Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

FCC Names Tentative Selectees of Mutually Exclusive LPFM Applications

Attachments & Related Documents

Download Options

Released: July 9, 2014
image01-00.jpg612x792

PUBLIC NOTICE

Federal Communications Commission

445 12th St., S.W.

News Media Information 202 / 418-0500

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

FCC 14-96

Released: July 9, 2014

COMMISSION IDENTIFIES TENTATIVE SELECTEES IN 79 GROUPS OF

MUTUALLY EXCLUSIVE APPLICATIONS FILED IN THE LPFM WINDOW;

ANNOUNCES A 30-DAY PETITION TO DENY PERIOD AND A 90-DAY PERIOD TO

FILE VOLUNTARY TIME-SHARE PROPOSALS AND MAJOR CHANGE

AMENDMENTS

By this Public Notice, the Commission considers 79 groups of mutually exclusive (“MX”) applications

filed in the recent low power FM (“LPFM”) window1 and uses a point system to tentatively select

applications for grant.2 The tentative selectees, i.e., the single applicant with the highest point total or the

applicants tied for the highest point total from each MX group, are identified, in bold, in Attachment A.

Upon the release of this Public Notice, the Commission initiates a 30-day period for filing petitions to

deny against the applicants tentatively selected and a 90-day period for the filing of voluntary time-share

proposals (point-aggregation requests) and major change amendments.3

Mutually Exclusive Groups: When the distance between the facilities proposed in two window-filed

applications does not meet the minimum distance separation requirements specified in 47 C.F.R. §

73.807, the applications are treated as MX. An MX group consists of all applications which are mutually

exclusive to at least one other application in the group. The Commission’s Media Bureau (the “Bureau”)

released a Public Notice on December 16, 2013, identifying the groups of MX LPFM applications filed

during the LPFM Window, and opened a 60-day window within which the applicants from each group

could communicate with each other and attempt to resolve the conflicts through three methods – technical

amendments, settlements, and time-share agreements.4

This Public Notice includes mutually exclusive applications for which no amendment, settlement, or

time-share agreement was timely filed, or for which the submitted resolution was determined to be

1 Each application in Group 1 through Group 401 was filed during the October 17, 2013, through November 15,

2013, LPFM open filing window (the “LPFM Window”).

2 See 47 C.F.R. § 73.872. The point system analysis must be considered by the Commission because this analysis is

considered a simplified “hearing” for purposes of 47 U.S.C. § 155(c)(1).

3 In this Public Notice the Commission uses the point system to compare 248 applications from 79 MX Groups

comprising the western states of the United States. Two additional Public Notices, identifying the tentative selectees

from the remaining groups of mutually exclusive applications, will be released during the next several months.

4 See Media Bureau Identifies Mutually Exclusive Applications Filed in the LPFM Window and Announces 60-Day

Settlement Period, Public Notice, 28 FCC Rcd 16713 (MB 2013); see also Media Bureau Provides Further

Guidance on the Processing of Form 318 Applications Filed in the LPFM Window, Public Notice, 28 FCC Rcd

16366 (MB 2013) (“Procedures PN”).

image02-00.jpg612x792

unacceptable. When conflicts remain, the Commission applies the LPFM point system to select among

the mutually exclusive applications.5

Point System Selection Criteria: The Commission compares mutually exclusive groups of LPFM

applications under the point system set forth in Section 73.872 of the Commission’s Rules (the “Rules”).

The LPFM point system awards a maximum of six merit points, based on six criteria, with one point

awarded under each criterion: (1) established community presence of at least two years; (2) commitment

to originate local programming; (3) commitment to maintain a main studio; (4) commitment to originate

local programming and to maintain a main studio; (5) diversity of ownership; and (6) tribal applicants

serving tribal lands. These criteria are described in more detail below.

1.

Established Community Presence. The Commission awards one point to an applicant

that has had an established community presence, for a period of at least two years immediately prior to

the filing of the application, in the community that it proposes to serve. To qualify for this point, a

nonprofit educational organization applicant must be able to certify that, during the two years prior to the

application, (a) it has existed

as a nonprofit educational organization, and (b) it has been physically

headquartered, has had a campus, or has had 75 percent of its governing board members residing within

10 miles, for applicants in the top 50 urban markets, or 20 miles, for applicants outside the top 50 urban

markets, of the coordinates of the proposed transmitting antenna. A nonprofit educational organization

awarded a point for this criterion must submit evidence of its qualifications in an application exhibit.6

The evidence must demonstrate the date of commencement of the applicant’s existence and the location

of the applicant’s headquarters, campus, or governing board members’ residence during the two years

prior to the application filing.7 While there is some flexibility in the type of documentation a nonprofit

educational organization applicant may provide, no point will be awarded to such an applicant that does

not timely submit required documentation.

