CREATING A DIVERSITY OF VoicEs: LocAL EXPRESSION THROUGH A Low POWER RADIO SERVICE
Fatima Fofana
I. INTRODUCTION averages to nearly twenty hours per week.4 Although radio remains a pervasive means of "Where there is even a pretense.of democracy, commu- communication, the passage of the 1996 Act has nications are at its heart"1 dramatically reshaped the radio industry by usher- The broadcast industry in America has had a ing in an unprecedented number of corporate long tradition of encouraging many voices from consolidations*.. Large publicly-traded corpora- many locations. The tradition of diversity of view- tions are acquiring a great number of radio sta- points at the core of democracy is threatened by tions at an alarming rate.6 Over the past two the reforms of the Telecommunications Act of 2 years, more than one-third of all radio stations 1996 ("1996 Act"). Since the passage of the 1996 have consolidated into larger companies as a re- Act, the American system of broadcasting, charac- sult of the 1996 Act's deregulation of ownership terized by stations distributed across America, restrictions. 7 The negative impact of the stream- each the voice of its own hometown has been rele- lining of broadcast ownership regulations has ef- gated to a tangled web of mass corporate owner- fected even the smallest markets across the coun- ship. Nowhere ap- is. this tangle of interests more try and as a result, there are less diverse parent than in the local community's battle to viewpoints carried over the airwaves. 8 gain access to the airwaves through low power Since the beginning of broadcasting in the broadcasting. United States, the Federal Communications Com- Since its beginning, radio has been the quintes- 3 mission ("FCC" or "Commission") restrained the sential local communications service. It is at the number of broadcast stations that one party may center of local communities perhaps more than own, both locally and nationally. 9 The Commis- any other medium. Over ninety-five percent of sion's restrictions were an effort to emphasize di- Americans listen to radio on a daily basis, which
I Greg Ruggiero, Microradio Broadcasting:Aquascalientes of cast ownership regulations, the radio industry has rapidly be- the Airwaves, Z MAGAZINE, Dec. 1998, at 25 (quoting Noam come the hottest sector in the media field). Chomsky) (hereinafter Ruggiero]. 6 See, e.g.,Peter K. Pitsch, An "InnovationAge" Perspective 2 Telecommunications Act of 1996, Pub. L. No. 104-104, On Telecommunications Mergers (visited January 20, 1999) 110 Stat. 56 (codified at 47 U.S.C. § 151 (1994 & Supp. II
20 Guglielmo Marconi was the founder of the Marconi 26 See Ruggiero supra, note 1, at 25. Company. He created the "wireless telegraph", to transmit 27 The Radio Act of 1927, ch. 169, 44 Stat. 1162 (1927). and receive messages from the airwaves. See Krattenmaker & 28 It was the Radio Act of 1927 that first introduced the Powe, supra note 3, at 5-6 (1995). phrase "public interest" to the broadcast industry. See Kras- 21 See Ruggiero, supra note 1, at 25 (by 1907, people be- now, supra note 10, at 610. There is no explanation of the came interested in technology generally, and by 1912, many origins of the phrase "pubic interest" in the legislative history pioneers began to establish their own broadcast facilities). of the 1927 act. See id. However, it was reported that a young 22 See id. attorney, detailed to the Senate from the Interstate Com- 23 See Krattenmaker & Powe, supra note 3, at 6 (stating that merce Commission ("ICC"), suggested to the drafters of the by 1912, ship-to-shore communication encountered signifi- Radio Act the words "public interest, convenience and neces- cant interference, thereby prompting the Navy to demand sity", the standard used by the ICC. See id. The legislative his- regulation of the airwaves). tory of this phrase has been the focus of immense scholarly 24 See id. (noting that the United States were signatories debate in the field of broadcasting. See id. For a broad discus- to the first international radio treaty negotiated in 1912, and sion of FCC and court rulings stemming from the public in- as such was obligated to conform to treaty regulations to fur- terest standard, see generally, Krattenmaker & Powe, supra note ther wireless conformity and compatibility). See id. In re- 3, at 143-74. sponse to these developments, Congress passed the Radio 29 See Ruggiero supra note 1 at 25. Act of 1912 which required broadcasters to obtain licenses 30 See id. at 26. and forbade the operation of radio equipment without a li- 31 The Communications Act of 1934 c. 452, 48 Stat. 1064 cense, but did not set aside frequencies for private broadcast. (1934). See id. 32 Section 151 of the Communications Act states in part: 25 See id. at 6 (explaining that under the Radio Act of "For the purpose of regulating interstate and foreign com- 1912, the government was authorized to determine which merce in communication by wire and radio so as to make communications were more important than others). See id. available, so far as possible, to all the people of the United The government developed several "categories" of broadcast- States ...nationwide, and world-wide wire and radio commu- ing including a commercial for profit category for which nication service with adequate facilities..." ". . .there is cre- there was a direct charge imposed on the user, and a non- ated a commission to be known as the 'Federal Communica- commercial category. See id. at 8. The noncommercial cate- tions Commission,' which shall be constituted as hereinafter gory was designed primarily for amateurs and was for not-for- provided, and which shall execute and enforce the provisions profit purposes. See id. of this chapter." 47 U.S.C. § 151 (1994 & Supp. 11 1997). COMMLAW CONSPECTUS [Vol; 7 date to provide for the "public convenience, inter- the Commission, in 1946, to create a defacto limit est, or necessity." 3- The passage of the Communi- of up to seven nationally owned AM and FM radio cations Act of 1934 thus provided the Commission stations. 42 The amended multiple-ownership rules 34 with a sweeping grant of regulatory authority. were called upon to serve two objectives: (1) to The public interest standard is a vague mandate, foster maximum competition in broadcasting; long recognized by the courts as the basis for the and (2) to promote diversification of program- 43 theory that diversification of mass media owner- ming sources and viewpoints. ship serves the public interest because it promotes the diversity of programs and viewpoints. 