91. Electronic Filing. We are proposing to require that LPFM and microradio applications be filed electronically.103 We intend that a substantial number of people would be able to locate and afford to construct LP1000 and LP100 stations, and would expect that an even greater number would be able to do so for microradio stations. Moreover, we have seen concrete evidence of significant interest from members of the public who want to start their own LPFM and microradio stations. As a result, we expect to receive a great number of applications, should the new service be authorized. For each application, the Commission would have to determine whether the frequency requested is available and whether it is mutually exclusive with any other application. In order to speed the introduction of this service to the listening public, it is critical that we have the capacity to process the applications promptly and efficiently.
92. We note that internet access is becoming more common, and that interested parties will almost certainly have access to the internet at their homes, public libraries, or other publicly accessible places. We seek comment on both the utility and propriety of a mandatory electronic filing system for LPFM and microradio, taking these factors into consideration, as well as the effect of such a system in promptly determining, and perhaps avoiding, mutual exclusivity of applications, as further discussed below. We seek information from commenters regarding the experiences in other services which have adopted electronic filing, particularly the availability of internet access for electronic filing and the reliability of the process, and their view of the relevance of that experience to what we have proposed here and the likely applicants for LPFM channels.
93. We receive some guidance in this determination from our experience with low power television. This new service was first contemplated in 1978 when a Notice of Inquiry was issued.104 When we subsequently proposed LPTV rules in 1980, we also established procedures for filing applications through the end of the rule making process, and began accepting and processing such applications while the proceeding was still pending.105 However, by 1984, despite the establishment of a partial filing freeze on LPTV applications, a backlog of 37,000 applications had been accumulated, the overwhelming majority of which were mutually exclusive.106 The difficulties encountered in resolving the mutual exclusivities greatly hampered the nationwide introduction of this new service, and stations were slow to build even once they were authorized to do so. By 1986, while 1,675 LPTV stations had been authorized, only a fraction of those had actually been constructed.107
94. However, in the intervening period, technology for electronic filing has developed which can ameliorate this potential problem. Electronic filing has already been instituted for other services, and it has been authorized by the Commission for broadcast services.108 For low power and microradio services, such a system could represent tremendous savings in personnel for the Commission and a concomitant increase, by several orders of magnitude, in the speed of delivery of new service. Without electronic filing, the Commission lacks the resources to promptly accomplish the necessary data entry for hundreds or thousands of LPFM (and, possibly, microradio) applications.
95. Accordingly, we propose to develop an electronic filing system for LPFM (and microradio) whereby applicants would submit their applications by e-mail. We may be able to develop a system whereby the application could first be analyzed against existing facilities and, perhaps, even against previously filed applications. Such a system could then promptly inform the filer whether the requested frequency is available and if the application is acceptable for filing based on current data. If we use a window filing system for low power applications, the system could allow an applicant to avoid submitting a conflicting application and thus avoid mutual exclusivity and the delay which resolving such exclusivity might entail. The system could not, of course, alert an applicant as to subsequently filed mutually exclusive applications, but reducing conflicting applications, even if not eliminating them altogether, could significantly assist the roll out of any new low power service. 109 With respect to subsequently filed mutually exclusive applications, we could attempt to devise a system whereby all applications filed during a particular window are analyzed in a batch, with the resulting mutually exclusive applications identified and posted on a web page. As a further benefit, even if pending applications cannot be instantaneously added to the data base and available for comparison, an applicant would not have to hire an engineer to determine which frequencies were available based on existing authorizations. Moreover, the filing system could also be designed to assist applicants in determining HAAT or appropriate derating of permissible transmit power. This could be particularly important for applicants that might not otherwise have the finances to enter broadcasting. Parties wishing to operate LPFM (or microradio) facilities would benefit substantially, and the public would receive service far earlier than it would otherwise.
96. Filing Windows/Mutual Exclusivity. We are proposing to adopt a processing system with short windows of only a few days each for the filing of applications. We ask for comment on whether this would have advantages over longer windows and over a first-come, first-serve procedure. We also request comment on the optimal duration of any window that might be adopted.
97. We expect that short filing windows would lessen the occurrence of mutually exclusive applications and speed service to the public. We are concerned, however, about whether short filing windows would result in a flood of applications in a short period that would be so great as to overwhelm any filing system we might be reasonably able to devise.
98. We note that electronic filing might give us the capacity to ascertain the precise sequence in which applications are submitted by different parties. This would allow us to use a first-come, first-serve filing system, thereby preventing the accumulation of numerous mutually exclusive applications. However, as discussed below, such a system may have costs, limitations, and inequities that might be avoided by the use of filing windows.
