REC Position Statement: "Public Safety" eligibility for LPFM licensing
There has been a recent situation that came up where we must emphasize the use of the "public safety" language in the FCC rules for LPFM stations.
§73.853(a)(2) permits "states and local governments and non-government entities that will provide non-commercial public safety radio services" to be LPFM licensees.
§73.853(b)(3) requires that in order to be considered "local", an applicant proposing a public safety radio service must have jurisdiction within the service area of the LPFM station. This is in lieu of the normal LPFM rules that requires 75% of the board, a headquarters or a campus within 10 or 20 miles of the transmitter.
§73.855(c) states that despite the limitations on the single owner rule, not-for-profit organizations and government entities with a public safety purpose may be granted multiple licenses. This is the same rule that also allows multiple filings during a window with one application being designated a "priority" application that will not be dismissed automatically if it meets a mutually exclusive challenge.
Recently, there was an attempt by a non-government non-profit organization which was already the licensee of an LPFM station obtained under the pretenses of being a non-commercial educational organization to obtain a second LPFM station in a different city (with the same board members) by claiming they are a "public safety" organization. REC has filed an objection against the application.
The issue about "public safety" entities being LPFM licensees first came up during the comment period related to the LPFM Notice of Proposed Rulemaking (NPRM) in 1999. A public safety carve-out was not even proposed in the NPRM. Comments were received by the New York State Thruway Authority, New York New Jersey Port Authority, Texas Department of Transportation and others. These agencies commented allow LPFM to be extended to these agencies in order to have an alternative to using travelers information stations (TIS) on the AM broadcast band. TIS are only available to entities that are eligible to hold licenses in the Part 90 public safety pool (i.e. police, fire and other government agencies).
The FCC also cites the definition of a public safety entity by using the same definition as the one used to define how government is exempted from spectrum auctions. ("public safety radio services, including private internal radio services used by State and local governments and non-government entities and including emergency road services provided by not-for-profit organizations, that - (i) are used to protect the safety of life, health or property; and (ii) are not made commercially available to the public." (47 USC §309(j)(2)(A)).
In the LPFM Report and Order (R&O), the FCC determined that "LPFM stations could be used by state or local governments or other not-for-profit entities to provide traffic, weather and other public safety information to local communities.". (R&O at para. 23) The R&O would further state that an organization providing public-safety radio services will be considered community-based in the area which it has jurisdiction and provides an example that "a Virginia TIS entity would be eligible to apply for an LPFM license anywhere in the state of Virginia but not in any other state." (R&O at para. 33).
In the 2000 Memorandum Opinion and Order (MO&O), the FCC, on reconsideration, the Commission allowed "government, public safety and transportation" entities to apply for more than one license. The FCC recognizes that government, public safety and transportation agencies have separate and distinct needs from other local organizations. "However, we need to balance those needs with our goal of LPFM ownership diversity. We believe that allowing a limited exemption to the ownership restrictions for government, public safety and transportation entities where they do not face competing applications will strike the right balance." (MO&O at para 79). "Thus, we will allow government, public safety and transportation organizations to apply for more than one license." (MO&O at para. 80). The MO&O also allowed public safety entities to use directional antennas.
This brings us up to a couple of issues where it comes to non-government entities claiming to be public safety organizations.
The first issue is "jurisdiction". This word comes up in the localism rule.
Merriam-Webster defines "jurisdiction" as (1) the power, right, or authority to interpret and apply the law; (2) (a) the authority of a sovereign power to govern or legislate, (b) the power to exercise authority; and (3) the limits or territory within which authority may be exercised.
The Cambridge dictionary simply defines it as "the official authority to make (esp. legal) decisions and judgments."
In order to have "jurisdiction", it must be delegated to you under the law. Normally, this jurisdiction falls within a government agency. Sometimes, that jurisdiction can be delegated to a non-government organization through a compact, contract, memorandum of understanding or any other binding document. Examples of such compacts and contracts to not-for-profit organizations may include volunteer fire departments, animal control services under contract to non-profit organizations (i.e. ASPCA, _____ Humane Society, etc.), non-profit business improvement districts and even non-profit rural electric cooperatives that maintain public safety radio infrastructure.
Taking all of that into consideration, does a non-profit organization, which just happens to use their station to broadcast traffic, travel, weather and emergency information in addition to entertainment programming be considered a "public safety" entity eligible to own multiple stations? Our interpretation is, "no". The main reason would be is that in order to invoke the public safety rules (including multiple stations, directional antennas for purposes other than second-adjacent, not being an educational organization, etc.), the applicant must have "jurisdiction" in that area. In other words, the organization must be legally responsible for the provision of public safety services in a designated area as delegated by a government agency through contract, compact, memorandum of understanding or other similar instrument.
With the exception of this narrow carve-out for government operated traveler information stations, REC feels that in order to maintain full-diversity of ownership and giving more people a chance at the microphone, we must support the single station rule.
There are ways of having your programming heard on multiple stations without having to "control" them. Local organizations in other communities should be encouraged to obtain an LPFM station (through assignment or the next window) and allow the stations to share programs. Keep in mind, §73.860(e) of the rules states "no LPFM licensee may enter into an operating agreement of any time, including a time brokerage or management agreement, with either a full power broadcast or another LPFM station." In other words, don't get into an agreement to control the other station and no money changing hands. Each station should carry its own underwriting acknowledgements and should have a substantial amount of its own local programming including what is shared from another LPFM station, AudioPort, PRX, A-Infos and independent program providers.
The objection is still pending for consideration before the FCC.