35 The C. Promoting Competition & 'Diversity foundation of the Commission's authority as a public trustee therefore, lies in its mandate to "If our democratic society is to function, noth- provide for the "public convenience, interest, or ing can be more important than ensuring that 36 necessity." Acting on this mandate, the Commis- there is a free flow of information from as many sion consistently maintained that diversification divergent sources as possible." 44 Although the of mass media ownership serves the public inter- "rule of seven" remained the status quo for more est by promoting diversity of programming and than three decades, by 1984, the FCC took a turn viewpoints. 37 Indeed, such broad exposure to towards total deregulation. The FCC was con- ideas is essential to the maintenance of a vibrant vinced that the goals of diversity and competition democracy. could no longer be recognized through owner- By 1940, the Commission launched its broad- ship caps,45 and in 1990 ordered a complete re- cast ownership control efforts by prohibiting a li- peal of its national ownership ceilings. 46 The censee in the same broadcast service from ob- Commission decided that the public interest was 38 47 taining additional licenses in the same market. better served by repealing the seven station rule. The first quantifiable limit placed a cap on the In response to the industry's frustration to the number of FM radio outlets under national com- FCC's deregulation efforts, the Commission de- mon ownership to six stations. 39 The Supreme cided that the proposed abandonment of the 4 Court's conclusion in Associated Press v. U.S.,0 that ownership caps was not necessary to achieve its the First Amendment "rests on the assumption goals. 48 Instead, the Commission ruled that a sin- that the widest possible dissemination of informa- gle entity was permitted to own up to twelve AM 49 tion from diverse and antagonistic sources is es- and twelve FM stations nationally. sential to the welfare of the public,"41 influenced The Commission's strict policies against duopo-
33 See 47 U.S.C. § 303 (1994 & Supp. 11 1997). 44 See Henry Geller, Ownership Regulatory Policies in the U.S. 34 See id. Telecom Sector, 13 CARDOZO ARTS & ENT.L.J. 727, 730 (1995). 315 See FCC v. National Citizens Committee for Broadcast- 45 In re Amendment of Section 73.355 (formerly Sections ing, 98 S.Ct. 2096, 2104 (1978). 73.35, 73.240, and 73.636) of the Commissions Rules Relat- 36 See 47 U.S.C.A. § 303 (1994 & Supp. 11 1997) (provid- ing to Multiple Ownership of AM, FM and TV Brdcst. Sta- ing an inventory of the FCC's powers, all of which must be tions, Report and Order, 100 F.C.C.2d 17, para. 18 (1984) carried out to safeguard the "public convenience, interest, or [hereinafter 1984 Report and Order] (noting that, "since 1954 necessity"). the Commission has several times revisited the Seven. Station 37 See Krattenmaker & Powe supra note 3, at 143-74. Rule, but only to question whether an absolute numerical 38 See generally, In re Sherwood B. Brunton, Decision, 11 limit, rather than geographic or nature of service limits, was F.C.C. 407 (1946). the most appropriate form of regulation"). 39 See id. at 413 (declining not to place an absolute limit 46 See 1984 Report and Order, supra note 45, at para. 108 on AM station ownership as the FCC held that, with respect (stating that "... th e record.., establishes that the appropri- to AM stations, concentration of control "is not a factor of ate market for ideas is primarily local, and includes a broad the absolute number of stations alone but depends also upon variety of means of communications, the character especially cablecasting, of the facilities involved, e.g., the powers and newspapers, and opinion magazines, in addition to radio and the frequencies of the stations"). television...") Id. ". . .[T]he ideal market 40 326 U.S. 1 (1945). is a national one, [and must be] ... sufficiently diverse so as to be unaffected 41 Id. at 20. by a change in the Seven Station Rule; and that network and 42 In re Amendment of Sections 73.35, 73.240 and 73.636 group owners contribute to viewpoint diversity through the of the Comm'n Rules Relating to Multiple Ownership of Std., quality and quantity FM, and TV Brdcst. Stations, First Report and Order, 22 F.C.C. of their public-affairs programming." Id. 47 See 1984 Report 2d 306, para. 4 (1970) [hereinafter 1970 First Report and Or- and Order, supra note 45 at para. 3. der]. 48 See id. at para. 30. 43 See id. at para. 3. 49 See id. at para. 5. 1999] Creating Diversity of Voices lies50 gave way to economic considerations result- competition and diversity, Congress cited the ing in a relaxation of the national radio caps.51 existence of 11,000 radio stations nationwide, with Specifically, the rapid growth in the number of ra- an average of twenty-five radio stations in each dio stations and non-radio outlets increased com- market.57 However, Congress failed to sufficiently petition in the radio industry, thereby causing fi- consider the impact this measure would have on nancial difficulties for certain broadcasters. 52 By minority and local ownership. 1992, the FCC adopted a new duopoly rule, to al- low broadcasters to have the potential to develop and thrive in a competitive environment, thus en- B. Local Restrictions on Ownership couraging ownership diversity and competition. 53 In 1994, noting the increase in competition pro- In addition to the removal of national owner- vided by a multitude of non-radio sources, the ship caps in radio, Congress altered ownership re- FCC increased the national radio ownership caps strictions at the local level. In particular, Section 54 to twenty AM and twenty FM stations. 202(b) of the 1996 Act58 now permits common ownership of radio stations as follows: (1) a party may own, operate, or control up to eight commer- III. FREE AT LAST, FREE AT LAST? cial radio stations, not to exceed five in the same DEREGULATION OF OWNERSHIP service (AM or FM) in radio markets with forty- RESTRICTIONS IN THE INTEREST OF five or more commercial radio stations; (2) an COMPETITION RESULT IN AN owner may own, operate, or control up to seven INCREASE IN THE CONCENTRATION commercial radio stations, not to exceed four in OF OWNERSHIP the same service, if the party is in a market of be- A. Ownership Limits After The 1996 Act tween thirty and forty-four commercial radio sta- tions; (3) in markets between fifteen and twenty- The 1996 Act struck an unintended blow to lo- nine commercial radio stations a party may own, cal broadcast diversity. The Act commanded the operate, or control up to six commercial radio sta- Commission to eradicate all ownership limitations tions, not exceeding four in the same service; and on the number of radio stations any one party (4) in markets with less than fourteen commercial may own on the national level.5 5 Congress rea- radio stations, a party may own, operate, or con- soned that such a drastic measure was not short trol at the most five such stations, not to exceed sighted because the goals of radio ownership reg- three of which are in the same service, with the ulation had been achieved. 56 In concluding that exception that a party may not own, operate, or the radio industry had achieved adequate levels of control more than fifty percent of the stations in
