Window follows rejection of Request for Declaratory Ruling looking to get multiple NCE applications dismissed.

We’ve got good news for you if (1) you’ve got an FM translator application still pending from the 2003/Auction 83 filing window and (2) you identified yourself as a noncommercial educational (NCE) applicant when you first filed the application. The Media Bureau has announced that, between April 8-17, you will have an opportunity to “de-select” that NCE filing status. If you want to keep your application alive, you’ll take advantage of that opportunity.

In announcing this amendment window (and in a separate letter ruling), the Bureau made short work of a recently-filed Request for Declaratory Ruling which looked to thin the herd of pending applications by effectively prohibiting such amendments.  

The problem being addressed here arose when the Auction 83 window first opened in March, 2003. Back then, applicants seeking NCE authorizations were permitted to participate in such proceedings. At the time, NCE applicants were explicitly instructed to designate their status as “noncommercial educational” in the box provided on the Form 175.

Shortly after the closing of the Auction 83 window, however, the Commission revised certain of its procedures and processing rules for all NCE broadcast applications. Among the new rules was the proviso that any NCE application found, after a settlement opportunity, to be mutually exclusive with a commercial station would automatically be dismissed.  Further complicating matters, Section 1.2105(b)(2) specified that any attempt to change an applicant’s status from NCE to commercial would be an impermissible major amendment.  In other words, NCE applicants who had followed the FCC’s instructions and identified themselves as NCE in their applications had unintentionally placed themselves in a no-win situation if it turned out that their applications were MX with those of commercial applicants.

Recognizing the fundamental unfairness of the bait-and-switch situation which it had unwittingly created, the Commission in 2008 directed the Media Bureau to waive the major amendment prohibition to permit the de-selection of NCE status by applicants who could not have foreseen that indicating NCE status (as the FCC then required) might be an irreversibly fatal decision.

The April 8-17 window provides NCE applicants in the Auction 83 proceeding to take advantage of that opportunity.

In opening the window, the Bureau rejected a Request for Declaratory Ruling filed by a couple of commercial broadcaster less than two weeks earlier. The request suggested that, in order to afford NCE applicants the opportunity to “de-select”, the Commission would first have to open a notice-and-comment proceeding. The Request was clearly aimed at getting all those pesky NCE applications dismissed out of hand.

The Request, of course, ignored the fact that such “de-selection” opportunities had been routinely provided repeatedly in the past, and had been mandated by the Commission. In its separate letter ruling tossing the Request, the Bureau evinced little sympathy for the Request, characterizing it as “frivolous, repetitive and not warranting consideration by the Commission”. Ouch.

So the Media Bureau has once again deemed that the public interest will be best served by waiving the major change prohibition, since doing otherwise would be inconsistent with fundamental due process requirements.

Applicants who designated NCE status on their 2003 Auction 83 Form 175s will have a one-time opportunity to “de-select” this status by paper amendment and email submitted to the FCC between April 8-17, 2013.   (The specifics of the amendment process are set out in the Bureau’s public notice.)