SPLC guide to broadcast license challenges

With budgetary realities hitting universities and colleges hard across the country, and administrators seeking to limit all “non-essential” expenditures, student-run campus radio station have been among the targets. In addition to reduced operating budgets, several stations have been sold or transfer to non-student organizations. According to a recent report released by College Broadcasters, Inc.,1 at least 13 formerly student-run stations recently have been, or are under threat of being, converted to stations with little-to-no student involvement. The June 2011 sale of Vanderbilt University’s over-the-air FM station provoked an outcry from alumni of the broadcasting program.2 Student broadcasters confronted with an impending transfer/sale of their station may well wonder what legal avenues they could pursue in attempting to challenge the transfer.

As general background, one should know all transfers of broadcast radio stations are subject to the approval of the Federal Communications Commission. As a result, objectors do have a better legal outlet to air their grievances, than they might have if their neighborhood coffee shop or hardware store were bought out by a national chain. Ultimately, though, the vast majority of legal challenges to a transfer are unsuccessful.3 This guide attempts to answer the questions that campus broadcasters frequently ask about how the FCC considers whether to approve or block a transfer.

A radio licensure primer

Q: What criteria does the FCC use in evaluating an attempt to sell a radio station? A: First, the transferor must file an application with the FCC, which will then determine whether “the public interest, convenience, and necessity will be served by the granting of such application”.4 The FCC will treat the transfer proposal no differently than a original application for license.5 The law does not permit the FCC to consider whether another purchaser would better serve the “public interest, convenience or necessity”.6

Q: What is the timeline and FCC procedure for filing a challenge to the transfer/sale of a radio station? A: Challengers may file a petition to deny the application “not later than 30 days after the issuance of a public notice of the acceptance for filing of the applications.”7 Filings can be found electronically at http://fjallfoss.fcc.gov/ecfs/.

Q: Who can make such a challenge? A: Any “party in interest” may challenge the transfer by filing with the Commission a petition to deny the application for proposed sale.8 Any person may also submit informal objections in signed letter form.9

Q: On what basis would the FCC rule on a petition to deny? A: If the Commission finds that there are “no substantial and material questions of fact” and that the transfer serves the public interest, convenience and necessity, it will grant the application and issue a concise list of reasons. If the Commission finds otherwise, it will designate the application for hearing.10

Q: What recourse is there if the FCC rules unfavorably? A: A person who is aggrieved or whose interests are adversely affected by any order of the Commission has a right to appeal to the United States Court of Appeals for the District of Columbia (“the D.C. Circuit”).11

Q: What exactly does the standard in service of “the public interest, convenience, and necessity” mean? A: First of note, the Court of Appeals will give substantial deference to the Commission’s judgment on the public interest.12 In fact, federal courts have suggested that the term “public interest” is intentionally nebulous so as to give the Commission great discretion.13

Can transfers be prevented?

Although every circumstance is unique, and notions of “public interest” are particularly ineffable, the following is a partial list of arguments that have often been unsuccessful in preventing transfers:

  1. The adverse economic impact on employees of the transferor station.14
  2. Diversity in entertainment formats.15

The following is a list of arguments that have had greater success in preventing transfers:

  1. Diversification of ownership in newspapers and broadcast media in the same location (i.e. antitrust concerns).16
  2. Direct misrepresentation or intentional omissions on behalf of the applicant.17

Other factors which might play a role in the determination of whether an assignment or transfer is in the public interest include community support or lack thereof.18 In Lakewood Broadcasting Service, Inc., v. F.C.C. , the D.C. Circuit reviewed FCC approval, without hearing, of a radio station transfer that also would have entailed a format change from an “all news” to a “country and western” format. The D.C. Circuit reasoned that “[w]here a “significant minority” of those whom a station is obligated to serve voice discontent over a proposed entertainment format change, the format change becomes an issue to be dealt with by the Commission in its determination that the assignment comports with the public interest, convenience, and necessity.”19 However, ultimately, even community dissension was insufficient to require the FCC to hold a hearing on the issue of the “public interest.” Further, the Court did determine that “The Commission had to consider the public interest, but that does not in all situations require a survey to determine the exact degree of support for the old format." 20 This suggests that even widespread public dislike of the new format is not by itself enough to make a transfer contrary to the “public interest” for FCC licensure purposes.

Non-FCC alternatives

If the prospect of winning an FCC licensure challenge is remote, then what can students aggrieved by the sale of a beloved station do? The best advice might be to take advantage of local political channels and organize the student community (particularly generous alumni donors, if possible) against the sale.

At a public institution, proposed sales often require approval of the board of regents or trustees (assuming that the university is the holder of the FCC license, which is common.) Board members will make decisions based on their perception of the school’s economic interests. If a potential transfer provokes enough outrage among the student body, alumni and local community, or if keeping the station can be shown to be economically advantageous, then school officials may hesitate to approve the transfer. Board members are generally political appointees and will be responsive to political pressure, so attempting to involve allies in the state legislature and governor’s office – as well as the professional news media – may prove strategically helpful. Ultimately, the best defense is to build a broad listener and fan base for the station, including an active alumni association of former employees, so that the college cannot point to lack of audience support to justify a sale.

Endnotes

  1. Available at http://www.askcbi.org/?p=2041.
  2. "Vanderbilt student radio station sold, pulled off the air hours later," SPLC News Flash, available at http://www.splc.org/news/newsflash.asp?id=2234.
  3. Please note that this guide only covers regulatory challenges under the FCC’s authority. Broadcasters wishing to void transfers may also have viable arguments under state contract law.
  4. 47 U.S.C § 310(d).
  5. Id.
  6. Id.
  7. 47 C.F.R. § 73.3584.
  8. 47 U.S.C. § 309(d).
  9. 47 C.F.R 73.3587.
  10. § 309(d)(2), (e).
  11. § 402(b)(6).
  12. F.C.C v. WNCN Listeners Guild, 450 U.S. 582 (1981).
  13. See e.g., F.C.C. v. RCA Communications, 346 U.S. 86 (1953).
  14. National Ass’n of Broadcast Employees and Technicians, AFL-CIO v. F.C.C., 346 F.2d 839 (D.C. Cir. 1965).
  15. See e.g., F.C.C. v. WNCN Listeners Guild, 450 U.S. 582 (1981).
  16. See e.g., F.C.C. v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978). See also 47 C.F.R. 73.3555(a).
  17. See, Swan Creek Communications, Inc. v. F.C.C., 39 F.3d 1217, 1222 (D.C. Cir. 1994).
  18. See e.g., Lakewood Broadcasting Service, Inc. v. F.C.C., 478 F.2d 919 (D.C. Cir. 1973).
  19. Id. at 922.
  20. Id. at 924 n.12.