50 See 1970 FirstReport and Order, supra note 42, at 5. (stat- cess were non-controlling interests in minority or small busi- ing that the Commission's duopoly rules were designed early ness controlled AM or FM stations. See id. in the 1970's for the purpose of restricting concentration of 55 See The 1996 Act, 47 U.S.C. § 151 et seq. broadcast media control, and were structured to proscribe 56 See 1984 Report and Order, supra note 45 at 61. The common ownership, operation, or control of more than one Commission concluded in 1984 that group owners do not im- broadcast station in the same area, regardless of the type of pose monolithic viewpoints on local media outlet, and fur- broadcast service). See id. ther that the public has available to it an abundance of other 51 See 1992 Report and Order supra, note 51, at para. 23 media outlets including over 10,000 broadcast stations, and (modifiying the Commission's ownership rules by relaxing its 12,000 newspapers and periodicals, thereby offsetting any cap from 12 AM and FM stations to 30 AM and FM stations threats concentrated ownership may have on encouraging di- and limiting a single owner to one-half of one percent of the versity of voices and the "public interest" mandate. See id. total number of licensed stations). 57 See Jill Howard, Congress Errs in Deregulating Broadcast 52 See id. at para 2. Ownership Caps: More Monopolies, Less Localism, Decreased Diver- 53 See In Re Revision of Radio Rules and Policies, Notice of sity and Violations of Equal Protection,5 COMMLAW CONSPECTUS Proposed Rule Making, 6 FCC Rcd. 3275, para. 3 (1991)(ex- 269, 275 (1997) (explaining that Congress justified the de- plaining that it was necessary to balance diversity with the regulation of the telecommunications industry by reaching a need to foster economic growth in order to provide vigorous consensus that the broadcast environment indicates that limi- competition). tations on broadcast ownership are not needed, and further 54 In re Revision of Radio Rules, Second Memorandum and that radio station owners need the deregulation so that they Opinion Order, 9 FCC Rcd. 7183, para. 1 (1994) Minority own- may be in a position to compete in the marketplace). ers were permitted to own up to 25 stations in each service. 58 202(b) of the 1996 Act requires the Commission to See id. at para. 5. Further, non-minority broadcasters could modify 47 C.F.R. 73.3555 to eliminate ownership limits. The exceed the national limits by up to five, but only if such ex- Commission has done so. See 47 C.F.R. 73.3555(a) (i) (1). COMMLAW CONSPECTUS [Vol. 7 such markets.59 own slice of the broadcast spectrum, have re- sponded to the concentration of radio stations in the hands of large corporations by operating C. Ownership Consolidation Begins small unlicensed radio stations. 67 Although the FCC has consistently enforced its policies and Congressional relaxation of ownership limits operations, this new trend sug- has resulted in less competition, and conse- shut down pirate are fighting to gain control quently, less diversity in the broadcasting market- gests that local groups place. The effect of the 1996 Act is that the con- of their share of the public radio spectrum, how- cept of the "public interest" is now secondary to ever small. This pattern seems to indicate that many Americans are dissatisfied with the broad- other (i.e. corporate) interests. Congress' attempt in its current form. to promote competition 60 has unfortunately trig- cast programming and media Furthermore, it underscores the unforeseen de- gered a destructive chain of events culminating in sire of many small communities to maintain local an increased concentration of ownership. For ex- control of the airwaves and have access to a wide ample, during the first month of the 1996 Act's through a diversity of me- existence, over $2 billion in radio station sales variety of programming 61 were concluded; an unprecedented volume. dia outlets. March and April of 1996 were an even stronger indication of the consolidation trend. Most nota- D. The Act's Impact on Minority Ownership bly, Infinity, the second largest radio group, merged with the even larger Westinghouse/ Consolidation has made it increasingly difficult CBS, 62 creating the largest acquisition in radio for small operators and proprietors to enter into history.63 The Westinghouse/CBS merger re- the radio industry. Its impact has been most sulted in the combined company owning fifty FM prominent on minority broadcasters. Less than stations and thirty-three AM stations throughout three percent of radio stations are minority- 6 sixteen markets with sixty-nine of its eighty-three owned, and that number is steadily declining. outlets in the largest ten markets. 64 Additionally, The trend in minority ownership is clearly other figures indicate that the purchase of Heftel counter to the industry as a whole. 69 Minority Broadcasting by Clear Channel Communications owned broadcast outlets have rapidly become re- netted an astonishing total of one-hundred eight mote islands in an ocean of corporate broadcast- radio stations. 65 ers. The result has been a "squeeze out" of local, in- In 1994 and 1995, the percentage of minority dependently owned radio stations by large corpo- ownership of broadcast stations was dramatically rations. A new trend has emerged is the explosion higher than it is today.70 The on-going merger of "radio pirates."66 Radio pirates, seeking their mania has served only to create barriers for mi-
