The Media Bureau and full Commission actions of the past 24 hours only demonstrate that the LPFM rules are broken and also that the agency is unwilling to enforce certain sections of the Communications Act when it is inconvenient or, like in this case, they were called out on it.
One of the issues at hand was whether false statements made on an initial application but then are amended on a subsequently-filed amendment are still considered willful false statements, especially in cases where the amendment was made after a considerable amount of time. For example, if an applicant filed that their main studio was in a "virtual office" facility such as those operated by companies like Regus or in the case of one Southern California applicant, a main studio located in a UPS Store, just for the purpose of getting the application into the system even though they had no intention of actually broadcasting from these locations, should those statements get swept under the rug when the application is declared a singleton? Or, to paraphrase, Pat Benatar, can you blacken their eye and then apologize?
Every time you fill out an application with the FCC, you are reminded:
WILLFUL FALSE STATEMENTS ON THIS FORM ARE PUNISHABLE BY FINE AND/OR IMPRISONMENT (U.S. CODE, TITLE 18, SECTION 1001) AND/OR REVOCATION OF ANY STATION LICENSE OR CONSTRUCTION PERMIT (U.S. CODE, TITLE 47, SECTION 312(a)(1)), AND/OR FORFEITURE (U.S. CODE, TITLE 47, SECTION 503).
While the Department of Justice enforces and prosecutes under Title 18, it is the FCC that enforces Title 47 and has the authority to deny permits if false information was given. Media Bureau staff had already determined that site assurance had not been obtained in some cases but due to the Audio Division's mishandling of the investigation, the evidence had to be thrown out. We do note though that we do not consider filing an NCE application without site assurance as a 312(a)(1) or 503 violation as no statement was specifically made that there was site assurance. This is different when an application states that there is a main studio even when the space is only a 8" x 6" x 12" box.
We did what we could to call attention to the fact that the LPFM application and licensing process does lack integrity. We saw this happen in 2001 with the Lyle Evans catholic church applications as well as in 2013 with obvious filers such as Cesar Guel, Robert Lund, EWTN and the Seventh-Day Adventists as well as less obvious filers such as New Tang Dynasty.
It is obvious that we need to fix LPFM for the next generation. The damage done in the 2013 window is likely irreversible but we do have the power to change the rules for the next window to reduce the chances of the gamesmanship that we saw in 2013 from happening again. We will never eliminate all gamesmanship because no matter how a rule is written, you know there will be a crackerjack attorney out there trying to find a way to work around it. My attempts to approach what was left of the LPFM advocacy community with ideas for a new qualification rules for the next generation of LPFM applications fell on deaf ears mainly because many of these organizations (such as Prometheus) have shriveled away after the passage of the Local Community Radio Act and others are too involved in station building and full-power projects, they don't have the time for the next generation. Attempts to drum-up support around an existing membership organization is met with resistance because of past actions by that organization under different leadership many years ago.
In 2017, REC, whether on our own (as we did with LP-250) or as part of a larger faction (which is what we prefer) is going to move forward on new qualification rules that will apply towards any new organization wishing to enter LPFM whether it is through assignment of license or through a future filing window. With this, we need support from the LPFM community including comments and suggestions on what went wrong in the 2013 window and what can be done to change things for the next window, whenever that will be. Since any rule changes will not directly impact existing LPFM stations, I do ask on LPFMers for their ideas. I know that especially with the new administration that is coming in, there will be a lot of reluctance to change federal regulations but I do feel that changes to LPFM qualifications is not a political hot-button like network neutrality.
I still feel that LPFM stations need to form a membership organization or join an existing organization such as NFCB. We need to work together and strength comes in numbers.
It's time to fix LPFM for the future of our service.