A Tribal applicant seeking this point need only certify that it is a Tribe and that its Tribal Lands are within

the service area of the proposed LPFM station; or that it is a Tribal organization whose controlling Tribe

or Tribes has its/their Tribal Lands within the service area of the proposed LPFM station. Tribal

organizations created by a Tribe to apply for a LPFM construction permit are not required to have been in

existence for two years.8 A public safety radio applicant must only be able to certify that during the two

years prior to the application it had jurisdiction within the service area of the proposed LFPM station.9

2.

Local Program Origination. The Commission awards one point to an applicant that

pledges to originate locally at least eight hours of programming per day. Locally originated programming

is programming produced by the licensee within ten miles of the coordinates of the proposed transmitting

antenna. Such programming may include licensee produced call-in shows, music selected and played by

5 See 47 C.F.R. § 73.872; see also Creation of a Low Power Radio Service, Report and Order, 15 FCC Rcd 2205,

2260-64 (2000); Creation of a Low Power Radio Service, Memorandum Opinion and Order on Reconsideration, 15

FCC Rcd 19208, 19246-47 (2000) (“Memorandum Opinion and Order on Reconsideration”); Creation of a Low

Power Radio Service, Fifth Order on Reconsideration and Sixth Report and Order, 27 FCC Rcd 15402, 15459-

15471 (2012) (“Sixth Report and Order”).

6 See 47 C.F.R. §§ 73.872(b)(1); 73.853(b)(1)-(2); see also FCC Form 318, Section III, Question 1a; Instructions to

FCC Form 318 at 8-9.

7 Such evidence may consist of copies of corporate charters, articles of incorporation, association, or partnership,

bylaws, or other written instruments filed with the appropriate governmental agency (e.g., Secretary of State)

documenting the applicant’s period of existence. See Instructions to FCC Form 318 at 9.

8 See 47 C.F.R. §§ 73.872(b)(1); 73.853(b)(4); see also FCC Form 318, Section III, Question 1b.

9 See 47 C.F.R. §§ 73.872(b)(1); 73.853(b)(3); see also FCC Form 318, Section III, Question 1c.

2

image03-00.jpg612x792

a disc jockey present on site, broadcasts of events at local schools, and broadcasts of musical

performances at a local studio or festival, whether recorded or live.10

3.

Main Studio. The Commission awards one point to an applicant that pledges to maintain

a publicly accessible main studio that has local origination capability, is reachable by telephone, is staffed

at least 20 hours per week between 7 a.m. and 10 p.m., and is located within 16.1 km (10 miles) of the

station’s proposed transmitter site for applicants in the top 50 urban markets and within 32.1 km (20

miles) for applicants outside the top 50 urban markets. To be awarded the main studio point, the

applicant must specify the proposed address and telephone number for the proposed main studio in the

FCC Form 318 at the time of filing the application.11

4.

Local Program Origination and Main Studio. The Commission awards one point to an

applicant that can certify that it qualifies for one point under both the local program origination and the

main studio criteria described in (2) and (3) above.12

5.

Diversity of Ownership. The Commission awards one point for diversity of ownership

(the “new entrant” point) to an applicant that can certify that it holds no attributable interests in any other

broadcast station.13 Any applicant, including a national organization, however, can qualify for a new

entrant point if it submits in its LPFM application, prior to the close of the LPFM Window, a commitment

to divest all of its existing media interests (both owned and attributable) before the commencement of

operations of its new LPFM station.14

6.

Tribal Applicants Serving Tribal Lands. The Commission awards one point to a Tribal

Applicant proposing to locate its transmitter site on its “Tribal Lands,” as defined in Section 73.7000 of

the Rules.15

The Commission tallies the total number of points awarded to each mutually exclusive applicant. The

applicant(s) with the highest score in an MX group is designated the “tentative selectee.” Applicants tied

for the highest point total in a MX group are subject to voluntary and involuntary time-sharing, discussed

below.

