F. Application Processing (122-163)

  1. Background.  The Commission recently mandated the electronic filing of broadcast applications after a transition period of six months from the date that each form becomes available for filing electronically.[1]  Likewise, we proposed in the Notice to require that LPFM applications be filed electronically.[2]  We stated that mandatory electronic filing could speed the introduction of LPFM service by enabling the staff to process more quickly and efficiently the large number of LPFM applications that we expect to receive.  In addition, we indicated that electronic filing software could be designed to assist applicants with technical issues related to their applications, such as determining what frequencies are available based on current information in the Commission's database.  We requested comment as to whether Internet access is sufficiently universal to warrant mandatory electronic filing of LPFM applications.
  2. Comments.  Commenters that addressed the matter generally support the use of  electronic filing, but are divided as to whether it should be mandatory.  Metro Detroit Broadcasting Corporation (Metro) opposes mandatory electronic filing on the ground that it would disadvantage minority groups due to a “significant race-gap” in Internet access.[3]  In addition, Metro argues that permissive electronic filing would provide time for interested parties to develop proficiency in using an electronic system.[4]  Andrew Morris argues that electronic filing should be required due to the threat of a backlog of paper-filed LPFM applications that would have to be entered manually into the Commission’s database.  However, several commenters express concern that electronic filing is untried and may delay the introduction of LPFM service.  The Oklahoma and Texas Departments of Transportation comment that, based on their experiences renewing licenses and correcting addresses using the Commission’s Web site, an electronic filing system is likely to be reasonably accessible and easy to use.[5]  Several commenters urge that, regardless of whether electronic filing is required, LPFM filing procedures should be as simple and inexpensive as possible.[6]
  3. Decision. We anticipate that electronic forms will be made available via the Commission’s World Wide Web site prior to the opening of the first LPFM filing window.  Based on our consideration of the record, however, we will not adopt a mandatory electronic filing system for LPFM application forms at this time.  Rather, assuming availability of the forms, we will make electronic filing permissive for the first LPFM filing window, which we intend to open for LP100 stations shortly after the effective date of this Order.  Whether electronic filing is permissive for the second window that we anticipate opening for LP10 stations, as well as for any subsequent LPFM filing windows, will be resolved at a later date and will depend on several factors, including our experience with both electronic and paper filing during the first LPFM window and the time that elapses between the first and second windows.
  4. We recognize that, as some commenters point out, there may be disparities among potential LPFM applicants in terms of Internet access and/or computer skills.  We believe that making electronic filing permissive at this time will accommodate applicants that might be disadvantaged by mandatory electronic filing.  We previously have discussed the significant advantages of a mandatory electronic filing system in terms of realizing savings and efficiencies.  We do not believe that electronic filing would necessarily constitute an undue burden or expense for potential LPFM applicants, as the costs of computer and modem equipment continue to fall, and Internet access increasingly is becoming available at minimal cost commercially and at public institutions such as libraries.  In addition, the Commission has made, and will continue to make, great efforts to create a simple, user-friendly electronic filing system.[7]  However, at present we are determined to be cautious with the first applications for a new service filed by applicants whose resources and familiarity with Commission processes may be very limited.  We will reassess our electronic filing decision after our experience during the first filing window.  We can better determine at that time whether the first filing window has provided a reasonable opportunity for interested parties to understand and arrange for Internet access and familiarize themselves with our Web site and electronic filing system.  We can then determine whether the public interest benefits of mandatory electronic filing will outweigh any difficulties encountered or inequities expected, and decide whether electronic filing will remain voluntary or be mandated for use by all.
  5. Although electronic filing will be permissive, we strongly encourage applicants to take advantage of electronic filing, and expect that many will do so.  The forms will be accessible to anyone with a computer and a modem, without the need to purchase any special computer software.[8]  The Commission’s software will make filing more certain for applicants by automatically notifying them of critical errors or omissions in their applications, and allowing them to correct the applications prior to submission.  This software also will provide applicants with immediate verification that their applications have been received by the Commission.  In addition, it will allow applicants to submit amendments, make corrections to their previously-filed applications, and submit narrative, explanatory exhibits.  Furthermore, we intend to design additional software that will be available on the Commission’s Web site to assist interested parties in making a preliminary determination as to which frequencies are available for LPFM use, based on current information in the Commission's database. Thus, LPFM applicants using the electronic filing system also will have access to a form of automated technical assistance in preparing their applications. 


