Document text
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554 FCC 85-125
: 35597
In the Matter of )
)
Amendment of Sections 73.3572 and ) MM Docket No. 84-750
73.3573 Relating to Processing of )
FM and TV Broadcast Applications )
REPORT AND ORDER
(Proceeding Terminated)
Adopted: March 14, 1985 : Released; May 6, 1985
By the Commission:
Introduction
1. The Commission has before it a Notice of Proposed Rule Maki ng
("Notice") in the above-captioned proceeding, 1/ and comments filed in
response thereto, The Notice proposed replacing the existing two-step cut-off
procedure utilized to process applications for new commercial FM and TV
stations and modifications to existing stations in these services 2/ with an
alternative processing system designed to expedite authorization of new or
expanded service to the public. 3/ Under the proposed approach, the
Commission would announce a one-time, fixed filing period - or "window" ~
governing all applications for currently vacant channels in the commercial FM
1/ FCC 84-356 (released September 7, 1984), 49 Fed. Reg. 36523 (September 18,
1984).
2 Parallel provisions for the processing of television and FM applications
are contained, respectively, in Sections 73.3572 and 73.3573 of the
Commission's rules.
3/ We observed in the Notice that "we do not contemplate application of these
procedures to noncommercial FM and TV channels” because of the “special
problems of ... applicants [for such channels] in securing funding, staff and
programming before applying for a new station.” Notice at n.10. We are
convinced that our initial reasoning on this matter remains valid.
Accordingly, we will not generaily apply the new processing standards adopted
herein to applications for reserved, noncommercial channels. In certain
limited circumstances, however, where conflicts between noncommercial and
commerical facilities occur, "first come/first serve" procedures applicable to
commercial licensing will affect noncommercial applicants. See n.35 and para.
37 infra,
and TV Tables of Allotments or for modifications to existing facilities. Al
All mutually exclusive applications filed during the window would be subject
to comparative hearings to determine the best applicant. If only a single
acceptable application is filed during the window, then that application alone
would be grantable, subject to the usual qualification criteria. Im the event
a window closes and no acceptable applications have been filed during the
window period, a “first come/first serve" processing standard would then apply
whereby the first acceptable application received would cut off the filing
rights of any subsequent applicants. Applications for allotments added by
future Commission orders would be subject to similar filing windows, as
announced in the appropriate allotment order. ers
2. Commenters were invited to address the legal ramifications of
the proposed changes, with particular reference to the notice requirements, to
review the practical efficacy of the proposal, and finally to comment on the
specifics of the proposal, including the appropriate duration of the window
periods. After careful review of the record and analysis of the probable
costs and benefits of the proposed changes, we are persuaded that, with
certain modifications, adoption of the alternative processing procedures set
forth in the Notice is warranted.
Comments
3. The commenting parties generally opposed the proposed changes, 6/
contending that a filing window will encourage a “gold rush" mentality with `
its attendant mass filings and abuse by professional application promoters.
The National Association of Broadcasters and Dow, Lohnes, and Albertson argue
that the proposed process substitutes artificial regulatory incentives for
actual demand and that broadcasters will be forced to file defensive
modification applications in order to avoid being “locked out" of future
facilities changes. Most commenters also point to the Commission's
experiences with date-certain filing procedures, such as those governing the
low power television, cellular radio and multichannel multipoint distribution
4/ The FM “Table of Allotments" is found in §73.202 of the Commission's rules
‘and the TV "Table of Assignments” is found in §73.606. Both tables shall be
referred to herein as “Tables of Allotments.” At present, the FM Table
contains 76 available commercial channels and the TV Table contains 129 vacant
commercial channels. A list of these vacant allotments will be published in
the near future. Our decision, however, in the Report and Order in BC Docket
No. 80-90, 94 FCC 2d 152 (1983), and subsequent implementing actions, will add
some 689 new allotments to the FM Table. See n.12 infra.
5/ A more detailed description of the filing window ~ “first come/first
serve" processing system is provided at paragraphs 27~36, infra.
6/ Parties filing comments in this proceeding are: Lauren Colby; Doug McConnell;
Black Citizens for a Fair Media and Citizens Communications Center, filing
jointly; National Association of Broadcasters; National Radio Broadcasters
Association; Dow, Lohnes, & Albertson; International Broadcasting System;
Thomas C. Smith; South Wisconsin Co. and Terry Posey, filing jointly; Cohen and
Dippell; Newport Engineering; and, Eric Hilding.
services, and maintain that the problems in these services of massive
application filings and the Commission's inability to timely process those
applications will be repeated here if we implement the proposed changes. Many
commenters fear that a sudden influx of applications, which they predict will
result from the proposed processing system, will force the Commission to adopt
a lottery mechanism for TV and FM services. Several commenters suggest, as
well, that actions less drastic than implementation of a filing window and
“first come/first serve" procedure can achieve the Commission's stated goals
yet avoid the dangers they see inherent in our proposal. They contend, for
example, that requiring more stringent showings as to financial qualifications
and site availability would cut down on "strike" applications.
4. Citizens Communications Center and Black Citizens for a Fair
Media ("CCC-BCFM"), as well as other commenters, express concern that the
proposed 45 day duration for the filing window will particularly disadvantage
minorities, women and small businesses. They maintain that only well~-financed
and established entities will be able to respond within such a limited time
frame. These commenters also focus on the “first come/first serve" aspect of
the proposed changes, asserting that no public interest rationale has been
advanced for barring competing applications after the window is closed. They
argue that the public is best served when the Commission's applications
processing procedures emphasize selection of the best possible candidate
rather than expedition of service or administrative savings.
5. Commenters supporting the proposed changes agree with our
suggestion in the Notice that the new procedures will deter strike
applications and promote rapid service to the public. Newport Engineering
specifically contends that the reduction in comparative hearings, and the
expenses and delays attendant to such hearings, resulting from the elimination
of existing cut-off procedures will particularly benefit minorities and small
businesses. 7/
Discussion
6. As an initial matter, we have decided to apply the window
filing and "first come/first serve" processing system to FM services only.
Upon review, it became apparent that the TV processing line, because of
significantly lower applications volume, has not experienced the range and
intensity of problems that have faced the FM processing line. There is no
appreciable backlog in TV nor is there the pressure of a large number of new
allocations such as the 689 new channels added to the FM Tables as a result of
Docket 80-90. Therefore, television applications will continue to be
processed under their current rules.
