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 <http://www.cse.org/cse/ia43-csef-telecom.htm>. 1997)) [hereinafter the 1996 Act]. 7 See FCC Commissioner Gloria Tristani, Address before 3 See generally Thomas G. Krattenmaker and Lucas A. the Texas Broadcasters Association, Sept. 3, 1998 (observing Powe, Jr., REGULATING BROADCAST PROGRAMMING (1994) (dis- that despite a national increase of 3% in the number of sta- cussing the early history of radio); Id. at pp. 5-32 [hereinafter tions, the number of radio station owners has decreased by Krattenmaker & Powe]. 12% over the past two years). The radio industry has also lost 4 See FCC Chairman William E. Kennard, Address at the an average of three owners in each of the top ten radio mar- National Association of Broadcasters Radio Convention (Oc- kets and about one owner in each smaller market. See id. tober 16, 1998) [hereinafter Kennard Address at NAB Conven- [hereinafter Tristani Address before TBA]. tion]. 8 See generally Mike Harrington, A-B-C, See You Real Soon: 5 See generally Timothy Aeppel and William M. Bulkeley, BroadcastMedia Mergers And EnsuringA "Diversity Of Voices, "38 Westinghouse to Buy American Radio, WALL ST. J., Sept. 22, B.C.L. REv. 497, 538 (1997) (noting that any attempt to ensure 1997, at Al (discussing Westinghouse's move to purchase a diversity of voices should not be in the form of more regula- American Radio System Corp. The acquisition is part of a tion, instead, Congress must emphasize the importance it trend of consolidation in the radio industry since the 1996 places on the broadcast industry maintaining a marketplace Act). See also Eben Shapiro, Golden Oldie: A Wave of Buyouts of ideas). Has Radio Industry Beaming With Success, WALL ST. J., Sept. 18, 9 See Jill Howard, Congress Errs in Deregulation Broadcast 1997, at Al (noting that since Congress deregulated broad- Ownership Caps: More Monopolies, Less Localism, Decreased Diver- COMMLAW CONSPECTUS [Vol. 7 versity of ownership of radio stations as part of its' the side effect of giving rise to a number of "radio congressional mandate to regulate radio in the pirates" 13 affecting the industry. 14 The FCC rec- public interest.10 Despite this mandate, the 1996 ognizes the consequences of deregulation in the Act has allowed the FCC to downplay its duty to broadcast industry and the impact of consolida- serve the public interest in local broadcasting. tion on diversity of ownership. 15 Consequently, The principle of diversity of ownership in broad- the Commission issued a Notice of Proposed cast media has slipped in the rush to deregulate Rulemaking, 16 in which it proposes to license new the industry in the name of competition. The in- 1000-watt low-power FM ("LPFM") radio stations creasing centralization of ownership of radio sta- as well as 100-watt secondary station service in tions has had two detrimental effects: less localism hope of better serving communities at the local and diminished diversity. level. 17 In the rulemaking the FCC also sought The concentration of ownership has decreased comment on establishing a third "microradio"18 the number of locally owned radio stations,"' class at power levels from 1-10 Watts.' 9 thereby limiting the number of diverse outlets. 12 Part I of this Comment traces the development Deregulation has not only had the effect of con- of radio regulation before the 1996 Act. Part II centration of ownership, it curiously has also had explains the changes in the radio industry as a re- sity and Violations of Equal Protection, 5 COMMLAW CONSPECTUS of a variety of management, such as producers and owners. 269, 269 (1997) (stating that the ownership restrictions were See id. created by Congress to serve two objectives: 1) to preserve 13 See Jim Cullen, Pirate Radio Fights for Free Speech, THE the First Amendment's spirit of promoting the public wel- PROGREssIvE POPULIST (April 1998) (defining radio pirates as fare, "by providing diverse and antagonistic viewpoints"; and, unlicensed broadcasters that include community talk shows, 2) "promoting competition in order to ensure efficient use of city council meetings and. militia rants) [hereinafter Cullen]. resources"). 14 See, e.g., Alexander Cockburn and Jeffrey St. Clair, 10 In the Communications Act of 1934, Congress created Theirs To Steal, Ours To Win, Battle For The Soundwaves, COUN- the FCC to "to execute and enforce the provisions of [the TERPUNCH Vol.6, No. 6, 6 (Mar. 16-31, 1999) (claiming that 1934] Act." 47 U.S.C. § 151 (1994 & Supp. II 1997). In 99.99 percent of the public does not have access to the public enumerating the powers of the Commission, Congress re- airwaves as a result of the 1996 Act). In addition, radio pi- quired the FCC's regulations to be in the "public conven- rates have emerged in resistance to the corporate mergers ience, interest, or necessity." 47 U.S.C. § 303 (1994 & Supp. that have occurred at high rates. See id. See also Cullen supra 11 1997). The phrase "public interest", as applied to broad- note 13. cast media, originally appeared in the 1927 Radio Act. See 15 See supra note 5 at Al (noting that since the passage of also generally, Erwin G. Krasnow, The "PublicInterest" Standard: the 1996 Act, more than a quarter of the country's 10,000 The Elusive Search for the Holy Grail, 50 FED. COMM. L.J. 605, radio stations have acquired new owners). 610 (1998)(citing Newton N. Minow and Craig L. Lamay, 16 See In Re Creation of Low Power Radio Service, Notice of Standard in the Wasteland, Children, Television and the First Proposed Rule Making, (Feb. 3, 1999) [hereinafter Low Power Amendment, 4 (1995)) [hereinafter Krasnow]. The 1927 act Radio Service NPRM]. does not comment on the origins of the phrase 'public inter- 17 See Low Power Radio Service NPRM supra note 16 at pa- est'. See id. ras. 22-33 (proposing a 1000-Watt primary service, subject to 11 See In re 1998 Biennial Regulatory Review of the Com- the majority of the service rules. It would operate at a maxi- mission's Broadcast Ownership Rules and Other Rules mum radius of 1000 watts). The 100-watt class would be Adopted Pursuant to Section 202 of the Telecommunications designed to provide affordable service to communities of Act of 1996, Notice of Inquiry, 13 FCC Rcd. 11276, paras. 18-19 moderate size. See id. at para. 30. The LPIOO service would (1998) (documenting an increase in the number of radio sta- allow stations to operate at a maximum of 100 watts and 30 tions from 10,222 to 10,475, a total of 2.5% increase). The meters (98 feet). See id at 30. rapid mergers of some of the top radio station owners has 18 See Cullen, supra note 13 (explaining that the word resulted in a decrease in the number of owners of commer- "microradio," meaning micro-power broadcasting, was cial radio stations by 11.7%, from 5,105 to 4,507. See id. The coined by Mbana Kantako of the Black Liberation Radio in Commission also noted a downward trend in the number of Springfield, Illinois).