Radio Station Preference for Unlanded Tribes Gets Some Support
A paucity of comments on an FCC radio rulemaking asking whether it should extend preferences for assigning stations to tribes without lands (CD Feb 4 p12) seems to underline the relative lack of controversy, several broadcast lawyers said. Three groups and a non-profit representing Native Americans and Alaska natives filed comments that were released Tuesday afternoon in docket 09-52. Other groups said they sat out the filing round. Commission action on tribal issues seems like it won’t take long, but acting on a more controversial matter raised by a 2009 rulemaking notice of whether to make it harder for stations to move into larger towns may take a while if it occurs at all, said three industry lawyers.
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Extending priority for new AM and FM stations to non-landed tribes was supported by the non- profit Kohanic Broadcast Corp. and by a joint filing from Native Public Media and National Congress of American Indians. The Catholic Radio Association was the sole opponent. It “opposes a regulatory regime wherein descendants of the indigenous tribes living in pre-colonial America (for convenience, we reference such persons hereinafter as “American Indians") are afforded a preference over descendants of ethnic, racial, or national identities less fashionable among elites,” the group said. Extending preferences to unlanded tribes is “inconsistent with the theory that the Commission employed to distinguish the tribal preference from unconstitutional race-based preferences” and violates First Amendment “protections against viewpoint discrimination and even establishment of religion,” it said.
Tribes aren’t considered racial or ethnic groups here, and so aren’t subject to the Supreme Court’s Adarand decision limiting government set-asides for certain groups, lawyers John Crigler and Jim Dunstan of Garvey Schubert told us. The firm represents Native Public Media and the National Congress of American Indians. Kohanic’s filing said the FCC can’t meet its goal of assisting tribes in self-governance and economic development if it doesn’t ensure a priority is available “to all Tribes and Tribal entities that desire to establish a radio station to foster cultural ties with their communities, regardless of where the community is located, or who owns the land that the community resides upon.”
Relative lack of opposition to the non-landed tribal priority is recognition “this really is good policy,” Crigler said. The further rulemaking notice that comments were filed in response to this week “really only deals with the tribal issues” which have “really flown under the radar, which maybe is a good thing,” Dunstan said. “This is something that people really can theoretically support. But being able to move things along with the FCC without a whole lot of screaming and shouting is always a good thing."
Commission focus on executing the National Broadband Plan may be among the reasons the more controversial move-in issue hasn’t been resolved, Dunstan said. “The commission only knows one word right now and that’s broadband. That’s taking up so much of the energy of all of the bureaus, even the Media Bureau.” Move-ins might be addressed later this year, Crigler said. Broadcast lawyer David Oxenford of Davis Wright, with radio clients, said move-ins don’t seem to be a high priority now as fewer stations apply for them. “I don’t think that there’s a whole lot of people out there worrying about the outcome of this proceeding,” he said. “You just don’t see as many move-ins as you would in 2008 and before.”