7. The Table of Allotments for FM broadcast frequencies is designed
to promote “fair, efficient and equitable distribution” of these services
ay Reply comments were filed hy the National Radio Broadcasters Association,
CCC-BCFM and A.D. Ring and Associates. These commenters reiterated their
opposition to the proposed processing scheme, maintaining that the Commission
will not achieve any real benefit by its adoption.
among various communities. 8/ The Commission's role in designing an
applications process to assign these frequencies is not simply to administer
spectrum allocations or to prevent stations from interfering with one
another. Rather, the Commission also strives to ensure that an expansive menu
of programming alternatives is made rapidly available to the American
public, In developing processing guidelines, then, the Commission must strike
a balance between the dual and sometimes divergent goals of selecting the best
possible applicant and the commitment to bring new service to the public as
expeditiously as possible.
8. In an effort to limit delays in the authorization of new
broadcast service, our current processing rules utilize a cut-off list
procedure to restrict the filing rights of applicants. Under these rules,
once a channel is assigned through a rule making, a construction permit
application can be filed. After an initial review, the lead application is
placed on an "A" cut-off list. The public notice announcing the "A" cut-off
list states that the lead application is acceptable for filing. This notice
alerts the public to the cut-off date (at least 30 days subsequent) by which
applications mutually exclusive with and petitions to deny the lead
application must be filed. The lead applicant is permitted, as a matter of
right, to make major amendments to its application during this period. The
second stage of the process involves an initial review of applications filed
in response to the "A" cut-off list, a determination as to which of these
applications are mutually exclusive with the lead application, and, finally,
publication of a list — the "B" cut-off list - enumerating such applications.
The "B" list sets forth a date for filing petitions to deny against those
applicants on the "B" list and for filing minor amendments as a matter of
ri ght *
9. Our experience indicates that this cut~off processing procedure,
particularly the publication of the "A" cut~off list which identifies the lead
applicant and gives notice that its application is on file with the
Commission, has had the effect of facilitating competing applications that are
intended to block or delay the initial application. Such applications are
anticompetitive in nature and effectively postpone service to the public by
precipitating unnecessary comparative hearings. 9/ Beyond delay, of course,
these hearings also visit substantial costs on both the lead applicant and the
Commission. Further, as we stated in the Notice, “these costs and delays may
deter investors in new broadcast ventures and may have a deleterious effect on
an individual applicant's ability to finance a new broadcast station." 10/
10. Additionally, we have noted the filing of what appear to be
purely speculative applications that take advantage of the effort and expense
of the initial applicant and the announced availability of its application by
copying costly engineering data from the lead application. These applications
B/ 47 U.S.C. $307.
oF Comparative broadcast hearings may require as long as two to three years
to complete.
10/ Notice at para. 2.
seem to be motivated by a desire to elicit a settlement from the lead
applicant or to simply enhance the filing party's chances of success by
substantially and inexpensively increasing the number of active applications
before the Commission on its behalf. Like blocking applications, these
speculative filings encumber and delay the processing of the applications of
“ready, willing and able” applicants and thus contravene our processing policy
objectives of expediting service to the public and minimizing administrative
costs for both applicants and the Commission.
ll. We also are concerned that our existing approach to processing
minor modification applications lacks sufficient certainty and, as a result,
may be wasteful of the Commission's and applicants' resources. Currently,
when an application for a minor modification is filed, notice of its
acceptance is given and it is placed in line for processing. Applications in
conflict or mutually exclusive with the minor modification application may be
filed up until the day the latter application is granted. Thus, after full
review of the modification application itself is complete, the Commission is
required to search its applications files in an effort to determine prior to
grant whether conflicting applications have been filed. Further, since there
is some unavoidable delay between receipt and posting of modification
applications, it is impossible to make this determination without manually
sorting through the most recent filings. It is possible, therefore, to grant
a modification application and subsequently discover a timely filed conflicting
application which would necessitate revoking the grant and reopening the
application process. This uncertain and time~consuming process has proven
frustrating both to the Commission and to applicants and is clearly undesirable,
12, Moreover, our concern with efficiency and finality in
modification processing is considerably helghtened by our recent decision
significantly expanding the scope of facilities changes deemed to be minor
modifications. 11/ That action should increase appreciably the number of
applications to be processed under minor modification standards and
underscores the necessity that these standards be clear, certain and workable.
13. Finally, the need to reduce processing delays affecting
applications for new stations and modifications and to more effectively utilize
our applications processing resources has become increasingly urgent as the
Commission continues planning for the expected influx of FM applications for
the 689 new allocations stemming from our decision in BC Docket No. 80-90. 12/
This large group of newly-designated allocations must not become entangled in
a processing morass if our underlying objective of substantially expanding the
availability of FM broadcast service to the public’'is to be achieved.
11/ In the First Report and Order in MM Docket No. 83-1377, FCC 84-298
(adopted June 27, 1984), the Commission changed the definition of minor
modification to encompass all changes in power, antenna location or antenna
height, without regard to their effect on coverage area.
12/ The First Report and Order in MM Docket No. 84~231, FCC 84-640 (adopted
December 19, 1984), added 689 channels to the FM Table, thereby implementing our
decision in the Report and Order in BC Docket No. 80-90, 94 FCC 2d 152 (1983).
4, Despite the reservations expressed by the commenters , we are
persuaded tat the filing window and “first come/first serve" processing
system outlined in the Notice can significantly ameliorate the foregoing
problems. The filing window approach, for example, should dramatically reduce
the filing of anticompetitive and speculative applications, These applications ~
depend inherently on access by potential competing applicants to the lead
application prior to the filing deadline. The existing "A" cut-off list
processing system ensures such availability by utilizing the lead application
to trigger the 30 day filing period for mutually exclusive applications. By
contrast, the new processing system will generally use the allotment order
adding a new channel to the Tables to trigger a filing window for applications
directed to that channel. 13/ Potential applicants must file, during this
window, wi assurance of prior access to other applicants’ —
E k losing the channel to an applicant that does file in the
_ window or that files irst after the window closes. Similarly, the st
come/first serve" aspect of the new processing system will reduce delays in
authorizing service and encourage “ready, willing and ab e" applicants by ~~
_eliminating the competing application stage in cases where the channel in
question has already been subject to a filing window” and applications have not
__been forthcoming. —
“upon filing.
15. In sum, we believe the proposed processing system offers
numerous benefits. Before examining the details of this processing scheme,
however, and the specific objections to it of various commenting parties, we
must first consider whether our proposed approach properly accommodates the
procedural rights of prospective broadcast applicants to a hearing, as
delineated in existing case law.
16. The Commission traditionally has balanced an applicant's right
to a comparative hearing with the public's interest in having frequencies
occupied and operating. As we observed in the Notice, the Communications Act
of 1934, as amended, does not specifically provide for the filing of mutually
exclusive applications for new facilities. The Act does provide that
applications for new facilities cannot be granted for thirty days following
public notice of their acceptance for filing and that those applications
cannot be denied without affording the applicant the right to a hearing.
