LPFM's to be regulated by states, not the FCC?

[upstate29651]

http://oklahoma.tenthamendmentcenter.com/2010/01/law-would-keep-fcc-off-low-power-radio/

If a low powered station can't be heard across a state line, it should be exempt from interstate commerce laws, meaning, it should be regulated by the state, not the FCC.

“How can the FCC regulate something under the interstate commerce clause (of the U.S. Constitution) when (low-power FM) is neither interstate nor commerce?” asked James Lane, an Oklahoma City-based activist with We Are Change Oklahoma.

Way to think out of the box, Oklahoma!

G

 

[Goat Rodeo Cowboy]

That does not appear to be a discussion of radio.

That does not appear to be a discussion of what LPFM should be, what it should do.

It does appear to be bait to start a political discussion. If you know a good board for discussing politics, the bait may catch more fish there. What you're likely to catch here is the Game Warden.

 

[Flying-Dutchman]

I once made arguments like this. I was younger and more foolish then. That was 30 years ago.
I have lived long enough to see some pretty corrupt and dirty local politics. In the end, I am glad
to see radio regulated by the FCC and not local politics. The FCC is much more fair.

 

[w9wi]

http://oklahoma.tenthamendmentcenter.com/2010/01/law-would-keep-fcc-off-low-power-radio/

If a low powered station can't be heard across a state line, it should be exempt from interstate commerce laws, meaning, it should be regulated by the state, not the FCC.

“How can the FCC regulate something under the interstate commerce clause (of the U.S. Constitution) when (low-power FM) is neither interstate nor commerce?” asked James Lane, an Oklahoma City-based activist with We Are Change Oklahoma.

Way to think out of the box, Oklahoma!

G

Let me say upfront I'm a supporter of LPFM, (as originally envisioned, not as the national network of 100-watt satellators that seem to make up so much of the service.....) and I'm quite happy with the recent FCC decision to make changes to make more LPFMs possible. That said:

I agree with Flying-Dutchman: it seems to be considerably easier to lobby state legislatures than Congress. (not saying much...) I think you can reasonably assume, if a bill came up in the Oklahoma legislature to "repatriate" radio regulation, the state's broadcasters would fight it tooth and nail. In the unlikely case it passed, they would see to it the state's radio regulatory agency adopted restrictions on LPFM at least as strict as those that already exist on a federal level.

At least the FCC has engineers who dig for and usually find the technical truth. (even if all too often, the Commissioners then ignore them..)

- While most LPFM signals don't cross state lines, many full-power signals do. Stations licensed by the State of Oklahoma would continue to need to protect these out-of-state (for example, Fort Smith, Ark.) stations. I think a failure to protect out-of-state stations to the same degree as currently provided for by FCC regulation would probably result in a successful lawsuit against the state, for interfering with interstate commerce.

- To the extent a full-power Oklahoma station has coverage outside the state (Lawton, for example), that station is engaged in interstate commerce. I would bet interference to such a station -- even if all the interference happened within Oklahoma -- would probably result in a successful interference-with-interstate-commerce suit.

LPFM may not in itself be "commerce" but it certainly has the ability to interfere with commerce.

 

[Goat Rodeo Cowboy]

LPFM may not in itself be "commerce" but it certainly has the ability to interfere with commerce.

There has to be a long history of legal precedent that has developed over the last couple of hundred years as our nation struggled with the concept of regulation of commerce. We would need a good constitutional lawyer to begin to get an understanding of the word "commerce".

If anyone is starting an office pool, I bet first that LPFM would be declared a form of commerce, or part of the commerce concept. Second, I will bet that LPFM would be declared to meet the legal description of INTERSTATE commerce.

I don't get the idea that the original post really was designed to help us have a discussion of the merits of LPFM stations or how to properly operate them or properly design "rules of the game" for their operation. It would appear that it is possible that the real reason for the post was to publicize an upcoming seminar on Amendment 10 issues of the Federal Constitution.

Making an LPFM station function appears to be a rather fragile undertaking that can only be a victim of war if it becomes the Poster Child for this movement to try and overturn an unpleasant event in 1860-1864.

Anybody want to talk about radio? LPFM radio?

(Those who want to talk about Amendment 10 are excused to go find a political forum board.)

 

[gr8oldies]

Atmospheric conditions can take the lowest powered signals across state lines at times.

 

[w9wi]

Atmospheric conditions can take the lowest powered signals across state lines at times.