Point System Review Process. The LPFM application, FCC Form 318, is certification-based, but for

some criteria, requires applicants to document their claims by submitting supporting information to the

10 47 C.F.R. § 73.872(b)(2).

11 47 C.F.R. § 73.872(b)(3); FCC Form 318, Section III, Question 3.

12 47 C.F.R. § 73.872(b)(4).

13 47 C.F.R. § 73.872(b)(5). Although a broadcast interest of a national organization will not be attributed to the

local chapter if the local chapter “is separately incorporated and has a distinct local presence and mission” (47

C.F.R. § 73.858(b)), “local chapters” of larger organizations that hold broadcast interests do not qualify for a “new

entrant” point. Any broadcast interests held by the “parent” organization are considered attributable for the purposes

of this criterion only. See, e.g., Sixth Report and Order, 27 FCC Rcd at 15459. Similarly, although a director of an

LPFM applicant may hold otherwise attributable interests in a broadcast licensee or media entity without making the

LPFM applicant ineligible for a license, provided that the director recuses himself/herself from any matters affecting

the LPFM station (47 C.F.R. § 73.858(a)), the director’s broadcast interests are still considered attributable to the

LPFM applicant for the purpose of the “new entrant” point.

14 See, e.g., Creation of Low Power Radio Service, Sixth Order on Reconsideration, 28 FCC Rcd 14489, n.26

(2013).

15 47 C.F.R. § 73.872(b)(6); see also 47 C.F.R. § 73.853(c) (defining a “Tribal Applicant” as a “Tribe or an entity

that is 51 percent or more owned or controlled by a Tribe or Tribes”); 47 C.F.R. § 73.7000.

3

image04-00.jpg612x792

Commission. The Commission’s comparative review of MX applications is based on applicant-provided

information. The Commission relies on the certifications, does not independently confirm the accuracy

during the review process, but may use random audits to verify the accuracy of the certifications and

adherence to the pledges.16

Applicants were required to report their comparative qualifications as of the date of the filing of an

application. Any changes made thereafter may potentially have diminished, but cannot enhance, an

applicant’s comparative position. Accordingly, amendments that were filed after the close of the LPFM

Window and improved an applicant’s comparative position have not been considered for purposes of the

point system.17 Amendments that adversely affected an applicant’s comparative position have been

considered.18

We have generally awarded the number of points claimed by each applicant in Section III of its

application. Certifications, however, which require the applicant to submit documentation or additional

information, but which are not supported with any such timely submitted documentation, cannot be

credited. For example, the Commission rejects claims where a nonprofit educational organization

applicant certifies that it qualifies for a point as an established local applicant but fails to supply the

requisite documentation19 to support its claim.20 Similarly, we reject claims where an applicant certifies

that it qualifies for a main studio point but neglects to provide the proposed address and telephone number

for the proposed main studio. We have also rejected claims where an applicant certifies that it is eligible

16 The Commission staff may issue letters of inquiry requiring submission of documentation in connection with such

audits. Applicants that fail to fulfill their pledges will be potentially subject to administrative sanctions including

the possibility of monetary forfeitures and revocation proceedings. See Instructions to FCC Form 318, Section IIIC

at 9.

17 See Instructions to FCC Form 318, Section IIIA at 8; 47 C.F.R. § 73.871(b). For example, if an applicant certifies

that it does not qualify for a point under one of the point system factors by answering “No” to one of the questions in

Section III, it cannot later amend its application to respond “Yes” to that question. This is the case even if the

applicant actually would have qualified for the point it is seeking at the time it filed the application.

18 For example, an LFPM applicant may lose claimed points, such as the new entrant credit, as a result of changes

made after the application filing.

19 See Instructions to FCC Form 318, Section III, Question 1, at 9. Applicants must submit the requisite

documentation prior to the close of the window. The Commission does not consider documentation to support a

claimed comparative point if it is submitted in a post-window amendment.