59 See The 1996 Act supra, note 56. 63 See Chuck Taylor, Telecommunications Act Defined Year In 60 The proffered purpose of the 1996 Act is to "promote Radio Station Sales And Mergers, WKTU, Internet Top '96 competition and reduce regulation in order to secure lower News, BILLBOARD, Dec. 28, 1996. prices and higher quality services for American telecommuni- 64 See Chuck Taylor, Westinghouse, Infinity Merger Fuels cations consumers and encourage the rapid development of Consolidation Concerns, Billboard, Jul. 6, 1996. new telecommunications technologies." 47 U.S.C.A. § 151 65 See id. (1994 & Supp. 11 1997). See also In re Review of the Commis- 66 See Cullen, supra note 13. sion's Regs. Governing Television Brdcst., FurtherNotice of Pro- 67 See Ruggiero, supra note 1, at 27. posed Rule Making. 10 FCC Rcd. 3524, para. 15, (1995) (dis- 68 NTIA Report on Minority Commercial Broadcast cussing the promotion of competition as a means of Ownership in the United States, Overview of the 1997, 1998 effectively, and efficiently utilizing resources). Survey Results.
norities struggling to compete in the broadcast in- viding new opportunities for community-oriented 71 dustry. Minority broadcasters, generally with radio broadcasting; and, (2) establishing more av- limited capital and resources, are finding it in- enues for new radio broadcast ownership in an ef- creasingly difficult to compete in a rapidly consol- fort to promote additional diversity in radio voices idating industry, where, for example, large con- and programming, without jeopardizing the in- glomerates, such as CBS and Chancellor Media, tegrity of the spectrum. 75 The Commission fur- have increased their holdings, causing station ther asserted the need to create a low power radio 72 prices to increase substantially. In a recent study service that would provide a low-cost means of conducted by the National Telecommunications serving urban communities and neighborhoods. 76 and Information Administration, minority owners The Low Power Radio Service NPRM proposed attributed the lack of sufficient access to capital as new services designed to meet a variety of local the primary deterrent to increased minority own- 73 needs and capabilities, from broad community ership. Because of this, potential 77 minority based coverage to smaller neighborhood areas. broadcasters are effectively prevented from serv- Specifically, the Commission's proposal includes a ing their communities. The benefits of local per- service with primary frequency usage status to op- spectives and minority viewpoints on important is- erate at a maximum effective radiated power sues are lost to the media conglomerates. The ("ERP") of 1000 watts and an antenna height of consolidation of ownership resulting from the 60 meters, thus covering a service area of approxi- 1996 Act has produced a decline in diversity of mately 8.8 mile radius.7 8 It also proposed a secon- ownership and localism, thus threatening the ide- dary service to operate at up to 100 watts and 30 als of a society enriched by disparate voices. 79 meters, with a service radius of up to 3.5 miles. Additionally, the Commission sought comment IV. THE PENDULUM OF CHANGE: TIME TO on a 1-10 watt "microradio" class of stations with SWING BACK TO DIVERSITY OF an antenna height of 30 meters and a service area OWNERSHIP & LOCALISM of one to two miles.8 0 Lastly, it asked for comment on whether these microradio stations should be A. The FCC's NPRM on the Creation of Low limited to noncommercial entities and whether Power Radio Service educational institutions are the best potential low 1. Is Low Power Broadcasting the Solution? power FM licensees."' The FCC's efforts to establish and seek com- In response to over 13,000 inquiries in the past ments concerning the creation of a low power ra- year from individuals and groups expressing an dio service, serves as some indication that it is interest in starting a low power radio station, the mindful of the dramatic impact the 1996 Act has FCC, on February 3, 1999, issued a Notice of Pro- had on the radio industry.8 2 The fact that the Act posed Rule Making, [hereinafter Low Power Radio does not have a clear foundation for widespread Service NPRM] seeking comment on the creation ownership in the industry, as evidenced by the of a low power radio service.74 The Commission alarming number of mergers, 3 is indicative of the indicated that some of its major goals in creating need for the Commission to reassess its current low power radio stations would include: (1) pro- broadcast regulations. Furthermore, the creation
71 See id. Since the enactment of the 1996 Act, minority 76 See id. owners reportedly have experienced heightened competition 77 See id. for nationally syndicated. programming and have further 78 See id. at paras. 23-24. noted more difficulty in securing advertisers. See id. In addi- 79 See id. at paras. tion, minority owners noted that their businesses were nega- 30-32. tively effected by media concentration since the passage of 80 See Low Power Radio Service NPRM, at paras. 34-37. the 1996 Act; therefore, larger, majority owned companies 81 See id. at paras. 68-70. have greater market power, giving group owners even greater 82 See Kennard Address at NAB, supra note 4; See also Tris- control and power over advertising revenues and program- tani Address before TBA, supra note 7 (expressing concern by ming. See id. the Chairman and the Commissioner, respectively, over the 72 See id. rapid number of mergers since the passage of the 1996 Act, 73 See id. and its negative impact on minority ownership and diversity 74 See Low Power Radio Service NPRM, supra note 16. of voices). 75 See id. at para 1. 83 See supra notes 61-69 and accompanying text. COMMLAW CONSPECTUS [Vol. 7
a low power radio service would certainly be dio stations, thereby allowing for direct citizen in- of 8 5 consistent with the spirit of the Communications volvement in broadcasting. Act of 1934 and the legislature's intent to pro- Low power radio service would solve the radio mote the public interest and to maintain the piracy problem that has grown as a result of con- 8 6 FCC's duty to promote diversity of media voices. solidation. Radio pirates, or "micro-broadcast- ers," would no longer feel squeezed out of the market place. An affordable low power service B. Diversity of Ownership Equals a Diversity of would provide radio pirates a low-cost avenue in Voices: The Need for LPFM Service which they would not have to compete with in- The plethora of media outlets that are available cumbent broadcasters for the opportunity to serve 8 7 to the public today, exclusive of radio, provides a their communities. The creation of a LPFM ser- marketplace of ideas, of sorts. However, these vice would substitute a legal means for