47 U.S.C. $309. In Ashbacker v., FCC, 326 U.S. 327-(1945), the Court construed
these provisions to require the Commission to consider two mutually exclusive
13/ Application filing windows for vacant channels currently on the Tables,
of course, were not prescribed in the original allotment orders adding those
channels. This Report and Order will serve that purpose. Furthermore, as
explained below, we will announce filing windows for allotments added as a
result of our actions in Dockets 80-90 and 84~231 by separate public notices
in order to control the Commission's workload. In all cases, however, the
filing windows will be independent of any lead application for the channel
concerned.
broadcast applications, both of which had been accepted for filing, in a
comparative hearing before denying one and granting the other. The Court
noted, however, that the Commission could promulgate regulations limiting the
filing rights of competing applicants. 14/ Thus, while Ashbacker requires
comparative hearings in choosing between mutually exclusive applicants, it
leaves to the Commission's discretion the circumstances under which
applications are considered mutually exclusive. 15/
17. The Commission has exercised this discretion over the years and
limited the filing rights of competing applicants in order to provide
certainty, to avoid disruptions in the processing procedures for high demand
services or to further other compelling public interest objectives. In the
Report and Order in MM Docket No. 83-1148, 16/ for example, we determined that
competing applications should not be permitted to be filed against the
application of an incumbent licensee for a higher class channel where
additional channels of similar class were available for which other applicants
could compete. In this situation, the Commission found that expedition of
service and the promotion of enhanced service from existing licensees
outweighed the interest in selecting licensees by comparative processes. 17/
Similarly, in the domestic one-way paging service, the Commission insulates
certain applicants proposing to change frequencies from competing applications
in order to expedite service and encourage the negotiation and settlement of
frequency conflicts. 18/ Finally, the use of cut-off procedures has heen
acknowledged by the Court as a reasonable and necessary limitation on the
statutory right to a comparative hearing. 19/ However, any regulations
„limiting the right to a hearing must give Fair notice to the public of what is i
being cut~off. 20/ ‘Therefore, although the Commission can be flexible in” ~
“establishing ' ee rules, aly applicants m must be” treated | equally” and —
18, Under the window filing and “first come/first serve" processing
system full and complete notice is achieved. Each frequency added to the
Table of Allotments is the result of a notice and comment rule making in which
147 See Ashbacker v. FCC, 326 U.S, 327, 333 n.9.
15/ MCI Airsignal International, Inc., FCC 84-397, Mimeo No. 34965 (released
August 17, 1984).
d6/ FCC 84-358, 49 Fed. Reg. 34007 (August 28, 1984), 56 RR 2d 1253 (1984).
ai} See Report and Order in MM Docket No. 83-1148, FCC 84-358, Mimeo No.
34861 (released August 16, 1984).
18/ See MCI Airsignal International, Inc., supra n.15 and Digital Electronic
Message Service, 88 FCC 2d 1716, 1723 and nn.10, 12 (1982).
Radio Athens v. FCC, 401 F.2d 398, 400-401 (D.C. Cir. 1968).
19/
20/ See Ridge Radio v. FCC, 292 F.2d 770, n.6 (D.C. Cir. 1961).
21/7
Century Broadcasting Corp. v. FCC, 310 F.2d 864, 867 (D.C. Cir. 1962).
the public has had an opportunity to participate. Thus, inclusion in and
publication of the Tables in the Federal Register constitutes notice to the
world of a channel's availability. 22/ By designating “window” filing dates,
all interested parties will be on notice that the Commission will grant the
vacant channel to a sole qualified applicant who files or that it will
designate mutually exclusive applicants for a comparative hearing. 23/ Under
the “first come/first serve" aspect of our lasers all vacant channels that
are not applied for during the window will be granted to the first ec
applicant to file. “Of course, the statutory right to file petitions to deny”
will be preserved to assure that any allegations that an application is
inconsistent with the “public interest, convenience and necessity” may be se
EAT and subsequent cases.
19. Turning from legal requirements to policy considerations, many
of the commenters maintain that the proposed processing system will create a
“gold rush" mentality with applicants filing out of fear of being foreclosed
rather than in response to marketplace stimulus. To the extent the window
filing and "first come/first serve” system motivates interested parties to act
quickly rather than to wait for the lead applicant to come forward, we believe
it directly furthers the public interest. A fallow frequency on the Tables of
Allotments represents a loss to the community and the public henefits from
serious candidates moving quickly to bring service on line. To the extent
commenters may be suggesting that parties will file protectively even though
economic conditions do not warrant proceeding, we are not convinced that this
possibility poses any real risk.
20. Many commenters point to the flood of applications received in
other services subject to “date~certain” application processes, i.e., low
power television, cellular radio, and muitichannel multipoint distribution, as
evidence supporting their predictions of a large influx of applications if the
proposed processing criteria are implemented. Beyond the fact that these are
all new services, several factors distinguish our decision here from those
referred to by commenters. First, all applications received during the window
22) Window processing may be found appropriate for nontabled services when
another event constitutes notice. See Report and Order in MM Docket No. 83-
1350 (Low Power Television and Translator Service), 49 Fed. Reg. 47837
(December 7, 1984).
237 There is now substantial Commission precedent for the use of filing
"windows" or date-certain processing to expedite service. Date-certain
procedures have been used, for example, in processing common carrier [First
Report and Order, 89 FCC 2d 1337 (1982)], private radio [Second Second Report and
Order, 90 FCC 2d 1281 (1982)}], and low power television (Report and Order | and Order in
MM Docket No. 83-1350, supra n.22} applications.
24/ The Communications Act-of 1934, as amended, $309(d)(i) secures the right
of any party in interest to file a petition to deny and §73.3504 of the
Commission's rules sets forth the procedures for making such filings.
for FM channels are subject to full comparative hearings 1f mutually exclusive
applications are received. The substantial effort and expense involved in
such proceedings should serve to discourage frivolous and speculative
applications,
21, Moreover, we now have the advantage of hindsight in reviewing /
our past expe with date-certain filings and we are acutely aware of
- previous shor 8. Those experténces and useful Suggestions by various
commenters in this proceeding have prompted us to take a “hard~look” approach
to the processing of applications in order to deter the frivolous filings ‘that
_ frustrate. ready _ applicants an the Commission’ 8 processing syst
22. Several commenters suggested that site availability
certification be utilized to deter speculative applications. We think this
proposal has merit. The Commission has held that although an applicant need
not necessarily go as far as to demonstrate absolute assurance, an applicant
should be able to show some reasonable assurance that the site for each
proposed transmitting antenna is available. A mere possibility that a site
will be available is not sufficient. William F., Wallace and Anne K, Wallace,
49 FCC 2d 1424 (Rev. Bd. 1974). Commission requirements wil be satisfied _
when an applicant has contacted the property owner or owner's agent and has
obtained reason me E proposed site will be
available for the intended purpose. “Therefore, ‘we are adding a question to
FCC Form 301 25/ which will require an applicant to certify that reasonable
assurance has been obtained from the property owner that the site will be
available, In the interim, before the changed Form 301 is available,
applicants should attach such certification to the old form. The
certification will include a reference to the name and telephone number of the
person contacted. This additional step simply requires verification of our
current policy and will aid in deterring frivolous applications that frustrate
our processing goals, To that same end, the Commission will contact, on a
random basis, the property owners or their agents who have been named in an
application to determine whether the required assurances have been obtained.
