in effect, although the FCC said it would allow any non-profit group to apply for an LPFM station license, it plans to give preference to groups who've been around awhile. If you just organized in January to try for a license, the cards may be stacked against you.

"Further inquiries by Ms. Dymoke," says the Motion, "directed to others at the [FCC], confirmed that Commission staff currently plan to follow [Doyle's] interpretation" of the new LPFM rules.

"If allowed to stand, this staff interpretation will convey upon ESTABLISHED churches and ESTABLISHED community groups a virtually insurmountable competitive advantage over newcomers."

"At least in those areas where the spectrum is crowded enough to create competition for licenses, newcomers could be swept off the field completely - defeating in the process the primary purpose of, and the primary constitutional requirement for, a Low Power Radio Service."

The second potential problem with the way LPFM licenses will be doled out involves the application process itself. Instead of allowing an applicant to apply for multiple open frequencies in their area, the FCC is only allowing applicants to apply for a single frequency.

Amherst and its backers say such a practice "introduces an element of random chance" into the licensing process:

"It is rational for the [FCC] to look at a community as a whole...then look at all of the LPFM applicants in that community as a whole...and then decide which of the applicants in the pool are the best choices for the frequencies which are available."

"This frequency-by-frequency approach to license allocation means that an excellent candidate may be kept off the airwaves because of a bad guess about which particular frequency will attract the lowest level of competition.  At the same time, a less capable candidate...may win a license because dumb luck or insider information led them to select a frequency where there was less competition for the license."

The Lawsuit Threat

Everyone who signed onto this latest Motion will be watching the issuance of the first LPFM station licenses very closely. Specifically, they will be looking to see just how many newly-incorporated organizations get licenses as compared to the "established" groups that apply.

If it becomes clear that long-standing churches and community groups are getting most (if not all) of the LPFM licenses when in competition with groups specifically established for a radio station, the petitioners leave open the option to challenge the FCC in court:

"None of the signatories of this Motion is committed to litigation, but all the signatories are committed to considering litigation if other remedies fail.  We are acting now to preserve our options later."

To stave off this unfortunate possibility, the potential plaintiffs are asking the FCC to further flesh out its LPFM rules to guarantee new organizations an equal chance at a license.

It is both good and bad to see those who helped to give birth to legal low-power radio challenging the new rules.

Ultimately, it would be better to have no laws governing low power radio than bad ones.