Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

Three months ago, we wrote about a case where the FCC held that it would grant only one application from each MX Group in the recent NCE FM window for new noncommercial FM radio stations.  MX Groups arise when multiple applicants file applications that cannot all be granted without prohibited interference.  In some cases, an MX Group can span several states, where not all applications are mutually exclusive with each other, but all are tied together in a chain, with each link being mutually exclusive with the next link.  The FCC has just released another decision, slightly refining the decision from March.  In the new case, the FCC dismissed one applicant on essentially the same grounds as in the case from March - the only reason that the dismissed application could stand on its own was because other applications with which it was mutually exclusive were themselves dismissed because of the application that was to be granted as a result of the FCC decision selecting the preferred application in the MX Group.  However, in the new case, the FCC did allow for the grant of a second application in the same MX Group, where that application was no longer mutually exclusive with the winner or with other dismissed applications because its mutually exclusivity with the chain of application was broken by the voluntary dismissal of another applicant and the settlement with yet a third.  Because of these two actions, the FCC said that this application was not in the same circumstances as was the application whose dismissal was upheld.

What this case seems to say is that, even after a 307B) grant order is released by the FCC, another application in an MX Group can possibly be granted if it is made grantable before the official dismissal is released, not by the dismissal of applications that are only dismissed because they lost the FCC comparative analysis, but if the actions eliminating the mutual exclusivity were caused by other voluntary actions.  A slim exception - but one that NCE applicants in MX Groups where they are not technically precluded by the grant of the winning application may want to explore if they do not prevail in an FCC 307(b) analysis. 

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With the filing window for new noncommercial FM radio stations opening this coming week (see our summary of the process, here), some potential applicants may be wondering who qualifies as an established local organization entitled to points in the comparative analysis that takes place if applications that are mutually exclusive (both cannot be granted without creating prohibited interference) are filed during the window.  In a decision released this past week, the FCC clarified the rules as to what constitutes a local applicant - holding that simply having a mailing address for a headquarters in the proposed station's service area is not sufficient.

In this case, an applicant claimed to have an established local presence necessary to qualify for points as a local applicant based on its "headquarters" which it said had been located within 25 miles of the proposed city of license for two years prior to the relevant date for evaluating the applicant's comparative attributes, as required by the FCC's rules.  However, when a competing applicant visited the office building in which this supposed headquarters was located, there was no indication in the building directory or on any signs on any door in the building that the organization was located there, and no building personnel had any familiarity with the organization.  The applicant justified its claimed local credit by claiming that the "headquarters" was an office at the specified location that housed a number of businesses and organizations with which one of its Board members was affiliated, and that all of those businesses could not be listed on signage or on the building directory.  The Commission found that the mere presence of an office was insufficient to qualify for credit, citing the Order adopting the NCE point system which said that the headquarters must be the organization's principal place of business or the principal residence of one of its members, and not just a post office box, lawyer's office, branch office or vacation home.  To qualify for points as an established local organization, the applicant must have activities and familiarity with the local service area that will permit it to "hit the ground running" in serving the public.

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