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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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Last week, we wrote about a Commission decision that said that only one application in a noncommercial MX Group can be granted even if, when the first is granted, there are other applications in that group that would not be mutually exclusive with (i.e. would not create any prohibited interference to) the winning applicant.  While multiple applicants can be granted out of an MX Group if there is a settlement, only one application will be granted when the point system analysis is performed. Well - if you have an application still pending in the 2007 NCE Window and were contemplating a settlement, now is the time to do it.  In February, the Commission released an order deciding the winner in 59 different MX groups.  A second such decision is now circulating among the Commissioners for approval, and we hear that a third will soon follow as the FCC accelerates its review of the remaining applications from the 2007 window. Once these orders are released by the Commission, there is no more chance to settle any case decided in such an order, and thus only one application from any group will be granted.  So, if you are planning a settlement, do it now.

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The FCC today announced that, effective October 27, noncommercial FM stations need no longer protect Channel 6 analog television channels.  The lower end of the FM band, which is reserved for noncommercial educational FM broadcasting, is immediately adjacent to TV Channel 6.  As most television stations abandoned Channel 6 in June when the digital television transition occurred, noncommercial stations had been protecting stations that were no longer there.  However, as we wrote here, the FCC wanted to deal with noncommercial licensees that were trying to jump the gun by filing applications contingent on the disappearance of the Channel 6 station even before the analog television stations had stopped operating.  To give all noncommercial FM stations an equal opportunity to take advantage of the clearing of Channel 6 in most television markets, the Commission set this uniform date for taking advantage of this change in television station operations.  Of course, noncommercial FM stations need to protect the handful of television stations that continue to operate digitally on Channel 6.  Today's public notice notes that noncommercial FM applications trying to take advantage of the fact that Channel 6 has been vacated in their market by filing an application before the October 27 date will be dismissed unless they had specific unconditional permission of the Channel 6 station.

Note that while the FCC has made the process equal for all noncommercial FM stations, there are questions about whether an unfair advantage may have been given to some LPTV stations in the recent LPTV filing window, where channel 6 applications were not prohibited (see our post here).  Some noncommercial broadcasters were concerned that some of these LPTV applicants could take advantage of the vacating of Channel 6 in their market by filing an application for a new LPTV station that could preclude the filing of an FM application once the window announced in this public notice opened.  To some extent, this may not be a major issue, as the LPTV window for applications for major markets does not open until January.  But we will see if this concern actually resulted in any issues in more rural areas as the LPTV applications that have already been filed in these areas are processed in coming months.  But for NCE FM stations that were precluded from filing for upgrades by a Channel 6 TV station that disappeared after the digital transition, the wait for filing opportunities will soon be over.

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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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