20 See MX Group 42, File No. BNPL-20131029AHL and MX Group 57, File No. BNPL-20131114BPU. In both of

these cases, to support its established community presence claim, each applicant merely submitted a declaration

stating that it has been local and operating for X number of years. Each applicant neglected to submit any

documentation to establish its non-profit status and period of existence. We note that each of these applications has

been dismissed for failure to document the applicant’s non-profit status and eligibility to hold an LPFM license. See

FCC Form 318, Section II, Question 2, Eligibility; Instructions to FCC Form 318, Section II, Question 2, at 3; 47

C.F.R. § 73.853(a). Each application was either dismissed within the last 30 days or has a pending petition for

reconsideration, and therefore, is currently in a non-final dismissed status. In MX Group 146, File No. BNPL-

20131115ASE, the applicant claims a point as an established local applicant, but inconsistently acknowledges, at

Exhibit 10 to its application, that it was not established until 2013 and is therefore “ineligible for an established

community presence” point.

4

image05-00.jpg612x792

for a point for diversity of ownership, but fails to satisfy this criterion.21 In these cases, we have adjusted

the points of such applicants downward.22

Attachment A – MX Group Point Totals. Attachment A lists, by group number and state, each of the

applicants in the mutually exclusive groups analyzed in this Public Notice. The Commission reviewed

each listed application pursuant to the LPFM point system comparative process and awarded each

applicant a maximum of six merit points applying the criteria discussed above. Attachment A identifies,

by applicant name and number of points, the tentative selectee(s) in each MX group. The tentative

selectees are identified in bold.23

In cases where an applicant claimed points, but failed to satisfy the respective requirements for receipt of

such points, Attachment A lists the points claimed followed in parenthesis by the points credited. For

example, an applicant that claimed a point for established community presence, but failed to submit the

requisite documentation to support its claim would have the notation 1(0) in the established community

presence column, i.e., it claimed one point but received none. A note “no exhibit” or “defective exhibit”

in the Notes column would indicate that the applicant did not support its established community presence

claim, either because it submitted no exhibit or because an exhibit was deemed defective for lack of the

most basic information necessary. The Notes section is also used to describe certain application

characteristics. For example, the note “Divest Pledge” is used to identify an applicant that pledged to

divest all of its media interests before the commencement of operation of its new LPFM station.24 The

note “TIME SHARE” identifies tied applicants that are subject to the voluntary and involuntary time-

sharing procedures.

Tied Applicants: Voluntary and Involuntary Time-Sharing. The point system analysis of many of the

Attachment A MX groups resulted in a tie among several applicants. When mutually exclusive

applications have the same point total, the Commission gives the tied applicants a 90-day opportunity to

propose voluntary time-sharing arrangements. If the applicants do not enter into a voluntary time-sharing

agreement, the Commission will assign involuntary time-sharing arrangements to no more than three of

21 See MX Group 282, File No. BNPL-20131113BPL. Although the applicant, Portland State University, a local

chapter of the statewide Oregon University System, is eligible for a LPFM station, the broadcast interests of the

University System are attributable to it for purposes of the new entrant point criterion. Accordingly, it does not

qualify for this point. See also note 13, infra.

22 Conversely, any applicant awarded an established community presence or main studio point has provided support

for its certification at the time it initially filed the application.

23 We note that in MX Group 45 and MX Group 71, the County of Ventura and the City of Louisville, public safety

applicants, are each tied for the highest point total, but are not identified in bold as tentative selectees. See FCC File

Nos. BNPL-20131112BFQ and 20131114AQP. Not-for-profit organizations and governmental entities proposing to

operate a public safety or emergency radio service were permitted to submit multiple applications in the LPFM

Window, but were required to designate the “priority” application. Non-priority applications are dismissed if

competing applications are filed in the same window. The County of Ventura and the City of Louisville each filed

two applications and identified its other application (File Nos. BNPL-20131112BFM and BNPL-20131114AQU,

respectively) as the priority application. Accordingly, FCC File Nos. BNPL-20131112BFQ and 20131114AQP will

be dismissed upon release of this Public Notice. See Memorandum Opinion and Order on Reconsideration, 15 FCC

Rcd at 19239-40; Media Bureau Announces Availability of the Revised FCC Form 318 and the Filing Procedures

for the October 15 – October 29, 2013, Low Power FM Filing Window, Public Notice, 28 FCC Rcd 8854 (MB

2013).

24 See, e.g., MX Group 43, FCC File No. BNPL-20131112ANI (Calvary Chapel Victor Valley’s diversity claim is

based on a pledge to divest its current LPFM station, KPTG-LP).

5

image06-00.jpg612x792

the tied applicants in each MX Group. The voluntary and involuntary time-sharing procedures are

discussed in more detail below.

