Until recently, it seemed that Simon Frech's squabble with two religious broadcasters over an FM frequency would never end. In 1995, the FCC stopped considering competing applications from noncommercial broadcasters for radio and television frequencies, leaving Frech and many others in bureaucratic limbo.
Adding it up
The FCC’s new point system for choosing among noncommercial broadcasters vying for the same frequency will reward several characteristics:
3 points if the applicant is locally based, which the FCC defines as being physically headquartered, having a campus, or having three-fourths of its board members within 25 miles of the community;
2 points if the applicant owns no other local broadcast stations. An applicant that can’t claim this credit but is part of a statewide network providing service to accredited schools can also claim 2 points;
1-2 points to an applicant whose frequency covers significantly more area and population than the next best proposal.
"It's frustrating," says Frech, g.m. of KMUD in Garberville, Calif., who was about to launch a campaign to persuade the religious broadcasters to back off. Now Frech can scuttle that tactic. The FCC announced April 14  that it will adopt a point system to settle disputes involving noncommercial broadcasters. Pubcasters have generally asked for some kind of point system, but many are unhappy that — in the cases where commercial and noncommercial applicants vie for non-reserved channels — the FCC will settle the matter with high-stakes auctions.
The FCC used to settle disagreements with hearings, but shelved the process in 1995 after a federal court declared it "arbitrary and capricious, and therefore unlawful." Applications have piled up ever since — by one estimate, 2,000 requests could await action at FCC headquarters. The vast majority are from radio broadcasters, and religious broadcasters filed most of those.
Among other criteria, the FCC will favor broadcasters that are locally based and own no other stations (see box). If two applicants have an equal number of points, the one with the fewest stations will get the frequency. If that doesn't settle it, the FCC will favor the applicant with the fewest pending applications, and any remaining ties will be settled with time-sharing requirements in the case of full-service stations.
In cases where two or more noncommercial applicants go for the same non-reserved frequency, the FCC will give preference to those who promise to extend service to the larger number of people unserved by a noncommercial station.
Now that the FCC has adopted new standards, all previous applicants will have to amend their filings to make their case for points. Newcomers will have to wait to enjoy the benefits of the new system; the FCC has put a temporary freeze on applications for new noncommercial stations, and might not lift it for a year or more.
"We're very happy to finally have something out," says Carol Pierson, president of the National Federation of Community Broadcasters. "We hope that the FCC will go through the backlog as quickly as possible, because there are applicants that have been frozen out of providing local broadcasting to communities for years."
Pierson and others are not happy about one aspect of the new rules. Due to the FCC's interpretation of federal law, pubcasters will have to take part in auctions against commercial broadcasters if both are vying for a non-reserved channel. NFCB and APTS fear that commercial broadcasters will have an unfair advantage in the wallet.
The prospect is especially menacing to public television, where the impending transition to DTV threatens to dislocate a number of translators. Stations forced to relocate their Channel 60-69 translators to lower channels could lose out, says Lonna Thompson, director of legal affairs for APTS. Thompson cites a recent auction in which bidding opened at $80,000, and moved upward at $20,000 increments. "Those are real-world dollars our stations don't have," she says.
FCC commissioners also disagreed over auctions. In a dissenting statement, Harold Furchtgott-Roth and Gloria Tristani argued that the section of the Communications Act at issue exempts noncommercial broadcasters from entering auctions, regardless of the frequency at stake. NPR and APTS agree. "We think the statutory language is clear," Thompson says. "Congress intended all of our stations to be exempt from auction."
In a separate dissenting statement, Tristani also argued that stations should get extra points for broadcasting locally originated programming. NFCB also supported credits for local programming and shares Tristani's disappointment. Local programming has been an inherent part of broadcasting since the beginning, says Cheryl Leanza, an attorney with the Media Access Project who represented NFCB.
At this point, broadcasters unhappy with the auction requirement or any other part of the system can request reconsideration or judicial review once the FCC's decision appears in the Federal Register. NFCB is considering taking action, and NPR is consulting with member stations on the matter.
In the meantime, the new standards could start to shrink the FCC's backlog of applications if previous applicants realize they don't stand a chance. "There's less incentive just to hang out there and delay if you're clearly going to lose," says communications attorney John Crigler. If an applicant has no chance of winning the points for localism, he says, "it might make sense to recoup expenses and get out of the way."
Another lawyer worries that the new standards could interfere with the rollout of low-power FM, the much-debated plan that critics charge will also disrupt the transition to digital radio. Now that the point system is a go, applications for translators might pick up, says attorney Michael Couzens, and more translators could mean less space for low-power stations. If high demand for low-power stations drags out LPFM filings, low-power operators "could be looking at rural Missoula at best," he says. "And urban areas would be even more precluded than they are today. ... If the Commission needs more staff [for handling LPFM], they should reassign and process them."