I think DX propagation is a bit of a red herring here though. At least it is as long as we keep talking only about broadcasting frequencies. Now, if we start talking about the state regulating spectrum allotted to other services -- for example, authorizing analog TV stations on some of the ch. 60-69 spectrum that's been reallotted to public-safety services -- then yes, I think DX propagation is going to prove to be a problem for the state regulation idea.

GRC: I'm going to admit to not having read the link. Looks to me as if we've hijacked this thread & taken it in a more relevant direction!

(OK, now I've read the link. It does seem to consist (if passed) of a declaration by the State of Oklahoma that broadcasts that do not cause interference outside the state (or to reception within the state of broadcasts originating outside the state) are not interstate commerce & thus cannot be regulated by the FCC. Since the federal courts have already ruled that such broadcasts *are* interstate commerce, IMHO this bill would have no effect in practice. (though one should take into account I'm a broadcast engineer, not a lawyer!))

(it also seems to suggest that non-commercial broadcasts would *never* be interstate commerce, and thus never subject to federal regulation. Even if the signals caused interference outside the state; even if they caused interference to *commercial* operations outside the state.)

 

[Goat Rodeo Cowboy]

I'm thinking that preacher programs that encourage listeners to send a donation and in turn receive the latest book become a form of "commerce". From the progressive side a program where activists are interviewed about working conditions of migrant workers, or social workers encourage participation in an effort to improve mental health care nationwide and we need you to come to Washington and attend our rally next month would be held as a form of commerce. Those may be a stretch. However, a little over ten years ago the congress told the non commercial broadcasters and NPR in particular to get creative and wean themselves from government grant money over a period of time. And the non-comm industry read into "enhanced endorsements" the permission to sell announcements that do everything but close the sale. LPFMs across the country are advertising "Cooper Pharmacy where you prescriptions are filled with care" and "Thomas Motors where your care is always given professional grade mechanical service." I think you would have a hard time convincing a Federal Judge that was not "commerce".

 

[Carmine5]

The interstate commerce argument is an old one. It was raised and shot down years ago (I believe this is the crux of the "Red Lion" case).

The curious thing is that we have a reverse of this issue with the state of Florida. By federal law, a state cannot regulate the airwaves and yet here we have, unchallenged, a state law that gives local marshals the right to bust and imprison pirate broadcasters. Unfortunately, Floridian part 15 broadcasters have been hauled into this same net by local law enforcement officials who are totally ignorant about this legal form of unlicensed broadcasting.

Come to think of it, maybe we're better off not having states regulate the airwaves.

 

[gr8oldies]

Paging WLW host and sue happy attorney Eric Deters. Haven't any of pirates appealed on the basis of the state having no jurisdiction?

 

[WCWalker]

The interstate commerce argument is an old one. It was raised and shot down years ago (I believe this is the crux of the "Red Lion" case).

The curious thing is that we have a reverse of this issue with the state of Florida. By federal law, a state cannot regulate the airwaves and yet here we have, unchallenged, a state law that gives local marshals the right to bust and imprison pirate broadcasters. Unfortunately, Floridian part 15 broadcasters have been hauled into this same net by local law enforcement officials who are totally ignorant about this legal form of unlicensed broadcasting.

Come to think of it, maybe we're better off not having states regulate the airwaves.

Radio Free Vermont of Rutland, VT also challenged the regulations in court but lost.

Note this illegal law on the books in Leavenworth, Kansas.

http://library.municode.com/HTML/11145/level2/CODE_C104.html

New Jersey had legislation proposed that was essentially the same as the FLA laws against unlicensed broadcasting. It may be law in NJ now though I am not completely certain.

 

[Carmine5]

The interstate commerce argument is an old one. It was raised and shot down years ago (I believe this is the crux of the "Red Lion" case).

The curious thing is that we have a reverse of this issue with the state of Florida. By federal law, a state cannot regulate the airwaves and yet here we have, unchallenged, a state law that gives local marshals the right to bust and imprison pirate broadcasters. Unfortunately, Floridian part 15 broadcasters have been hauled into this same net by local law enforcement officials who are totally ignorant about this legal form of unlicensed broadcasting.

Come to think of it, maybe we're better off not having states regulate the airwaves.

Radio Free Vermont of Rutland, VT also challenged the regulations in court but lost.

Note this illegal law on the books in Leavenworth, Kansas.

http://library.municode.com/HTML/11145/level2/CODE_C104.html

New Jersey had legislation proposed that was essentially the same as the FLA laws against unlicensed broadcasting. It may be law in NJ now though I am not completely certain.

