FCC clarifies March 15 MX notice to permit time share agreements.

On March 15, 2024, the FCC Media Bureau released a Public Notice to announce the official designations of the groups of mutually exclusive (MX) applications from the 2023 Third Generation Low Power FM (LPFM) Filing Window.

This notice also included the procedures associated with the 60-day settlement window that is open for all applicants identified as MX that will run through May 14, 2024. 

In the settlement window, applicants within the MX Group can communicate with other applicants for the purpose of reaching a settlement agreement.  These agreements can include:

• Voluntary withdrawal of application(s) in order to allow for one applicant to prevail in the group.
• Minor modifications of location or operating channel (either as part of a settlement or unilateral).
• The ability for impacted applicants to receive compensation limited to reasonable and prudent expenses in connection with the settlement (such as reimbursement of engineering/consulting fees in connection with withdrawing an application).

What the notice specifically did not allow was time share agreements as part of a universal settlement involving all members of the MX Group.  This was a complete departure from the policies and rules in effect for the 2000/2001 First Generation LPFM Filing Window Series and the 2013 Second Generation LPFM Filing Window.  

In a letter to the Media Bureau, REC Networks advised staff of our concerns about how this notice took a complete departure from the previous procedures for the "first settlement window", where time sharing, which did not involve partial settlements and point aggregation can be done regardless of the number of points that the applicant claims.  

On Friday, March 22, the Media Bureau issued a second Public Notice to give clarification that indeed, time share agreements that do not involve the aggregation of points can be made during this 60 day period.  

Some examples can include:

• In a two applicant MX Group, both applicants can agree to time share.
• In a three applicant MX Group, two applicants can agree to time share and one applicant can agree to withdraw their application or leave the MX Group through an allowed minor modification/amendment.
• In a three applicant MX Group, all three applicants can agree to time share.
• In a MX Group with 4 applicants or more, two or three applicants can agree to time share and all other applicants must either withdraw their application or leave the MX Group through an allowed minor modification/amendment.

We note that in the 2023 Window, out of 109 FCC designated MX Groups, only eight have more than 3 proponents.  

Time share agreements during this 60-day settlement period must follow these rules:

• Time share agreements can only be for two or three applicants.
• Time share agreements must be universal meaning that all parties must be involved and the result of the group is only two or three applicants agreeing to a time share.
• Time share agreements must specify the proposed hours of operation for each time-share proponent (it does not have to be equal hours for each, nor does it have to be the same times every day of the week).
• Time share agreements must not propose simultaneous operation (even in "daisy chain" situations where two members are more than 24 km apart and those two members want to be on the air at the same time).
• Each time share proponent must propose to operate at least 10 hours per week.
• Partial group agreements where points would normally be "aggregated" are not allowed right now.  Those will only be allowed after the Points Public Notice when the FCC determines the score for each applicant, tentative selectees are identified and the second 90-day settlement will open.  Keep in mind that there will likely be multiple Points Public Notifces for a cluster of MX Groups and the only time when such aggregation agreements can be made is during the 90 day period specific for your MX Group.

Finally a couple of reminders from REC about the handling of MX Groups:

First, we must clarify that REC has been providing tools and media that supports the MX Groups and with that, we have made predictions of what an applicant's potential score may be.  These scores are NOT official and are in no way binding to the Commission.  Adjustments in predicted scores from what was originally claimed on the application are based on the rules, past policy statements in public notices and Reports and Orders as well as REC's 24+ year experience with the LPFM service.  The full Commission will have the final say on the number of points each applicant and after that, points can only be adjusted through pleadings such as informal objections, petitions to deny and petitions for reconsideration.  Once the FCC does determine the score for an MX Group, the scores shown on the REC Window Tracker Tool will change from our predicted scores to the actual scores.  You will know when the scores in the MX Group are official when in the applicant list for a spefific MX Group, the wording "(predicted winner)" is changed to "(tentative selectee)" and the original scoring notes are moved from the active scoring note section to archiving in the MX Group notes on the MX Group page.

Also, we have received multiple requests to ask the Media Bureau for waivers of the current minor change limitation.  We will not accommodate those requests.  Waivers are intended for very out of the ordinary situations and not just to make either the applicant's or staff's life easier.  It is also unfair to the many other applicants who are waiting for the second settlement window for their MX Group, especially considering that modifications will be allowed on a first-come, first-served basis. 

As always, if you have any questions, please contact REC.