Microradio: As Pawn and Pain In the Ass

It’s hard to imagine that the FCC in 2007 would end the year with such a thud, but it has. With the promulgation of a rule effectively repealing the ban on newspaper/broadcast station cross-ownership – drafted in the dead of night, formally introduced in a newspaper op-ed, modified without consensus, and approved along partisan lines, with outright disdain for the 99.99% margin of public disapproval of both the practice and policy – Kevin Martin’s FCC has firmly put itself in the political cross-hairs.
A lawsuit to challenge the ruling is in the works, and members of Congress are yelping as their constituents call all pissed off (and rightly so); they’re pondering taking actions ranging from a “resolution of disapproval” of the FCC’s cross-ownership action, to a bill formally repealing the FCC’s decision, to a campaign to scrutinize and overhaul the FCC itself next year. The latter option would definitely be the most interesting to observe – anytime an agency goes into the legislative woodshed for restructuring, it’s going to disrupt business as usual. Regardless, this issue is far from finished, and still has the potential to undertake several dangerous iterations.
In the midst of the media ownership hullabaloo, presumably as a move to mollify some of its critics, the FCC released another Report and Order and Notice of Proposed rulemaking regarding the LPFM radio service. This is the agency’s first bona-fide effort to both protect and truly expand LPFM to a majority of the country. Not only has the FCC formally committed to opening another LPFM station application window (date TBA), but it acknowledged the need to take the technical straightjacket off the service and prioritize its existence more fairly relative to other FM stations, especially translators. Not only did the FCC explicitly conflate the LPFM issue with the proliferation of translator stations, but it in effect came down on the side of LPFM – a somewhat radical turn in policy, if effectuated.
The Prometheus Radio Project has written an excellent summary of the new and proposed changes to the LPFM service, and rightfully notes there’s a lot more work to do:
It is important to note that while this order made a substantial improvement, it was improvement of a nearly intolerable situation. This report and order comes nowhere near what fair-minded people would consider a just regulatory system for community radio. It is a patchwork of ameliorations of previously established unfair policies—policies which essentially give low power groups table scraps and never gets near a more fundamentally just system of broadcast ownership. We appreciate the efforts of the people at the Commission to improve the situation, but also we resonate with people at the grassroots who will see these various improvements and cry out that this is a pathetic substitute for the kind of community radio policy that we should have.
Predictably, the National Association of Broadcasters announced its opposition to an LPFM expansion, stressing its aged refrain that trying to “shoe-horn” “hundreds, if not thousands, of additional LPFM stations…into an overcrowded radio dial without causing considerable interference simply defies the laws of physics.” This, of course, flies in the face of the NAB’s ongoing attempt to do just that, by giving AM radio stations beleaguered by digital interference mass-access to FM translators.
Meanwhile, unlicensed microbroadcasting continues, relatively unencumbered by FCC nonsense. You wouldn’t think so by a first glance at the numbers, though: at its current pace, the FCC’s Enforcement Bureau will be able to claim that it carried out – on average – one enforcement action per day against a pirate station in 2007. A great example of how to lie with statistics.
eadbyyear122007It’s important to reiterate that the number of enforcement actions carried out does not directly correspond to the actual termination of unlicensed station operations. The FCC typically makes multiple contacts with a station when it finds them, and each contact generates a data point. For example, a case involving a microbroadcaster in Milwaukee, Wisconsin, who was just issued a $10,000 Notice of Apparent Liability this month, actually generated eight data points in our Enforcement Action Database – two visits and a warning letter issued in 2006 (3) and four visits followed by the NAL this year (5). It appears to be common practice now for FCC agents to generate multiple warning letters for single-station cases: one (or more) for individuals who can be tied directly to the station, and at least one for the owners of the property from which it operates. These are all counted as their own data points, and this inflates the perception of enforcement activity.
However, this is not to deny that there is much more FCC action taking place against pirate stations now than ever before. You are free to manually count the number of parties affected by the FCC this year, but I’d guess that it would come out somewhere north of 100. By and large, though, this activity remains purely administrative – visits and warning letters. These have multiplied fairly dramatically, and the time between initial contact by FCC field agents and the issuance of a follow-up station warning letter has been cut to a month or less. In some especially active areas of the country, the escalation of cases to threats of actual penalty takes place now over the course of months, not years. Even still, the number of stations fiscally penalized (or threatened with such penalties) in 2007 constitutes less than 10% of the total enforcement activity, and you can count the nunber of station raids on one hand.
Two interesting trends come out of this year‘s FCC enforcement activity. The first is that the nation’s “pirate radio capital” seems to have shifted, enforcement-wise, from southern Florida to the New York metropolitan area, with a lively satellite scene in New Jersey. Secondly, a significant number of today’s microbroadcasters are operating to serve ethnically identifiable audiences, audiences so far off mainstream radio’s radar screen as to be effectively invisible. Some of these stations operate as commercial ventures. Several have been fined, and most (if not all) have been able to plead their cases down to nominal amounts. You can bet, in these cases, as one person “gets dinged” the gear simply moves along to a new home.
In sum, as always, it pays to be cautious and well-informed, but by and large the radio cops are still paper tigers; opportunity is still tied to risk, and that’s ultimately a call the microbroadcaster must make. The fact that there are so many of them out there, however, speaks for itself – keep in mind we only document the ones who get caught.