Originally published in Current, April 21, 2003
By Mike Janssen

Reactions of pubcasters ranged from disappointment to relief over an April 10 FCC decision that lays out how they can compete for the nation's few available nonreserved TV and radio channels.

The good news, they say, is that noncommercial educational broadcasters can still apply for nonreserved spectrum. The bad news is that their applications will be dismissed if even a single commercial broadcaster pursues the same channel.

There is an exception for cases in which a noncom does not declare its intent to use a channel as a noncommercial service. The FCC will treat such applications as commercial by default, clearing the way for the noncom to receive the channel or compete by bidding in an auction (see chart below).

*That is, you alone can apply for a construction permit. Chart by Current, based on analysis of the FCC's order reexamining its comparative standard for noncommercial educational applicants, April 10.

The rules set stricter limits than pubcasters hoped for, but stop short of even more severe measures that were under consideration at the commission.

The decision's harshest critic turned out to be public TV. APTS, the field's lobbying group, expressed "great disappointment" in a press release. It said stations already pinched financially by the digital transition will be in poor shape to compete in auctions against commercial broadcasters.

"I am disappointed that the FCC did not take stronger, clearer action to protect all public television stations that have been working so hard to make the digital conversion," said President John Lawson.

Because all TV translators occupy unreserved channels, the lobbying group's constituents perhaps stand to lose more than public radio, where reactions were more temperate.

Like other commenters, Mike Riksen, new v.p. of national affairs for NPR, acknowledged that legal and regulatory factors limited the FCC's options.

"However, the result may be that NPR and public radio stations may very well have fewer options for signal expansion at a time when we have increasing demand and a growing audience base, and of course that's not good," he said.

Yet some observers expressed relief that the commission stopped short of barring pubcasters from all nonreserved channels--a possibility it floated last year.

The ruling "doesn't open up a huge number of new opportunities," said Carol Pierson, president of the National Federation of Community Broadcasters. "But, most importantly, it doesn't exclude us from any opportunities."

Not a "slam dunk," but not bad

In earlier filings with the FCC, some pubcasters had argued that imposing auctions would, in effect, bar them from ever obtaining nonreserved spectrum. They feared that in most cases applications from commercial stations would prompt auctions, giving the edge to those with deeper pockets.

But in its new decision, the FCC argued that "it is not uncommon" that a channel draws interest only from noncoms.

Furthermore, noncoms with enough money can still take their chances and compete with commercial broadcasters at auction. A noncom applying for nonreserved spectrum that does not acknowledge plans to use the channel noncommercially can remain in the running for an auction if a commercial broadcaster applies for the same channel.

If victorious, the noncom can opt to relicense the station as noncommercial, or simply program it as such without changing its official status, said communications attorney John Crigler.

It's important the FCC left nonreserved spectrum open to noncoms, Crigler said. "If the only thing they could apply for was spectrum that had been reserved for them, they really would have been ghettoized. . . . This is a very good decision," he says.

While not a "slam dunk" for pubcasting, it bodes well for the future of spectrum policy, said Tom Thomas of the Station Resource Group (SRG), which joined Crigler in meeting with FCC staff before the decision to discuss solutions.

"We were in the dangerous territory of a set of restrictions that would have precluded a whole array of nonprofit entities--not just noncommercial broadcasters--from being able to compete for and secure spectrum for a range of public services," Thomas said.

He and Crigler also praised the FCC decision for the opportunity it gives pubcasters to reserve additional channels. A pubcaster can reserve a channel if it proves no reserved channel is available for use and that it would provide a first or second noncom service to a portion of the area's population. The percentage differs for radio and TV.

The FCC had already said it would apply these standards in future allocation proceedings. But the new ruling broadens the standards to allocation proceedings initiated before Aug. 7, 2000.

Regardless, stations still must leap a high hurdle to reserve a channel, Crigler said. "It's pretty tough in a world in which there's, almost everywhere, at least one noncommercial service around," he says. "Still, it can be done, and I think the first thing people have to do is take a look at the frequencies that are allocated and out there to see if they've been reserved--and if they are, they don't go to auction."

The FCC sided with APTS in rebuffing requests from NPR and NFCB to reassign 82-88 MHz, now occupied by TV Channel 6, for noncommercial radio use.

End to three years of battling

Unless challenged, the ruling resolves a three-year legal quandary: how to handle competition among noncoms and commercial broadcasters for nonreserved channels. It is the first time the FCC has set a process for such situations since 1995. The ruling may help resolve some of the many cases backlogged during those years.

The debate began when the FCC tried to interpret the intent of Congress in the 1997 Communications Act. The commission's troubles began in 2000 when it unveiled a new point system for resolving disputes among noncommercial applicants. At the same time, it announced it would use auctions to handle disputes between commercial and noncommercial broadcasters.

Pubcasters claimed Congress never intended to force them into auctions and sued over the decision. A federal appeals court ruled in their favor in 2001, putting the FCC back at square one. Last year the agency said it might grant pubcasters nonreserved frequencies only when no commercial broadcasters apply for them, or even bar noncoms from applying for nonreserved spectrum altogether.

Neither option appealed to pubcasters, and NPR claimed the FCC had once more run afoul of the spirit of the Communications Act. But in its latest decision, the commission shot back that, regardless of the law's intent, the FCC ultimately retains power to dictate spectrum use.

"Given the practical difficulties associated with this changed statutory scheme, we believe that we have ensured adequate [noncommercial] service to the public consistent with evident congressional concern that the switch to auctions not unduly harm [noncommercial] stations," the commission wrote.

Web page posted April 22, 2003
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