Posted on May 22, 2009 by David Oxenford

FCC Says that Permittee of New Noncommercial FM Station Cannot Change Coverage Area if It Won the Permit Based on 307(b) Preference

A decision released by the FCC's Media Bureau staff this week makes clear that the permittee of a noncommercial station, who was awarded the permit based on a 307(b) preference, cannot change transmitter sites so as to abandon service to the area that it promised to cover in order to get the preference - even if it proposes to cover an equivalent amount of underserved area from its new transmitter site.  In addition, the decision held that the change in transmitter site was not justified even though the underserved area that had existed at the time the construction permit was granted no longer existed.  Other stations had changed their facilities since the date of the construction permit's grant, and now provided coverage to the area that had been underserved at the time of the grant. The Commission said that the coverage promises made by an applicant, and on which the permit was conditioned, were a snapshot in time that could not be changed even after the grant.  The decision should serve as a reminder to all the noncommercial applicants with applications that are now pending or to be filed in the next noncommercial window (whenever that may be) that they should not propose a technical facility in order to win a construction permit on 307(b) grounds if they can't really construct the station at the site they propose, as they may well be stuck with it - and forfeit the permit if they can't build the station in the way that they promised.

One wonders if a decision like this one will be appealed.  While there is no question that an applicant who makes promises that lead to the award of a permit should be held to those promises (to do otherwise would undermine the system), is it really in the public interest to hold the applicant to these promises in such a way so as to ignore reality?  If the underserved area that the applicant had promised to serve is no longer underserved, and some new underserved area that would have resulted in the applicant receiving the same preference is to be served by the modified proposal, isn't the public better off getting service to these truly underserved areas?  We will have to watch this case to see what develops.

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Posted on September 7, 2007 by David Oxenford

AM Filing Freeze While FCC Accepts Applications for a New AM in Rockland County, New York

In a very unusual process - one that is probably unprecedented - the FCC last week announced that it is opening a window for parties to file applications for a new AM station to serve Rockland County, New York.  AM stations are traditionally made available for filing on an on-demand basis - when the FCC accepts applications for new stations, parties can file in any location in the country, specifying any city of license that they select, as long as the station that they propose will not create interference to existing stations.  This is unlike FM and TV, where there is a two step process - new channels are first allotted at specific locations based on a party's request, but that party gets no rights to the channel.  Instead, after the allotment has been made, anyone can file for in a specified window seeking a construction permit to build the new station.  In this window, the FCC has adopted a unique process for an AM stations, a process much more like that used in FM and TV.  The Commission had been asked by a party for permission to operate a new station in Rockland County.  Instead of simply permitting that party to build a station without competition, the FCC decided that a new station was necessary to provide emergency information about the nuclear power plant in the Rockland area, but determined that anyone could file for that channel.  Applications for the channel (1700 AM - on the expanded band, for which there have been no applications for almost 10 years since the first set of expressions of interest were taken), will be accepted from October 1 through October 5.

In order to give parties the ability to prepare applications, the FCC is imposing a freeze on the filing of minor change applications for AM stations throughout the country during the filing window.  Any minor change application that is filed during the window will be returned.  So if you are planning an application for a technical change to your AM station, you need to plan to avoid that filing window.

Applications that are submitted in the window not only have to specify a community of license in Rockland County, but also must propose a coverage area serving the majority of the Rockland County portions of the evacuation area around the nuclear plant.  Also, as a station operating in the expanded band, power is limited to 10 kw daytime and 1 kw nighttime.  The initial application will be an auction "short form," filed pursuant to instructions that can be found here.  If there are not differences between applicants that result in a decision under Section 307(b) of the Communications Act (evaluating the need for new radio service by the cities of license and coverage areas that will be served by the competing applicants), then the winning applicant will be selected by auction.

While certainly the Rockland County area has needs for local service, it would seem that this ad hoc AM window could set some dangerous precedents.  Unlike FM stations that can be spaced as little as 65 miles apart on the same channel, AM stations can preclude operations on the same channel for hundreds of miles.  By making a special decision to place a channel in Rockland County, the FCC may have precluded use of the channel in other communities around the country, without any evaluation of the needs for service in any of those other communities.  These communities could be coastal communities that need to get alerts about hurricanes or other coastal storms, or communities under dams or near chemical factories or train tracks where dangerous conditions can arise.  Will the Commission make channels available in each of these communities, or is there something so unique about this county that this special action is warranted?  We will see whether this is a one-of-a-kind action, or the start of a new process of allotting new radio stations to dangerous communities.
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