FCC 375

It’s said simple always wins and that has proven to be true once again as the Federal Communications Commission is scheduled to vote at its final meeting of 2020 on a proposal to revise the rules on how new stations are licensed when noncommercial operators and low-power FMs are involved. If adopted, the measure would streamline the rules on how to resolve competing applications, known in FCC jargon as mutually exclusive applications, which the Media Bureau concludes are “unnecessarily complex” and have been confusing for broadcasters despite having been used to license thousands of stations through the years. The new rules would also give LPFM license holders more time to construct their stations.

“The proposed changes build upon lessons learned from the most recent NCE and LPFM filing windows and are designed to improve our comparative selection and licensing procedures, expedite the initiation of new service to the public, eliminate unnecessary applicant burdens, and reduce the number of appeals of our NCE comparative licensing decisions,” said FCC Chair Ajit Pai in a blog post.

The Commission in February advanced the Notice of Proposed Rulemaking (MB Docket No 19-3). Its biggest proposed impact would be on the comparative procedures which currently rely on a point system for selection among rival applications. The FCC has concluded the complex nature of what’s on the books has not only frustrated broadcasters but also delayed the sign-on of new stations. In a summary of the proposed order, the FCC says the revisions are designed to “clarify, simplify, and otherwise improve” the selection and licensing procedures for new noncommercial FMs and LPFMs as well as “expedite the initiation of new service to the public,” while also eliminating “unnecessary applicant burdens” and reducing the number of appeals filed against licensing decisions.

If adopted, among the changes the proposed order would make include:

  • Eliminate the current requirement that NCE applicants amend their governing documents to pledge that localism/diversity be maintained in order to receive points as “established local applicants” and for “diversity of ownership”
  • Improve the NCE tie-breaker process and reduce the need for mandatory time-sharing
  • Clarify aspects of the “holding period” rule by which NCE permittees must maintain the characteristics for which they received comparative preferences and points
  • Extend the LPFM construction period from 18 months to three years
  • Allow the assignment/transfer of LPFM construction permits after an 18-month holding period and eliminate the three-year holding period on assigning LPFM licenses.
  • Authorize early time-sharing discussions among LPFM applicants.
  • Bar amendments to LPFM construction permit applications that attempt to rectify past unauthorized station operations.
  • Reclassify as “minor” any ownership changes to applicants, provided that the change has little or no effect on such applicant’s mission. Or if there are gradual board changes in non-stock and membership LPFM and NCE applicants.
  • Clarify the requirements to demonstrate reasonable assurance of site availability.

Since the Commission first launched the rulemaking proceeding last winter, broadcasters have been generally supportive of the updates proposed. REC Networks, which works with many low-power license holders, labeled the list as a litany of non-controversial proposals that would make things run more smoothly. It had also proposed the FCC eliminate the three-year holding period on LPFM assignments. And REC also suggested the FCC replace the complete prohibition on the assignment of unbuilt original construction permits to rules that would permit such assignments after 18 months from the original grant date.  Such a move would allow an organization that wasn’t able to build the LPFM after that time period to be able to assign the construction permit to another organization that could get the station on the air.

A group of low-power FM advocates, Prometheus Radio and Common Frequency, also backed the proposal. But they urged the FCC to take steps to ensure winners of LPFM licenses aren’t simply local outposts of national content networks rather than an organization truly active in a community.

The groups also pushed the FCC to use this rulemaking to extend the current four-year holding period by which an organization must operate an LPFM before handing it off to someone else to 10 years. They say that would do a better job of preventing speculation on the radio dial. But the Commission has tentatively concluded that change isn’t needed. Yet it will also keep in place the rule prohibiting the for-profit sale of LPFMs.

For its part, NPR’s biggest concern was how the Commission viewed changes in the membership of an applicant’s governing board. It said they should not result in a “major” amendment to a pending application, including during comparative “point system” proceedings. The FCC agreed, saying its waiver approach has led to “uncertainty” for license holders undergoing board changes as a regular or natural part of their organizational function. “We believe even sudden changes to governing boards of governmental applicants, due to their nature as government-controlled entities, are unlikely to indicate gamesmanship or takeover issues,” the order tentatively concludes.

The rulemaking brought no feedback from the National Association of Broadcasters or any commercial station owner that wouldn’t directly be impacted by the new rules. The Commission is scheduled to vote on the proposed order at its final public meeting for the year, set for Thursday, Dec. 12.

This story has been updated to clarify REC Network’s position on the FCC proposal.