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FCC Frames LPFM Window
As anticipated, the FCC announced the filing window for the submission of applications for new low power FM stations. The window will open on Oct. 15, 2013, and will close at 6 p.m. on Oct. 29, 2013. The FCC also announced the availability of the new FCC Form 318 so that potential applicants can review and get prepare for the filing window.
In my April 2013 article, I discussed the eligibility and selection process for new LPFM facilities. Briefly, the FCC will permit applications only from local nonprofit educational organizations, tribes or tribally controlled organizations, state or local governments, or a non-government entity that will provide public safety radio services solely on a noncommercial basis. The FCC established a point system to resolve mutually exclusive applications (i.e., applications that propose service to the same area). Finally, only one application may be filed by non-profit organizations, unless it is a tribal applicant, or proposing a public safety-only service, when two applications may be filed.
The Public Notice announcing the October LPFM filing window provided additional information that requires close attention to ensure that applicants do not see their proposals rejected:
The new FCC Form 318 is available online, and it is vital that all applicants and their engineering consultants review the application and instructions before submitting an application. Based on experiences from the 2007 NCE FM Filing window, one of the most likely reasons for the dismissal of LPFM applications will be the failure of applicants to submit complete and accurate evidence establishing the applicant as "eligible" and demonstrate its satisfaction of the requirements under the point system.
For example, to be eligible, the applicant must submit information regarding its incorporation, and nonprofit educational organizations must provide information establishing the educational purpose of the proposed programming, and supply supporting information (e.g., programming schedules). To support an award of credit under the LPFM point system, the FCC will require documentation for each of the categories (e.g., to obtain local main studio credit, the FCC will require an exhibit specifying the address and telephone number of the proposed studio).
Another critical factor is the accuracy of the engineering section of the application. On several occasions during the 2007 NCE FM window, applications were dismissed for errors contained in the Tech Box portion of the form. The information in the Tech Box (i.e., channel, tower coordinates and height, power) is used by the FCC staff to establish mutual exclusivity, and, in some instances, the FCC staff rejected post-filing window amendments to Tech Box applications to correct tower coordinates or channel number designations.
The FCC made clear that all LPFM applications must protect pending broadcast applications filed for full-power FM, FM translator, FM booster stations, along with those applications filed for television stations operating on channel 6, that were filed prior to June 17, 2013. However, the selection of June 17, 2013, as the snapshot date is noteworthy, and may be problematic for other licensees and applications.
In particular, the FCC is currently receiving settlement proposals and technical amendments in connection with the resolution of the 2003 FM translator snafu (discussed in June 2013 FCC Update). These submissions are due by July 22, 2013. One possible reading of the LPFM PN, though, would imply that any technical amendments submitted after June 17, 2013, do not require protection from the subsequently-filed LPFM applications. On the other hand, the FCC may have been attempting to ensure that these applications (as amended) are protected, but just did not make clear that the amendments to the pending applications are entitled to the same protection. Hopefully, the FCC will issue future clarification on this point.
In any respect, the key takeaway from the Public Notice is that all prospective applicants should start preparing ASAP for the filing window. Such preparation includes identifying and retention of engineering consultants, gathering organizational materials, and consideration of the local programming (if any) that the proposed facility may provide. It's been 13 years since the last LPFM filing window opened, and it is not likely that another opportunity will exist after the October filing window closes.
July 1: Stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming continue running license renewal post-filing announcements on July 1 and 16. Stations in California continue running license renewal pre-filing announcements July 1 and 16.
July 10: Stations place issues/programs lists for 2Q2013 in public inspection file.
Aug. 1: Stations in California file License Renewal Application and EEO Program Report, and noncommercial stations file Ownership Report (323-E). Commence running license renewal post-filing announcements, continuing on Aug. 16, Sept. 1 and 16.
Petro is of counsel at Drinker Biddle & Reath, LLP. Email: firstname.lastname@example.org.
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