The Kansas law seems redundant and unnecessary. Aren't they just parroting federal law on CB radio?

Yes, I remember NJ trying to pass similar legislation to Florida's. Also, soon after the Florida law was passed some boneheaded legislator in California tried to introduce a similar bill in the state senate. Thankfully, the other legislators ruled it as illegal and killed it.

BTW, there is a very good interview with the founder of Pirate Cat Radio in Mother Jones Magazine. The frustration he expresses over the FCC's licensing process is one I'm sure we all feel. But instead of the interstate commerce argument he uses the 'state of war' loophole. Apparently the guy files an application for this "emergency" with the Commission, pays a fee which the FCC accepts and broadcasts on 87.9. This approach hasn't been without its problems, however.

Very interesting reading.

http://motherjones.com/riff/2009/12/fight-radio-rights

c5

 

[TheBigA]

I agree with what Carmine5 says.

By the way, in the article, the LPFM activist James Lane said: "A great example, he said, is the aftermath of Hurricane Katrina. New Orleans-area radio station crews left the area and low-power station personnel stayed behind to broadcast public service information."

This is not true. The commercial stations joined forces to form the United Radio Network of New Orleans, and simulcast 24/7 hurricane coverage on all area stations. I was listening to WWL via their internet stream during the worst of the storm, and it was absolutely amazing. They ended up winning several major news awards for their coverage. So radio crews never left the area. 60 Minutes did a story about an LPFM broadcaster in the area who remained during the hurricane, and that may have led to some of the mythology. But I can promise you that more people listened to WWL than any LPFM station during Katrina.

 

[Goat Rodeo Cowboy]

I agree with what Carmine5 says.

By the way, in the article, the LPFM activist James Lane said: "A great example, he said, is the aftermath of Hurricane Katrina. New Orleans-area radio station crews left the area and low-power station personnel stayed behind to broadcast public service information."

This is not true. The commercial stations joined forces to form the United Radio Network of New Orleans, and simulcast 24/7 hurricane coverage on all area stations.

I haven't taken the time to try and ressurect any history of stations that might have existed that are no longer there, but there are NO LPFMs in New Orleans. The little LPFM in Bay St Louis MS got a lot of publicity because it survived the storm somewhat intact and operational. But they are 45 miles from New Orleans and they can reach out, what... two, three miles?

The other LPFMs about the same distance from NO,LA were Hammond and Slidell and I don't remeber them making big news.

I suspect that WQRZ has been "overplayed" by supporters of the low power concept, but hopefully their story will cause the groups that operated local community stations (commercial and non-commercial) to give some thought: "Are we ready if an emergency strikes?" I have lived in tornado-alley-country all my life. There are two planning issues: Are we prepared to keep operating during the storm? Are we prepared to do a quick restoration following the storm if even our hardened facility is damaged beyond being operational or destroyed? In the case of an LPFm that means having a spare transmitter and antenna stashed nearby.... but not in the same building.

There were miles and miles of low country in Mississippi and Louisiana that had no power for days and days: no power for radio stations, and no power for receivers.

For all the badmouthing that is given to the big companies, I recall from a discussion group of engineering types that Clear Channel got "atta boy" points for their efforts to round up replacement emergency generators and the logistics of getting diesel fuel to the stations. As I recall the reports, there were radio stations that had their emergency generators destroyed by the storm and flood water.

 

[TheBigA]

I think if community service is to be the centerpiece of LPFM, then local governments should be applying for licenses. They're the ones with direct access to the information, and they're the only ones authorized to disburse it to the public. However, with budget cuts hitting government, I doubt many will have the cash to devote to such an endeavor, even if operations were all volunteer.

 

[druidhillsradio]

"Unfortunately, Floridian part 15 broadcasters have been hauled into this same net by local law enforcement officials who are totally ignorant about this legal form of unlicensed broadcasting."

Really? Who?

I live in Florida, and I know of no such cases.

 

[Gatekeeper007]

Florida did this in responce to their cuban, spanish population also alot of the different island peoples who wanted to hear their own music and or news set with their type of format not a cookie cutter system if any at all. I am not saying that makes it right but it does show a lack of programming to some groups in those areas of the state. I would never and I mean never want the state to have any control over LPFM regulation here in South Carolina, it would be the biggest mess you ever saw. Stations would probly be allowed to operate at the highest bidder and if rules were anything like some of the state rules we have now in other matters then there would probly be no LPFM's at all in this state, I hate to say that but the truth is the truth. The FCC is not perfect for sure but is still the best governing body for radio and transmitted signal protections.