23. As a further component of our “hard look" approach we are
instituting a tender review of applications. Under our previous system, many
errors in key portions of the applications remained undetected until
considerable processing time and effort had already been expended. Discovery
of fundamental errors so far along in the procesing chain resulted in
significant delays both in disposing of the flawed applications and in
processing problem-free but mutually exclusive applications as well as impeded
the disposition of unrelated, problem-free applications. Therefore, to _
prevent carelessly prepared, unprocessable applications from _burdening ‘the _ E
processing system, we will require applications to be substantially mplete
at tender or they will be returned, thereby losing their filing status. “In”
order to assist applicants in satisfying our tender standards, we are
attaching hereto as Appendix “D” a detailed list of the criteria utilized in
evaluating the substantial completness of applications. This strict approach
to the tenderability of applications comports with our concurrent commitment
25/ “Application for Authority to Construct or Make Changes in an Existing
Commercial Broadcast Station.” See Appendix B.
10
to strictly enforce construction permit schedules, 26/ Both will deter the
filing of speculative applications by parties not ready, willing and able to
construct.
24, As an additional component of ovr “hard-look” approach, we
reiterate our position with respect to multiple applications. Applicants will
not be permitted to "flood the Commission's processing line and hearing docket
with multiple applications many of which could not be granted under our
multiple ownership rules." Storer Broadcasting Co., 43 FCC 1254, 1256 (1953).
Accordingly, we shall regard Section 73.3555 as establishing the maximum
number of applications acceptable for filing by an applicant. Applications
tendered in excess of this number shall be considered inconsistent with
Section 73.3518 and returned as unacceptable for filing. In this regard, we
note that stations in which the applicant currently holds a cognizable
ownership interest would be taken into account in determining the maximum
number of acceptable applications. 27/
25. The Commission believes that important benefits can be obtained
from this "“hard~-look" approach. First, the reduction of frivolous and
speculative applications will enable us to expedite the processing of
applications tendered by serious candidates who are “ready, willing and able"
to rapidly bring service to the public. Secondly, streamlining our processing
procedures will minimize the Commission's administrative costs, enabling us to
make more efficient use of our limited staff and other resources. These
benefits are critical to making the window filing and "first come/first serve"
process work smoothly and with minimal delay in processing large numbers of
applications.
26. Finally, several commenters maintain that minorities, women and
small businesses are disadvantaged by the short filing cycles which they
believe will result from the adoption of the proposed processing system. We
note, however, that a routine notice and comment rule making proceeding to
establish a new allotment requires at least 90 days to complete. Adding this
period to the 45 days normally required before an allotment order becomes
effective and the subsequent 30 day filing window, yields a lead time of at
least 165 days in which interested parties may prepare applications. This
26/ Section 73.3598(b) of the Commission's Rules specifies a 12 month
construction period for new FM stations or modifications to existing FM
facilities. The Commission will not favorably consider applications for
extensions of this time to construct except in the most unusual circumstances.
See Public Notice, "Guidelines Established for Processing of Applications for
Additional Time Within Which to Construct AM and FM Broadcast Stations,”
released May 14, 1984, Mimeo No. 4144, Failure to comply with the
construction deadlines imposed by the permit wiil result in forfeiture of the
authorization pursuant to Section 73.3599 of the Commission's Rules.
27/ In the event that multiple applications exceeding the prescribed limits
are filed on the same day, the Commission will sequentially consider them in
whatever order they are reached on the processing line until the multiple
ownership limit is reached. Any remaining applications will be returned.
ll
length of time seems entirely adequate to avoid any disadvantage to
minorities, women or small businesses in availing themselves of newly allotted
channels. Similarly, in the case of the estimated 689 new channels allocated
in the wake of our decision in BC Docket No. 80-90, all interested parties
will have fully adequate time to prepare. The First Report and Order in MM
Decket No. 84-231, which specified the channels which would be added to the FM
Table and the communities in which such channels would be available, was
adopted in December 1984, 28/ Today, in a companion item, we are announcing a
random selection system that will be used to determine the sequence in which
these allotments will be opened for applications. 29/ The first window in a
series of windows for these allocations will probably open sometime this
summer and subsequent windows will be opened on a rolling basis until all are
completed. Therefore, even for the first availability, parties will have had
several months to prepare and will have several years for the last allocation
in this group. Finally, we note that the new processing system is intended to
reduce the incidence of unnecessary comparative hearings and to expedite
applications processing generally. We believe this wili directly benefit
minorities and other prospective applicants with limited resources. 30/
The Filing Window ~ “First Come/First Serve" Processing System ve
27. The following is a brief discussion of the details of the
applications processing system we are today adopting. For purposes of
clarity, we will break the system discussion into two parts: (A) treatment of
applications filed within the window period and (B) treatment of applications
for channel allotments that received no applications during their filing
windows and are thus subject to "first come/first serve” processing.
A. The Window Processing System
28. With respect to channels which, as of the adoption date hereof,
are either already in the Table and available for application or will be added
to the Table pursuant to orders previously adopted by the Commission but which
are not yet effective, the 30-day filing window will open on the thirty-first
(3lst) day after the date of publication of this Report and Order in the
Federal Register and will close on the sixtieth (60th) day after such
publication. An existing licensee or permittee should file an application for
modification during this window period if its proposed change would affect or
be affected by potential operations on a vacant channel allotment or by
modifications to other existing stations.
28/ See n.12 supra.
29/ Second Report and Order in MM Docket No. 84-231, FCC 85-124, adopted
March 14, 1985.
30/ Congress, in its Conference Report on lotteries, stated "It is clear that
the current comparative hearing has not resulted in the award of significant
numbers of Licenses to minority groups. Many minority applicants are simply
unable to participate in comparative hearings which often take a considerable
period of time and require substantial economic resources." H.R. Rep. No. 97-
765 (accompanying H.R. 3239), 97th Cong., 2d Sess. 44 (1982).
12
29, For future allotments, we will use the Commission's decision to
add a channel to the FM Table of Allotments as the invitation to all interested
parties to file applications for that channel. Each Report and Order designating
a new channel will identify a window filing period which wiil begin upon the
effective date of the allotment Order and continue for not less than 30 days
thereafter. In the case of the 689 new allocations created by Docket 80-90, the
Audio Services Division of the Commission's Mass Media Bureau will issue Public
Notices ET AEN applicable window filing periods as its workload permits.
