In a decision released last week, the FCC’s Audio Division denied the application for a new noncommercial FM station which had tentatively been selected to receive a permit for a new station because the applicant did not have reasonable assurance of transmitter site availability when it originally filed its application.  This case makes clear how important that issue can be in connection with any application for a new broadcast station, and even in connection with applications for site changes by existing broadcasters.  The FCC has long required that a broadcaster, before filing an application for a new or modified station, have reasonable assurance of transmitter site availability. This obligation applies not only to full-power radio and television applications, but also to applications for low power TV (LPTV) or low power FM (LPFM) stations, and to applications for FM or TV translators as well.  The reasonable assurance requirement basically insures that the applicant is making a realistic proposal to the FCC, one that can likely be built, and not just some theoretical proposal for a site at which a station could never be constructed.  If reasonable assurance is not obtained before the application is filed, the application is subject to dismissal, as this case makes clear.

Reasonable assurance has never required a binding legal commitment for the use of a particular transmitter site, but this case makes clear that something more than a mere possibility of the availability of the site is necessary.  In this case, a representative of the application had communicated with the tower owner, who said that the tower was currently at capacity, but that it was possible that, over time, some space on the tower could become available.  The FCC’s Audio Division concluded that was not enough, as it did not demonstrate a present availability to the applicant of the site at the time that the application was filed.  The FCC discussed the need for the applicant and the site owner to have a "meeting of the minds" as to the availability of the site before an applicant can specify it.  The assurance cannot be contingent on a future event that is unlikely to occur.

Note that the FCC application forms do not require a specific certification of transmitter site availability.  But the requirement is implied in any filing for a technical change in a broadcast station, so applicants must be aware of it.  As this case makes clear, an applicant cannot later amend its application to make up for the lack of initial reasonable assurance.  So take care of it up front.