unlicensed multifarious outlets do not serve as a substitute for micro-broadcasters to participate in the airwaves. the need of radio to be a diverse outlet for the Lastly, microradio stations would cause a signifi- public discourse, particularly on the local level. cant increase in minority ownership by signifi- The establishment of a microstation radio cantly lowering the barriers to entry into the radio broadcasting service would not only provide addi- industry. The ranks of minority broadcasters tional outlets of broadcast information, services, would increase because of the existence of more and entertainment, but it would also serve to pro- affordable opportunities for ownership and a mote diversity of ownership in the media.8 4 Own- larger pool of potential radio facilities available 8 ership diversity will be achieves by establishing for licensing. three disincentives to corporate control. Microsta- tions would be limited to one per owner. The li- C. The FCC Still Has a Mandate Under the censee would have to ensure that the service 1934 & 1996 Acts to Promote Diversity of would be local and the licensee would have to Media maintain local programming. The creation of a new low power FM broadcast service would facili- The Communications Act of 1934, as amended tate the needs of small cities or neighborhoods ur- by the Telecommunications Act of 1996, contin- ban areas and would generate sufficient revenue ues to support a public policy of promoting diver- to operate as niche facilities. In addition, the crea- sity in the media through its broad mandate to tion of microradio stations would provide much regulate in the public interest convenience and needed opportunities for individual citizens and necessity. Although the Communications Act of small community groups to operate low power ra- 1934 does not specifically identify diversity as a
84 See In Re Proposal for Creation of Low Power FM 1997) (proposing the assignment of one AM broadcast and Broadcast Service, Petition for Rulemaking, (Submitted by J. one FM broadcast channel to microstation owners) [herein- Rodger Skinner, Jr.) RM-9242 (Feb. 20, 1998) (proposing the after Leggett Petition]. Under the plan in the Leggett Petition, creation of three classes of LPFM service: a "primary service" each owner would be assigned to a specific geographic loca- class, a "secondary service" station as well as "special events" tion or cell, thereby preventing any interference between the stations) [hereinafter Skinner Petition] See id. at para. 7. Under microstations. See id. For purposes of promoting diversity, a the Skinner Petition, the primary service would have effective licensee, would only be able to purchase stations located no radiate power levels from at least 50 watts and a maximum more than 50 miles from each other. See id. at para. 1.4. 86, See supra notes 68-69 and accompanying text. power level of 3 kilowatts, with a minimum antenna height of 87 See Alexander Cockburn and Jeffrey St. Clair, Theirs To 328 feet (100 meters). See id. at para. 23. The "secondary ser- vice" would be for those owners that prefer to conform to a Steal, Ours To Win: Battle For The Soundwaves, COUNTERPUNCH, more structured form of broadcasting; the requirements Vol. 6 No.6, 6 (March 16-31, 1999). For a brief discussion on would include a minimum power of 1 watt and maximum the technical advantages and disadvantages of LPFM, see gen- power of 50 watts with maximum antenna height of 328 feet erally Carl Marcucci, Examining LPFM: the technical pros and (100 meters). See id. at para. 25. Finally, the "special event" cons, ENGINEERED FOR PROFIT, at 7 (March 15, 1999). stations would be available for those interested in broadcast- 88 See The Skinner Petition, supra note 86, at para. 12 (sug- ing information about local events that occur over a period gesting that by placing media ownership restrictions on appli- of time not to exceed ten days. See id. at para. 27. These cants, i.e. the entity or individual must prove residence LPFM "special event" stations would have a maximum power within 50-miles of the proposed station's antenna site, only limit of 20 watts and a maximum antenna height of 100 feet. local owners will be able to compete for licenses, thus lower- See id. ing economic barrier entries, and assuring significant minor- 85 See Petition for a Microstation Radio Broadcasting Service, ity ownership). (submitted by Nickolaus Leggett et. al.) RM-9208 (July 17, 1999] Creating Diversity of Voices goal of the Act, sections 151,89 303,90 and 30991 abandoned the maintenance of diversity of media indicate strong Congressional intent for the main- voices.97 For example, section 257(a) directs the tenance of diversity by the Commission. FCC to conduct proceedings for the purpose of The stated purpose of the Act is detailed in Sec- identifying and eliminating market entry barri- tion 151.92 It is in this section that Congress has ers.98 This section is specifically aimed at entre- given the Commission the authority to enforce preneurs, minorities and other small business the provisions of the Act, which, when taken to- owners who may otherwise experience difficulties gether with the previously noted sections, is indic- in entering the broadcast field.99 Congress man- ative of the FCC's right to maintain and advance dated these proceedings to assist the Commission the principles of diversity in broadcasting. in its efforts to promote the goals of the 1996 In the same vein, Section 309 directs the Com- Act.100 mission to grant applications with the public in- The FCC continues to have a statutory mandate terest in mind.93 This section describes generally to promote and maintain diverse viewpoints in 94 the process for obtaining a broadcast license. It broadcasting. The creation of low power radio sta- emphasizes that, in granting licenses, the Com- tions clearly would be consistent with the Com- mission should do so in a manner that will pro- mission's mandate to encourage diversity. Be- mote diversity .in media communications. 95 In cause a LPFM service can be created to serve small terms of promoting diversity in the broadcast in- communities, be locally owned, and air local pro- dustry, this section of the Communications Act is gramming, it would naturally result in diverse the most significant to the Commission's efforts to viewpoints and diversity in ownership. In addi- ensure diversity in the airwaves. At the very least, tion, it would provide desperately needed outlets this section gives the FCC leeway to develop rules for individuals and small organizations to partici- that will grant preferences to applicants where the pate in the industry without encumbering full granting of those licenses would result in an in- power radio stations, and without spectrum inter- crease in diversification of media ownership. 