All applications filed within the relevant window period will
be processed for consolidated consideration, with appropriate opportunities
for the filing of petitions to deny. Any mutually exclusive applications for
new facilittes or for modifications to existing facilities filed during the
window will be grouped for comparative hearings.
31. In evaluating applications, any and all amendments filed before
the close of the applicable filing window will be considered with the
application. Applications will be thereafter restricted as to when amendments
may be filed. 31/ Applications which have been found acceptable for tender
purposes will be placed on publicly released Notices of Tenderability. From
the release of such notice, applicants will have a 30 day period to amend or
perfect their applications at will and as a matter of right. However, if an
incomplete application has been inadvertently accepted for tender, it will be
stripped of its file number and returned; it may not be perfected to pass
tender review. Amendments may only go to the acceptability or grantability of
an application. 32/ The amendment period will have one further restriction,
an application may not retain window status if it is amended, even for
perfecting purposes, after the window closes and the effect of such amendment
is to produce a conflict with an application filed prior to the amendment. We
believe this restriction is essential to maintain the integrity of the new
processing system and that it is fully consistent with James River
Broadcasting v. FCC, 393 F.2d 581 (D.C. Cir. 1968). That case held that the
Commission had violated its own rules in refusing to permit an applicant to
perfect its application with an amendment and to retain its initial filing
status. The court also stated that, as a policy matter, perfecting amendments
should be allowed "[so] long as the defect can be removed without otherwise
injuring any public or private interests . . . ." Id. at 584. First, we note
that the processing rules that were the basis for James River are herein
dramatically changed. In any event, to permit a perfecting amendment that
creates a conflict with an application filed prior to such amendment harms the
public interest in expedition of service and processing certainty that the
31/ It is proper for us to make these revisions to the amendment process on
our own motion. Both the Administrative Procedure Act and our own regulations
exempt rules of practice and procedure from notice and comment rule making
requirements. 5 U.S.C. §553¢b)(A); 47 C.F.R. §1.412(a) (5).
32/ There are two classes of amendments that are acceptable at any time: (1)
amendments required by 47 C.F.R. $1.65 and (2) amendments which extricate an
application from conflict with other applications and which trigger no new
conflicts, including amendments filed pursuant to an agreement between
applicants under 47 C.F.R. §73.3525.
aam
13
window processing system seeks to accomplish. Under such a system, we would
be unable to process otherwise grantable applications on the possibility that
unrelated applications might be amended to produce a conflict. Moreover, to
allow such amendments to retain priority as to intervening applications for
other channels or in other communities would prejudice the private interests
of the applicants for these other channels who sought in good faith to
initiate service to the public. Finally, the nonacceptance of a perfecting
amendment in James River resulted in an applicant being foreclosed from the
comparative process because, by being disqualified and thereby missing the
cut~off date, he lost his opportunity to compete for a license. Here, the
limitation on perfecting amendments that create a conflict with prior
applicants results not in foreclosure but simply in site restriction. e—
32. Following the passage of the 30-day amendment period, the
application and any amendments will be studied for acceptabilitiy, i.e.,
compliance with the technical requirements for FM facilities. If the
application is found acceptable, it will be placed on a publicly released
“Notice of Acceptability” inviting the filing of petitions to deny. If the
application is found to be unacceptable, it will be returned. Resubmission of
such an application with a curative amendment will not gain it nunc pro tunc
Status since applicants were afforded 30 days after the release of the Notice
of Tenderability to amend their applications into acceptable form. To permit
curative amendments after that period poses too great a threat to the orderly
functioning of our new processing procedures.
B. The “First Come/First Serve" Processing System
33. If no applications are filed during the window, the first
acceptable application for the channel will cut-off the filing rights of
subsequent applications for that channel and applications for any channel in
conflict with or for modifications to existing facilities that are
inconsistent with the first-filed application. If an application for
modification is the first-filed after the window closes, applicants for the
new channel and applicants for inconsistent modifications would be limited
thereby in their site selections. We believe that any subsequent applicants
were on notice of the availability of the channel from its inclusion in the
Table, and they had ample opportunity to file during the window or to be
first~filed after the window period. Therefore, cutting off such applications
is not unreasonable and will expedite new service to the public on a fallow
channel. All "first come” applications will be considered as simultaneously
filed if filed on the same day. As with window applications, we will process
the application(s), entertain petitions to deny and, where appropriate,
designate applications for hearings.
34. Applications received after the lead application will be
grouped behind the lead application in a queue according to the date of
filing. Priority rights for the lead applicant as against other applicants
for the same channel, applicants for other channels or in other communities
whose applications conflict with the lead application and applicants for
modifications to existing facilities that are inconsistent with the lead
application are determined by the filing date of the lead application. The
filing dates of subsequent applicants fer that channel and community, however,
14
only determine their place in the queue. The rights of an applicant in the
queue would ripen as to applicants outside the queue only upon a finding that
the lead application is unacceptable and then only if the queued application
is reached and found acceptable. We will process within the queue until we
find an acceptable application. If a queued applicant is determined to be
acceptable, his rights, vis a vis applicants outside the queue, vest on the
date of his acceptance. The queue will remain behind the lead applicant until
a construction permit is granted. 33/ If there is no queue or no queue member
is found to be acceptable, that channel remains subject to "first come/first
serve" treatment. At the grant of a construction permit the queue dissolves.
35. With respect to amendments in the "first come/first serve"
processing system, applicants may amend their applications for a period of
thirty days following the issuance of the Notice of Tenderability. For
reasons directly analogous to those underlying our restriction on certain
amendments of applications filed during a window, we will not permit a “first
come” applicant to amend its application and to retain its initial filing
priority date as to applicants for other channels or in other communities or
for modifications to existing facilities and with whom the amendment creates a
conflict. 34/ As with window applications, we believe this approach is
necessary to preserve the certainty and expedition that our new processing
system is intended to achieve and that it is entirely consistent with the
court's decision in James River Broadcasting v. FCC, supra.
66) If a channel allotment is vacated after issuance of the
construction permit, regardless of whether the construction permit was granted
as a result of window or “first come/first serve” processing, we will, by
public notice, announce a subsequent filing window for the acceptance of new
applications for that channel.
Other Matters
37. In a small number of cases where the commercial and non-
commercial FM bands are adjacent, our decision to apply the window processing
system to commercial channel applicants but not to applicants for reserved
channels may create some problems. 35/ It is appropriate, therefore, that we
clarify our procedures for these exceptional cases. If an applicant for a
reserved channel has generated a cut-off list that overlaps a commercial
window, the commercial applicant must file within the cut-off period ~ it may
not rely on its window deadline - if it seeks mutually exclusive status with
the educator. After the relevant commercial window closes, an educator and a
commercial applicant would both be subject to "first in time, first in right”
34/ See para. 31 supra.