1.Window Filing Process

  1. Background.  We proposed in the Notice to adopt a window filing approach for LPFM applications, with short filing windows of a few days each to “lessen the occurrence of mutually exclusive applications and speed service to the public.”[9]  The Commission recently substituted a uniform window filing procedure for the various application procedures for new commercial broadcast stations, and for major changes to existing stations.[10]  Under this procedure, the Commission announces by public notice a “window” or specific time period during which applications may be filed.  When the window closes, the staff reviews the applications filed to determine whether any request mutually exclusive authorizations and, therefore, are subject to competitive bidding.  Non-mutually exclusive applications are processed in accordance with our general procedures.  Groups of mutually exclusive applications are identified by public notice and proceed to auction.  The Commission also is considering substituting a window procedure for the two-step, cut-off list procedures now in place for full-service NCE broadcast applications.[11]  
  2. In the Notice, we also asked for comment as to whether a first come-first served process might serve the public interest better than a window process by more effectively avoiding mutual exclusivity among LPFM applications.[12]  We speculated that electronic filing “might give us the capacity to ascertain the precise sequence in which applications are submitted by different parties.”[13]  Thus, applications conflicting with ones filed “even a moment earlier”[14] might be rejected as unacceptable for filing, avoiding mutual exclusivity in many cases.  We noted a number of drawbacks to this approach, however, including the possibility that applicants might lose filing rights based solely on the quality of their Internet connections.
  3. Comments.  Many commenters support a window filing approach, and offer various suggestions as to the appropriate duration of filing windows.[15]  Joshua Weiss comments that, in order to even the playing field for potential LPFM applicants, the Commission should list available frequencies and locations well in advance of opening a window.  Warren Michelsen states that a Commission database capable of helping applicants determine frequency availability in the areas in which they are interested would help avoid the occurrence of mutual exclusivity.[16] Some commenters instead favor a first come-first served filing system, generally contending that it would be a better means of avoiding mutual exclusivity than a window approach.[17]  However, Ronnie Miller argues that a first-come first-served system would give an unfair advantage to applicants with superior financial and technical resources.[18]  Several commenters suggest hybrid approaches combining elements of window and first come-first served systems.[19]
  4. Decision.  Based on our consideration of the record, we will adopt a window filing process for LPFM applications.  We previously stated that a window process “provides the staff with a mechanism to control effectively the filing and processing of broadcast applications.”[20]  We believe that such a mechanism is important here because of the large number of LPFM applications that we expect to receive.  In addition, the first-come first-served approach envisioned in the Notice, which would determine filing priority based on the exact time that applications are filed, is feasible only if electronic filing is required, which will not be the case, at least initially.[21]  Moreover, we are concerned that such an approach, by placing a premium on filing at the earliest possible moment, might unfairly disadvantage certain applicants based solely on the quality of their Internet connections.[22]  The filing of hundreds or thousands of applications at once also might place unbearable strains on the LPFM electronic filing system.  A window filing process avoids these pitfalls, as applicants will be able to file at any time over a period of several days without losing filing rights. 
  5. Once this Order becomes effective,[23] the Mass Media Bureau, pursuant to delegated authority, will promptly release a public notice announcing a national filing window for LP100 applications.[24]  We anticipate that this window will open in May.[25]  The notice will be issued at least thirty days in advance of the opening of the filing window.  Full power broadcast applications filed on or after the date of release of a public notice announcing the opening of an LPFM window will not preclude the filing of conflicting LPFM applications filed during that window.  However, where the conflict ultimately is determined to relate to service inside the city grade contours of the full power station, the LPFM application will be dismissed.[26]  The window itself will be open for a period of five business days.  We believe that five days, combined with thirty days’ specific advance notice and the additional time between the release of this Order and the public notice announcing the window, should give interested parties sufficient time to prepare and file their LPFM applications, while minimizing the number of mutually exclusive LPFM applications.  We emphasize that applications filed before or after the dates specified in the public notice will not be accepted.
  6. In accordance with our window filing procedure for commercial broadcast applications, after the LPFM window closes, the staff initially will screen applications for the purpose of identifying those that are mutually exclusive and those that fail to protect existing broadcast stations in accordance with the standards adopted herein.  Applications that fail to properly protect these existing stations will be dismissed without the applicant being afforded an opportunity to amend.  This will increase the speed and efficiency with which LPFM applications can be processed by the staff.  Technically acceptable non-mutually exclusive applications will be further reviewed for acceptability and processed by the staff in accordance with the Commission’s general procedures.  Groups of mutually exclusive applications will be identified in a subsequent public notice, and will be subject to the selection procedures set forth below.[27]  After an application is tentatively selected from a mutually exclusive group, it will be reviewed for acceptability, and a public notice will be released announcing the finding that the application has been tentatively selected and is acceptable for filing.[28]  Petitions to deny the application will be due within 30 days of the release of the public notice of its acceptability for filing.[29]  Petitions and informal objections will not be considered unless and until the application has been tentatively selected for processing and found acceptable for filing.
  7. As stated above, we are developing software to assist interested parties in determining whether specific frequencies may be available at specific locations for LPFM use.  This software will not be able to determine conclusively whether a particular frequency will be available for an applicant, as frequency availability also will depend, among other things, on whether competing applications are filed during the LPFM filing window.  Nevertheless, we anticipate that the software will help interested parties focus on potentially-available facilities, and will provide technical assistance for interested parties with limited financial resources.  We anticipate that this software will be ready for use by the time we announce the first filing window for LPFM applications.  The Mass Media Bureau will issue a public notice with information regarding how to access the software and the technical assistance it can provide. Such information also will be posted on the Commission’s Web site.