Voluntary Time-Sharing/Point Aggregation. Any two or more of the tied applicants in each MX

Group may propose to share use of the frequency by filing, within 90-days of the release of this Public

Notice, a time-share proposal. The proposal must be electronically submitted through the Commission’s

Consolidated Database System (“CDBS”) and will be treated as minor amendments to the time-share

proponents’ applications and become part of the terms of the station authorization.25 Only those

applicants tied for the highest point total in an MX Group may enter into a time-sharing agreement

and aggregate their points.26 No point-aggregation requests will be considered from non-high point total

applicants.27 Where proposals include all of the tied applications, all of the tied applicants will be treated

as tentative selectees; otherwise, time-share proponents’ points will be aggregated. The Commission will

aggregate the point totals of applicants that submit acceptable time-share proposals for the purpose of

breaking a tie within a mutually exclusive group.28

Time-share proposals must be in writing, signed by each time-share proponent, and satisfy the following

requirements: (1) the proposal must specify the proposed hours of operation of each time-share

proponent; (2) the proposal must not include simultaneous operation of the time-share proponents; and (3)

each time-share proponent must propose to operate for at least 10 hours per week.29

Involuntary Time-Sharing. If the tied applicants do not enter into a voluntary time-share

agreement, or if a tie still remains following the submission of voluntary time-sharing arrangements, the

applicants with tied, grantable applications will be eligible for equal, non-renewable license terms.30

1.

MX Groups with Three or Fewer Tied and Grantable Applications. If there are three or

fewer tied and grantable applications in an MX group, the Commission will simultaneously grant the

applications, assigning an equal number of hours per week to operate the proposed station to each

applicant.31 The Commission will determine the hours assigned to each applicant by first assigning hours

to the applicant that has been local for the longest uninterrupted period of time,32 then assigning hours to

the applicant that has been local for the next longest uninterrupted period of time. The Commission will

offer the applicants an opportunity to voluntarily reach a time-sharing arrangement. If they are unable to

do so, we will ask the applicants to simultaneously and confidentially submit their preferred time slots to

25 47 C.F.R. § 73.872(c).

26 See 47 C.F.R. § 73.872(c)(explaining the procedures for tied applicants to propose voluntary time-sharing

arrangements and aggregate their points). Applicants aggregating points must specify the same frequency.

27 Such applicants, however, may continue to file amendments, settlement agreements, and voluntary, non-point

aggregation, time-sharing agreements at any time.

28 47 C.F.R. § 73.872(c).

29 47 C.F.R. § 73.872(c)(1)(i) – (iii). The agreement can only be modified if all of the parties submit a written

agreement, signed by each party, to the Commission, Attention: Audio Division, prior to the change.

30 47 C.F.R. § 73.872(d).

31 47 C.F.R. § 73.872(d)(2); see also Instructions to FCC Form 318, Section IV at 9; Sixth Report and Order, 27

FCC Rcd at 15475.

32 47 C.F.R. § 73.853(b); FCC Form 318, Section IV, Question 1 (requiring applicants to provide the date on which

the applicant qualified as local).

6

image07-00.jpg612x792

the Commission. The staff will use the information provided by the applicants to assign time slots, giving

preference to the applicant that has been local for the longest uninterrupted period of time.33

2.

MX Groups with More than Three Tied and Grantable Applications. If there are more

than three tied and grantable applications, the Commission will dismiss all but the applications of the

three applicants that have been local for the longest uninterrupted periods of time. The Commission will

then process the remaining applications in accordance with Section 73.872(d)(2) of the Rules, the

procedures for mutually exclusive groups with three or fewer tied, grantable applications.34

Major Amendments. Starting July 10, 2014, at 12:01 a.m. EDT, the first business day after the date of

release of this Public Notice, we open a 90-day period to permit the MX applicants listed in Attachment A

to file major amendments, such as non-adjacent channel changes and otherwise prohibited site relocations

of greater than 5.6 kilometers.35 This 90-day period for filing major change amendments ends October 8,

2014, at 6:00 p.m. EDT. During this filing period, the Commission will waive Section 73.871 of the

Rules36 to permit these applicants to file such major change amendments. Major change amendments will

be processed in accordance with established first-come, first-served licensing procedures.37

Applicants filing technical amendments should carefully consider all legal, e.g., maintaining eligibility as

a “local” applicant,38 and technical requirements. Amendments may not create any new application

conflicts and must specify rule-compliant facilities.39 Major amendments will only be allowed during this

90-day period.40 Applicants may continue to file minor amendments41 and non-point aggregation

settlement agreements42 at any time.

