In its Public Notice setting out the rules governing the upcoming filing window for applicants seeking new noncommercial FM stations or major changes in existing stations, which we wrote about here, the FCC has put applicants on notice of the many requirements that must be met in order to have an application considered in the upcoming process. This is the first opportunity in this century for the filing of applications for new noncommercial FM stations. In order to participate, all applicants must make sure that they follow the rules set out by the Commission. Applications will be due in a filing window that will open on October 12 and close on October 19.
Fundamentally, the FCC's Public Notice reminds interested parties that, to be eligible, an applicant must be a noncommercial entity – a nonprofit corporation or a governmental organization. Individual applicants or profit-making entities cannot participate. As eligibility to participate and the comparative qualifications of all applicants are assessed at the time of filing, applicants need to assure their nonprofit status is in order before the upcoming filing window.
The Commission also sets out a number of other requirement for the applications that may be filed during the window. Applications submitted during the window will be filed electronically on FCC Form 340, and must contain very specific technical descriptions of the service they plan. The proposal must specify facilities that don’t interfere with other existing stations or pending “cut-off” noncommercial applications. The applicant must have received reasonable assurance of the availability of its proposed transmitter site (i.e. a legally binding contract is not necessary, but a commitment from the site owner that the site will be available and an idea of the terms on which that availability is premised must be obtained).
These specific technical parameters are necessary so that the Commission can judge whether or not an application is mutually exclusive with other applications filed during the window. In other words, the FCC will review an application to determine if the technical facilities that it proposes can be granted immediately, or if the application and other applications filed during the same window cannot all be granted without creating prohibited interference. If an application is mutually exclusive with another application, and the applicants cannot submit to the FCC a settlement agreement providing a technical solution to resolve the mutual exclusivity, the Commission will review the applications using a system it has adopted to determine which application should be granted
The first level of review to determine which mutually exclusive application should be granted is what the Commission calls a “Fair Distribution Analysis” of the coverage of the proposed stations as specified in the applications submitted during the window. If a station covers any area that currently has fewer than 2 noncommercial radio services, and that area exceeds 10% of the proposed service area of the applicant covering more than 2000 people, a conclusive preference will be awarded over another applicant who does not meet that threshold. The Public Notice makes clear that the coverage of the proposed stations, and the other services that exist within the service area, will be assessed at the close of the upcoming filing window. In preparing an analysis of the other noncommercial stations that currently provide service to a specific area, an applicant should take into account both existing stations and construction permits for new noncommercial stations that have not yet commenced operations.
If there is no preference under the Fair Distribution Analysis, then the FCC will look to its “point system” to determine who will receive a construction permit to build the new station. The point system looks at several factors. First, the Commission will look to determine if the applicant is an established local organization – meaning that for two years its headquarters or campus or the residence of 75% of its Board of Directors, is within 25 miles of the reference coordinates of the city of license of the proposed station. Local applicants receive 3 points. Second, the FCC looks to see if the proposal is for a station that will be part of a statewide network operated by an entity with multiple educational institutions throughout a state (the specifics set out in the rules). If an application is part of such a statewide network, then 2 points will be awarded to the applicant. Third, applicants that have no other local media interests will be given 2 points in the Commission's diversity analysis (though an applicant cannot get credit both for diversity and for being a state-wide network). A media interest for purposes of this analysis is an interest in a full power radio or television station, an FM radio translator (not a fill-in translator) or a Class A TV station. Finally, points will be given to the applicant with the largest coverage area - one point if an applicant covers 10% more area and population than its competitor, two points if it covers 25% more area and population. If applicants are tied after the points analysis, tiebreakers looking at the applicant's total number of media interests will be used.
Each element of the point system is evaluated as of the date for the close of the filing window. The Public Notice makes clear that, after that date, the comparative position of the applicant will not get better, but can get worse. In other words, the post-filing receipt of another broadcast interest will count against the applicant, but the divestiture of an interest will not improve the applicant’s position. However, the FCC indicates that it may entertain waivers of this requirement, and allow applicants to keep non fill-in translators (i.e. translators that extend the converge area of a noncommercial station) if the applicant proposes a station that will serve the same area as the translator and promises to turn in the license upon grant of a full power station sought in this window. The Notice makes the same statement with respect to LPFM (low power FM) stations, although the rules do not specifically state that an LPFM counts against an applicant in a diversity analysis. In any event, the LPFM would have to be divested before a full-power station commences operations, as an LPFM licensee cannot own a full power station.
By a separate Public Notice, the FCC also asks for comments on whether it should limit the number of applications that one party can file in the noncommercial window. The Commission tentatively concludes that, to avoid huge numbers of application that could clog its processing ability and could lead to “daisy chains” of competing applicants that could take years to process (a daisy chain being a situation where applicant A prevents that grant of applicant B, which in turn blocks the grant of applicant C, which in turn blocks the grant of applicant D. Even though A and D could be both be granted, because of the intervening applications, all four must be comparatively considered. These daisy chains, in other services, have involved hundreds of applicants stretching over many states). The ten station limit would not include major change applications, nor would it include those applications that were filed under old noncommercial processing rules (some over 10 years old) that could not be processed until the Commission opened this window (such applicants have to file amendments to their old applications to request processing in the new window, and to submit their old applications in electronic form). Comments on this proposed limit will be due 15 days after the proposal is published in the Federal Register.
With so many considerations to weigh, applicants that have not yet started their consideration of filing noncommercial applications during the upcoming window need to do so now, as there is much to accomplish before the filing deadline. Engineering counsel and legal assistance should be sought immediately because as the window approaches, lawyers and engineers may well not have time to assist last-minute potential applicants finish the necessary preparations for filing. So act now - as who knows when the next filing window will open.