2.Selection Among Mutually Exclusive Applications

  1. Background.  In the Notice, we requested comment as to whether the proposed LPFM service should be restricted to NCE applicants or open to both commercial and NCE applicants.[30]   We tentatively concluded that, pursuant to statutory requirements, mutually exclusive applications for commercial LPFM facilities would be subject to auction.[31]  We asked for comment on alternative methods for resolving mutual exclusivity among NCE LPFM applicants.  We specifically referred commenters to our proceeding reexamining full-service NCE comparative standards, where we sought comment on three possible methods for selecting among mutually exclusive applicants:  (1) comparative hearings; (2) a lottery process weighted in favor of certain applicants based on statutory requirements and other factors; and (3) a system assigning points to applicants based on various selection criteria.[32] 
  2. Comments.  Most commenters that address the matter oppose the use of competitive bidding, arguing that it would undermine the Commission’s stated goals in establishing the LPFM service.[33]  Few commenters support the use of comparative hearings to resolve mutually exclusive NCE applications.  There was support among commenters for the use of a lottery process, although most of these commenters argued the merits of lotteries over auctions, rather than over an alternative selection method.[34]  A number of commenters also favored the use of a point system.  In addition, several commenters suggest that we impose arbitration to resolve mutual exclusivity,[35] and one advocates the use of “conflict reduction methods” such as allowing “liberal channel and coverage changes.”[36]  Commenters also propose various selection factors for use within a comparative selection process.
  3. Decision.  Based on our consideration of the record, we shall adopt a point system for resolving mutual exclusivity among LPFM applicants.  The point system will include three selection criteria:  (1) established community presence; (2) proposed operating hours; and (3) local program origination.  The system will employ voluntary time-sharing as a tie-breaker, that is, tied applicants will have an opportunity to aggregate points by submitting time-share proposals.[37]  As a last resort, where a tie is not resolved through time-sharing or settlement, we shall award successive equal license terms totaling eight years (the normal license term), without renewal expectancy for any of the licensees.
  4. We conclude that the point system we are adopting is superior to alternative selection methods.  As discussed above, the LPFM service will be reserved for noncommercial, educational service, and we are precluded by statute from using auctions to award station licenses on channels reserved for NCE use.[38]  Accordingly, we need not discuss an auction-based selection mechanism.  In our proceeding reexamining full-service NCE comparative standards, we tentatively rejected comparative hearings because they tend to be lengthy, cumbersome, and resource-intensive, without substantial offsetting benefits.[39]  These disadvantages make comparative hearings particularly ill-suited for selecting LPFM applicants.  Like comparative hearings, mandatory arbitration and engineering solutions could impose significant delays on the LPFM authorization process and impose additional expenses on applicants.  Moreover, although we will encourage individual settlements as a means of resolving mutual exclusivity among LPFM applicants,[40] the Commission lacks the resources to administer a system that would require arbitration or the imposition of engineering solutions in every instance of mutual exclusivity.  Finally, we conclude that a lottery system is comparatively inferior to a point system as an LPFM selection method.  The primary benefits of a lottery system are the speed and ease with which it may be applied.[41]  As discussed below, however, a point system offers like benefits.  Moreover, there are unresolved legal and policy issues surrounding the use of a lottery system that pose a risk of delaying the introduction of LPFM service to the public.[42]  A point system does not entail similar risks.  A lottery process is also inherently inferior to a point system in its ability to further the Commission’s policy goals due its random nature.  This randomness may be mitigated, but not eliminated, by weighting in favor of certain types of applicants.  For these reasons, in the case of LPFM service, we reject all of these approaches in favor of a point system.[43]
  5. Point System.  We believe that a point system is the best-suited selection methodology for promoting the Commission’s policy goals for the LPFM service and speeding its introduction to the public.  The Commission has used a point system procedure with success in the Instructional Television Fixed Service (ITFS).[44]  Like lotteries, point systems have the potential to be fast, inexpensive, and administratively efficient.  Unlike lotteries, however, point systems make possible the selection of applicants based on objective criteria designed to best advance the public interest in the particular service at issue.  Finally, the fact that LPFM licenses are non-transferable[45] eliminates a major potential disadvantage of any system based on selection criteria; it prevents the integrity of the system from being undermined by the rapid assignment or transfer of station licenses by an entity that was awarded the license over other applicants on some merit basis that is not necessarily found in the buyer.[46] 
  6. Point System Operation—Selection Criteria.  Our point system will include three selection criteria for mutually exclusive applicants:  (1) established community presence; (2) proposed operating hours; and (3) local program origination.  These criteria are directly related to the advancement of the public interest that the Commission has found warrants the introduction of this new service.  To protect the integrity of the selection process and ensure that its full benefits may be realized, we have chosen clear-cut selection factors that are objective in nature and do not require burdensome documentation.  
  7. Established Community Presence.  For the reasons set forth above, first, applicants that have an established community presence of at least two years’ duration will be awarded one point.  An applicant will be deemed to have an established community presence where, for a period of at least two years prior to application, the applicant is able to certify that it has been physically headquartered, has had a campus, or has had 75 percent of its board members residing within 10 miles of the reference coordinates of the proposed transmitting antenna.  This criterion will favor organizations that have been operating in the communities where they propose to construct an LPFM station and thus have "track records" of community service and established constituencies within their communities.  We believe that such applicants, because of their longstanding organizational ties to their communities, are likely to be more attuned to, and have organizational experience addressing, the needs and interests of their communities.  In this regard, a number of commenters suggest preferences based on prior community service and/or community support.[47]  These suggested factors could be subjective in nature, however, and could be burdensome to demonstrate and verify.  In addition, we believe that preferring organizations that have been in existence and physically present in the community for two years will help prevent maneuvering of the point system by those who might otherwise establish multiple organizations to file LPFM applications.
  8. As we stated above in our discussion of the community-based eligibility requirement, we do not believe this preference for established local entities contravenes the court’s concerns in Bechtel.  In adopting such a comparative factor, we further note that the Bechtel court was concerned that quantitative integration factors worked to the virtual exclusion of other factors the court deemed potentially relevant in determining the relative quality of service that would be provided by an applicant.  For LPFM, we are including other selection factors and giving them equivalent weight in the selection process.  Moreover, while the two-year presence factor has a quantitative aspect, it is objectively verifiable and does not depend on promises of future performance, as the integration preference did.
  9. Applicants claiming points for established community presence will be required to certify in their applications that they meet the above-stated conditions.  The application form will identify appropriate documentation that must be made available for the point claimed.  Applicants will be required to submit this information at the time of filing and it will be available in our public reference room.  As with other broadcast applications, the Commission will rely on certifications but will use random audits to verify the accuracy of the certifications.[48]  This information also will enable applicants to verify that competing applicants qualify for the points they claim.
  10. Proposed Operating Hours.  Second, applicants that pledge to operate at least 12 hours per day will be assigned one point.  As set forth below, the minimum operating hours for LPFM stations will be five hours per day.[49]  This criterion does not impose any additional requirement, but awards points to applicants that pledge longer hours of operation.  Applicants that propose more intensive use of the broadcast frequencies they seek will advance the Commission’s general policy objective of ensuring efficient spectrum use and providing more programming to serve their communities.
