The Great Radio Blockade

How hard is it to pass a reform in the face of an entrenched industry lobby?

The Radio Broadcasting Preservation Act turns 10 next month. If Congress believed in truth in advertising, it would have called the law the Radio Broadcaster Preservation Act, since its effect was to protect existing stations from a new wave of competition. Though even that name would have been a stretch: The new competitors would all be noncommercial outlets transmitting at no more than 100 watts of power, so they weren't likely to put anyone out of business.

Officially, the bill aimed to protect stations not from the threat of losing audiences but from the threat of signal interference. The Federal Communications Commission (FCC) had announced a plan to start licensing low-power FM stations. The National Association of Broadcasters (NAB) objected, arguing that there wasn't room on the dial for the new outlets. To illustrate the alleged risk, the NAB distributed a CD that purported to demonstrate the interference that could occur if the plan went forward. The sound was not, in fact, a recording of a low-power signal interfering with a larger station. It was just a homebrewed mix designed to sound as unappealing as possible. In the words of two FCC engineers, it "simply does not represent actual FM radio performance and therefore is meaningless." (A subsequent study by the MITRE Corporation has established conclusively that the low-power plan posed no risk of serious interference.)

With such tactics the broadcasters' lobby shepherded the Preservation Act into law. It did not eliminate low-power radio altogether, but it kept about three quarters of the potential stations from appearing, piling on enough restraints to guarantee that the stations would be restricted to relatively rural areas and kept out of the big urban markets.

A decade later, that protectionist law may finally be about to die. The Local Community Radio Act, which passed the House last December and has widespread support in the Senate, would repeal the 10-year-old measure. The act bends over backwards to address broadcasters' objections. At the prodding of Sen. Olympia Snowe (R-Maine), the bill's sponsors even agreed to an amendment requiring a study of the new stations' economic impact on small business. The legislation seemed poised to pass the Senate—and then a new problem appeared.

Senate rules allow any member to put a hold on a motion, preventing it from going to a vote. It also allows them to do this anonymously, so that citizens don't know who exactly is obstructing the legislation. In the summer low-power supporters, centered around the Philadelphia-based Prometheus Radio Project, learned that several secret holds were blocking the bill. They wound up calling legislators one by one to ask each senator point blank whether he was responsible for a hold. With one remaining exception, the Prometheans have persuaded each obstructionist to withdraw his objections.

The exception is Sen. John Barrasso (R-Wy). His communications director, Emily Lawrimore, tells me her boss has two concerns about the legislation. By a striking coincidence, NAB chief Dennis Wharton informs me that his group also has two concerns about the legislation. Barrasso's first worry, according to Lawrimore, is that the law should "Ensure that the other channels will be protected if 3rd adjacency is to be removed." Wharton, meanwhile, wants "Greater certainty that existing broadcast channels will be protected if 3rd adjacency channel protections are removed." Barrasso's second concern: "that the new policy clarifies who is the primary service vs secondary services." Wharton's second concern: "clarifying that full power FMs are the primary service on the FM dial."

Let me translate that jargon into English. The removal of "third adjacency protections" amounts to allowing smaller stations to transmit closer to other outlets on the dial. "Translators"—low-power transmitters that rebroadcast other outfits' content—can already do this, and there have been no notable repercussions. The law essentially extends the same right to comparable operations that offer original programming.

The difference between a "primary" and a "secondary" service is even simpler: If you're in the secondary category, any new station that comes along can bump you off the air. The curious thing here is that low-power radio, regrettably, is already a secondary service. Nothing in the bill would change that. But its language could be revised to enshrine that status in statute, preventing the commission from issuing waivers or other adjustments under appropriate circumstances—a practice the NAB has unsuccessfully sued to prevent.

In a follow-up email, Lawrimore wrote that the issues she mentioned "were raised by Wyoming's broadcasters." It's unclear why Wyoming's broadcasters would be particularly concerned about a law whose chief effect will be to allow more stations in urban areas. The sparsely populated state already has several low-power stations, and unless Wyoming's radio landscape has changed dramatically since I last drove through the place, it does not suffer from an overcrowded dial.

At any rate, Barrasso's office is probably the last hurdle to passing the bill. (I say probably because another senator, Pat Roberts of Kansas, has not answered Prometheus' inquiries into whether he has a hold on the legislation. His office hasn't returned my calls either.) If the bill passes the Senate, the president is expected to sign it.

You might wonder: Does this matter? Radio has been losing listeners for years, and as Internet access becomes more portable those departures will become a deluge. It won't be long before the average driver can listen to Web radio as easily as an FM signal. And then these entry barriers won't matter so much anymore, right?

I certainly hope so. But in the meantime, there are three reasons to care about the fate of the Local Community Radio Act, above and beyond the grisly pleasures of watching the sausage factory at work.

First: It's still 2010. The great Web-radio utopia may get here someday, but in the meantime millions of people continue to rely on traditional radio stations. There's no good reason to restrict their choices.

Second: It shines a new light on the debate over public radio. While I don't believe for a moment that the new Congress really plans to defund public broadcasting, the larger debate over radio subsidies isn't going to go away. So it's worth paying attention to the fact that a batch of would-be noncommercial broadcasters are itching to go on the air even though most of them won't qualify for federal assistance. If you're a public radio producer who's tired of answering to Congress, you might watch the world of low-power FM for new models.

Third: It's a sign of how serious the GOP will be about cutting back big government. It's notable that every single senator who has put a hold on this bill has been a Republican. One of them—Sen. Tom Coburn (R-Ok.)—gets a pass: He was concerned about the cost of the study that Snowe demanded, a bona fide fiscally conservative complaint. (While it isn't clear yet how his objection will be resolved, Prometheus co-founder Pete triDish thinks it might be addressed by having the study conducted by the Government Accountability Office. The GAO has a fixed budget, so that way the report won't affect the federal deficit.) But Coburn aside, the senators simply repeated an industry lobby's talking points.

When the Tea Party Congress is seated next year, this is the sort of choice it will face repeatedly: Will you be pro-market, or will you be "pro-business"? Put another way: Will you push for an open and competitive marketplace, or will you dole out favors to privileged enterprises at the expense of their rivals? If you can't embrace a deregulatory measure as mild as this one, we'll have a problem.

Managing Editor Jesse Walker is the author of Rebels on the Air: An Alternative History of Radio in America (NYU Press).