35/ Noncommercial, educational entities applying for a channel on the
commercial band will be subject to the filing window and "first come/first
serve" processing system.
S
| a
15
status as to each other. 36/ Of course, any conflict between educational
applicants will continue to be resolved through the traditional cut-off
procedures. We anticipate minimal effect on educators, but alert them that in
those areas of the FM band where spacing as against commercial licensees is
problematical they may be affected by the “first come/first serve” rules
applicable to the commercial FM band.
38. To ensure a smooth transition to the new processing guidelines,
we are hereby instituting a freeze on applications for new commercial FM
stations and modifications to exisitng facilities in these services for a
period of 30 days following publication of this document in the Federal
Register . This step is essential to permit the Commission to reduce the
number of currently pending applications, to which existing processing
criteria apply, in preparation for shifting over to the new processing system
and standards.
39. Procedural fairness requires us to complete processing of those
applications for new channels or major modification of existing facilities
that are currently on file. Therefore, applications and petitions to deny
tendered after today will be accepted only if they are in response to "A" and
"B" cut-off lists of pre~freeze applications.
40. The only minor modification applications that will be
acceptable during the freeze are those filed in response to applications
already on file as of the adoption date of this decision. Moreover, the
applicant must identify the application that he is filing against. 37/
However, in keeping with current minor modification processing practices, any
application now on file may be granted at any time and such grant will cut-off
the filing rights of all subsequent applicants.
41, Pursuant to the requirements of Section 603 of the Regulatory
Flexibility Act, 5 U.S.C. $603, a final regulatory flexibility analysis has
been prepared and is attached hereto as Appendix C.
42, The proposal contained herein has been analyzed with respect to
the Paperwork Reduction Act of 1980 and found to impose new or modified
36/ Commercial applicants whose filing window has not yet opened at the time
a potentially conflicting noncommercial application is filed may not file a
competing application for the commercial channel in response to the
noncommercial applicant's “A“ cut-off list. To permit such a filing would
undermine the control over applications processing that the window mechanism
is intended to provide. The prospective commercial applicant may, of course,
file a petition to deny against the noncommercial application within the
prescribed filing period for such petitions.
37/ This requirement is necessary in order to simplify and expedite the
processing of modifications during the freeze. Any modification application
not so identifying a pre~freeze application as a basis for filing will be
judged unacceptable for filing during the freeze period.
16
requirements or burdens upon the public, Implementation of any new or
modified requirement or burden will be subject to approval by the Office of
Management and Budget as prescribed by the Act.
43. Accordingly, IT IS ORDERED, THAT Part 73 of the Commission's
Rules IS AMENDED, effective June 12, 1985 , as set forth in the
attached Appendix A.
44. IT IS FURTHER ORDERED, THAT effective as of the close of
Commission business on the day of adoption of this Order and until 30 days
after its publication in the Federal Register, applications MAY NOT BE FILED
either for new commerical FM channels or for modification of existing
facilities in this service, except to the extent such applications are filed
in response to Commission cut-off lists resulting from applications filed
prior to the adoption date of this Order or are filed against and in conflict
with modification applications already on file as of the adoption date of this
Order. 38/
45. IT IS FURTHER ORDERED, THAT the Secretary SHALL CAUSE a copy of
the Report and Order to be printed in the FCC Reports.
46, IT IS FURTHER ORDERED, THAT the Secretary SHALL SEND a copy of
this Report and Order, including the Final Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy, Small Business Administration.
47, IT IS FURTHER ORDERED, THAT this proceeding IS TERMINATED.
48. This action is taken pursuant to authority contained in
Sections 1, 4(i) and (j), 5€d)(1), 303 and 309(b) of the Communications Act of
1934, as amended,
49, For further information concerning this proceeding, contact
Lane Howard Moten, Mass Media Bureau (202} 632-7792,
FEDERAL COMMUNICATIONS COMMISSION
William J. Tricarico
Secretary
38/ Immediate implementation of this Order is required because a 30-day delay
would frustrate the purpose of the freeze.
17
APPENDIX A
Part 73-Radio Broadcast Services
1. §73.3564 is amended by revising paragraphs (a), (c) and (d) to read as
follows:
(a) Applications tendered for filing are dated upon receipt and
then forwarded to the Mass Media Bureau, where an administrative examination
is made to ascertain whether the applications are complete. Except for low
power TV, TV translator applications and non-reserved band FM (except for
Class D} applications, those found to be complete or substantially complete
are accepted for filing and are given file numbers. In the case of minor
defects as to completeness, the applicant will be required to supply the
missing information. Applications that are not substantially. complete will be
returned to the applicant. In the case of non-reserved band FM applications,
those found to be substantially complete at tender are accepted for tender and
are given file numbers. Non-reserved band FM applications that are not
substantlally complete will be returned to the applicant. In the case of low
power TV and TV translator applications, those found to be complete are
accepted for filing and are given file numbers. Low power TV and TV
translator applications that are not complete will be returned to the
applicant.
(b) * * %
(c) At regular intervals, the FCC will issue a Public Notice
listing all applications and major amendments thereto which have been accepted
for filing, except for non-reserved band FM stations and low power TV and TV
translator stations. Pursuant to §§73.3571(c), 73.3572(c) and 73.3573(d) such
notice shall establish a cut-off date (not less than 30 days from the date of
issuance) for the filing of mutually exclusive applications and petitions to
deny. However, no application will be accepted for filing unless certification
of compliance with the local notice requirements of §73.3580(h) has been made
in the tendered application.
(d) New and major change applications for non~-reserved band FM
stations (except for Class D stations) and for low power television and
television translator stations will be accepted only on date(s) specified by
the Commission. Low power TV and TV translator station filing period(s) will
be designated by the Commission in a Public Notice. Non-reserved band FM
facilities and major change applications will have filing dates designated by
the Commission in the following manner:
(1) For all vacant non-reserved band FM allocations listed on the
FM Table of Allotments, §73.202, as of March 14, 1985, a one-time filing
period or “window” will open for 30 days, beginning on the 31st day after the
date of publication of the Report and Order in MM Docket No. 84-750 in the
Federal Register and will close on the 60th day after such publication. (This
filing window does not apply to the 689 FM channels added to the FM Table of
Allotments by the Commission's decision in MM Docket No. 84-231).
18
(2) The 689 FM allocations added to the FM Table of Allotments by
MM Docket 84-231 will be subject to a series of windows. The Audio Services
Division of the Mass Media Bureau will establish, by Public Notice, the window
filing dates for this group of allotments.
