LPFM is a non-commercial educational (NCE) broadcasting service. Therefore, LPFM is subject to section 399(b) of the Communications Act of 1934 (47 USC 399b). This provision specifically prohibits NCE stations from broadcasting any advertisement in exchange for renumeration (money or otherwise).
Title III, section 3002 of the Balanced Budget Act of 1997 (which amended 47 USC 309(j)) mandates that the FCC use spectrum auctions to resolve mutual exclusivity between competing applications. In 47 USC 309(j)(2)(C), NCE stations are exempt from auctions. However, if an NCE is mutually exclusive with a commercial applicant and if the mutually exclusivity can not be resolved, the NCE applicant is automatically dismissed and not permitted to compete for the channel. (47 CFR §73.5002(b)).
Section 158 of the Communications Act requires commercial entities to pay application fees and Section 159 mandates that commerical services pay an annual regulatory fee.
Title II, section 202(a) of the Telecommunications Act of 1996 mandates that the Commission amend §73.3555 to remove limits on nationwide ownership of broadcast stations.
One of the primary reasons for the grassroots campaign on the late 1990s to create LPFM was to protest Congress' mandates under Section 202(a) of the Telecom Act which allowed companies like Clear Channel (now iHeart Media) to grow. Local communities wanted their own voice.
The record has been clear since the first FCC Report and Order creating LPFM that the LPFM community clearly does not want a commercial service with the application and regulatory fees as well as the lack of ownership limits and the mandatory auctions in order to compete in MX situations that go with it.
In order to change any provisions that originally modified the Communications Act, these can not be done through the FCC rulemaking process. Insead, they must be done through acts of Congress. We do note that both the Radio Broadcast Preservation Act of 2000 that placed the third-adjacent channel restrictions on LPFM stations and the subsequent Local Community Radio Act of 2010 were both sponsored and passed with bipartisan support. This is because the National Association of Broadcasters (NAB) has influence on both sides of the aisle. The RBPA was legislation requested by the NAB. This legislation was lobbied with an audio demonstration of "simulated" third-adjacent channel interference. The LCRA only passed because of provisions that were placed into the Act through compromise between the LPFM community and the NAB. One of those big compromises was the provision that §73.807(a) distances can not be reduced (we will talk further about in just a moment).
The desire for LPFM to become commercial is coming from a very small group of owner-operators who created one-person non-profit organizations for the sole purpose of running the station. REC supports the will of the majority of community-based media justice, faith-based and public-sector organizations and agencies that support a non-commercial educational LPFM service free from commercial influence and competition.
REC supports efforts to allow NCE stations (low power and full power) to be more financially viable. This may include a reinterpretation of Section 399b as to what kind of messages are allowable. This specific Petition for Rulemaking is not the appropriate vehicle for that and we feel such a petition should come from someone other than REC (such as NPR or the NFCB).
