Please welcome new author, Colin Black Andrews, to the Smoke Signals blog! Colin is currently awaiting the results from the Bar Exam and is not yet a licensed attorney, however, he can direct you to other attorneys in the Garvey Schubert Barer Communications Group.  He can be reached at (202) 965-1736 or  Welcome, Colin, and thank you for today’s scoop on LPFM radio stations. – Lael

Tribes or Tribal organizations have a short window to apply for a low power FM radio (LPFM) station at little cost.  Owning and operating a radio station allows a Tribe to communicate tribal news or emergency preparedness information to its members, preserve indigenous languages through Native language only programming, as well as providing an opportunity for a career in radio production for its tribal membership.  Many Tribes and tribal organization use these types of radio stations to take storytelling from a small audience to the entire community or provide election information to their listeners.  The application and license are granted without cost, however, the Tribe or tribal organization will need to invest in the studio and radio equipment to operate the station.

An LPFM station operates on a noncommercial basis with maximum power of 100 watts at an antenna height of 100 feet above average terrain.  This allows an LPFM station to cover a radius of approximately 3.5 miles.    The opportunity to file an application for a new LPFM station began on October 15, 2013 and has extended until November 14, 2013.  The 2013 window represents the first – and possibly the last – opportunity to file for a new LPFM station.   A group called Prometheus Radio has developed the free program RFree to determine which frequencies are available in your community.

Basic Legal Requirements for LPFM Applicants

On The AirAn LPFM station can only be owned by one of the following three entities: A federally recognized Tribe or Tribal organization, a nonprofit educational organization, or an entity applying to use the station to serve public safety.  When the FCC adopted the rules for the 2013 LPFM window, they created a few exceptions to encourage Tribal applicants. Unlike other applicants, Tribal applicants are allowed to own two LPFM radio stations and up to four FM translators. Additionally, while Tribal Nations are still subject to the prohibition of cross-ownership of LPFM stations and full-power stations, applicants can request a waiver of this requirement. If the applicant can justify a waiver of the prohibition, the FCC will consider a waiver request. Further, in the event of one or more applications, Tribal Nation applicants will be granted an additional point if they are proposing to construct the LPFM within Indian Country. This effectively makes it easier to claim a point not available to competing non-tribal applicants.

All LPFM applicants must meet certain “localism” requirements.  To be considered local, the applicant, or 75% of its board, must be located within a certain radius of the proposed transmitter site.  Once licensed, the LPFM licensee must remain local and continue to broadcast for a minimum of twelve hours a day, or risk having the FCC re-license the LPFM station to another organization.

The application also contains certifications regarding the individuals who will control the LPFM station.  For example, the applicant must certify that board members or members of its Tribal Council have never been involved in the operation of an unlicensed broadcast station; have not been convicted of a felony or violated certain civil laws relevant to broadcasting; and have not been denied “federal benefits” as part of a drug conviction.

Most Points Win!

If there are no other applications, the FCC will grant the application of the Tribe or tribal organization.  However, if there are two or more applications, the FCC will grant the application that earns the most “points.”  An applicant can gain a point each for meeting each of the following criteria:  (1) the applicant has an established community presence for at least two years; (2) the applicant pledges to originate at least eight hours of local programming per day; (3) the applicant pledges to maintain a publically accessible main studio that has local program origination capability; (4) the applicant can certify that neither it nor any party to the application has an attributable interest in another broadcast station.  An additional point can be claimed by applicants that (5) pledge to fulfill both the local program origination pledge and maintain a local main studio.  Additionally, a Tribal applicant earns a point.  In the event of a tie among up to three mutually exclusive applicants, the FCC will attempt to facilitate a time-sharing agreement among them.

As Native Public Media puts it, “Radio is a lifeline for emergencies, tribal languages, health and economic news, and electoral participation across Indian Country.”  Indian Country should jump on this great opportunity and we stand ready to support any tribe interested in applying.