(3) Each Report and Order specifying a new non~reserved FM band
allocation will identify the window filing period which will begin upon the
effective date of that Order and continue for at least 30 days.
(4) Where no applications are tendered during a window filing
period, applications may be tendered any time after the window closes. These
applications will be processed on a “first come/first serve" basis and will be
treated as simultaneously filed if filed on the same day. Any applications
received after the filing of a lead applicant will be placed in a queue,
according to filing date, behind the lead applicant,
(5) If a non-reserved band FM channel allotment is vacated after
the grant of a construction permit becomes final, because of a lapsed
construction permit or for any other reason, the FCC will, by Public Notice,
announce a subsequent filing window for the acceptance of new applications for
such channels.
(6) However, no application will be accepted for tender unless
certification of compliance with the local notice requirements of §73.3580(h)
has been made in the tendered application.
2. §73.3573 is amended by revising paragraphs (d) and (e) and adding
paragraphs (f) and (g) to read as follows:
§73.3573 Processing FM Broadcast and FM Translator Station Applications
G + * * x
(d) Applications for reserved band and Class D FM broadcast
Stations will be processed as nearly as possible in the order in which they
are filed. Such applications will be placed in the processing line in
numerical sequence, and will be drawn by the staff for study, the lowest file
number first. In order that those applications which are entitled to be
grouped for processing may be fixed prior to the time processing of the
earliest filed application is begun, the FCC will periodically release a
Public Notice listing applications which have been accepted for filing and
announcing a date (not less than 30 days after publication) on which the
listed applications will be considered available and ready for processing and
by which all mutually exclusive applications and/or petitions to deny the
listed applications must be filed.
(e) Where reserved band plus Class D applications are mutually
exclusive because the distance between their respective proposed transmitter
sites is contrary to the station separation requirements set forth in $73.507,
such applications will be processed and designated for hearing at the time the
application with the lower file number is reached for processing. In order to
be considered mutually exclusive with a lower file number application, the
higher file number application must have been accepted for filing at least one
day before the lower file number application has been acted upon by the FCC.
19
(£) Processing non-reserved FM broadcast station applications.
(1) Applications for non-reserved FM broadcast stations will be
processed as nearly as possible in the order in which they are tendered. Such
applications wili be placed in the processing line in numerical sequence, and
will be drawn by the staff for study, the lowest file number first. The FCC
will specify, pursuant to §$73.3564(d), the filing periods for non-reserved
band FM applications.
(2) All applications received during the appropriate filing period
or "window" which are found to be mutually exclusive will be designated for
hearing. All other applications will, if the applicants are duly qualified,
receive grants. The FCC will periodically release a Public Notice listing
applications pending hearings or grant and announcing a date (not less than 30
days after issuance) by which petitions to deny must be filed.
(3) If, after the close of the appropriate window filing period, a
non~reserved FM allotment remains vacant, processing for that channel will be
on a “first come-first serve” basis with the first acceptable application
cutting off the filing rights of subsequent applicants. All applications
received on the same day will be treated as simultaneously tendered and, if
they are found to be mutually exclusive, will be designated for hearing.
Applications received after the tender of a lead application will be grouped,
according to filing date, behind the lead application in a queue. The
priority rights of the lead applicant, as against all other applicants, are
determined by the date of filing but the filing date for subsequent applicants
for that channel and community only reserves a place in the queue. The rights
of an applicant in a queue ripen only upon a final determination that the lead
applicant is unacceptable and if the queue member is reached and found
acceptable. The queue will remain behind the lead applicant until a
construction permit is finally granted, at which time the queue dissolves. If
there is no queue or if no queue member is found acceptable, that allotment
remains subject to "first come-first serve" processing. The FCC will
periodically release a Public Notice listing those pending hearings or grant
and announcing a date (not less than 30 days after issuance) by which
petitions to deny must be filed.
(g) Resolving processing conflicts between the reserved and non=
reserved bands. The reserved bands include Class D stations.
(1) Reserved band applicants, applying for a channel on the non-
reserved band are subject to the processing procedures in Section (f).
(2) If a reserved band applicant has generated a cut-off list that
overlaps a non-reserved band window filing period, the non-reserved band
applicant must file within the cut-off if he seeks mutually exclusive status
with the reserved band applicant.
(3) Following the close of a non~reserved band application filing
window, the non-reserved band applicant is subject to the “first come/first
serve” rules and would lose.to a pre-filed reserved band applicant.
20
3. §73.3522 is amended by revising paragraphs (a)(1) and (a)(2) and adding
paragraph (a)(6) to read as follows:
§73.3522 Amendment of applications
‘€(a) Predesignation amendment. (1) Subject to the provisions of
§§73.3525, 73.3571, 73.3572, 73.3573, and 73.3580, and except as provided in
paragraph (a)(2) of this section, any application, other than an application
for a low power TV, TV translator station, or a non-reserved band FM station
may be amended as a matter of right prior to the adoption date of an order
designating such applications for hearings, merely by filing the appropriate
number of copies of the amendments in question duly executed in accordance
with §73.3513. If a petition to deny (or to designate for hearing) has been
filed, the amendment shall be served on the petitioner.
(2) Subject to the provisions of §§73.3525, 73.3571, 73.3572,
73.3573 and 73.3580, and except for applications for low power TV, TV
translator stations, or a non-reserved band FM station, mutually exclusive
broadcast applications may be amended as a matter of right by the date
specified (not less than 30 days after issuance) in the FCC's Public Notice
announcing the acceptance for filing of the last-filed mutually exclusive
application. Subsequent amendments prior to designation of the proceeding for
hearing will be considered only upon a Showing of good cause for late filing
or pursuant to §1.65 or §73.3514. Unauthorized or untimely amendments are
subject to return by the FCC's staff without consideration.
(3) * * &
(5) * * *
(6) Subject to the provisions of §§73.3525, 73.3573 and 73.3580,
applications for non-reserved band FM stations (minus Class D) may be amended
as a matter of right during the appropriate window filing period pursuant to
§73.3564(d). For a period of 30 days following the FCC's issuance of a Notice
of Tenderability announcing the acceptance of the applications, amendments
that go to the acceptability or grantability of an application may be filed as
a matter of right. Subsequent amendments prior to designation for hearing or
grant will be considered only upon a showing of good cause for late filing or
pursuant to §1.65 or §73.3514. Unauthorized or untimely amendments are
subject to return by the FCC's staff without consideration. However, an
amendment to a non~reserved band application will not be accepted after the
close of the appropriate filing window if the effect of such amendment is to
alter the proposed facility's coverage area so as to produce a conflict with
an applicant who files subsequent to the initial applicant but prior to the
amendment application. Similarly, an applicant subject to “first come/first
serve" processing will not be permitted to amend its application and retain
filing priority if the result of such amendment is to alter the facility's
coverage area so as to produce a conflict with an applicant who files
subsequent to the initial applicant but prior to the amendment.
k * * * *
21
4. §73.203 is amended to read as follows:
§73.203 Availability of channels.
