established local presence

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As we wrote on Friday, the government shutdown affects many aspects of FCC operations – and could affect the ability of the FCC to hold its regular monthly meeting, now scheduled for January 30. With the FCC likely shut down for most of this week, just before closing, the FCC released its agenda for the January 30 meeting (which would normally have been released this week – 3 weeks before the meeting). One interesting item on the agenda was a Notice of Proposed Rulemaking to change certain aspects of the criteria used to evaluate applicants for new noncommercial broadcast stations and LPFMs, and the operations of those new stations after a construction permit is issued. The draft NPRM is here. As with all draft items released with the agenda of an upcoming FCC meeting, the draft is subject to change before that meeting.

It appears that the NPRM was not prompted by any single group representing noncommercial broadcasters, but instead raises a number of issues and problems that have been raised before the FCC in comparative cases in the last decade, which use a “points system” process to determine which mutually-exclusive noncommercial applicant should have its application granted. The point system relies on paper hearings to determine which applicant has the most points, awarding applicants preferences on factors such as whether they have few other broadcast interests, whether they are local organizations, and whether they are part of state-wide networks. The NPRM also looks at the restrictions on what successful applicants can do, once they receive their construction permits to build new stations – including the length of LPFM CPs, the transferability of those CPs, and restrictions imposed on changes to certain NCE technical facilities after a CP grant.
Continue Reading FCC to Examine the Process for Awarding Construction Permits for New NCE and LPFM Stations – And Some of the Rules that Apply Once a New Noncommercial CP is Awarded

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.Continue Reading Who is a Local Applicant for an NCE Station?