96 A ference problems. 1° 1 low power FM service would promote diversity of Incumbent broadcasters wishing to preserve the ownership, particularly on the local end. It would status quo have argued that the existing radio sta- ensure that small communities and individual tions are already serving the myriad of needs and owners receive their fair share of the market, interests of local communities.' 0 2 They contend while promoting the FCC's interest in the diversi- that the public is better served when radio stations fication of the radio industry. are consolidated because broadcasters can com- Despite deregulation of broadcasting by the bine AM and FM stations operations in one facil- 1996 Act, the Commission has not completely ity, and the accompanying cost savings will allow
89 47 U.S.C. § 151 (1994 & Supp. 11 1997). "...the Commission shall seek to promote the policies and 90 47 U.S.C. § 303 (1994 & Supp. 11 1997). purposes of this chapter favoring diversity of media voices, 91 47 U.S.C. § 309 (1994 & Supp. 11 1997). vigorous economic competition, technological advancement, 92 47 U.S.C. § 151 (1994 & Supp. 11 1997). ("For the pur- and promotion of the public interest, convenience, and ne- pose of regulating interstate and foreign commerce in com- cessity"). munication by wire and radio so as to make available, so far 99 See id. as possible, to all the people of the United States a rapid, 100 See id. at § 257(b) (1994 & Supp. 11 1997). efficient, Nation-wide, and world-wide wire and radio com- 101 See Low Power Radio Service NPRM supra note 16, at munication service", Id. "there is created a commission to be para. 15-21 (proposing minimum distance separation be- known as the 'Federal Communications Commission', which tween. LPFM stations as the best practical means of prevent- shall be constituted as hereinafter provided, and shall exe- ing interference between low power radio and full power FM cute and enforce the provisions of this chapter"). Id. stations). It would require co-channel (or same channel) 93 47 U.S.C. § 309 (1994 & Supp. 11 1997). and 1st adjacent channel protections, but the Commission. 94 Id. did not believe that 3rd adjacent channel and possibly 2nd 95 Id. § 309(i) (3) (A) (1994) ("The Commission shall es- adjacent channel protection would not be necessary in view tablish rules and procedures to ensure that . . . significant of the low power levels and other factors. See id. preferences will be granted to applicants or groups of appli- 102 See, e.g., Low Power Radio Service NPRM, supra note 17, cants, the grant to which of the license or permit would in- at para. 9. See also Elizabeth A. Rathburn, A CrusaderAgainst crease the diversification of ownership of the media of mass Microradio, BROADCASTING AND CABLE, March 15, 1999 at 85 communications"). (explaining that large broadcasters believe that microradio is 96 See id. not the best path to increasing diversity in the industry). 97 47 U.S.C. § 257(b) (1994 & Supp. 11 1997). Rather, large broadcasters believe that mergers allow the ra- 98 See id. at § 257(a) (1994 & Supp. 111997) (stating that, dio business to be much more efficient) See id. , COMMLAW CONSPECTUS [Vol. 7 more varied programming from the station group promotion and maintenance of diversity of voices than one independent station could offer to the in broadcasting. In 1945, the Supreme Court held 108 community. 10 3 What these arguments fail to rec- in Associated Press v. United States that a district ognize is that there is a need for individual and court correctly granted summary judgment to en- small group ownership in the industry. Diversity join members of a press association from acting in does not necessarily emerge from creating sta- restraint of trade.109 The Supreme Court upheld tions that provide various "formats" to the com- the district court's finding that the bylaws of the munity. On the contrary, diversity results from Associated Press constituted a restraint on trade decentralized ownership and diverse local pro- because they stifled competition in the newspaper gramming addressed to the specific needs of a publishing industry. 110 The Court found that the small community. The incumbent broadcasters First Amendment called for the "widest possible have not recognized the benefits of low power sta- dissemination of information from diverse and tions that will cater to the narrow and specific in- antagonistic sources.""'1 terests of small communities and neighborhoods. In Red Lion v. FCC,1 2 the Court also empha- Further, the argument that microradio will sized the goals of the First Amendment and the 113 harm full power broadcasters has long been dis- protection of the distribution of ideas. Specifi- counted.10 4 Indeed, the FCC has repeatedly re- cally, the Court declared that, "it is the right of jected the contention that the radio frequency the viewers and listeners, not the right of the 1 4 spectrum should be artificially underutilized to broadcasters, which is paramount."' protect incumbent users.1 05 Despite fears of major The Court asserted that no licensee has a First broadcasters, 10 6 there are proposed technical so- Amendment right to a broadcast license, nor the lutions that could resolve the interference con- right to monopolize a frequency to the exclusion cerns. 0 7 The ability to create ownership diversity of other licensees." 5 By stating that, "it is the pur- in radio outweighs any minimal amount of inter- pose of the First Amendment to preserve an unin- ference that might result from the creation of a hibited marketplace of ideas in which the truth low power radio service. The benefits of a low will ultimately prevail, rather than to countenance power service, such as promoting local expression monopolization of that market,"1 6 the Supreme and diverse outlets for small niche markets, far Court implied that the First Amendment requires transcend any potential burdens on large broad- the maintenance and promotion of diversity in 1 17 casters. Microradio has the potential to spawn di- broadcasting. versity of ownership in media, which could spark a In 1990, the Supreme Court again articulated a rebirth of local radio through the divergence of public policy of maintaining diversity in broadcast viewpoints on the air.
