April 27, 1998
Ms. Magalie R. Salas
Secretary
Federal Communications Commission
1919 M Street, NW, Stop Code - 1170
Washington, D.C. 20554
Dear Ms Salas:
Transmitted herewith, on behalf of North Carolina Association of Broadcasters and the Virginia Association of Broadcasters are an original and four (4) copies of Comments of the North Carolina Association of Broadcasters and the Virginia Association of Broadcasters in the above referenced proceedings
If any questions should arise during the course of your consideration of this matter, it is respectfully requested that you communicate with this office.
Very truly yours,
BROOKS, PIERCE, McLENDON, HUMPREY & LEONARD, L.L.P.
Mark J. Prak
Counsel to North Carolina Association of Broadcasters and the Virginia
Association of Broadcasters
MJP:rb
In re Petitions of
Nickolaus E. Leggett, Judith F. Leggett and Donald J. Schellhardt, Esq
For the Creation of a Microstation Radio Broadcast Service) RM-9208.
J. Rodger Skinner, Jr
For the Creation of a Low Power FM Broadcast Service) RM-9242
and
Gregory D. Deieso
For the Creation of Event Broadcast Stations) RM-9246
To: The Commission
Wade J. Hargrove
Mark J. Prak
BROOKS, PIERCE, McLENDON
HUMPHREY & LEONARD L.L.P
Suite 1600 First Union Capitol Center
Post Office 1800
Raleigh, North Carolina 27602
(919) 839-0300
April 27, 1998
In re Petitions of
Nickolaus E. Leggett, Judith F. Leggett and Donald J. Schellhardt, Esq
For the Creation of a Microstation Radio Broadcast Service) RM-9208.
J. Rodger Skinner, Jr
For the Creation of a Low Power FM Broadcast Service) RM-9242
and
Gregory D. Deieso
For the Creation of Event Broadcast Stations) RM-9246
To: The Commission
The North Carolina Association of Broadcasters ("NCAB") and the Virginia Association of Broadcasters ("VAB"), by their attorneys, hereby file their joint comments in response to the Commission's Public Notice concerning the filing of the above-captioned Petition for Rule Making. NCAB and VAB are trade associations whose members operate radio and television stations licensed by the Commission to serve communities located in North Carolina and Virginia.
The Commission should deny the Petition for Rule Making ("Petition") to establish a micropower radio service. As a threshold matter, the three Petitions disregard the practical and technical difficulties involved in implementing such a service. In addition, the creation of such a micropower radio service would undermine the Commission's efforts to crack down on illegal "pirate" radio stations. Finally, the arguments that the creation of such a service would promote minority ownership and broadcast "diversity" ignore regulatory and marketplace realities.
1. The Petitions Disregard The Practical And Technical Difficulties Inherent In Implementing A Micropower Radio Service.
As a threshold matter, the Petitioners' proposals fail because they ignore the many practical and technical difficulties inherent in implementing a micropower radio service. It is axiomatic that the Commission's fundamental mission is to "encourage the larger and more effective use of radio in the public interest." 47 U.S.C. &sec;151. As the steward of the public interest, the Commission should do no harm to the existing radio service in considering the proposed micropower services. The interference which would result from implementation of these proposals would cause harmful interference to the existing AM and FM radio services. The Commission was created by Congress in 1934 to eliminate destructive interference and ensure a technically sound basis for our nation's system of radio broadcasting. Adoption of any or all the Petitioners' proposals would create harmful interference to the existing AM and FM radio service. As it is, the Commission cannot now process non-commercial power increase applications in an expeditious fashion. Moreover, the Commission persists in applying outdated technical rules to the noncommercial band in order to guard against a "flood" of applications. The Docket 80-90 FM radio and low power television debacles of the 1980's must not be forgotten. Indeed, the era of "hard look" application processing was one the Commission and the public should never forget. The waste of public and private resources was palpable. The same sort of "pie in the sky" arguments were made for Docket 80-90 FM stations and for LPTV that are now made by the proponents of micropower radio. The Commission must not lose its institutional memory. If the Commission allows history to repeat itself, the only result of a micropower radio service will be increased paperwork for the Commission's already overworked staff and a diversion of scarce Commission resources with little or no tangible public interest benefit.
Most glaringly, the Petitioners' overlook the significant burdens that
a micropower radio service will have on existing radio services that will
soon be making the transition to digital radio. One of the Petitioners
even acknowledged this upcoming change and tacitly admitted his opposition
to the oncoming of the digital age:
Since LPTV is a secondary-service, my station along with hundred of other "mom and pop" stations will be forced off the air by the rules created by the Commission in the digital television proceeding. It should be noted that in my petition for reconsideration of the digital rules, I suggest awarding a LPFM license to anyone bumped from their LPTV channel as a form of remuneration that would not cost the government anything.J. Rodger Skinner, Jr., Petition for Rule Making at 5. While Skinner recognizes that the conversion to digital by full service television stations will force LPTV off the air, he fails to admit that the limited capacity of the radio band will also force low-power radio stations off the air as the digital conversion takes place. Simply put, a service that is hostile to the technological advances revolutionizing the radio industry, such as micropower broadcasting, is not one that the Commission should be in the business of developing.
