Challenging the FCC’s Roll-Over on Digital Radio

The Amherst Alliance has filed a motion with the FCC for a rehearing on IBOC digital radio. The Amherst Alliance is one of the organizations responsible for getting the FCC to seriously consider licensed low-power FM radio, which they achieved by submitting petitions for rulemaking.

If granted, a rehearing would be an opportunity to further explore and expose the inteference that IBOC digital broadcasting threatens to wreak on distant and low-power stations.

Unfortunately, it’s more likely that the FCC will deny this motion, cheered on by the corporate broadcast kingpins on all sides. Nonetheless, it can be very useful, tactically speaking, to make these attempts at achieving procedural victories, even if they’re mostly in vain — especially if you want to pursue your case in court, demonstrating that you’ve already attempted procedural remedy goes a long way in showing that you have standing.

And, of course, sometimes these motions actually succeed.

Indeed, it takes action on all fronts, legal and extra-legal (e.g. civil disobedience), to make inroads against the swelling tide of media consolidation.

The motion cites the following rationales for the rehearing:

“A. THE COMMISSION’S OCTOBER 11, 2002 DECISION TO APPROVE IBOC RADIO DIGITALIZATION IS PROCEDURALLY PREMATURE

The Commission made its decision to approve IBOC Radio Digitalization while directly relevant Commission proceedings were still pending. By making its selection of IBOC technology before completing its work on several ongoing and relevant proceedings, the Commission has undercut the Administrative Procedure Act, as well as the “due process” clause of the Constitution, in at least two fundamental respects. …

B. THE COMMISSION’S OCTOBER 11, 2002 DECISION IS BASED ON THE “ARBITRARY AND CAPRICIOUS” APPLICATION OF CRITERIA
Just as the right of parties to be heard, and not pre-judged, lies at the foundation of the law, so does the principle that the law should be impartial. While there are endless exceptions to the law’s general rules, and while even a
uniform rule may sometimes be tailored to particular circumstances, those who shape the law are accountable for explaining why different parties are treated differently. Further, if different treatment and/or impact appears to be attributable to race or gender, or even — as in this case—- to differences in wealth and/or class, the differing treatment and/or impact becomes “suspect” under the “equal protection” clause of the Constitution’s Fourteenth Amendment. …

C. iBIQUITY DIGITAL CORPORATION HAS
MIS-IDENTIFIED PARTIES TO THE JULY 18, 2002 REQUEST FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (EIS)

We take this opportunity to correct, On The Record, a minor factual error with major legal implications. In its August 6, 2002 Supplemental Response to the July 18, 2002 Multi-Party EIS Request, iBiquity Digital Corporation incorrectly identifies the parties to the EIS Request. These parties are mis-identified as “Don Schellhardt Et Al.”, rather than correctly described as “THE AMHERST ALLIANCE Et Al.” We presume that this error was unintentional, but it is nevertheless more than merely a semantic point. Potentially, the error in identification poses serious legal implications. It implies, in effect, that Don Schellhardt and THE AMHERST ALLIANCE are one and the same. However, Don Schellhardt only represents THE AMHERST ALLIANCE, as its current attorney. …”

You can read the whole text as posted on the Free Radio Network Grapevine.

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