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Education
Alert - September 13, 2007
 
In this Issue...
FCC Announces New FM Radio Station Filing Window
 
 September 13, 2007
 
Charles Naftalin - Washington

For educational institutions that do not yet own their own radio station, a rare window of opportunity has opened.

The Federal Communications Commission (FCC) has announced that it will accept applications for new FM radio stations during a limited filing window in October 2007. The window will be open from Friday, October 12, to Friday, October 19. These new radio stations will be authorized to operate in the “reserved band” for noncommercial educational (NCE) FM stations. The FM reserved band encompasses frequencies 88.1 through 91.9 MHz.

The FCC will rely upon a “points system” to decide among the various applicants. Applicants with the highest point total will be declared the winner of each construction permit being applied for. Points will be awarded as follows:

• Established local applicant

Three points will be given for applicants who are “local” to the community being applied for, and who have been “local” continuously for at least two years (24 months) immediately prior to application.

- To be considered “local,” the applicant must be physically headquartered within 25 miles of the geographical coordinates of the community being applied for.

- Alternatively, 75 percent or more of the board members must reside within 25 miles of the geographical coordinates of the community being applied for.

- In addition to this “local” requirement, the applicant’s own governing documents (i.e., the applicant’s by-laws, constitution, or their equivalent) must require that such localism be maintained.

- To maximize points, applicants should change their governing documents now to ensure that they include the localism requirement.

• Local diversity of ownership

Two points will be awarded for applicants with no interests of any kind in any other broadcast radio station or FCC construction permit in the area to be served.

- Neither the applicant nor any board member may hold an interest in another radio station in the area.

- This includes Low Power FM (LPFM) radio stations and construction permits, as well as FM translators. Applicants who hold LPFM permits or licenses and who wish to claim these two points must commit to divesting any LPFM radio interests as part of their application.

- To claim the two points, the applicant’s own governing documents must require that such diversity be maintained.

- To maximize points, applicants should change their governing documents now to ensure that they include the diversity requirement.

• Best technical submission

One point will be awarded to the applicant covering the largest geographic area and population within the 60 dBu contour in its proposal, provided that the applicant covers both a ten percent greater area and a ten percent greater population than the applicant with the next best technical proposal. The applicant will receive two points instead of one point if its technical proposal covers both a 25 percent greater area and 25 percent greater population than the next best technical proposal.

- The FCC makes this assessment – applicants do not claim these points on the filing form.

Tie-Breakers

If two or more applicants have the same highest total number of points, there will be a tie-breaker. The applicant with the fewest radio stations nationally will be selected as the winner of the construction permit. The FCC will also permit applicants to file settlement agreements to break the tie. A settlement agreement typically involves a time-share arrangement whereby two or more applicants agree to build one radio station and share time slots on the station.

Summary

FCC filing windows such as this one are extremely rare and may present a last, best opportunity for educational institutions to apply for a radio station. Interested applicants are strongly advised to retain communications counsel and a qualified consulting engineer to help navigate the FCC’s processes.

For more information, email David O’Connor or Charles Naftalin at david.oconnor@hklaw.com or charles.naftalin@hklaw.com, respectively, or call toll free, 1-888-688-8500.