The federal appeals court in Washington took a hard look at the FCC's plan for low-power radio last week.
The three-judge panel seemed skeptical of broadcasters' argument that the FCC overstepped its bounds in easing interference standards to create the noncommercial service. During oral arguments, they appeared to cast a jaundiced eye on industry claims that the proliferation of inexpensive radios has created a market incapable of sorting out conflicting signals from low-power outlets.
"The fact that [consumers] buy these cheap radios means they are willing to ignore" the added interference, suggested Judge David Tatel.
But National Association of Broadcasters officials found solace in the judges' willingness to delve into the issue of "Swiss cheese" interference, which is created when several low-power outlets eat away the coverage area of one full-power station.
The judges, however, seemed hardly accepting of the NAB's argument, although association officials noted that judges often play devil's advocate. "In general, we're encouraged that the court grappled very seriously and posed tough questions for both sides," said NAB counsel Jack Goodman. Donald Verrilli, of Washington firm Jenner & Block, argued the NAB case.
Most of the tough questions for the FCC, however, focused on whether the agency's ban on unlicensed "pirate" broadcasters shut down by the FCC went too far in barring them from ever receiving a low-power license. Even former pirates with a decade or more of compliance with FCC rules must get waivers to get low-power licenses. "What's the rationale behind that?" asked Judge Judith Rogers.
"The judges were more skeptical of the industry's position than the FCC's," commented agency lawyer Grey Pash.
Congress passed legislation to scale back the number of low-power outlets as part of a larger spending package that has yet to be forwarded to President Clinton. He supports low-power and has threatened to veto the bill, primarily over disagreements on immigration provisions and other issues.