33 47 C.F.R. § 73.872(d)(2). If there are only two tied, grantable applications, the applicants must select between the

following 12-hour time slots: 3 a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. If there are three, tied, grantable applications,

each applicant must rank their preference for the following 8-hour time slots: 2 a.m.-9:59 a.m., 10 a.m.-5:59 p.m.,

and 6 p.m.-1:59 a.m. The Commission will award time in units as small as four hours per day. In the event an

applicant neglects to designate its preferred time slots, staff will select a time slot for the applicant.

34 47 C.F.R. § 73.872(d)(3) and (d)(2); see also Sixth Report and Order, 27 FCC Rcd at 15475.

35 All applicants listed in this Public Notice, whether or not a tentative selectee, are permitted to file major change

amendments during this period.

36 47 C.F.R. § 73.871. This limited waiver policy will allow applicants to use all available FM channels to resolve

technical conflicts, eliminate ties, and obtain construction permits.

37 The Bureau will process and review the major change amendments in the order that they are filed on a daily basis.

If the first-filed amendment is acceptable, the Bureau will return all subsequently-filed conflicting amendments,

giving the second-filed applicant the opportunity to pursue other options, including settlements, other major

amendments, and minor amendments, to remove application conflicts. All amendments filed on July 10, 2014, must

be protected by any amendment filed after July 10, 2014. Amendments filed on weekends or holidays are

considered to be filed the next business day. See 47 C.F.R. § 1.4.

38 See 47 C.F.R. 73.853(b).

39 Amendments may, however, request waivers of the second-adjacent channel spacing requirements. See 47 C.F.R.

§ 73.807. Such amendments must include a showing that the proposed facilities will not result in interference to any

authorized radio service. See 47 C.F.R. § 73.807(e)(1).

40 Simultaneously with the release of this Notice, CDBS is being modified to permit the electronic filing of such

major change amendments. Applicants can monitor competing applications for any developments in CDBS.

41 Minor amendments 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; (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

(continued….)

7

image08-00.jpg612x792

Acceptability Studies and Filing of Petitions. The Media Bureau staff has examined the applications of

each tentative selectee for application defects.43 With the exceptions noted below, each tentative selectee

identified in this Public Notice appears to be technically and legally qualified to become the licensee of

the new LPFM station it has proposed.44 Accordingly, the applications of the tentative selectees are

accepted for filing.45 This triggers a 30-day period from release of the Public Notice for the filing of

petitions to deny.

Any argument that a tentatively selected application should not be granted must be raised in such a

petition, even if the objection relates only indirectly to the tentative selectee’s comparative points. For

example, an applicant that concedes that the tentative selectee is qualified for the points received but

believes its own proposal should have received a greater number of points than the tentative selectee’s

must make its argument in a petition to deny. Parties may not file petitions for reconsideration because

the point and tentative selectee determinations do not constitute “final” actions, and petitions for

reconsideration do not lie against such interlocutory decisions.46 Petitions to deny must be filed in

accordance with the procedures set forth in Section 73.3584 of the Rules.47

Attachment B – Second-Adjacent Waiver Requests. Many of the tentatively-selected applicants

identified in this Public Notice included a request for a waiver of the second-adjacent channel spacing

requirements set forth in Section 73.807 of the Rules.48 In the Sixth Report and Order we directed the

Media Bureau to specifically identify all potentially affected second-adjacent channel stations in the

Public Notice that accepts for filing an LPFM application that includes a second-adjacent channel waiver

request.49 Accordingly, we identify these applications and respective stations in Attachment B.

(Continued from previous page)

than 5.6 kilometers will be permitted to remediate potential third-adjacent channel interference and for time-share

proponents to relocate to a common transmitter site. See 47 C.F.R. § 73.871(c).

42 The settlement agreement must comply with the pertinent requirements of Section 73.3525 of the Commission’s

Rules. 47 C.F.R. § 73.3525; see also Procedures Notice, 28 FCC Rcd at 16367 (describing settlement agreement

requirements). Settlement agreements should be electronically filed through CDBS as minor amendments to the

subject applications.

