In a recent decision, the FCC upheld the dismissal of a noncommercial FM application filed during the 2007 NCE FM window, despite the fact that the application was not mutually exclusive with any other pending application. This somewhat unusual result came about following the selection of a winner from among a group of mutually exclusive noncommercial applications. That group of mutually exclusive applicants (or, as the FCC calls it, an “MX Group”) contained a number of applications in a “daisy chain.” As an example, a daisy chain would be where Applicant A was mutually exclusive with Applicant B, and Applicant B was mutually exclusive with Applicant C, and Applicant C was mutually exclusive with Applicant D, but Applicants C and A were not themselves mutually exclusive. In the case decided last week, there were actually 13 applications in the chain. When the FCC used its point system for evaluating noncommercial applications, it selected a winner and dismissed all of the remaining applicants. One of those dismissed applicants, The Helpline, asked the FCC to reconsider the dismissal of its application, arguing that, when you dismissed all of the applications that were mutually exclusive with the winning applicant, the technical facilities proposed by the Helpline would no longer be mutually exclusive with any application and thus could be granted as well. The FCC denied that request.
Why was that request denied? In its order establishing the rules governing the processing of noncommercial FM applications in the 2007 NCE window, the FCC decided that it would grant only one application out of any MX Group, even where not all of the applications in that group were mutually exclusive with each other. According to last week's order, the Commission considered allowing the grant of more than one applicant in a group, but determined that doing so could lead to the grant of an application that is “inferior” to other applications, and which would not necessarily represent the best use of the spectrum, so they decided to grant only one applicant from each MX Group.
Does this make sense? After all, if the Helpline application and that of the winner of its MX Group were the only applications filed, both would have been granted, and there would not have been any question of the inferior nature of Helpline application. Given the delays between filing windows for new NCE stations, it will likely be years before Helpline gets the chance to re-file its application. Is the public served by not having any service during that time period?
On the other hand, there is perhaps some unfairness in granting an application like that of Helpline, when it might have been possible for other applicants in the MX Group to serve the heart of their intended service area with a modified signal that protects the new station that was authorized for the winning applicant, but still serves more people than an applicant in the position of Helpline. If Helpline was granted after this other application was denied, then this other applicant might be forever precluded from serving the area that it wanted to serve, even if its service would be more significant than that of the applicant in Helpline's position.
Weighing the relative merits of these policy issues is not easy. But, at least for now, the procedure seems to be set in the FCC’s eyes – if you are in an MX group and are not the favored applicant, you will not get a second chance at a grant of your application – even if your application is not directly precluded by the grant of the winning application. You don't win the group - you're out, with your next chance to file being the next filing window, whenever that may be. One more reason to contemplate a settlement before the FCC makes the pick of the preferred applicant - as there is no limit on the number of applicants from an MX Group that can be granted through the settlement process.