  11. Local Program Origination.  Finally, applicants that pledge to originate locally at least eight hours of programming per day will be assigned one point.  For purposes of this criterion, local origination will be defined as the production of programming within 10 miles of the reference coordinates of the proposed transmitting antenna.[50]  This criterion derives from the service requirements for full-service broadcast stations, which are required to maintain the capacity to originate programming from their main studios.[51]  LPFM licensees will not be subject to main studio requirements, and will have discretion to determine the origination point of their programming.[52]  As a comparative selection factor, local program origination can advance the Commission’s policy goal of addressing unmet needs for community-oriented radio broadcasting.[53]  In this regard, we believe that an applicant’s intent to provide locally-originated programming is a reasonable gauge of whether the LPFM station will function as an outlet for community self-expression.
  12. With regard to both the second and the third selection criteria, applicants will be required to certify in their applications that they will meet the qualifying conditions for the points claimed.  We will require successful applicants to adhere to their operating hours and local program origination pledges.[54]  As these criteria are prospective in nature, they will not be subject to verification at the application stage.  The Commission will use random audits to verify the accuracy of the certifications, and will consider written complaints regarding actual performance.  Consistent with our current practice, the staff may issue letters of inquiry requiring submission of documentation in connection with such audits.  Where analysis of the requested information indicates that licensees have not fulfilled their pledges, appropriate action will be taken, including the possibility of monetary forfeitures and revocation proceedings.[55]
  13. In choosing selection criteria, we have carefully considered the comments we received advocating various selection factors, as well as the point system elements under consideration in our proceeding reexamining full-service NCE comparative standards.[56]  We believe that the factors we have chosen best balance our interest in furthering the specific localized objectives of the LPFM service and avoiding cumbersome, subjective and manipulable criteria.  We note that a number of commenters advocate preferences for entities controlled by minorities.[57]  We shall defer consideration of this matter. The Commission is conducting fact-finding studies as to whether such preferences may be justified consistent with the Supreme Court’s decision in Adarand Constructors v. Pena.[58]  Depending on the outcome of these studies, we will consider in the future whether to adopt minority control as a point system factor.
  14. 1st Tiebreaker -- Voluntary Time-Sharing.  In the event that the point system results in a tie among two or more mutually exclusive applicants, applicants will have the opportunity, within 30 days of the release of a public notice announcing the tie, to submit amendments to their applications incorporating voluntary time-share proposals.  Each time-share proponent must propose to operate at least 10 hours per week.  Time-share proposals may function as tie-breakers in two different ways.  First, all of the tied applicants in a mutually exclusive group may propose a time-share proposal, in which case the staff will review and process all of the tied applications.  Second, some of the tied applicants in a mutually exclusive group may submit a time-share proposal, in which case the time-sharers’ points will be aggregated.  Time-sharers may aggregate points under each of the three selection criteria.[59]  The purpose of allowing point aggregation is to encourage time‑share arrangements as a means of resolving mutual exclusivity among tied LPFM applicants.  In addition, we believe that time-sharing arrangements will serve the public interest by increasing participation by a variety of local community organizations in the operation of LPFM stations.
  15. Our decision to incorporate voluntary time-sharing into the point system as a tie-breaker is based on our judgment that voluntary time-share arrangements have the potential to advance the Commission’s goals for the new service.  We noted in our proceeding reexamining full-service NCE comparative standards that “[a] number of commenters dislike mandatory share-time arrangements, finding them confusing to audiences, and potentially inefficient for licensees.”[60]  On a voluntary basis, however, time-sharing has significant potential advantages for LPFM applicants.  From a practical standpoint, the localized nature of the LPFM service is likely to enhance applicants’ ability to time-share. In many cases, the small scale of LPFM operations also may make time-sharing more efficient for LPFM licensees.  Furthermore, by increasing the number of new broadcast voices, time-sharing can advance our interest in promoting additional diversity in radio voices and program services through the LPFM service.[61]
  16. Final Tiebreaker -- Successive License Terms.  As a last resort, in cases where a tie is not resolved through settlement or time-sharing, the staff will review tied applications for acceptability.  Applicants whose applications are grantable will be eligible for equal, successive license terms of no less than one year each, spanning a total of eight years.  Successive license terms will not be granted for groups of more than eight tied, grantable applications.  In the event of such a situation, the staff will dismiss all but the applications of the eight entities with the longest established community presences, as demonstrated by the documentation submitted with their applications.  If this does not limit the group of applications to eight, the entire group will be deemed ungrantable and will be dismissed if, after a final opportunity to submit settlement proposals within 30 days of the release of a public notice, the situation is not resolved.  Where successive license terms are granted, there will be no renewal expectancy for any of the licensees.[62]  If none of the tied, grantable applications proposes same-site facilities, then all will be granted at the same time.  The sequence of the applicants’ license terms will be determined by the sequence in which they file their applications for licenses to cover their construction permits, based on the day of filing.[63]  However, if any of the tied, grantable construction permit applications propose same-site facilities, the applicants proposing such facilities will be required, within an additional 30 days, to submit a settlement agreement proposing the sequence of the license terms for such applicants.  If they fail to do so, they will be removed from the mutually exclusive group and the remaining applications will be granted.
  17. Settlements.  Applicants may propose a full settlement at any time during the selection process after the release of the public notice announcing the mutually exclusive group.  Such settlements must be universal -- that is, they must involve all of the mutually exclusive applicants within a group -- and must comply with the Commission’s general rules for settlements, including the requirement that the settling parties certify that they have not received consideration for the dismissal of their applications in excess of their legitimate and prudent expenses.[64]  Settlements may incorporate voluntary time-share proposals.
  18. Delegated Authority.  As we explained in our proceeding reexamining full-service NCE comparative standards, the Commission currently may delegate authority for applying point systems only to administrative law judges or to individual Commissioners.[65]  This statutory restriction is based on the fact that point systems technically are considered a type of simplified hearing.  We believe that the staff would be able to administer the LPFM point system in a more streamlined manner than administrative law judges or individual Commissioners.  Therefore, we will seek authority from Congress, through specific legislation, to delegate responsibility to the staff for applying the point system.[66]  Until we receive such authority, the staff will refer point system proceedings to the Commission for disposition.
  19. Minor Modification of Authorized LPFM Stations.  We will adopt one exception to the window filing process to permit the filing at any time of certain “minor change” applications.  For LP100 stations, a minor change may involve a transmitter site relocation of less than two kilometers.  For LP10 stations, a minor change may involve a transmitter site relocation of less than one kilometer.  Minor change applications may also propose a change to an adjacent or IF frequency or, upon a technical showing of reduced predicted interference, to any other frequency.  Similarly, we will consider as minor any change in frequency necessary to resolve actual interference.  All other changes will be classified as “major” and subject to our window filing procedures.  Minor change applications also must satisfy the technical and legal requirements applicable to LPFM stations generally.