 

[Goat Rodeo Cowboy]

I think if community service is to be the centerpiece of LPFM, then local governments should be applying for licenses. They're the ones with direct access to the information, and they're the only ones authorized to disburse it to the public. However, with budget cuts hitting government, I doubt many will have the cash to devote to such an endeavor, even if operations were all volunteer.

I am still parsing what you wrote, looking for all the details.... but you created an "Aha!" moment for me. In time of disaster (floods, hurricanes, tornadoes, etc.) the definition of "community service" changes, becomes very intense. Either control or operation by local government appears very prudent. To pick a number out of the air: 85% of the time tends to be "regular times, normal times" and "community service" is much harder to define and accomplish.

If I am the CEO of the group licensed to operate an LPFM and in time of disaster I call the mayor or the county executive and say: "For the duration... the radio station is YOURS. Send in your people and my people will stand down." the FCC might want to look into dereliction of duty if things go a bit crazy and out of control. The FCC would expect the licensee to be responsible for whatever happened.

In case of mutually exclusive applications for a frequency there is language that indicates the FCC would look with favor upon a good old-fashioned time share arrangement with two groups each granted their own license to operate during their assigned hours. Normally that means fixed schedules as to which organization operates the frequency.

I have confidence in local governments commitment to make a community radio station work well during the 85% of the time.. (maybe 97% of the time?) when there is no pressing public emergency. A local group operating more under a "free enterprise mentality" is probably needed during those hours. But during the emergency times, whether there is an FCC licensed structure or not, insisting that local government be prepared to include the radio station in their disaster planning process sounds golden.

 

[TheBigA]

If I am the CEO of the group licensed to operate an LPFM and in time of disaster I call the mayor or the county executive and say: "For the duration... the radio station is YOURS. Send in your people and my people will stand down."

That would be the absolute worst time to do such a thing. It's my experience with government that advance work is important. So unless they have a procedure and staffing set up in advance, you may not even get a response to your generous offer. And as we saw in Katrina, during an emergency, there is a need for efficiency. So if you're an emergency leader, and you have a choice between sending people to ten LPFM stations or WWL, you go to WWL. That's what they did. WWL became the single most important conduit for information in the area.

The LPFM laws forbid network operations, which were used in Katrina. They also forbid one entity from owning all of the stations in a geographic area, which would make government ownership of a group of LPFMs impossible. So while budget cuts are one reason governments aren't applying for LPFM, efficiency is certainly another.

 

[Goat Rodeo Cowboy]

New Orleans or any large city is probably a poor choice of an example to discuss what LPFM might or might not do during emergency conditions. THERE ARE NO LPFMS LICENSED TO NEW ORLEANS! There are three that are 35 to 40 miles away. The next nearest LPFMs are 75 miles or more from New Orleans.

New Orleans DOES HAVE a significant number of (presumed) viable commercial stations with enough coverage to reach the city from one end to the other. I agree with BigA. Focusing on WWL makes sense. Though all the propaganda talks about LPFMs having a primary coverage area reaching out 3-1/2 miles and GOOD secondary coverage even further out.... I think when some of us who are looking for facts you can "go to the bank" with.... (translate that Go To the Donors with) may find that under the current technical rules an LPFM has a good primary coverage somewhere between 7/8ths of a mile to two miles and secondary coverage that doesn't actually reach the 3-1/2 mile mark. That just doesn't cut it in New Orleans or Memphis or Buffalo or Denver.

However if you are in Chalk Hill, TX; Elloree, SC; Georgetown, CA; or Tunnel Hill, GA; an LPFM could be considered a part of their local disaster preparedness planning and maybe the village mayor and key people should come by the station two or three times a year and walk through the motions of where they would sit and what facilities would be available to them when the bad day comes. Maybe store at least one spare police radio at the station so that city hall could talk to station volunteers even if phone lines are down.

We don't ALL live in big cities, Big A. I'm far enough out in the country that I have to go back toward town, one direction or the other, to hunt!

This whole conversation got off on a bad premise. Yes, I am a proponent of seeing LPFM grow and develop into something useful even though we don't yet know what that would look like.... but the people who claimed LPFM did something for New Orleans that commercial radio failed to do.... may be smoking something that grew out in the forests near Georgetown, CA.