Applications for NCE stations on 67 allotments in the commercial band can be filed between December 11-18

If you’re interested in filing for a new non-commercial FM construction permit specifying a channel that would otherwise be restricted for commercial use, here’s your chance. The Commission has announced that, between December 11-18, 2009, it will open a filing window opportunity for certain vacant FM allotments. The allotments being made available – 67 in all – are in the commercial band; however, at the request of some would-be applicants (who were able to satisfy relatively complex Commission policies governing such things), these channels were reserved for NCE use, so commercial applicants need not apply.

The FCC’s public notice provides general directions for those interested in applying. It solicitously cautions applicants about some of the vagaries and vexations of the CDBS filing system which must be used for the application process. (Sample advice: “[I]t is important that the applicant shares its CDBS account passwords with only those individuals who are authorized to view and/or modify proposals in progress.”) It warns that “redlight” considerations could prevent an applicant from getting in the door. It encourages all applicants to make sure that their applications really have been submitted (hint: CDBS provides a “confirmation” screen immediately after a successful submission.)  

The notice also anticipates that mutually exclusive applications will be filed. No big surprise there. It makes clear that, in the event that multiple applications are filed for a single channel, the standard NCE comparative analysis will be utilized.  (If you’re unfamiliar with that analysis, it’s set out in the FCC’s rules here.)

Apropos of comparative considerations, each applicant’s positive comparative attributes will be frozen as of the close of the window.  On the other hand, post-window changes that detract from an applicant’s comparative position will be considered, to the applicant’s detriment.  So an applicant’s comparative qualifications cannot be improved – but can be reduced – by changes after the window slams shut. To the extent that an applicant does claim comparative “points”, it will have to submit documentation to support such claims – and the Commission “recommends” that such documentation be included as exhibits to the application.

One narrow exception to the no-comparative-improvements rule: in some limited instances, an applicant which holds certain other interests – say, an LPFM or a fill-in translator or a same-area Class D station – may avoid the adverse comparative impact of those holdings by committing, in its application prior to the close of the window, to divest them. In other words, the divestiture does not have to occur prior to the close of the window, but the commitment to divest must be made by then. Check out the public notice for further details.

The Commission’s notice also underscores a technical peculiarity which must be addressed in each application. The channels up for grabs are in the portion of the FM band ordinarily used for commercial stations. They were reserved for non-commercial operation pursuant to a policy adopted six years ago, a policy designed to accommodate situations in which no NCE channels were available for use in a given geographical area. (You can read a bit about the background of that policy here.)  Under that policy, certain showings had to be made relative to the channel before the FCC would reserve it for NCE use. That being the case, the Commission wants to be sure that the conditions underlying the reservation remain applicable.

Three such conditions apply here. A commercial channel may be reserved for non-commercial use if it is shown that: (a) no NCE channel could be used without causing prohibited interference to TV Channel 6 stations; (b) no NCE channel could be used without causing prohibited interference to foreign broadcast stations; or (c) no NCE channel is available and the proposed reserved channel would “would provide a first and/or second NCE radio service to at least ten percent of the population within the 1 mV/m contour of its proposed station”. If a channel was reserved pursuant to (c), NCE applicants for that channel must demonstrate, in their applications, that their proposals will satisfy that condition – i.e., first/second NCE service to at least ten percent of the 1 mV/m population, AND that service area population must be at least 2,000 persons.

The Commission has helpfully identified the channels which were reserved on the basis of the “first/second NCE service” criterion. Those channels are marked with double-asterisks on the channel list issued with the public notice. Approximately 90% of the 67 listed channels are so marked.

The public notice also alerts prospective applicants that they are expected to have both (a) “reasonable assurance” of the availability of their proposed antenna sites and (b) sufficient financial wherewithal (liquid assets on hand or otherwise committed) to build and operate the station for three months. For tie-breaker purposes, they must also list all applications they are filing in the window (including the subject application itself) as well as any application filed prior to the window which has not been granted, dismissed or denied prior to the opening of the window. (Requests filed on Form 175 to participate in channel auctions need not be included.)

There is no cap on the number of applications which may be filed during the window but applicants should bear in mind that, if it comes down to a tie-breaker, the applicant with the fewest pending new/major change applications in the same service should prevail.

In view of the fact that the Commission’s staff has still not completed the processing of all the applications that were filed in the 2003 FM translator window or the 2007 NCE window (which was limited to channels in the NCE end of the band), it’s not likely that we’ll be seeing too many filing opportunities for new NCE stations in the foreseeable future. For that reason alone a considerable turn-out for the December window may be expected.