Courts Rule in Favor of LPFM

Court vindicates FCC's effort to save small stations from loss of channels

On June 5, 2009, the U.S. Court of Appeals of the D.C. Circuit ruled in favor of the Federal Communications Commission (FCC) and against the National Association of Broadcasters (NAB), affirming the December 2007 Federal Communications Commission decision to protect low power FM (LPFM) stations against “encroachment” by full power radio stations. Had the FCC not intervened, these low power stations would have been forced off the air by full power stations wanting to change their broadcasting location.The Prometheus Radio Project, represented by Media Access Project attorney Parul Desai, was an intervenor in the case on behalf of the FCC and the threatened LPFM stations.

In the lawsuit, the NAB alleged that the FCC defied the Radio Broadcasting Preservation Act when it granted waivers to keep LPFM stations on the air. The court denied some of the NAB's claims as lacking merit, and dismissed others as being unripe for review at this time. Thus, the FCC is free to continue balancing the interests of LPFM stations and full power stations that want to change their facilities.

The Prometheus Radio Project, on behalf of hundreds of low power radio stations across the country, thanks the D.C. Circuit Court for their decision vindicating the FCC's new procedures regarding low power stations threatened with encroachment.

"This is terrific news for the low power radio community," said Sakura Saunders, a board member of the Prometheus Radio Project. "The few protections offered to these small stations were threatened by this lawsuit. Now, these stations can focus on serving their local communities, rather than live in fear of displacement due to the whims of their full-powered neighbors."

Prometheus would like to acknowledge the outstanding work of the low power radio stations across the country, whose public service has won them a measure of protection in the face of full power encroachment. According to Pete Tridish of the Prometheus Radio Project, "Many lesser organizations would have folded in the face of the sheer financial and legal resources of the National Association of Broadcasters. However, the dedication of the volunteers at low power stations to their mission – to serve their communities with local content and democratize the airwaves – has proven so great that they will endure any challenge in their work to free the electromagnetic spectrum from corporate dominance."

Prometheus would like to thank the Judges on the DC Circuit Court of Appeals for their careful attention to this complex case. We would also like to thank the attorneys in the office of General Counsel at the FCC for their sophisticated handling of the issues. We also credit the team at the Media Bureau for their thoughtful solutions to the problem of encroachment that have now been borne out by the court. We also commend the Chairman, Commissioners and their staff at the FCC, who have given much time in recent years to defending their service of the public interest from the private trade associations that seek to undermine it.

Prometheus also thanks the attorneys at Media Access Project, Parul Desai and Andrew Schwartzman, for their tireless support in Prometheus' intervention in the case. Also, we would like to thank radio engineer Mike Brown, attorney Michael Couzens and Senior Policy Advisor to Senator Maria Cantwell, Michael Daum, who against great odds first defended the low-powered radio station KYRS in Spokane, Washington.