applying for new FM station

As we wrote here, the FCC recently adopted a Notice of Proposed Rulemaking to consider changes to its rules dealing with applications for new noncommercial educational stations and LPFM stations. The FCC plans to publish that Notice of Proposed Rulemaking in the Federal Register tomorrow, making comments due May 20, 2019,

It has been over two years since the last window allowing applicants to file for new FM stations (see our article here). There had been some speculation that the number of requests for new allotments was decreasing, leaving the FCC with few FM channels to auction off and thereby breaking what had been an almost yearly start of a new FCC auction for new FM channels. But, yesterday, the FCC released an Order noting numerous vacant FM channels, though this time they are not newly allotted channels, but instead ones that had previously been awarded to applicants who either did not pay the amount they bid in the auction, or who received a CP and then did not construct the station. Even included on this list is the FM channel of the station that had its license designated for hearing as the station had been silent for almost its entire renewal term (see our article here), a hearing that never had to happen as the licensee surrendered its license rather than trying to litigate over whether its renewal should be granted.

Of course, many of these channels may have some inherent issues leading those who initially sought them not to construct. The issues could be location specific (e.g. no readily available transmitter sites for a price that made construction feasible) or there could be issues with the applicant not being able to fulfill its initial plans. Interested parties should do their investigation. When will the channels be available?
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May is one of those months where there are no routine, recurring FCC regulatory filing deadlines – no EEO reports or Quarterly Issues Programs lists, no Children’s Television Programming Reports or noncommercial station ownership report deadlines. But, as with any month, that does not mean that there are no dates of concern for broadcasters – as there are certain compliance deadlines and other important dates of which broadcasters need to be aware in the upcoming month. Here is our summary of some of the dates that broadcasters should be watching in the upcoming month.

The only thing approaching a routine regulatory date of note is the obligation of TV stations in Delaware and Pennsylvania to air the third and fourth of their required six post-filing announcements of the filing of their renewal applications – the last of the renewal applications for either radio or TV that were filed in this renewal cycle. The next routine license renewal filing window will be when radio renewals being again in June of 2019 – with the filing of radio license renewals by stations in Maryland, Virginia, West Virginia and DC. However, as we have written before, EEO Mid-Term reports are due from larger radio station groups in these 3 states and in DC on June 1 of this year. So radio station employment units (commonly controlled station groups serving the same area and having at least one common employee) with 11 or more full-time (30 hours per week) employees should be preparing to file those reports on FCC Form 397 by June 1.
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The FCC has finalized the rules for its auction for about 130 new FM channels to be auctioned in July. The Order setting the rules for the auction is available here, and the list of channels to be sold, and the opening minimum bid for each such channel, is available here. The minimum bids also constitute the “upfront payments” which must be made before the auction in order to be able to bid on the channels in which you may be interested. We wrote about these channels here, when the FCC first proposed the auction. As can be seen by reviewing the list, while there are channels across the country, the greatest number of available channels, by far, is in Texas. As we noted when we first wrote about this auction, many of the channels cover small communities in rural areas, and some are leftovers that went unsold in previous auctions. But in every auction there are a few channels that may prove to have some value, so we expect that there will again be interest in many of those on the list. Such interest must be expressed through the filing of “short-form” Form 175 applications by May 28. The actual auction will begin on July 23.

The FCC also announced a freeze on the filing of FM construction permit applications for changes in existing stations from May 18 through May 28 to stabilize the FCC’s engineering database during the period when applicants will be filing their applications. As auction applicants can specify in their short-form applications transmitter sites to be protected, a minor change application by an existing station could end up mutually exclusive with a transmitter site specified by an auction applicant, meaning that the existing station could end up in the auction. To avoid that, the FCC has frozen minor change applications during the filing window.
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The FCC has announced that it plans to hold an auction to award construction permits allowing the winners to build new FM radio stations. 131 total channels on which bids can be placed are included in the list of channels to be auctioned – with most being in the state of Texas. The auction is tentatively scheduled to begin on July 23. Working backward, that would mean that initial applications would likely be due sometime in May, and “upfront” payments equal to or greater than the minimum payments for the channels that an applicant ultimately wins in the auction will probably be due in June. To protect these allotments, the FCC has also imposed a freeze on the filing of FM applications that could affect applications for these channels.

The FCC’s freeze on applications that could impact these new stations is in place until the winning bidders file their post-auction applications. No applications or rule-makings can be filed that would request a change in one of these channels, or which would be short-spaced to one of the reference coordinates for these allocations.
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112 new FM channels will be available in the next auction for new FM channels (referred to by the FCC as "Auction 94") to be held beginning April 23, 2013. To participate, interested parties must file their "short form" applications – setting out information about the ownership of the applicant and the channels in which they are interested – by February 6, 2003. All of the procedures for the auction are set out in the order released late Wednesday, available here. The locations of the available channels, authorizing the winners to build new FM stations  serving the named communities and the nearby area, are also set out in this attachment to the order. The notice adopts many of the same procedures set out when the Commission first proposed the auction back in September (see our article here). However, the Commission pushed the auction back the initially scheduled date for the auction by about a month to avoid religious holidays and the NAB Convention, ending up with the new starting date of April 23. The Commission also pushed back other dates associated with the auction, deleted a handful of channels that had been proposed for inclusion in the auction but had not been properly published in the Federal Register, and announced other decisions relating to the auction – all with many cautions for those who may be bidding about the possible pitfalls of the auction process.

