noncommercial radio comparative consideration

Yesterday, we wrote about a case involving an applicant for a new commercial FM station, where the FCC clarified its policies on reasonable assurance of transmitter site availability – holding that an applicant in an auction process can amend to a new site if it is found that its originally specified site is not available for its use.  That policy does not apply to applications for LPFM stations or noncommercial FM stations, which are not settled by an auction but instead through the application of a point system. That point system analysis can be preempted in a proceeding between mutually exclusive applicants for the same noncommercial radio station if one applicant is preferred on 307(b) grounds  (Section 307b of the Communications Act being a section that requires that the Commission make a “fair, efficient and equitable” distribution of broadcast service, which the FCC has interpreted to mean that it must evaluate the coverage area of proposed new stations and determine if any would bring new services to underserved populations so that the new service, in and of itself, is in the public interest and outweighs any point system analysis).  A Court of Appeals decision released last week clarified the application of the 307(b) policy. 

The noncommercial case involved an appeal of a “points system” grant favoring one applicant over another.  The loser complained that it would provide service to a substantially greater population, including a great number of people who did not currently receive two or fewer noncommercial services.  Under the FCC’s policies, an applicant will receive a 307(b) preference that will preempt a points system analysis, but only if it meets certain specific coverage requirements (see our discussion of the FCC’s analysis of which competing applicant for the same noncommercial channel will be preferred here).  In this case, the requirement at the center of the argument was one that says that, to be qualified for a 307(b) preference, the applicant’s proposed new station must propose a coverage area providing service to at least 2,000 people that don’t already receive two noncommercial radio services, and the population in the area currently receiving fewer than two noncommercial services must constitute at least 10% of the people to be served by the applicant.  Here, the applicant appealing its loss covered over 28,000 people who received only one noncommercial service, while the winning applicant would provide a second noncommercial service to fewer than 5,000 people.  But, as the area receiving only one noncommercial service constituted less than 10% of each applicant’s service area (about 9.6% of the loser’s coverage and about 5.5% of the winner’s), no applicant was preferred on the 307(b) criteria, and the winner was preferred on other comparative criteria.
Continue Reading FCC Standards for Comparing Service by Mutually Exclusive Applicants for New Noncommercial Radio Stations Clarified by Court of Appeals

Last week, we wrote about a Commission decision that said that only one application in a noncommercial MX Group can be granted even if, when the first is granted, there are other applications in that group that would not be mutually exclusive with (i.e. would not create any prohibited interference to) the winning applicant.  While

In a recent decision, the FCC upheld the dismissal of a noncommercial FM application filed during the 2007 NCE FM window, despite the fact that the application was not mutually exclusive with any other pending application. This somewhat unusual result came about following the selection of a winner from among a group of mutually exclusive noncommercial applications. That group of mutually exclusive applicants (or, as the FCC calls it, an “MX Group”) contained a number of applications in a “daisy chain.”   As an example, a daisy chain would be where Applicant A was mutually exclusive with Applicant B, and Applicant B was mutually exclusive with Applicant C, and Applicant C was mutually exclusive with Applicant D, but Applicants C and A were not themselves mutually exclusive.  In the case decided last week, there were actually 13 applications in the chain.  When the FCC used its point system for evaluating noncommercial applications, it selected a winner and dismissed all of the remaining applicants.  One of those dismissed applicants, The Helpline, asked the FCC to reconsider the dismissal of its application, arguing that, when you dismissed all of the applications that were mutually exclusive with the winning applicant, the technical facilities proposed by the Helpline would no longer be mutually exclusive with any application and thus could be granted as well. The FCC denied that request.

Why was that request denied? In its order establishing the rules governing the processing of noncommercial FM applications in the 2007 NCE window, the FCC decided that it would grant only one application out of any MX Group, even where not all of the applications in that group were mutually exclusive with each other. According to last week’s order, the Commission considered allowing the grant of more than one applicant in a group, but determined that doing so could lead to the grant of an application that is “inferior” to other applications, and which would not necessarily represent the best use of the spectrum, so they decided to grant only one applicant from each MX Group.


Continue Reading FCC Decides Only One Application Will Be Granted From NCE MX Group – Even Where Second Application Can Technically Co-Exist With Granted Construction Permit

A decision released by the FCC’s Media Bureau staff this week makes clear that the permittee of a noncommercial station, who was awarded the permit based on a 307(b) preference, cannot change transmitter sites so as to abandon service to the area that it promised to cover in order to get the preference –