99. Establishment of a first-come process would be dependent on the ability of a system to immediately add application information to its database and process application information very quickly. A primary intended benefit of a first-come, first-serve electronic filing system would be that a party filing an application mutually exclusive with one filed even a moment earlier could be rejected as unacceptable for filing. Depending on the number and timing of LPFM and microradio applications received, such a process might avoid imposing a considerable burden and expense on the Commission and the applicants, and very greatly speed the initiation of new service. However, we are not certain at this point that a system could be constructed which would handle the large volume of applications in a short period of time that might result from this rule making and such a filing priority. Users might then have to wait in a long processing queue while the system processes previously submitted applications. Such a queue would not prevent us from determining the exact time or sequence that an application was submitted. However, potential applicants would lose the significant advantage over filing windows of immediately knowing whether their applications are acceptable for filing. In addition, the processing queue might continue to grow longer and longer, despite the fact that applications at the front were being processed expeditiously. This would likely serve only to frustrate applicants who might have to wait for extremely long periods of time without knowing if their applications were acceptable for filing. With a filing window, however, the Commission could choose to accept new LPFM applications only once all of the previously-filed ones had been fully processed, thereby shortening the period of time that members of the public might have to wait to learn the status of their applications.
100. We also recognize that internet service is less convenient or immediately available for some potential applicants than for others, and that internet providers are sometimes erratic. This could result in inequities to some applicants that are disadvantaged by a poor internet connection, and we would have to weigh this concern against the potential benefits of such a process to applicants in general and to the public. Our consideration of this matter would include our statutory "obligation in the public interest to continue to use engineering solutions, negotiation, threshold qualifications, service regulations, and other means in order to avoid mutual exclusivity in application and licensing proceedings." 47 U.S.C. ' 309(j)(6)(E).
101. Therefore, commenters should address whether it would be more practical and equitable for applicants or would better serve the listening public to use filing windows, as proposed, to determine application priority and mutual exclusivity. Mutually exclusive applications filed within the relevant time period would be resolved by whatever legal method we determine would best serve the public interest, subject to statutory constraints. 110 At the end of the filing window, the Commission would notify all parties whose applications are mutually exclusive. We are concerned that a longer filing window would also increase the number of mutually exclusive applications filed. If such mutual exclusivity is resolved by auction (a possibility that is discussed below), many of the primary beneficiaries of the new low power radio service might not be able to afford a station.
102. We note our concern that while a strict first-come system might result in an initial crush of applications that could overload any system we devise, a window period might only delay the same onslaught of applications until the end of the window period. We seek comment on this concern, including the extent to which experience in other recent new services, such as low power television, can be considered relevant in light of an electronic filing system. Also, we ask commenters to suggest whether and why the ability to use the electronic filing system to search for available channels would diminish the number of mutually exclusive applications filed under a system of consecutive, fairly short window periods, at least until only one channel remains. In addressing this issue, commenters should assess the likelihood and extent that a first-come, first-serve procedure would provide for a prompt and far less burdensome initiation of service. Commenters should also address the relative equities or other benefits of a window filing system. We seek comment not only on the appropriate window, if any, for determining mutually exclusive applications in the context of electronic application filing, but also on the appropriate filing window(s) in the absence of an electronic filing system.
103. Resolving Mutually Exclusive Applications. Both petitions for rule making propose the use of lotteries to resolve mutual exclusivity among applications, with Skinner specifically referring to the lottery method previously used to award low power television licenses. Many other commenters, especially individuals from outside the industry, oppose the use of auctions to resolve mutually exclusive applications and agree with petitioners' lottery advocacy or suggest methods to reduce the occurrence of mutually exclusive applications, such as a letter-perfect application standard or first-come processing.111 Opponents of the low power radio petitions assert that the Balanced Budget Act of 1997 appears to mandate auctions if we must resolve mutually exclusive applications for microbroadcasting.112
104. We tentatively conclude that auctions would be required if mutually exclusive applications for commercial LPFM facilities were filed. Section 3002(a)(1) of the Balanced Budget Act of 1997 specifically amended the Commission's auction authority under Section 309(j) of the Communications Act to include commercial broadcast applicants for the first time. Amended Section 309(j) provides that, except for licenses for certain public safety noncommercial services and for certain digital television services and noncommercial educational or public broadcast stations, "the Commission shall grant the license or permit to a qualified applicant through a system of competitive bidding . . . [i]f . . . mutually exclusive applications are accepted for any initial license or construction permit." Balanced Budget Act of 1997, ' 3002(a)(1), codified as 47 U.S.C. ' 309(j). In addition, Section 3002(a)(2), codified as 47 U.S.C. ' 309(i), amends Section 309(i) to terminate the Commission's authority to issue any license through the use of a system of random selection after July 1, 1997, except for licenses or permits for stations defined by Section 397(6) of the Communications Act (i.e., noncommercial educational or public broadcast stations).
