In March, the FCC released an omnibus order that tentatively resolved approximately 200 mutually exclusive noncommercial educational (NCE) applications. The Order places these applications into 74 groups. These applications were filed during the 1990s and some had been pending for more than ten years. In addition, the FCC announced that it will be opening a filing window for applications for new NCE stations and for major modifications to existing stations. The window will open on October 12, 2007, and close on October 19, 2007.
Under previous rules, NCE applicants could file for new stations at any time. These applications were normally processed on a first-come, first-served basis, but were subject to cutoff dates by which competing applications could be filed. In the mid-to-late 1990s, the number of applications for new NCE stations dramatically increased. A significant number of these applications conflicted (either technically or under the FCC's Section 307(b)—public interest—standards) and the FCC did not have adequate rules in place to resolve these conflicts. It eventually implemented a de facto freeze on the filing and processing of applications for new NCE stations.
For the next ten years, the FCC attempted to institute rules to resolve conflicting NCE applications. However, it was not until 2004 that the judicial system affirmed the FCC's use of a point system to resolve mutually exclusive applications. The Order released on March 27, 2007, is the FCC's first attempt to apply the point system to mutually exclusive NCE applications. The FCC previously resolved, and will continue to resolve, mutually exclusive groups under a limited 307(b) analysis. The point system is only used if groups cannot be resolved under 307(b).
An applicant is eligible to receive a 307(b) preference if it would provide a first or second reserved band NCE service to at least ten percent of the population (provided that the population served is at least 2,000 people) within the proposed station's 60 dBu contour. If more than one applicant in a mutually exclusive group qualifies for this preference, the FCC compares each applicant's first service population coverage totals. An applicant that proposes a first NCE aural service to at least 5,000 more potential listeners than the next highest applicant's first service total will receive a dispositive fair distribution preference. If no applicant is entitled to a first service preference, the FCC considers combined first and second NCE aural service population totals and applies the same 5,000-listener threshold. If the group cannot be resolved under these factors, all remaining applicants proceed to a point system analysis.
Under the NCE point system, the FCC awards a maximum of seven points, based on four distinct criteria. First, three points are awarded to applicants that certify that they have been local and established for at least two years. Second, two points are awarded for local diversity of ownership if the principal community contours of the applicant's proposed station and any other station in which any party to the application holds an attributable interest do not overlap. Third, two points are awarded for certain statewide networks providing programming to accredited schools. Finally, an applicant that proposes the best technical proposal (i.e., proposed service to the largest population and area) may receive up to two points.
If two or more applicants in a group tie for the highest number of points awarded, any applicant with fewer points is eliminated and the tied applicants proceed to a tiebreaker round. The first tiebreaker is the number of radio station authorizations attributable to each applicant. The applicant with the fewest attributable authorizations prevails. The second tiebreaker is the number of radio station applications attributable to each applicant. If the second factor fails to break the tie, the FCC will use mandatory timesharing as the tiebreaker of last resort.
The FCC's decisions in the Order are tentative and still subject to petitions to deny. In addition, the procedures discussed above for resolving mutually exclusive NCE applications are more nuanced than discussed in this article. Parties are encouraged to review the procedures or contact a Wiley Rein attorney to discuss in more detail. These are the procedures that will be used for the new filing window in October to resolve conflicting proposals. The window is available for FM reserved band (channels 201-220) proposals for new NCE FM stations or to change to nonadjacent channels and/or change city of license no matter how far away. Applicants must file all applications electronically on Form 340.