FCC tweaks with the fine-tuning knob, but whether the picture is any clearer remains to be seen.
In early 2011, the Commission shook up the radio world by adopting dramatic changes to policies governing the extent to which radio stations might be able to locate themselves in or near larger urban areas. In a recently-released document we’ll refer to here as Recon II (official title: “Second Order on Reconsideration”), those revised policies have now been tweaked (a) to exempt a limited number of applications, and (b) for those still subject to the policies, to change the way certain things are handled. Depending on any proponent’s particular circumstances, those changes might or might not make it harder for the proponent to get FCC clearance to change its community of license.
The revised “rural radio” policies (which appeared in a document we have referred to in previous posts as the Second R&O) are described in detail in our post from March, 2011. If you haven’t read that lately, take the time to read it now. We’ll wait.
In a nutshell, the 2011 changes imposed a new presumption (“the Presumption”) that makes it considerably more difficult to modify an AM or FM station in any way that would move it into, or nearer to, an Urbanized Area. This, of course, was a disappointment to many entrepreneurs who had spent considerable time and effort designing – and often effectuating – precisely such “move-ins”.
The latest tweaks aren’t likely to allay that disappointment, except for a relatively small universe of applicants who, thanks to Recon II, are now not subject to the Presumption. You’re in that universe if you are:
an applicant to change community of license and your application was filed before April 20, 2009 (i.e., the date the Notice of Proposed Rulemaking in the Rural Radio proceeding was released);
the proponent in an FM allotment proceeding and your petition for rulemaking was filed before April 20, 2009; or
an applicant for a community of license change application or a proponent in an FM allotment proceeding in which a decision on your proposal was released before March 3, 2011 (i.e., the date of the Second R&O).
If you’re in one of those categories, you’re excused and need read no further.
(Note also that the Commission expressed a willingness to waive the requirements on a case-by-case basis – in particular, where equities exist that might call for an applicant to be excused from the new procedures. One example cited by the Commission: a case where the proposed modification is contingent on a modification of another facility that cannot be easily undone due to the subsequent actions of other licenses.)
As for the tweaks to the policy, here’s a quick summary of the highlights from Recon II:
Tuck tweaks. As we previously reported, parties looking to get out from under the Presumption can still submit a “Tuck showing”. Such a showing (named after the 1988 case in which the showing made its regulatory debut) consists of an extensive laundry list of information designed to establish that the proposed community of license really does have an independent need for its own local station. In Recon II¸the Commission emphasizes applicants seeking to rebut the Presumption with, e.g., a Tuck showing will be given wide latitude to present whatever additional facts they deem appropriate. However, in evaluating such showings, the FCC will place particular emphasis on (a) the degree to which the proposed station will provide coverage to the Urbanized Area and (b) the size and proximity of the proposed community of license relative to the central city of the Urbanized Area. Oh yeah, the Commission has now concluded that, because the “ubiquity of ZIP codes gives the presence of a dedicated ZIP code little probative significance”, the fact that a proposed community of license may have its own ZIP code will be given “little weight”.
An applicant seeking to change its community of license will not be required to submit a Tuck showing in some limited cases. Specifically, no such showing will be necessary where: (a) both the current and proposed communities are in the same Urbanized Area or the current and proposed facilities cover, or could be modified to cover, 50% or more of the same Urbanized Area; and (b ) the applicant is not relying on a first local service preference. If the applicant is relying on such a preference, the Presumption would apply and the applicant would have to make a Tuck showing to rebut it.
Gain/Loss Calculations. Under the policies as revised in 2011, the relative sizes of gain and loss areas assumed a considerably greater importance than had previously been the case. In Recon II, the Commission has made adjustments in how those areas are to be calculated.
For an application proposing a change in an FM station’s community of license, in order to determine the number of reception services in the gain/loss areas, the actual and proposed contours must now be calculated using the transmitter site coordinates of the present facility and of the proposed new facility. (Traditionally, the allotment site coordinates had been used.) Moreover, those service contours are to be calculated based on the station’s authorized and proposed effective radiated power, height above average terrain and the actual terrain (using the prediction methodology in Section 73.313 of the Commission’s rules, not any alternative predictive methods, like Longley-Rice). Previously, such calculations were based on the maximum class facilities for all stations except full Class C and NCE stations and on the bizarre presumption that all the terrain in question was uniform.
Also, when an applicant seeking to change its community of license needs to calculate the area and population an AM station serves, the predicted or measured daytime 2.0 mV/m groundwave contour is to be used. Those calculations must be made for both the applicant’s current and proposed transmitter site coordinates. In this particular context, the Commission is choosing to disregard the fact that the “primary service contour” for communities with populations under 2,500 is defined elsewhere in the rules as the 0.5 mV/m daytime groundwave contour. Note, however, that applicants for new AM stations are to continue to count populations served by using the primary contours set forth in Section 73.182(d) of the FCC’s rules (0.5 mV/m for communities under 2,500 and 2.0 mV/m for communities over 2,500).
For purposes of gain and loss area calculations under Priority 4 (the catch-all public interest category for Section 307(b) determinations), applicants are to count all full-service AM (including daytime-only AM), FM and NCE FM stations, including all granted but unbuilt construction permits. However, vacant FM allotments are not to be considered. The Commission, looking at the results of the last couple of FM allotment auctions, wisely concluded there is no guarantee any particular vacant allotment ever will be filled.
Applications filed after October 12, 2012 (i.e., the release date of Recon II) must use these revised standards. Those with pending applications can elect to amend their proposals to use the new standards or stick with their already-filed technical showings.
In Recon II the Commission rejects a variety of proposals. The most noteworthy: William B. Clay’s assertion that the Second R&O didn’t go far enough and that the new procedures should be applied to all community of license change applications where the proposed facility will primarily serve communities and populations other than the proposed community of license. Clay would have had the Commission implement “a universal policy that directly links grant of any ‘local service’ preference to the community or collection of communities most likely to benefit from the transmission service provided by a facility proposed in any geographic area”.
The FCC wasn’t buying what Clay was selling. In the Commission’s view, his proposal “would take the choice of community of license – at least where first transmission service is being claimed – away from the applicant”, and instead have the Commission designate that community. The Commission was unwilling to go that far if a station isn’t in or near an Urbanized Area.
At least it isn’t for the time being. Let’s not forget that the Commission and the Courts of Appeals have struggled for decades with how to apply Section 307(b). It’s a near certainty that Recon II will not be the last word on the subject.