3.License Terms and Renewals

  1. Background.  In the Notice, we asked how often and how closely we should actively monitor, within the parameters of our statutory responsibility, the performance of LP100 stations in connection with the license renewal process.  We asked whether a pro forma process would satisfy any statutory requirement, in the absence of specific public complaint.  We also asked for comment on whether stations other than LP1000 stations should be authorized for finite, nonrenewable periods, such as five or eight years, to create additional opportunities for new entrants in the LPFM service.  We explained that making broadcast outlets available to more speakers is a fundamental premise of this rulemaking effort, and that we did not expect that such a limitation would discourage the very modest investment required to build such a station.  We sought comment on whether the disruption of service to the public that non-renewability would involve outweighed the potential benefits of making this service available to more speakers on a consecutive basis.
  2. Comments.  Commenters propose a variety of LPFM license terms and the majority argue that LPFM licenses should be renewable.  Commenters suggest license terms of one,[67] two,[68] four,[69] five,[70] and seven years.[71]  REC Networks advocates a five-year renewable license term.  According to REC Networks, granting a short license term would place the burden on LPFM licensees to demonstrate their continuing interest in providing local service.[72]  Other commenters contend that LPFM stations should have the same eight year license periods granted to full power stations.[73] 
  3. Most commenters argue that all LPFM licenses should be renewable.[74]  Jeffrey Richman believes that licenses should be renewable because (1) applicants might be deterred if they do not have the expectation of renewal; (2) off-air periods between transfers would be confusing to the public; and (3) nonrenewable licenses would be inconsistent with the “renewal expectancy” Congress intended in sections 307(c) and 309(k)(1) of the Act.[75]  Douglas E. Smith and Warren Michelsen believe that even with renewable licenses, there would be turnover in ownership because, e.g., the leadership of community groups will rotate and individual owners move frequently.[76]  REC Networks believes that through proper frequency coordination and time-sharing arrangements, many in crowded urban areas would have their turn at the microphone without having to wait several years for a license to expire.[77]  Commenters also contend that LPFM licensees should have the same renewal expectancy as existing broadcasters.[78]  On the other hand, Jennifer Anne Barrios and Robert Kevess believe LPFM licenses should not be renewable.[79]
  4. Decision.  We will provide LP100 and LP10 licensees with the same license terms and renewal expectancy as full-power FM radio stations.  Accordingly, licenses will be renewed for a term not to exceed eight years from the date of expiration of the preceding license[80] and LPFM licenses will be renewed, without consideration of competing applicants, if they have met the renewal standard of Section 309(k)(1) of the Act.  Upon considering the comments filed in this proceeding, we find that granting renewable licenses is consistent with the goals we are seeking to advance with this service.  Moreover, we believe that nonrenewable licenses would discourage licensees from developing facilities and audiences to the fullest extent possible.  We therefore will grant, with one exception described in paragraph 159 below, renewable licenses for LPFM stations.
  5. Section 73.1020(a) divides the country into 18 different regions containing one or more states for purposes of establishing synchronized schedules for radio and television licenses.[81]  Radio station licenses expired under this rule in intervals between October 1, 1995, and August 1, 1998, and those licenses, renewed for eight years, will expire again between September 30, 2003, and July 31, 2006.[82]  We consistently grant initial terms for all new broadcast authorizations to fit into this synchronized schedule, although it means initial terms are usually for a period of less than eight years.
  6. We adopt these synchronized schedules for LPFM licenses because maintaining the predictability, administrative efficiencies, public awareness, and fairness inherent in the existing synchronized schedule of license cycles serves the public interest.  Accordingly, an initial LPFM license granted within any renewal period set forth in Section 73.1020 of our rules will be assigned the expiration date assigned to those full-power FM stations licensed in the same region during the same licensing cycle.[83] Because of the cyclical nature of this process, granting initial full eight-year license terms in the middle of a licensing cycle could undermine the synchronization of the whole process.  Like full-power licenses, LPFM licenses may then be renewed for a term not to exceed eight years from the expiration date of the preceding license.  This approach will reduce the regulatory burden on LPFM broadcasters by affording them the same maximum license terms now granted other broadcasters, and will correspondingly reduce the associated burdens on the Commission.  We see no compelling reason to vary from the term set by Congress for full-power stations.  We further note that, while we will authorize eight-year license terms, the public may scrutinize station performance and file complaints with the Commission at any time during the term of an LPFM license.
  7. The one exception to this rule pertains to situations where we grant successive license terms under the final tiebreaker procedures.  These tiebreaker licenses will not be based on the synchronized licensing cycle of Section 73.1020.[84]   If applicants were granted last resort tiebreaker licenses conformed to the synchronized schedule, each licensee, depending on where in the renewal cycle we were, might receive authorizations to operate for a very short period of time, e.g., a few months, with no opportunity to renew their license. 
  8. We will also extend the renewal expectancy provisions of Section 309(k)(1) of the Act to LPFM licensees.[85]  Providing incumbents with the likelihood of renewal encourages licensees to make investments to ensure quality service.[86]  Upon receiving an application for renewal of an LPFM license, we will determine whether the licensee has served the public interest, convenience, and necessity; whether there have been any serious violations of the Act or Commission rules; and whether there have been any serious violations that, taken together, would constitute a pattern of abuse.  Only if incumbent LPFM licensees fail to meet these requirements will other applicants be eligible to apply for the same license.  As noted, an exception is where the license is held for successive terms as a result of the final tiebreaker procedure.  Such licenses will be nonrenewable.