The relevant auction dates are as follows:

Auction Tutorial Available (via Internet) …………………….January 28, 2013

Short-Form Application (FCC Form 175)

Filing Window Opens ……………………………………………….January 28, 2013; 12:00 noon ET

Short-Form Application (FCC Form 175)

Filing Window Deadline……………………………………………February 6, 2013; prior to 6:00 p.m. ET

Upfront Payments (via wire transfer)…………………………..March 18, 2013; 6:00 p.m. ET

Mock Auction ………………………………………………………….April 19, 2013

Auction Begins…………………………………………………………April 23, 2013

The most important dates for bidders are the deadline for the submission of the "short-form" application of February 6, the date for the Upfront Payments, and of course the dates for the start of the auction itself. The short-form lists the owners, any bidding agreements that the parties have with other bidders, and the channels in which the party is interested in bidding. The bidder can also submit specific proposed transmitter site coordinates for any channel in which they are bidding, which protects those named sites from moves by other existing stations that could otherwise preclude their use.   The failure to meet this February 6 deadline means that a party cannot participate in the auction.


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Looking for opportunities for a new FM station?  The FCC has just released a list of new FM channels to be auctioned in the next FM auction, scheduled to begin on March 27, 2012, along with the proposed rules for that auction.  On the list of channels, the proposed minimum bid for each channel is also set out.  If the Commission follows the schedule used in prior auctions, we should expect that the deadline for the "short-form" application to participate in the auction (which basically contains information about the ownership of the applicant and a list of the channels in which they are interested) will be due in early 2012, likely sometime between January 1 and January 15, 2012.  The upfront payment of the necessary minimum bids would then likely be due around February 20, 2012 or so.  In another Notice of Proposed Rulemaking released late last week, the FCC also proposed to delete a number of FM channels that have gone unsold in previous auctions.

The construction permits for the new stations that will be available in the auction are spread all across the country.  Many are located in large western states including multiple channels in California, Colorado, Oklahoma and Texas, among other states.  But there are even opportunities in eastern states like Florida, Vermont and Virginia.  So, if you are interested in starting a station from scratch, look through this list of channels to see if there are opportunities for a construction permit for a new station in which you might be interested.  If you find something that might be interesting, you need to start your due diligence on each channel now, as the bidder is responsible for insuring that the channel for which they are bidding can be built and will serve the audience that the applicant expects.  If you win the auction and decide that you can’t really find a transmitter site, then you may well be on the hook for the full amount of the bid even if you don’t build the station.  And, if you are successful in the auction, you will have to have an available transmitter site to specify in your "long-form" application about a month after the end of the auction – an application which will specify all of the technical details of the new station.  So look at zoning issues, FAA considerations, coverage questions, and even whether technical details like the rural radio order limiting move-ins of FM stations from rural to more urban areas, may limit the potential economic value of the channel in which you are interested. 


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Interested in a new FM radio station?  Now might be your chance.  The Commission today announced an upcoming auction, designated as FCC Auction No. 91, offering licenses for 147 new FM channels in various communities across the country.  The auction will begin on March 29.  Today’s public notice merely lists the channels to be auctioned and the proposed minimum bid in the auction to be associated with each channel, and asks for comments on the procedures that will apply in conducting the auction.  We would expect that applications to participate in the auction will probably be due sometime in or around January, 2011.  The list of the 147 licenses to be offered for sale is available here.  The FCC Public Notice asking for comment on the auction procedures is available here

Parties who are interested in bidding for any of these channels will be able to submit short form applications indicating the channels in which they are interested.  As stated above, we would expect these applications will be due sometime early in 2011, so that the FCC can process those applications and receive the necessary upfront payments from parties interested in the auction in time for the auction itself to begin in March.  Thus, parties who are interested in any of these channels should start their due diligence process now, and determine which channels may be of interest, and which channels can actually be built in such a way as to cover areas that an applicant may want to serve, so that they can be ready to file their applications.


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The FCC has released a public notice asking for comment on the procedures that it plans to use for a new FM auction now scheduled to be held in September.  The channels to be included in that auction, and the proposed minimum bids for those channels, can be found on a list released by the Commission, here.  Parties who are interested in bidding for any of these channels will be able to submit short form applications indicating the channels in which they are interested at some point to be determined in the future – probably late Spring or early Summer, so that the FCC can process those applications and receive the necessary upfront payments from parties interested in the auction in time for the auction itself to begin in September.  Thus, parties who are interested in any of these channels should start their due diligence process now, and determine which channels may be of interest, and which channels can actually be built in such a way as to cover areas that an applicant may want to serve, so that they can be ready to file their applications, probably in May or June.

Applications, when filed, will not need to specify a specific transmitter site but, once the auction is over, winning bidders will need to quickly identify and file complete applications containing specific transmitter sites for which they have reasonable assurance.  Thus, they should begin preparations for the auction now.  Applicants who have identified a site can specify that site in their applications to protect it from subsequent applications.  Thus, FM broadcasters should also anticipate a freeze on the filing of any FM technical applications at some point in late Spring in anticipation of the auction, in order to give applicants a stable technical situation so that they can identify usable transmitter sites. 


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