D. The 1st Amendment Mandates Diversity of Viewpoints and Ownership
The judiciary has a similar desire to support the
103 See id. at 85. viewpoints on microradio and the FCC's attack on radio pi- 104 See Carroll Broadcast. Co. v. FCC, 258 F.2d 440 rates). (1958). 107 See Skinner Petition, supra note 86, at paras. 28-35. 105 See, e.g., In re Commercial FM Broadcast Assignments, 108 326 U.S. 1 (1945). 94 F.C.C. 2d 152, 158 (1983) (noting that a "basic objective" 109 Id. at. 5. of the Commission has been to provide "outlets for local ex- 110 Id. at 11-12. pression addressing each community's needs and interests"). 111 Id. at 20. See also Television Channel Allotments (VHFDrop-ins) Notice of 112 395 U.S. 367 (1969). Proposed Rulemaking, 45 Fed. Reg. 72902 (1980) at paras. 9 & 113 Id. at 390-92. 12, (explaining that "any potential loss experienced [by in- 114 See Red Lion, 395 U.S. at 389. cumbents] will be more than offset by the benefits of such a 115 Id. policy, it is in the public interest to have a regulatory frame- 116 Id. at 390. work that permits the maximum number of signals that can 117 In Red Lion, the petitioner, Fred Cook, sought free be economically viable"). airtime to counter-attack an opponent. Id. at 371-2. The FCC 106 See, e.g., Radio Free Florida, VIBE MAGAZINE, Oct. 1998 and the United States Court of Appeals for the District of at 110 (discussing the National Association of Broadcasters' Columbia, both agreed that Cook was entitled to the free air- 1999] Creating Diversity of Voices ownership. In Metro Broadcasting, Inc., v. FCC,118 through the use of the Church's religious hiring the Court held that the FCC's policies in favor of preferences and as well as for its inadequate mi- promoting minority interests were a valid means nority recruiting.1 28 The court reasoned that the 119 of exercising the FCC's authority. In Metro FCC's EEO regulations were not narrowly tailored Broadcasting,the Court reasoned that the policies and did not meet a compelling governmental in- 9 promoting program diversity were an important terest.' 2 governmental goal that could stand up to consti- Although the Court in Adarand and Lutheran 1 20 tutional challenges. The court noted that safe- Church has backed away from public policy argu- guarding the public's right to receive diverse ra- ments for promoting diversity in the broadcast in- dio programming has always been an integral dustry, nothing in the holdings of these cases pre- component of the FCC's mission under the Com- cludes the FCC from promoting diversity of munications Act of 1934.121 ownership. Indeed, although both cases over- Five years later, the Supreme Court essentially turned the analysis that the Court first upheld in overruled its analysis in Metro. In Adarand Con- Metro Broadcasting, that diversity could serve as a 122 structors, Inc., v. Pena, the Supreme Court con- constitutional compelling governmental inter- cluded that all minority preferences, including est, 130 by no means should the FCC abandon its those involving "benign classification," must be efforts to ensure diverse viewpoints and the eco- analyzed under a "strict scrutiny" standard. 123 In nomic opportunity of minorities and small Adarand, the Supreme Court reviewed a minority groups. There is still room for the FCC to oper- preference program under the auspices of the ate. Small Business Administration ("SBA"). Adarand The Court in Adarand, for example, overturned involved a minority contractor certified by the Metro Broadcastingonly "to the extent it is inconsis- SBA as meeting specific racial and economic fac- tent with [its] '131 124 holding. In other words, if the tors that qualified them for special preferences. Court in Metro Broadcasting had applied a strict Adarand Constructors, a non-minority owned scrutiny standard, the Commission's minority business, lost a U.S. Department of Transporta- preference policies would still be good law. From tion bid to construct a highway project, despite this point, it should be noted that although the qualifying for the work and submitting the lowest Court in Metro Broadcastingdid not expand on the 25 bid.' The Supreme Court concluded under the issue of diversity, the Court did comment that "at new test that all race-conscious measures must be the very least," diversity of viewpoint is an impor- narrowly tailored to meet a compelling govern- tant governmental interest.1 32 1 26 The Commission is mental interest. therefore not averse to promoting diversity 27 of Three years later, in Lutheran Church v. FCC' ownership alone as a compelling government in- the United States Court of Appeals for the District terest. In addition, ownership diversity promotes of Columbia Circuit applied the Supreme Court's the strong government interest of remedying past Adarand-based "strict scrutiny" test to strike down discrimination in the broadcast industry. Further- the FCC's EEO program for licensing radio and more, the Court in Lutheran Church limited its television stations. In this case, the Lutheran holding to employment practices, not ownership. Church Missouri Synod appealed the FCC's find- Therefore, although diversity of content, accord- ing that it had violated the EEO regulations ing to the Court, is not a compelling interest, di- time. Id. The respondent, Red Lion, a small Pennsylvania 125 Id. at 204 broadcaster, challenged the district court's conclusion that 126 Id. at 235 section 315 of the Communications Act indicates that the 127 141 F.3d 344 "public interest" is best served by all sides of a controversial (1998). issue thus vindicating the notion that the Fairness Doctrine is 128 Id. at 356. an integral part of the FCC's decree. Id. at 372-73, 380. 