  1. Background.  In the Notice, we noted that some commenters urged us to restrict the sale of LPFM stations to deter the filing of speculative applications and trafficking in construction permits.[87] We stated our belief that, in light of the limits we proposed on ownership of LPFM stations, we did not believe that it was necessary to restrict the sale of any class of LPFM station.  We invited commenters to address this issue, including whether restrictions on sales would be advisable if the Commission adopts ownership rules other than those proposed in the Notice.
  2. Comments.  While comments on the transferability of LPFM stations were mixed, the majority of commenters that addressed this issue supported either prohibiting transfers altogether or severely restricting them.[88]  UCC, et al., and Civil Rights Organizations proposed the adoption of rules prohibiting the sale of an LPFM station held for less than five years.[89]   Civil Rights Organizations argued that such a restriction would discourage speculators, who could operate even in a noncommercial environment, without deterring committed local broadcasters.[90]  ACLU of Mass. et al. argues that permitting transfer of licenses and construction permits will permit the creation of a secondary market where LPFM licenses can be obtained without regard to licensing priorities that favor diversity and localism.  Instead, it proposes that if an LPFM licensee decides that it can no longer own and operate its station, the license should be returned to the FCC where it can be reissued in accordance with the criteria adopted by the Commission.[91]  A few commenters were in favor of permitting transferability of LPFM stations, arguing generally that owners who have invested in such stations should be able to realize the fair market value of such stations.[92] 
  3. Decision.  After careful review of the comments, we have decided to prohibit the transfer of construction permits and licenses for LPFM stations.  Contrary to our initial view stated in the Notice, we are persuaded that a prohibition on transfers will best promote the Commission's interest in ensuring that spectrum is used for low power operations as soon as possible, without the delay associated with license speculation.  We are also persuaded that the goals of this new service, to foster opportunities for new radio broadcast ownership and to promote additional diversity in radio voices and program services, will best be met if unused permits and licenses are returned to the Commission.  Given the modest facilities and noncommercial nature of LPFM stations, we do not believe non-transferability will discourage LPFM licensees from serving their listeners.

[1]              1998 Biennial Regulatory Review—Streamlining of Mass Media Applications, Rules and Processes, Report and Order in MM Docket No. 98-43, 13 FCC Rcd 23056 (1998) (“Streamlining R&O”).

[2]              Notice, 14 FCC Rcd at 2504-06.

[3]              Comments of Metro at 12-13.  Metro also express concern that mandatory electronic filing would create barriers for small businesses.  Comments of Metro at 12. The eligibility criteria we are adopting for LPFM applicants, however, will exclude for-profit businesses.  See ¶ 17-20.

[4]              Comments of Metro at 13.

[5]              Comments of the Oklahoma and Texas Departments of Transportation at 6.

[6]              See Comments of Stephen Toner at 1; Comments of Dane Udenberg at 1.

[7]              In order to simplify their use and speed their processing, the Commission has streamlined broadcast applications in adapting them to an electronic format.  Open-ended questions requiring detailed exhibits have been replaced with simple yes/no questions as to compliance with Commission rules, supplemented by instructions and worksheets to explain the pertinent rules and help ensure that applicants answer the questions correctly.  See Streamlining Report and Order, 13 FCC Rcd at 23067-68.

[8]              With regard to operation and security issues, the electronic filing system for LPFM applications will function in a similar manner as the Commission’s system for other broadcast applications.  See Streamlining R&O, 13 FCC Rcd at 23062-65.   

[9]              Notice, 14 FCC Rcd at 2506-07.

[10]             See Implementation of Section 309(j) of the Communications Act—Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Services, First Report and Order, MM Docket No. 97-234, 13 FCC Rcd 15920, 15972-74 (1998).

[11]             Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Further Notice of Proposed Rulemaking in MM Docket No. 95-31, 13 FCC Rcd 21167, 21175 (1998).

[12]             Under first-come first-served procedures, applications may be filed at any time, and the filing of an acceptable application precludes the subsequent filing of mutually exclusive applications, unless filed on the same day.  Mutual exclusivity arises when competing applications are filed on the same day.  These procedures now are used only for minor changes for commercial and NCE broadcast stations.  See 1998 Biennial Regulatory Review—Streamlining of Radio Technical Rules in Parts 73 and 74 of the Commission’s Rules, First Report and Order in MM Docket No. 98-93, 14 FCC Rcd 5272, 5273-77 (1999).

[13]             Notice, 14 FCC Rcd at 2506.

[14]             Id.

[15]             See, e.g., Comments of Michael Robert Birdsill at 5; Comments of Ronnie Miller at 18-19; Comments of Andrew Morris at 15; Reply Comments of Kenneth W. Bowles at 19 (supporting short filing windows of only a few days or less); Comments of Creative Educational Media Corp. at 11; Comments of Positive Alternative Radio at 15; Comments of Community Media at 9; Comments of Oklahoma and Texas Departments of Transportation at 6; Comments of UCC, et al. at 35 (supporting windows of several months, open each year at the same time).

[16]             Joseph Belisle and Stephen Toner suggest that LPFM applicants be limited to one application per window to reduce the likelihood of mutual exclusivity and to prevent speculative or abusive filings.  Comments of Joseph Belisle at 1; Comments of Stephen Toner at 1.  We need not consider this suggestion in light of the eligibility requirements we are adopting for LPFM applicants.  In addition, for the reasons discussed below, we reject the suggestions of several commenters that the first filing window be reserved for institutions that serve women and minorities, or for applicants with a demonstrated commitment to their communities.  See ¶ 137.

[17]             See, e.g., Comments of Joseph Belisle at 1; Comments of John Bowker at 18; Comments of Kirk Chestnut at 1; Comments of David McOwen at 3-4; Comments of Forrest Parsons at 2.

[18]             Comments of Ronnie V. Miller at 18-19.

[19]             See, e.g., Comments of Scott Drew at 2; Comments of Community Broadcasters at 18.

[20]             Auctions 1st R&O, 13 FCC Rcd at 15973 .

[21]             Without mandatory electronic filing, the staff would have no way of determining the filing priority of applications that were electronically-filed and paper-filed on the same day.

[22]             Cf. Review of the Commission’s Regulations Governing Television Broadcasting, Order on Reconsideration, MM Docket No. 91-221, FCC 99-343 (released November 10, 1999) (rejecting first come-first served processing of applications filed pursuant to modified rules adopted in the local broadcast ownership proceeding because, among other things, “a ‘first come, first served’ system could initiate a ‘race’ to Mellon Bank to file applications, and result in filers camping out to be first in line at the filing counter.”).

[23]             This Order will become effective 60 days after publication in the Federal Register.

