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.
In this case, the FCC found that having an address was not sufficient to show the necessary local activity that would give the applicant the familiarity with local issues and local leaders so that it could quickly begin its service to the public. Thus, the FCC gave the challenged applicant 30 days to show that its purported headquarters were more than a mailing address by demonstrating local activities that the organization had undertaken. The FCC said it was looking for evidence of community meetings in which the organization participated, events and classes that the entity sponsored, or other evidence of specific local activities that the entity undertook in the two years prior to the date for evaluation of the applicants comparative qualifications.
This case demonstrates that NCE applicants must carefully think through the answers that they provide in their construction permit applications filed in the upcoming window. The allegation on which the Commission focused in this case was but one of a number of allegations made by a competitor about the truth and completeness of the responses given by the applicant in its FCC filings. The competitor had reviewed other publicly available documents about the applicant to find discrepancies with the representations made to the Commission. Thus, in preparing applications for the upcoming window, applicants should proceed with caution, as they never know who may be watching.