129 Id. at 354. 118 497 U.S. 547 (1990). 130 Adarand, 515 U.S. at 258. at 119 Id. 552. 131 Id. at 227. 120 Id. at 554-55. 132 See Metro Broadcasting, 497 U.S. 547, 567-68 (stating 121 Id. at 565. that, "the interest in enhancing broadcast diversity is, at the 122 515 U.S. 200(1995). very least, an important governmental objective and is there- 123 Id. at. 227 fore a sufficient basis for the Commission's minority owner- 124 at 205. Id. ship policies"). COMMLAW CONSPECTUS [Vol. 7 versity of ownership could very well be a compel- suiting from the passage of the 1996 Act and its ling interest for the government to promote. deregulation of ownership rules, the effect has A low power radio service would provide the been to squeeze out many local voices in the radio FCC with the opportunity to remedy past discrimi- industry. 13 9 Further, more consolidation means nation in broadcast ownership, while promoting an increase in the number of absentee owners of diversity of viewpoints on the airwaves. A LPFM broadcast stations. Absentee owners are less likely service is a means to provide a much needed out- to know the community they serve, and thus are let for local expression and opportunities for more likely to rely on stereotypes when making small groups and minorities to enter the radio in- programming decisions. Accordingly, the "new dustry and be heard. barons of radio convert their stations from local These major Court decisions do not foreclose presence's into cash cows for instant milking, the FCC from promoting policies favoring pro- their values ballooned for trading to the next gram diversity. Indeed, the FCC is still empowered buyer." 140 Thus the consolidation process, which to promote diversity in the broadcast industry and has resulted in decreased localism, is a conse- has a compelling interest in doing so through the quence that is difficult even for large group own- creation of a low power radio service. ers to challenge, particularly when they admit out- right that, "[i]t's commodity trading to us. We don't know [our] community. We're short term E. Localism: The Bedrock of the Broadcast 14 players." 1 System The demise of localism through the consolida- The principle of localism has helped to guide tion crunch threatens the expression of local the Commission in promulgating regulations for voices and makes it unbearably difficult for small many years. 133 Indeed, the FCC's predominant, groups and individual owners to survive in the in- although not exclusive method for shaping con- dustry. The creation of a low power radio service tent and viewpoint diversity through broadcast li- could clearly revive the nearly dead spirit of local- censing was its localism policy. 3 4 As far back as ism by creating expressive opportunities and re- 142 1955, the Court recognized that the "distribution ducing market entry barriers. of a second license to a community in order to secure local competition for originating and V. CONCLUSION broadcasting programs of local interest [fell] within the [Commission's] allowable area of dis- In a democracy, the people must have access to cretion"1 35 to make "a fair, efficient, and equita- diverse opinions about public affairs and informa- ble distribution of radio service" among different tion that directly affect their communities and localities. 136 families. Concentration of ownership in the hands Broadcasting is a unique medium of communi- of a few jeopardizes the entire concept of a di- cations to local neighborhoods. 3 7 Localism, verse and informative media that lies at the foun- which stems from the licensee concept, has been dation of a healthy democracy. a means by which the broadcast field has devel- The FCC's Low Power Radio Service NPRM is a oped into a universal service designed to address means to offset the negative effects of the 1996 the specific needs and concerns of local commu- Act on local ownership and diversity in the radio nities.138 With the consolidation of ownership re- industry. Additionally, the elimination of the
133 See Benjamin M. Compaine, The Impact of Ownership id. on Content: Does It Matter? 13 CARDOZO ARTS & ENT. L.J. 755, 135 Id. at 362. 761 (1995). 136 Id. at 360 n.1, 362 n.5 (quoting 47 U.S.C. 134 See, e.g. F.C.C. v. Allentown Broadcasting Corp., 349 § 307(b) (1994). U.S. 358, 361 (1955) (noting that the Commission, under 137 See Gigi B. Sohn and Andrew Jay Schwartzman, section 307(b) of the Communications act, is empowered to Broadcast Licensees and Localism: At Home in the "Communica- permit licenses so as to provide a fair distribution among tions Revolution" 47 FED. COMM. L.J. 383, 388 (1994). communities and further, that fairness to communities 138 See id. means the recognition of their local needs). In addition, the 139 See supra note 7. Commission is empowered to distribute second licenses to a 141 142 Cong. Rec. S 6108 (1996). community for purposes of securing local competition for 141 Id. originating and broadcasting programs of local interest. See 142 See Skinner Petition, supra note 86, at para. 13. 1999] Creating Diversity of Voices
Commission's EEO regulations through past public interest through the reemergence of local court decisions is even more reason to rectify the ownership and the rich diversity of programming status of minorities in the media through the use that can flow from a media in the hands of the of LPFM service. Microradio will enable the FCC many. to realize the ideals of a media operating in the