[24]             For the reasons discussed above, the first filing window will be open solely to applicants for 100-watt LPFM stations.  See ¶ 11-14.  We anticipate opening a second filing window for 10-watt LPFM stations in the future, after the close of the first window.  See id.  

[25]             Information about application procedures, and in particular the timing of the application window, will be available on the Commission’s LPFM website: www.fcc.gov\mmb\prd\lpfm.

[26]             See discussion of the city-grade contour, at ¶ 67.

[27]             See ¶¶ 136-152.

[28]             A tentative selectee whose application is found unacceptable for filing will be given a single opportunity to submit a curative amendment, provided that the amendment is minor and the amended application has the same number of points as originally claimed, or more than the points claimed by the next highest applicant.  Tentative selectees whose applications remain unacceptable for filing after this opportunity will be removed from their mutually exclusive groups, and will not be provided with an additional opportunity to amend.

[29]             See 47 C.F.R. § 73.3584.

[30]             Notice, 14 FCC Rcd at 2483, 2485.

[31]             Id. at 2507-08, citing Balanced Budget Act of 1997, § 3002(a)(1), codified as 47 U.S.C. § 309(j); see Auctions 1st R&O, 13 FCC Rcd at 15924-25 (concluding that auctions are mandatory for all primary and secondary commercial broadcast services).

[32]             See NCE Further Notice, 13 FCC Rcd at 21170-81.

[33]             See, e.g., Comments of Mid-America Broadcasting Company at 4; Comments of Morris Broadcasting Company at 11-12; Comments of Mark Pfohl at 1; Comments of Positive Alternative Radio at 9; Comments of Keith Reising at 1; Comments of Douglas E. Smith at 2; Comments of Voice of Vashon at 2; Comments of Robert T. Wertime at 1; Comments of Zillah School District at 5.  Likewise, many of the comments filed in response to the two petitions for rule making requesting the creation of low power radio services opposed the use of auctions.  See Notice, 14 FCC Rcd at 2507.

[34]             See, e.g., Comments of Mid-America Broadcasting Company at 4; Comments of Morris Broadcasting Company at 10-11; Comments of Keith Reising at 1; Comments of Zillah School District at 5.

[35]             See, e.g., Comments of Alliance for Community Media at 9; Comments of Robert T. Wertime at 1.

[36]             See Comments of CDC at 13.

[37]             Applicants also will be able to propose time-sharing as part of a settlement agreement among all mutually exclusive applicants, at any time after the release of a public notice identifying their mutual exclusive group.  See ¶ 147.

[38]             See Auctions 1st R&O, 13 FCC Rcd at 15928-31.

[39]             NCE Further Notice, 13 FCC Rcd at 21171.

[40]             We clarify that we permit LPFM applicants to propose settlements to resolve mutually exclusive applications because the use of settlements serves the public interest in instances such as this where auctions are not permissible.  In light of the fact that we are not auctioning this service, we believe settlements provide an appropriate method to resolve issues of unresolved mutual exclusivity and avoid the risk of protracted hearings.  See ¶ 150.

[41]             See NCE Further Notice, 13 FCC Rcd at 21171-72.

[42]             See Adarand Constructors v. Pena, 515 U.S. 200 (1995).

[43]             Our decision here is not intended to prejudge the issues raised in our proceeding reexamining the comparative standards for full-service NCE stations.  See NCE Further Notice, 13 FCC Rcd at 21171-76.

[44]             See 47 C.F.R. §74.913.  The ITFS is a nonbroadcast, point-to-point service intended primarily to provide formal educational programming offered for credit to enrolled students of accredited schools.  Pursuant to the provisions of the Balanced Budget Act of 1997, the Commission has determined that pending and future mutually exclusive ITFS applications shall be resolved by competitive bidding, unless Congress enacts legislation exempting ITFS from competitive bidding.  See Auctions 1st R&O, 13 FCC Rcd at 16003‑04.

[45]             See ¶ 163.

[46]             See NCE Further Notice, 13 FCC Rcd at 21181-83.

[47]             See, e.g., Comments of Kirk Chestnut at 1 (require competing applicants to demonstrate community interest in their applications with letters of endorsement from community leaders and citizens); Comments of Morris Broadcasting Company at 7 (preference for applicants with record of prior service to minority communities or prior employment of minorities).

[48]             See Streamlining R&O, 13 FCC Rcd at 23084-87.

[49]             See ¶ 182.

[50]             See generally Arizona Communications Corp., 25 FCC 2d 837 (1970), recon. denied, 27 FCC 2d 283 (1971).

[51]             See Amendment of Section 73.1125 and 73.1130 of the Commission’s Rules, the Main Studio and Program Origination Rules for Radio and Television Broadcast Stations, Memorandum Opinion and Order in MM Docket No. 86-406, 3 FCC Rcd 5024, 5026 (1988). 

[52]             See ¶ 186.

[53]             See Notice, 14 FCC Rcd at 2471; see also Comments of Alliance for Community Media at 7 (advocating points to applicants providing most local programming); Comments of UCC, et al. at 35 (advocating point system using local program origination criteria).

[54]             As noted above, a primary concern of the court in Bechtel was that there was no obligation for successful applicants to adhere to their integration proposals.  See ¶ 34.

[55]             See generally Streamlining R&O, 13 FCC Rcd at 23084-87.

[56]             See NCE Further Notice, 13 FCC Rcd at 21177-80.

[57]             See, e.g., Comments of Mid-America Broadcasting Company at 9; Comments of Southeast Association of Microbroadcasters at 1; see also Comments of Morris Broadcasting Company at 10-11 (preference for applicants with record of prior service to minority communities or prior employment of minorities).

[58]             515 U.S. 200 (1995).

[59]             For example, two time-sharers that claimed points individually for established community presence and proposed operating hours and local program origination may claim a combined two points for each of these criteria, for a total of six points.  They need not aggregate hours of operation or locally-originated programming to aggregate their points for these criteria.

[60]             NCE Further Notice, 13 FCC Rcd at 21180.