II. The Creation Of A Micropower Radio Service Would Undermine The Commission's Commitment To Punish Pirate Radio Stations.
Next, the creation of a micropower radio service at this time would undermine the Commission's ongoing commitment to seek out and punish illegal "pirate" radio operators. Indeed, the creation of a "CB-like" micropower radio service would only serve to further blur the line between legal and illegal radio operators. The operation of "pirate" radio stations is presently one of the Commission's most nettlesome problems. See, e.g., Mr. Brewer the Pirate Doesn't Rule Waves, He Just Makes Them, Wall St. J., Oct.21, 1997 (discussing pirate radio operator whose motto is "License? We don't need no stinking license"). It is also common knowledge that the Commission has dedicated considerable resources to removing such miscreants from the air. If the Commission permits permits micropower radio to go forward, however, the Commission will have tacitly admitted that it lacks not only the resources but also the institutional morale to stop this significant offense to the federal regulatory scheme. The end result will be the erosion of the Commission's authority to enforce both the law passed by Congress in 1934 and its own regulations. In other words, to approve the development of micropower radio would constitute a tacit admission of the Commission's failure to successfully police "pirate" radio operators.
III. The Petitioners' Arguments That the Institution of a Micropower Radio Service Would Promote "Diversity", Despite Their Good Intentions, Ignore Market Realities and Recent Judicial Decisions.
Petitioners' frequent references to the mantra of "diversity" is insufficient to justify the creation of a technically flawed service such as micropower radio. Like many others that have argued their cause to the Commission, Petitioners assert that their proposals will increase minority representation in the broadcasting industry. Unfortunately, like those other individuals, Petitioners have failed to present concrete evidence that the creation of a new service will contribute to any lasting minority presence in radio. To the contrary, history teaches that broadcast licenses -- whether held by members of minority groups or otherwise -- will flow to those persons who most value the right to operate a station. See, e.g., Bechtel v. FCC, 957 F.2d 873 (D.C. Cir. 1992). Unless the Commission imposes restraints on the ability of minority holders of micropower broadcasting licenses to sell such licenses, there can be no guarantee that development of such a service would benefit women and minorities in any sort of lasting way.1
The Commission should evaluate the petitioner's cry for "diversity"
in light of the D.C. Circuit Court of Appeals' recent ruling in Lutheran
Church - Missouri Synod v. FCC, 1998 WL 168 712 (D.C. Cir. 1998). In
Lutheran Church, the D.C. Circuit invalidated the Commission's equal
employment opportunity (EEO) regulations for radio stations. In reaching
that conclusion, the court observed the following about the frequent invocation
of the term "diversity" made by litigants before the Commission:
The regulations could not pass the substantial relation prong of intermediate scrutiny, let alone the narrow tailoring prong of strict scrutiny.The Commission should heed the D.C. Circuit's admonition in Lutheran Church. Absent credible evidence demonstrating that a micropower radio service will actually enhance minority ownership of broadcast stations, the Commission should view with skepticism the suggestion that "diversity" of ownership of the media would be enhanced in any significant way by implementation of this proposal. This is not to say that diversity of ownership of the media by persons of various ethnicities is not a good thing. It is. But, it has yet to be demonstrated how such outcomes can be successfully achieved in a fashion which is consistent with the Constitution. In this case, the suggestion that a micropower radio service will be a significant means of advancing minority ownership would be a cruel hoax -- as were Docket 8O-90 and LPTV. If the Commission truly desires to advance minority ownership of broadcast properties, it should devote its resources to the development of programs, like the tax certificate program, which assist in providing minority entrepreneurs with financing to acquire broadcast stations.Perhaps this is illustrative as to just how much burden the term "diversity" has been asked to bear in the latter part of the 20th century in the United States. It appears to have been coined both as a permanent justification for policies seeking racial proportionality in all walks of life ("affirmative action" has only a temporary remedial connotation) and as a synonym for proportional representation itself. It has, in our view, been used by the Commission in both ways. We therefore conclude that its EEO regulations are unconstitutional....
For the reasons discussed above, the Commission should deny the various Petitions for Rule Making to establish a micropower radio service. This is a service whose time has not come.
Respectfully submitted,
NORTH CAROLINA ASSOCIATION OF
BROADCASTERS
VIRGINIA ASSOCIATION OF
BROADCASTERS
By Wade H. Hargrove
Mark J. Prak
Their Attorneys
April 27, 1998
BROOKS, PIERCE, McLENDON
HUMPHREY & LEONARD, L.L.P.
Suite 1600, First Union Capitol Center
Post Office Box 1800
Raleigh, North Carolina 27602
(919) 839-03OO
1 A rule imposing such restraints, of course, would present serious legal issues.