LPFM: A Strange Breed to Regulate

Know the LPFM rules before you go on the air
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This is the second in a series of articles about low-power FM station procedures, requirements and prospects.Last time we outlined some considerations for building out an LPFM permit.

Let’s assume that construction is nearing completion, and that it’s time to get ready for operation. For that you’ll want to think ahead to the FCC rules that apply to the LPFM service.

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iStockphoto/Hung Kuo Chun LPFM is a strange breed in regulatory terms. On the one hand, it is conceived as a community-based, noncommercial, user-friendly service, presumably free from all but the most essential regulations. Yet it is subject to many of the same rules as full-service stations.

Let’s outline some of those that have particular relevance to planning the launch of your service.

OPERATING SCHEDULE

LPFM stations are required to operate at least 36 hours per week, consisting of at least five hours per day on each of six days. The only exceptions are for stations subject to time-sharing or educational institutions, which are exempt during weekends and days designated as vacation on official school calendars.

UNATTENDED OPERATION

You don’t necessarily need on-site personnel during all hours of operation, but you are responsible for proper operation at all times, including compliance with the Emergency Alert System. If personnel will not be able to monitor and control the transmission system in person, then you need an automated system that will notify responsible personnel of an anomaly and automatically take the station off the air within three hours if a malfunction may cause interference.

EEO

Speaking of staff, what equal employment opportunity regulations apply to your initial hires? Probably not many, as most LPFM stations will have fewer than five full-time employees (working at least 30 hours per week) and thus will be exempt from the formal EEO recruitment and outreach requirements.

Of course, actual discrimination on the basis of race, color, national origin or gender is absolutely barred — and only religious stations may establish religious belief or affiliation as a job qualification.

NONCOMMERCIAL STATUS

As with conventional educational FM stations, LPFMs cannot be operated on a for-profit basis. Does this mean no income? No — while you can’t sell advertising as such, you can accept financial contributions from commercial businesses and acknowledge them over the air. But there are two fundamental principles to observe.

First, the amount of any such contribution cannot exceed the station’s estimated operating cost for the time segment involved. For example, if a half-hour is “sponsored” by a car dealer, then the amount of its payment can only cover the station’s cost of producing or obtaining the programming heard in that half-hour, together with the pro-rated portion of its on-going cost of operation (rent, utilities, paid staff, etc.) for that segment of the day.

Second, a distinction must be observed between identification (allowed) and promotion (disallowed). That sounds simple enough but it’s not always easy to apply. Basically, you can describe a merchant’s location, services, history, etc., but you can’t make comparative claims or urge listeners to act.

So “ABC Jewelers has been serving customers at 123 Main Street since 1950 with a wide selection of vintage watches” would be OK, while variants of “Don’t miss our sale” or “Come visit our showroom” or “We always offer the best prices” would not be allowed.

EDUCATIONAL SERVICE

LPFM stations are required to “be used for the advancement of an educational program.” What does that mean?

The FCC’s view as to what constitutes an “educational program” has been extremely permissive and goes well beyond instruction — basically, any programming that informs listeners. In addition, the educational aspect need not be full-time but can be nestled within a music format. However, recall that the LPFM permit application for all but tribal and governmental entities required an exhibit describing the applicant’s educational program and how its proposed station would be used to advance it. So any commitments made in such an exhibit should be fulfilled.

PROGRAM SERVICES

LPFM programming can come from any source except a full-power radio station, so long as you have authority to broadcast it. That authority includes not only the producer, distributor or owner of the program but also having the necessary music licenses from SoundExchange, ASCAP, BMI and SESAC.

However, be sure that programming excludes commercials and, if rebroadcast from another non-full-power station, you need that station’s written consent. Also, be sure to broadcast sufficient amounts of locally produced programming to comply with any commitments you made in the construction permit application in order to qualify for a local program origination comparative point.

Well, we’re nearly out of space already and we’ve barely scratched the surface. As a general matter, it’s essential to become familiar with the applicable FCC rules found in Part 73, which can be downloaded from the FCC website at http://transition.fcc.gov/mb/audio/includes/63-amfmrule.htm.

And, at the risk of promoting lawyers, to ensure legal operation, be sure to consult with your legal counsel concerning any particular questions or concerns.

Next time we’ll look at some operational considerations.

Peter Gutmann is attorney with Womble Carlyle Sandridge & Rice LLP. He can be reached at pgutmann@wcsr.com.

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