[61]             Notice, 14 FCC Rcd at 2471.

[62]             If for some reason a successive term licensee becomes unable to operate the station during its portion of the license term, that licensee’s time will be divided equally among the remaining licensees for that station.

[63]             For example, assume an unresolved tie among four grantable applications.  If permittees A, B, C and D file their license applications in that order, then their two-year license terms will be in that sequence, with the eight years commencing on the date that A’s license application is granted. 

[64]             See 47 C.F.R. § 73.3525.

[65]             See NCE Further Notice, 13 FCC Rcd at 21176, n. 22.  47 U.S.C. §155(c)(1).

[66]             The Commission previously secured similar legislation allowing it to delegate authority to the staff to conduct ITFS point system proceedings.  See id.

[67]             Comments of Robert W. Federal at 5; Comments of Scott D. Fowler at 4; Comments of John D. Bowker at 16.

[68]             Comments of Craig F. Amundsen at 1.

[69]             Comments of Jeffery A. Copeland at 2; Comments of Aaron Read at 14.

[70]             Comments of Jennifer Anne Barrios at 1; Comments of Robert Kevess, MD at 1; Comments of REC Networks at 16.

[71]             Comments of Amherst at 12-13; Comments of NLG at 35; Comments of Jonathan Tesser at 2.

[72]             Comments of REC Networks at 16.

[73]             Comments of Michael Robert Birdsill at 4; Comments of Sunbury Broadcasting Corp. at 2.

[74]             Comments of Crawford Broadcasting Co. at 7; Comments of Craig F. Amundsen at 1; Comments of John R. Benjamin and Charles Coplien at 3; Comments of Spencer Graddy Clark at 3; Comments of William T. Croghan, Jr. at 10; Comments of Judith Fielder and Nickolaus E. Leggett at 5; Comments of John D. Bowker at 16; Comments of Gary L. Nixon at 2; Comments of Scott D. Fowler at 44; Comments of Warren Michelsen at 6; Comments of Andrew Morris at 13; Comments of Jeffrey S. Richman at 3; Comments of REC Networks at 6; Comments of Douglas E. Smith at 4.

[75]             Comments of Jeffrey S. Richman at 3-4.

[76]             Comments of Douglas E. Smith at 4; Comments of Warren Michelsen at 6.

[77]             Comments of REC Networks at 16.

[78]             See Comments of NLG at 35; Comments of John D. Bowker at 16; Comments of Scott D. Fowler at 44.  NLG suggests that a renewal preference be given initially to LPFM licensees, but that preference could be lessened after a 10-year period and possibly eliminated after a twenty-year period.  NLG further believes that a renewal preference should be given to an LPFM station that has joined a local self-regulatory organization.  Comments of NLG at 35.

[79]             Comments of Jennifer Anne Barrios at 1; Comments of Robert Kevess, MD at 1.

[80]             47 C.F.R. § 73.1020(a).  We may, however, issue either an initial or renewed license for a lesser term if we find doing so is in the public interest, convenience, and necessity.  Id.; see 47 U.S.C. §307(c).

[81]             Implementation of Section 203 of the Telecommunications Act of 1996 (Broadcast License Terms), Sections 73.1020 and 74.15, MM Docket No. 96-90, Report and Order, 13 FCC Rcd 1720, 1727, ¶ 18 (1997).

[82]             Licenses renewed for eight years in Maryland, the District of Columbia, Virginia, and West Virginia will expire on September 30, 2003. 47 C.F.R. §73.1020(a)(1).  Licenses renewed for eight years in Delaware and Pennsylvania will expire on July 31, 2006.  Id. §73.1020(a)(18).

[83]             Thus, for example, initial applications for licenses in Maryland filed within the current license cycle will expire on September 30, 2003, and initial applications for licenses in Pennsylvania filed within the current license cycle will expire on July 31, 2006.  While we anticipate that many applicants will be licensed in Maryland with expiration dates of September 30, 2003, any applicant licensed in Maryland after September 30, 2003, will be assigned an expiration date no later than September 30, 2011.  Likewise, any applicant licensed in Pennsylvania after July 31, 2006, will be assigned an expiration date no later than July 31, 2014.

[84]             See ¶ 149.

[85]             See 47 U.S.C. § 309(k)(1).

[86]             See Formulation of Policies and Rules Relating to Broadcast Renewal Applicants, Competing Applicants, and Other Participants to Comparative Renewal Process and to the Prevention of Abuses of the Renewal Process, Third Further Notice of Inquiry and Notice of Proposed Rule Making, 4 FCC Rcd 6363, 6364, ¶ 9 (1989) (quoting Central Florida Enterprises, Inc. v. FCC, 683 F.2d 503, 507 (D.C. Cir. 1982), see also Greater Boston Television Corp. v. FCC, 444 F.2d 841, 858 (D.C. Cir. 1970) (stating that renewal expectancies are provided “to promote security of tenure and to induce efforts and investments, furthering the public interest, that may not be devoted by a licensee without reasonable security”).

[87]             Notice, 14 FCC Rcd at ¶ 86; CRC Petition for Rule Making at 5.

[88]             See, e.g., Comments of ACLU of Mass. et al. at 5-6; Comments of KVOI at 1; Comments of City of Berkeley, CA at 1; Comments of Jennifer Anne Barrios at 2; Comments of Eric Brown at 1;  Comments of Mari J. Caro at 1;  Comments of Robert Kevess MD at 1; Comments of Miles Ohlrich at 1.  John Bowker would permit sale of a license only for an amount equivalent to the depreciated value of the existing plant.  Comments of John Bowker at 16.  Quinnipiac College would permit the sale of stations only to entities that do not own other commercial stations.  Comments of Quinnipiac College at 2.  

[89]             Comments of Civil Rights Organizations at 26; Comments of UCC, et al. at 16.  UCC, et al. would permit waiver of the anti-trafficking rule for good cause.

[90]             Comments of UCC, et al. at 16.

[91]             Comments of ACLU of Mass. et al. at 5-6.

[92]             See, e.g., Comments of Scott D. Fowler at 45.