Victory for Non-Comm Radio: No Auctions

  • Victory for Non-Comm Radio: No Auctions
    The Media Access Project announces and celebrates their court victory with the DC Circuit Court of Appeals overturning an FCC decision to make non-commercial broadcasters compete at auction for spectrum space. As part of the Balanced Budget Act of 1997 Congress ammended the Communications Act (section 309(j)(1)) to specifically allow the FCC to use competitive auctions to resolve instances where two “mutually exclusive” applications are under consideration for a single license. Previously these situations were resolved by lengthy competitive hearings.

    In making its decision the Court relied upon what it sees as the explicit and unambiguous intention of Congress to except non-commercial broadcasters from this process (section 309(j)(2)). The FCC, however, iterpreted this dictate to mean that only licenses for spectrum space already allocated as non-commercial–such as 88 to 92 Mhz on the FM dial–were exempt from auction, and that non-commercial broadcasters would have to bid at auction for space outside this reserved area. The Court was unmotivated by the Commission’s interpretation, finding that the Act’s language intended to exempt non-commercial broadcasters from auction regardless of the particular space in question. This rule is therefore vacated, and the FCC ordered to review the rule, per a petition filed on behalf of National Public Radio, et al.

    As far as I can tell, what this means in practice is that when a non-commercial broadcaster applies for license in the commercial band (92 – 108 Mhz FM) which is subject to competition from other non-comms or commercial broadcaster, then that dispute will continue to be resolved by hearing, rather than auction. What it also appears to mean is that pure economic might is less useful when trying to win a license away from a non-comm (although it nonetheless requires some economic resource to win a hearing, for which you need lawyers, engineering and other consulting).

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