CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

According to the Commission, the suspension will permit it to "fully consider" arguments raised in various petitions for reconsideration of the LPFM rulemaking which spawned the dismissal requirement. 

The practical effect of the suspension is that the agency's dismissal of the excess applications has been ceased.  So even if you sent in a notice identifying which applications you would be willing to kiss good-bye to, fear not - those applications will still be pending, at least until further notice.  (Any applications which may have been dismissed as part of the FCC's forced culling procedures will be reinstated.)  Meanwhile, the Commission will continue to process applications for any applicant with ten or fewer applications as of March 4, 2008.

Any applicant with more than 10 applications on file has an opportunity, until April 3, to advise the Commission which 10 applications it wishes to continue to prosecute (and, therefore, which other applications may be voluntarily dismissed).  If an applicant fails to notify the FCC of its decision by the deadline, the Commission will retain the 10 first-filed applications - based purely on file number - and will dismiss all later-filed applications.

The application limit applies only to short-form applications (applicants can retain more than 10 long-form applications) BUT parties should pay close attention to the Commission's guidelines to ensure that high-priority applications are not dismissed.  Applicants with more than 10 long-form applications and no short-form applications on file will have all of their long-form applications processed.  But where an applicant filed more than 10 long-form and short-form applications combined, construction permits granted from the group of pending long-form applications will be counted toward the limit of 10.  Therefore, it may be in a party's best interest to voluntarily dismiss select long-form applications to avoid the dismissal of higher-priority short-form applications.

Instructions on how to notify the Commission of voluntary dismissal selections are set out in the Public Notice.  Please contact FHH if you have any questions or would like assistance in notifying the Commission of your selections.

A settlement must propose the grant of at least one technically acceptable application with an MX group and must not create any new MX conflicts. All settlements are subject to reimbursement restrictions - that is, neither the applicant nor any of its principals may received (or be promised) consideration in excess of the legitimate and prudent expenses incurred in the preparation, filing, prosecution and settling of the application.

Technical amendments must resolve all conflicts between at least one applicant and all other applications filed in the window. Only "minor" engineering amendments will be accepted. Such amendments would include specification of an adjacent channel, a new transmitter site, lower power, and the like.

A copy of the Commission's announcement - which specifies a number of filing requirements associated with the submission of settlements - may be found here.

According to the public notice, all applications filed during the October, 2007 window are being made publicly available as of November 8. However, a public notice identifying the various MX groups of applications will not be released until after the close of the settlement window. In other words, it's up to the applicants to determine any and all pending MX proposals for settlement purposes.

Note that the limit applies only to applications for new stations filed during the October, 2007 window. Major mod applications (which may also be filed during the window) do NOT count toward the limit. Similarly, any already pending application which was not filed during the October, 2007 window does NOT count toward the limit.

As a general matter in the FCC's eyes, a party has an "attributable interest" in an application if the party is the applicant, or an officer, director or 5% or greater owner of the applicant. Narrow exceptions exist for certain "limited partners" or members of "limited liability companies" - but if an applicant hopes to take advantage of those exceptions, special care should be taken and the fine print of the FCC's rules should be consulted.

Complicating matters further, interests may be attributed indirectly. F'rinstance, let's say A owns 10% of company X, which owns 60% of company Y, which owns 25% of an applicant. In cases like that, the FCC applies a multiplier: thus, X's interest in the applicant would be a respectable - and attributable - 25% (i.e., the same as Y's interest because X's interest in Y exceeds 50%), while A's interest in the applicant would be a non-attributable 2.5% (i.e., 0.1 x 0.25).

 The possible need for a cap on applications arises from a number of factors, including: (a) the lack of any filing fee for new NCE permits; (b) the lack of any ownership limits in the NCE band; (c) the fact that, because of a longstanding freeze, no one has been able to file for such permits for more than seven years; and (d) full-service NCE authorizations have considerable value in the marketplace.  Another significant factor is the Commission's experience in 2003, when it opened a window for new FM translator applications.  No cap was imposed during that window, and more than 13,000 applications rolled in the door - by some estimates more five or six times more than the FCC had originally anticipated.  To avoid a similar avalanche of applications - and the significant disruptions that it can cause - the Commission has proposed the following limit:

A party to an application filed in the NCE FM filing window may hold attributable interests in no more than a total of ten applications filed in the window. If it is determined that any party to an application has an attributable interest in more than ten applications, the Bureau will retain the ten applications that were filed first - based on application file number - and dismiss all other applications.  Major modification applications will not count toward the limit.  Pending new and major change applications filed under former licensing procedures also will not count toward the limit.

There is an extremely short opportunity to file comments and replies: 15 days and 25 days, respectively, from the date the NPRM is published in the Federal Register.  Check out the NPRM for the nitty-gritty details governing the filing of comments, or contact us.

The Bureau's public notice does not appear to contain any surprises, but it does put everyone on notice that a freeze on all minor change applications (and amendments thereto) in both the NCE band and Channels 221, 222 and 223 of the commercial band (because of their proximity to, and potential RF impact on, the upper NCE channels) will commence on September 8, 2007 and continue until the close of the window (which is currently set for October 19).