Media Bureau announces LPFM filing window opening October 15 and closing October 29 (at 6:00 p.m. EDT); applications may be uploaded, but not filed, starting now

Attention all you LPFM wannabes. Mark your calendars, get your CDBS and FRN account information in order, stock up on NoDoz® and let the games begin – because the count-down has started. The Media Bureau has announced that, on October 15, 2013, the first LPFM filing window in more than a decade will be flung open, and will stay open until 6:00 p.m. (EDT) on October 29, 2013. The window will permit the filing of applications for new LPFM stations and major changes to existing stations. 

While applications can’t be filed until October 15, they may be uploaded to CDBS anytime between now and then – which gives would-be LPFM applicants plenty of time to undertake searches for channels and transmitter sites and prep their apps in anticipation of the opening of the window.

A few important threshold factors to keep in mind:

Eligibility. Eligibility to file an LPFM application is limited to three specific categories of applicant: (1) nonprofit educational organizations (NEOs); (2) Tribe or Tribally-controlled organizations (Tribes); and (3) state or local governments or non-government entities proposing to provide a “noncommercial public safety radio service to protect the safety of life, health, or property” (Public Safety Applicants). Nobody else gets a crack.

Any NEO may file only one application in this window, and Tribes may file no more than two. Public Safety Applicants may file more than one, but if they do so, they must designate one as the “priority” application; non-“priority” applications will be dismissed if timely mutually exclusive applications from other applicants are submitted. 

If an NEO applicant files more than one application, all but the first one in the door will be tossed as “conflicting” pursuant to Section 73.3518 of the rules. While the Bureau’s public notice does not expressly address the point, Section 73.855 of the rules prohibits any person or entity from holding attributable interests in more than one LPFM station. And Section 73.860 prohibits all cross-ownership of full-service and LPFM stations, although it does permit some very limited cross-ownership of LPFM and FM translators. The application form (Form 318) is set up to ferret out information about such things.

One more eligibility consideration: applicants must be “local” as that concept is defined in Section 73.853 of the rules. Since that definition is particularly detailed in its requirements, we strongly suggest that prospective applicants thoroughly familiarize themselves with it before getting too deep into the project.

Protection Requirements. LPFM applications will have to protect: all existing vacant FM allotments; and all outstanding FM, FM Translator, FM Booster and TV Channel 6 authorizations; and all applications for any of those services that were on file prior to June 17, 2013 (the date of the public notice announcing the filing window). 

Form 318. If you want to file in this window, you’ve got to use the April, 2013 version of Form 318. Since you have to file through CDBS, and since that version of the form is presumably the only one currently available, that shouldn’t be a problem. No filing fee is required. The public notice instructs applicants that CDBS will give them a confirmation that their applications have been “successfully filed” and that, unless they get such a notice screen, they should take steps to determine whether their applications really have been filed.

The Bureau also cautions that applicants should not share the CDBS account passwords with anyone not authorized to modify their proposals. Bear in mind that applications filed during the window period will not be publicly available until after the window closes. 

Return of “Letter Perfect”.
 In what appears to be a variation on the “letter perfect” standard of days gone by, any application that is “incomplete” or “patently defective” or that does not afford the requisite protection will be dismissed with no opportunity to correct the deficiency. Such dismissals will occur after the window closes; until then (i.e., until 6:00 p.m. (EDT) on October 29), applicants will be able to amend their previously uploaded-and-filed applications. (You do that by opening a new Form 318 and checking “Amendment to pending application” in response to the “Application Purpose” question, i.e., Section I, Question 3.)

Looking for an LPFM Channel? The Bureau’s notice directs prospective applicants to the Bureau’s on-line LPFM Channel Finder, which has been updated to include technical changes adopted last November. Be mindful, though, that the Channel Finder is “intended solely to assist LPFM applicants in tentatively identifying available FM channels.” In other words, anybody using that facility should (in classic Reaganesque terms) be sure to “trust, but verify”. Hiring a competent consulting engineer would be a good start.

Once the window has closed, the Bureau’s staff will weed through them, toss the defective ones, and group the rest according to mutual exclusivity. MX applicants will apparently be given the opportunity to resolve their conflict through settlement, although the precise metes and bounds of such settlements aren’t described in the notice. MX groups that don’t get resolved that way will be subject to the Commission’s point system.

The formal announcement of an October 15 LPFM window is a testament to the way the Audio Division has played the very difficult FM translator/LPFM hand that it was dealt by the Commission, the courts and the Congress. Last November the Commission set October 15 as its target date, but to get there, the Division had to dispose of several thousand FM translator applications that had been hanging around since 2003. To be perfectly honest, we here in the CommLawBlog bunker were, um, skeptical about the October 15 goal. But, while it’s still possible that, as we get closer to October 15, there might be some slippage, the Bureau is obviously confident enough at this point to issue the notice and get the ball rolling. Props to them for getting that far.