LPFM: Movement in Congress?

It appears that the U.S. Senate may be moving toward a floor vote on the Local Community Radio Act. This bill originally began under the auspices of undoing the Congressional fiat in 2001 which severely restricted the promulgation of new low-power FM (LPFM) radio stations. By imposing draconian channel-spacing regulations on the new service, LPFM stations were precluded from being sited in areas of the nation in which 80% of the population lives.
The Local Community Radio Act has been the focus of a seven-year campaign to right this wrong. Most importantly, it would relax channel-spacing rules for LPFM stations (allowing them to be placed in more urban areas) and give LPFM stations a semblance of parity with regard to other classes of FM station. This would make LPFMs less susceptible to being bumped off the air by a larger station looking to move or otherwise modify its own transmission infrastructure.
In the House of Representatives, the Local Community Radio Act is currently bottled up in committee, though it does have 96 cosponsors; in the Senate; the bill was approved by the Commerce Committee in March and has been placed on the Senate’s calendar for a full floor-vote, which may occur sometime this fall. In the Senate, the bill currently sports 10 cosponsors.
That’s the good news. The bad news is that the Senate’s version of the Local Community Radio Act contains two “poison pills” which would greatly diminish the future expansion of the LPFM service. The first would exempt the entire state of New Jersey from any LPFM expansion; the state’s Senators are very sensitive to lobbying from New Jersey’s commercial broadcast industry.
Given the state’s geographic location (essentially wedged between two metropolitan areas – New York to the east and Philadelphia to the west), there are very few open channels for broadcast radio stations in New Jersey, and the state’s incumbent broadcasters do not want new competition in an already-congested market.
The second poison pill, however, may very well be the deal-breaker for any LPFM expansion. In 2000/2001, when Congress passed the “Radio Broadcasting Preservation Act,” it inserted what I like to call a “Rosa Parks provision” which effectively banned any prior pirate broadcaster from owning or governing the operation of an LPFM station. In essence, this provision wholly marginalized the very people who committed electronic civil disobedience in order to make LPFM a reality.
The Senate’s version of the Local Community Radio Act expands this existing injustice:

The Federal Communications Commission shall modify the rules authorizing the operation of low-power FM radio stations…to prohibit any applicant from obtaining a low-power FM license if the applicant has engaged in any manner in the unlicensed operation of any station in violation of section 301 of the Communications Act of 1934 (47 U.S.C. 301). [emphasis added]

This is clearly an overbroad prohibition. Whereas the FCC first offered amnesty to pirate operators, then only to have that olive branch snatched from its hands by the Radio Broadcasting Preservation Act, this version of the Local Community Radio act would stigmatize a much larger potential group of radio activists. What if you never ran a pirate station, but donated money to one, or attended a station fund-raiser? What if you helped make flyers to publicize a pirate station? Does this constitute unlicensed operation “in any manner”?
The original “Rosa Parks provision” of the Local Community Radio Act was challenged in court – a challenge which failed, when the U.S. Supreme Court declined to review the cast. Further punishing those who risked something in order to make LPFM a reality re-opens the question of whether such a banishment is even Constitutional; many FCC licensees have been convicted of crimes much worse than unlicensed broadcasting, and they have never been banished a priori from participation in a broadcast service.
Fortunately, only the Senate version of the Local Community Radio Act contains these provisions at the moment. However, if the Senate moves first on the bill, the House may follow suit by harmonizing its version’s language with what the Senate’s already done. Either that, or the discrepancies between the two versions of the bill will be fleshed out in conference committee – behind closed doors, with no public input. That is, if the House even moves on the bill before the session ends.
If that doesn’t happen, the entire lobbying process for the Local Community Radio Act will be forced to start from scratch next year. Given the Senate’s modifications, I’d rather see this particular effort die than become law; while it would most definitely expand the reach of the LPFM service, it does so at the cost of an entire state and an entire class of activists, without whom this entire debate wouldn’t even be possible.