February 05, 2010

"Tribal Priority" for radio stations

FCC adopts tribal preference for radio CPsUnder a new FCC rule, Native American tribes will have preference over all other applicants for new AM and FM stations which would serve communities located on tribal lands. But, will the new rule stand up in court?

Groups which filed comments opposing the unprecedented preference for a single group had argued that it amounts to unconstitutional discrimination. Others had argued that the proposal is simply unworkable for the AM band and would create havoc.

In rejecting the discrimination issue, the FCC order cited the “unique legal status of Indian tribes under federal law.” The news release announcing the new rule noted that only 41 US radio stations are currently licensed to native tribes.
The "Voice of the Broadcasting Industry" frets:RBR-TVBR observation: Assuming that this is headed to court--which is a pretty safe assumption--what will that do to the process of awarding new CPs? Will wide swaths of the nation, particularly in the West, be put under a virtual freeze until the constitutionality of this rule is decided by the courts?Actually, it appears the FCC has already addressed the constitutional question and come up with the correct answer:

Tribal groups applaud FCC preference voteAccording to James Dunstan of Garvey Schubert Barer, attorney for NPM, “It is vital for people to understand that the Tribal Priority is based on the government-to-government legal relationship between the Federal government and Tribes. Tribes are classified politically, not racially. The Commission’s new rule understands and applies the correct legal analysis to streamline a critical barrier to entry previously faced by Tribal entities in the Commission’s licensing processes. Native Radio stations provide critical connections for local communities in the form of information, dialogue and emergency services. The possibility for Tribes to provide their own radio broadcasting to their own communities will be a critical development that many in more urban areas take for granted,” he said.Tribes react to this ruling:As you would expect, Native Public Media (NPM) and the National Congress of American Indians (NCAI) are applauding the FCC’s adoption of a new “Tribal Priority” for the allocation and licensing of new radio stations serving communities on tribal lands.

The two groups, in a joint statement, hailed the FCC’s order as groundbreaking important step in the right direction to solve the pervasive problems of the lack of myriad communications services in Tribal communities. “In addition to some of the lowest levels of telephony and broadband internet services in the nation, American Indians and Alaska Natives have been largely invisible in the broadcasting industry on all levels ranging from media access, to control and ownership of broadcast facilities,” they stated.
Comment:  Even if the FCC's decision is correct, one could argue that it's bad PR for the tribes to get absolute priority over everyone else. A better ruling would be to grant priority to any isolated community that doesn't have media access. Tribes would still get as many stations as they needed, I suspect. And no one would be complaining about racism because they don't understand tribal sovereignty.

For more on the subject, see Increasing Tribal Radio Opportunities.

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