105. The First Report and Order in MM Docket 97-234, 13 FCC Rcd 15920 (1998) ("Auctions Order") sets the standards for auctions for broadcast stations. That document discusses the applicability of auctions to secondary services not mentioned in the Balanced Budget Act of 1997, such as FM translators, and concludes that the list in the Act is illustrative, not exhaustive. Id. at 15924. However, there is no discussion of the applicability of the auction requirement to newly created services such as the ones we are exploring in the instant case. Commenters are welcome to address whether these low power and microradio stations could be excluded from the auctions requirement of Section 309(j) consistent with legislative intent, and what other method we have the legal authority to use to resolve mutual exclusivity when it arises.
106. We note in this connection that under Section 309(j)(6)(E) of the Act, the Commission has the "obligation, in the public interest, to continue to use engineering solutions, threshold qualifications, service regulations, and other means in order to avoid mutual exclusivity in application and licensing proceedings." We agree with those commenters that, considering the nature of this service, especially the extremely low power involved for LP100 and microradio service, we have an obligation under the Act to explore other means to avoid mutual exclusivity prior to ordering competitive bidding for the LPFM licenses. We seek comment on the various methods we could use to avoid mutual exclusivity in this service, including the strict first-come procedure that could be used in conjunction with electronic filing, as discussed above.
107. In the event that auctions are held to resolve mutually exclusive applications, the Mass Media Bureau and Wireless Telecommunications Bureau, pursuant to delegated authority, will seek comment on and establish an appropriate auction design methodology prior to the auction.113 We seek comment on alternatives or modifications to the auction procedure which could promote localism and community involvement by low power and microradio stations. The Auctions Order sets forth new filing requirements which replace the previous filing procedures with a specific time period, or auction window, during which all applicants seeking to participate in an auction must file their applications.114 Prior to any broadcast auction, the Bureau will release, pursuant to delegated authority, an initial public notice announcing an upcoming auction and specifying when the window for filing to participate in the auction will open and how long it will remain open. 115 Initially, prospective bidders will electronically file a short-form application, along with any engineering data necessary to determine mutual exclusivity in a particular service.116 Once the auction is completed, a long-form application will be filed.117 We seek comment on the extent to which these procedures are appropriate for this new service and, specifically, how they could be modified to accommodate a first-come, first-serve filing procedure, if we choose to utilize one.
108. Licenses for noncommercial stations are specifically exempted from auction by the statute. 47 U.S.C. ' 309(j)(2)(C). In the event that we decide to classify all LPFM stations or those in the noncommercial part of the band (channels 201-220) as noncommercial, as discussed above, we seek comment on the appropriate selection methodology for applications for such channels that are mutually exclusive. We note that the Commission has the authority to resolve mutually exclusive noncommercial broadcast applications by lottery. 47 U.S.C. ' 309(i). We also seek comment on the appropriate procedure to resolve mutual exclusivity between commercial and noncommercial applications, should the occasion arise. In a Further Notice of Proposed Rule Making in MM Docket No. 95-31, 13 FCC Rcd 21167 (1998), we explored possible selection criteria and procedures for noncommercial educational applicants for full-power FM service, and commenters are invited to address the issues raised in that Further Notice. To the extent that suggestions in this proceeding differ from the comments submitted in response to that Further Notice, commenters should provide a rationale for disparate treatment of full-power and low power applicants.
103 We have recently announced that we will require electronic filing of full-power FM applications. Non-Technical Broadcasting Streamlining R&O.
104 Notice of Inquiry in BC Docket No. 78-253, 68 FCC 2d 1525 (1978).
105 Notice of Proposed Rule Making in BC Docket No. 78-253, 82 FCC 2d 47 (1980); Interim Processing Order 48 RR 2d 291 (1980).
106 See Notice of Proposed Rule Making in MM Docket No. 86-286, 104 FCC 2d 1368 (1986).
108 Non-Technical Broadcasting Streamlining R&O.
109 We would treat LPFM and microradio stations the same as full power FM stations for the purposes of the "quiet zones" established in Section 73.1030 of the Commission's rules, 47 C.F.R. ' 1030. The rule defines a protected area around the National Radio Astronomy Observatory site located at Green Bank, Pocohantas County, West Virginia and at the Naval Radio Research Observatory at Sugar Grove, Pendleton County, West Virginia. Section 73.1030(b) defines a protected area around the Table Mountain Radio Receiving Zone, Boulder County, Colorado. Section 73.1030(c) defines protected areas around Commission monitoring stations.
110 In other radio and television broadcast services, the Commission accepts construction permit applications only during specified filing windows, as determined by the staff. Our LPFM proposal is similar.
111 See, e.g., CRC Petition for Rule Making at 6.
112 E.g., Press Comments at 5.
113 See Auctions Order at 15967-68.
114 Id. at 15972-73.
115 Id. at 15973.
116 Id. at 15974-76, 15977.
117 Id. at 15984.