Public notice suggests grants of singleton LPFM applications as early as January, 2014; Upcoming settlement, amendment opportunities also described

The LPFM juggernaut that has been moving forward with impressive speed all year seems, incredibly enough, to be gaining momentum.  Less than three weeks after the filing window slammed shut on new LPFM applications, the Audio Division has released a public notice providing a progress report and a road map for handling the 2,800 or so applications that were filed.  And that map seems to point to potential resolution of most applications in reasonably short order, some even as soon as next month.

All LPFM applicants, as well as anyone who might be affected by any of the applications, would do well to review the Division’s public notice carefully.

The good news for many: nearly one-third of the LPFM applications – approximately 900 – appear to be singletons.  The Division has made identification of all singletons its highest priority, and has already started to mark the ones it has so identified as “accepted for filing”, a status that starts the 30-day petition to deny period.  That means that, at least for some (if not most) of the singletons, the petition to deny period will expire in January, leaving applications that don’t attract any petitions potentially eligible for grant next month.

Meanwhile, the Division also expects to have bunched all non-singleton applications into their respective MX (for “mutually exclusive”) groups shortly.  Look for a public notice listing all MX groups by the end of this month.

The release of that notice will open up an initial settlement period, during which applicants may amend their applications to eliminate mutual exclusivities.  Only minor amendments will be permitted during this period – “minor” amendments in this context include: (1) site relocations of 5.6 kilometers or less; (2) channel changes of no more than +/- three channels or to an intermediate frequency (+/- 53 or 54) channel; (3) partial and universal voluntary time-sharing agreements; (4) changes in general or legal information; and (5) changes in ownership where the original parties retain more than 50 percent ownership in the application as originally filed.  (Site relocation amendments of more than 5.6 kilometers will be permitted for the limited purposes of (1) curing potential third-adjacent channel interference and (2) allowing time-share proponents to relocate to a common transmitter site.)

In addition to technical amendment, MX applicants may also resolve mutual exclusivities by entering into settlement agreements with one another.  The basic rule of thumb: a settlement must be designed to lead to the grant of at least one application in an MX group without creating any new mutual exclusivities.  Settlements may provide for coordinated amendments of applications, dismissal of applications and/or partial or universal share-time proposals.

If an applicant opts to dismiss its application pursuant to a settlement, all parties to the deal will have to file a copy of the settlement agreement, a joint request for approval of the agreement, and separate affidavits from each of the parties concerning the terms of the deal.  (The specifics of the affidavits are set out in the public notice, and also may be found in Section 73.3525(a) of the rules.)  An applicant opting unilaterally to dismiss its application will have to file a similar affidavit confirming that it has not been paid or promised any consideration in return for the dismissal.

Once any technical amendments and/or settlements have rolled in and been processed by the staff, one or more “tentative selectees” will be announced for each of the remaining, unresolved MX groups.  Any petitions to deny any of the tentative selectees will then be considered and, eventually, the tentative selectees’ applications will either be granted or dismissed.  (In some cases “successor” tentative selectees may also be identified; they, too, will be subject to petitions to deny.)

A couple of things to remember when it comes to amending an LPFM application.  As noted above, only minor amendments may be filed during the initial amendment period immediately following release of the public notice announcing MX groups.  Once tentative selectees have been announced, those selectees will be permitted to file major amendments (think non-adjacent channel changes, relocations of more than 5.6 km, etc.) for a period of 90 days following the public notice identifying them as selectees.   [CLARIFICATION (posted 12/6/13):  Since initially posting this item, we have been advised by the FCC’s staff that each public notice identifying a Tentative Selectee will list, in addition to the Selectee, all the other applications in that Selectee’s MX group.  Since there are hundreds of different MX groups, these public notices are likely to roll out gradually, on an MX group-by-MX group basis, as the various groups are processed.  Upon release of each such public notice, ALL applicants listed in that public notice – whether or not the Tentative Selectee – will be permitted to file major amendments.]

And in no event may an applicant use an amendment to increase its comparative point total or bring itself into compliance with the minimum separation requirements of Section 73.807.

Even though the Commission has not yet released its list of MX groups, it should be relatively easy for many applicants to sift through the already available lists of applications and identify obvious mutual exclusivities.  The Division’s public notice emphasizes that MX applicants may “communicate with each other at any time before or after” the formal announcement of MX groups if they want to “explore options for resolving application conflicts”.  In other words, you need not wait for that formal announcement before you get started on figuring out how to eliminate mutual exclusivities.

It is clear that the Audio Division is committed to wrapping up as many LPFM applications as soon as possible.  While considerable work still lies ahead, the road map the Division has laid out should encourage all applicants to take whatever steps they can, as soon as they can, to avail themselves of the various options to help the Division along in the process.