In a decision issued last week, the FCC ruled on 6 applications for LPFM stations from the last LPFM window, dismissing all of them, and warning potential applicants in the upcoming LPFM window to pay attention to the decision so that they can avoid similar issues with their applications. The dismissal of four applicants was the result of those applicants not being legally registered as nonprofit corporations in their states at the time of the FCC filing of their FCC applications. One applicant was dismissed for failing to respond to a Commission request for information in a timely basis. The dismissal of another was upheld based on the applicant’s failure to obtain reasonable assurance of the availability of its transmitter site prior to the submission of its application. These decisions thus resulted in 6 applicants losing their chance to operate LPFM stations in their markets.
Incorporation at the time of filing was deemed important in four cases for different reasons. In connection with two applicants, the failure to be incorporated was deemed fatal to the applications as the application requires a certification at the time of filing that the applicant is either incorporated or in some other form recognized by state law as an existing nonprofit educational entity (or that it is a governmental organization). That existing noncommercial status is required by law. Both applicants falsely certified that they had been incorporated at the time of filing, when in fact they had not. As they had not met the statutory mandate at the time of filing, they were dismissed. In the third case, a group tried to claim that its pre-incorporation activities qualified it as “an unincorporated organization” under state law. But the FCC found that the pre-incorporation activities were simply organizational in nature, and did not qualify the group for a license.
The final case dealing with organizational issues dealt with a church. The church itself was unincorporated, but was part of the larger Methodist Church. While a local chapter of a national nonprofit organization can file for a station, the media interests of the organization are attributed against the local chapter unless the local chapter is independently incorporated . In the first LPFM window, there was a requirement that an applicant have no other media interests. The FCC found that the national church did have other interests, so its local affiliate did not qualify for the grant of the license. If it had been independently incorporated, it would not have had the interests of the church attributed to it, and it would have qualified for a license.
The other area of problems arose with towers. One applicant was found to not have had reasonable assurance of its transmitter site at the time it filed its application. Having reasonable assurance is a requirement of virtually all broadcast applications, so that the FCC does not waste its time processing applications that cannot be built where they are proposed. Assurance does not need to be contractually binding, but there needs to be at least some meeting of the minds between the applicant and the site owner that there is space available and there is a willingness to make the space available to the applicant, and some understanding as to the terms of that availability. Where the applicant could not even show that it had contacted the tower owner, the Commission upheld its dismissal.
In the last case, the applicant had not asked for FAA approval for its proposed site, and when the FCC asked for information about the filing for such approval within 30 days, the applicant did nothing for months – not providing the information or asking for an extension of time. Thus, the application was dismissed for failure to respond to FCC requests for information.
With the LPFM window coming up in just over a month, potential applicants need to be careful or their fate may follow paths similar to the six applicants in these cases.