The FCC is now dismissing applications submitted in the October 2007 NCE filing window (or just before the window opened) that depend on waiting out the elimination of analog channel 6 TV stations next February in connection with the DTV transition. The FCC's rules governing noncommercial educational stations require a special interference showing vis-à-vis nearby TV-6 stations due to the proximity of channel 6 (82-88MHz) to NCE-reserved band frequencies (88.5-91.9MHz). The issue arose when some NCE applicants, unable to meet interference standards imposed by the rules, instead asked for waivers based on the demise of analog TV-6.

An NCE station in Louisiana filed a minor change application in September 2007, seeking to improve facilities and gain cut-off protection from applications it anticipated would be filed during NCE window. The application acknowledged that its proposed change would not satisfy channel 6 protection requirements under the rules, but instead included a letter from its engineer to the nearby channel 6 station stating that the FM station would not begin operations until Channel 6 changed frequencies in connection with the DTV transition.

The Media Bureau determined the application was an impermissible contingent application and a rule waiver would not be in the public interest. Other similarly-situated applications have been dismissed on the same grounds.

The Louisiana station's approach to the channel 6 problem was not unreasonable. Congress has mandated that full-service analog TV operations must cease no later than Feb. 17, 2009, and, as part of the transition process, all but a few channel 6 stations will abandon that frequency and operate digitally on another channel. Moreover, given the facts that most of the NCE modification applications filed prior to and during the October window still have not been acted on (and the ones that are approved will have three years to build), actual interference to TV-6 stations is not an issue.

The FCC sees this differently. The agency ruled in the Louisiana case that acceptance of applications, whether for minor changes or new stations, where the applicants seek to take advantage of the abandonment next February of analog channel 6 operations, is fundamentally unfair. “Accepting this application — or any application that relies on a similar contingent consent agreement from a potentially impacted channel 6 station — could foreclose filing opportunities of other potential applicants and licensees that desire to file new station and modification applications based on the forthcoming vacation of analog channel 6 allotments but have deferred such filings based on the recognition that it is not presently possible to file rule-compliant proposals.” The Commission noted that permitting such contingent applications filed in the October NCE window for new NCE stations would likely skew the fair distribution analysis in mutually exclusive groups. This would occur by allowing a noncompliant applicant to propose far more area and population coverage than competing applicants who tailored their coverage to the requirements of the TV-6 interference rule.

Dateline

August 1 is the deadline for submission of biennial ownership reports by radio stations in Illinois and Wisconsin.

On August 1 radio stations with more than 10 full-time employees located in Illinois and Wisconsin must electronically file their Broadcast EEO Mid-Term Reports (Form 397) with the FCC.

Also on or before August 1 radio stations licensed in the following states must place their annual EEO Reports in their public files: California, Illinois, North Carolina, South Carolina and Wisconsin.

Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald & Hildreth, Arlington, VA. E-mail martin@fhhlaw.com.