43 The staff has made no “acceptability” determination regarding the applications that received fewer than the

highest point total in each mutually exclusive group.

44 As noted in “Notes” section of Attachment A, six of the MX applications listed in this Public Notice are currently

in non-final dismissed status. See MX Group 37, File No. BNPL-20131114AEK; MX Group 42, File No. BNPL-

20131029AHL; MX Group 45, File No. BNPL-20131112BFQ; MX Group 56, File No. BNPL-20131113BQT; MX

Group 57, File No. BNPL-20131114BPU; and MX Group 71, File No. BNPL-20131114AQP. In each case, the

application was dismissed for a technical or legal defect. Each applicant has filed a petition for reconsideration,

which remains pending or, was dismissed within the past 30 days. In two of these six applications, the applicant is

tied for the highest points in its respective MX Group and identified as a tentative selectee. In the event the petition

for reconsideration is granted and the application reinstated, the application will be accepted for filing at that time.

45 See 47 C.F.R. § 73.870(d). With the exceptions noted above, the applications, which are printed in bold in

Attachment A, are accepted for filing.

46 An interlocutory action is non-final, one that neither denies nor dismisses an application nor terminates an

applicant's right to participate in the proceeding. See 47 C.F.R. § 1.106 (a)(1). See also Patrick J. Vaughn, Esq.,

Letter, 22 FCC Rcd 11165 (MB 2007); Harry F. Cole, Esq., Letter, 27 FCC Rcd 9295 (MB 2012).

47 47 C.F.R. § 73.3584. An applicant may file an opposition, and the petitioner may file a reply, within the times

prescribed by the rules.

48 47 C.F.R. § 73.807(e)(1). A waiver applicant must demonstrate that its proposed operations will not result in

interference to any authorized radio service.

49 Sixth Report and Order, 27 FCC Rcd at 15429.

8

image09-00.jpg612x792

Forthcoming Staff Action. We direct the staff, once the petition to deny period has run, to conduct a

final study of each tentatively selected application in accordance with the Bureau’s routine processing

procedures. In the case of tied applications, the final study will not be conducted until the tie has been

eliminated through amendment, settlement and/or time-share procedures. The staff studies should

consider any petitions, comments, and objections to determine whether there is any substantial and

material question of fact concerning whether grant of the tentatively selected applications would serve the

public interest. If no such question exists, we direct the staff to grant the application(s) on the basis of the

point system determinations and dismiss all competing applications.

With the exception of applications that present issues that are new or novel or require Commission or

Administrative Law Judge consideration by statute or rules, the staff shall act on the tentatively selected

applications pursuant to delegated authority. We delegate to the staff authority to act on any routine

matter that may be raised, including whether the applicant is eligible, as certified, for the points awarded

herein, and whether the application complies with all relevant Commission Rules and policies.50 The staff

need not refer such matters to the Commission or designate such matters for hearing before an

Administrative Law Judge unless the issues are new or novel, or raise a substantial and material question

of fact regarding the award of points. Generally, the staff should refer only those issues to the

Commission where the exclusion or inclusion of challenged or claimed points could alter the outcome in

the particular LPFM group, or where there is a new or novel issue. In cases that present a substantial and

material question of fact, the staff should designate the issue for hearing before an Administrative Law

Judge.

Severance for Purposes of Petitions, Appeals and Finality. Each decision involving a mutually

exclusive group is to be considered distinct and separate for purposes of petitions to deny, petitions for

reconsideration, review on the Commission’s own motion, and appeals. The timing of any action

disposing of a petition or appeal affecting a particular group will not delay the finality of our decision

with respect to any other group included herein.

Additional Information. For additional information, please contact:

Electronic filing assistance: Konrad Herling or David Trout, (202) 418-2662

Legal inquiries: Tom Hutton or Parul P. Desai, (202) 418-2700

Engineering inquiries: James Bradshaw or Gary Loehrs, (202) 418-2700

Press inquiries: Janice Wise, (202) 418-8165

– FCC –

50 See, e.g., Central Florida Educational Foundation, Inc., Letter, 23 FCC Rcd 1695 (MB 2008) (staff dismissal of

defective application tentatively selected in a point hearing, and staff award of permit on a non-comparative basis to

only remaining acceptable applicant).

9

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.