Applications may be filed to construct FM broadcast stations only at the
communities and on the channels contained in the Table of Allotments
(873.202(b)). Applications that fail to comply with this requirement, whether
or not accompanied by a petition to amend the Table, will not be accepted for
tender.
22
APPENDIX B
To be included with FCC Form 301, Application to Construct or Make Changes in
an Existing Commercial Broadcast Station.
CERTIFICATION OF SITE AVAILABILITY
l. The applicant certifies that it has reasonable assurance in good
faith that the site or structure proposed in Items 1 and/or 2, Section V-G,
FCC Form 301, as the location of its transmitting antenna, will he available
to the applicant for applicant's intended purpose.
YES NO
poena
If no, explain fully:
2. If reasonable assurance is not based on applicant's ownership of
the proposed site or structure, applicant certifies that it has obtained such
reasonable assurance by contacting the owner or person possessing control of
the site or structure.
( )
Name of Person Contacted Telephone Number
Person contacted (check one):
Owner Qmer's Agent Other (specify)
Applicant's Signature : Date
qT.
II.
23
APPENDIX C
Final Regulatory Flexibility Analysis
Need for and Purpose of Rule
Our experience indicates that the current cut-off procedures for the
acceptance of competing applications for commercial full service FM and
TV stations delay service to the public and disrupt the processing of the
initial application. The filing of speculative and anticompetitive,
delaying applications often precipitate costly and unnecessary
comparative hearings, Also, current modification procedures lack
sufficient certainty and, as a result, may be wasteful of the
Commission's and applicants’ resources.
The purposes of the rule changes adopted herein are to limit applications
to those seriously interested in providing better service and to provide
more certainty within the processing system.
Flexibility Issues Raised in the Comments
The most significant regulatory flexibility issue raised in the comments
concerns the duration of the window filing period. Several commenters
maintained that only well-financed, established entities would be able to
respond within the proposed 45 day window and therefore the system would
particularly disadvantage minority groups and small businesses. However,
under the new rules, a slightly longer filing period will be provided
than under the current procedures. (See paras 29.) In addition to a
slightly longer filing period, small business groups and minorities
should benefit from the expected reduction of speculative and dilatory
applications. These filings entail processing delays and often result in
costly and unnecessary comparative hearings that disadvantage sroups with
funding limitations.
Iti. Significant Alternatives Considered But Not Adopted
The only significant alternative considered but not adopted was the
implementation of an extended window filing period. Since the new
processing procedures will allow for a longer period to prepare filings
than does the current system, further lengthening the filing window
period appeared unwarranted, particularly since such action would
contravene the important Commission goal of expediting service to the
public.
24
FEDERAL COMMUNICATIONS COMMISSION
1919 M STREET N.W.
WASHINGTON, D.C. 20554
News media information 202/254-7674, Recorded listing of releases and texts 202/632-0002.
APPENDIX D
STATEMENT OF NEW POLICY REGARDING COMMERCIAL FM APPLICATIONS THAT
ARE NOL SUBSTANTIALLY COMPLETE OR ARE OTHERWISE DEFECTIVE
AS part of our effort to expedite applications in conjunction with the
implementation of the new “window" and "first come, first serve” processing
procedures (Report and Order in MM Docket 84-750, Adopted March 14, 1985),
we are adopting a new policy with respect to the definition and treatment of
applications that are defective or not substantially complete when filed. 1/
Expedition of processing in the face of the possibility of a iarge increase
in commercial FH applications compels us to shift to the beginning of the
process some of the application checks previously made later in the process.
This shift may weil result in a loss of filing status for a returned
appiication that it otherwise would have retained under the previous
processing procedures. Such an outcome cannot be avoided if we are to
achieve the benefits of the new window and first come, first serve
processing procedures.
At the time an application for a commercial FH station or for a modification
to an existing commercial FM station is tendered and before an application
ceference number is assigned, the application wiil be given a thorough
initiai review to determine if it is substantially complete. Although ali
applicable elements of Form 301 are examined by the Commission staff in the
course of processing a construction“permit application, certain items are
much more critical than others. Without them, processing simply cannot
commence. A substantially complete application, one that the Commission
deems in condition or sufficient for tender, must meet ail of the following
requirements.
l. The applicant's name and address must be provided. Failure of an
applicant to do so renders it impossibie for the processing staff:
a. to communicate with the applicant concerning the contents of
the appiication; and
b. to discern and resoive issues relating to the applicant's
identity, e-g., multiple-ownership and alien~interest
questions.
i/ This policy applies only to commercial FH appiicants. AM applicants
and non-commercial FM appiicants are stiil subject to the policy set out
in our Pubiic Notice of August 2, 1964, TV applicants remain subject to
appiicabie case law.
25
in recent years, the Commission has reduced the amount of
information required to be provided in applying for a construction
permit and has accordingly simplified Form 301. Applicants are
now pecmitted to make certifications of various types instead of
having to provide evidentiary showings. Having relieved
applicants of the need to make such showings, the Commission
attaches considerable importance to the certifications that take
their place. Accordingly, certifications in the following areas
are crucial in the absence of full showings.
as Compiiance with 47 U.S.C. ¥310(b). An application which
violates the alien~interest provisions of the Communications
Act is statutorily ungrantabie. Failure to respond to the
question by which certification of compiiance is invited
renders the application so fundamentally defective chat
further processing is unwarranted.
b. Financiai ability to construct. The Commission authorizes
mew or changed facilities with the expectation that such wili be
built quickiy and that service wiil be expeditiously provided
via those facilities to the public. It is pointless to yrant
an authorization of facilities that cannot be buiit. Tt is
ilkewise pointiess to process an application where a response
to certification of financial abiiity to construct is not
provided.
Ce Compliance with the iocal pubiic notice provisions of 4/
C.F.R. 973.3500. it is important that ilocal public notice
occur. An informed iocai popuiace can bring to the
Commission's attention information about the appiicant or the
facliity proposal that might otherwise remain undetected.
Thus, where local public notice 1s required, an applicant who
faiis to respond to the appropriate item of Form 301 wiii
have its application retucned as not sufficient for tender.
d. Site availability. The Commission does not require of
applicants absoiute certainty of site availability, but
cather reasonabie assurance. An application specifying an
unavailabie site per se frustrates the Commission's stated
goa. of expeditious introduction of service. Such a filing
requires an amendment specifying a site change before grant
or a further appiication for construction permit modification
after grant. To avoid vacuous and sequential filangs, che
Commissioun has imposed a requirement of site~availabilary
certification which includes the name and address of the site
owner or his agent. Failure of an appilcanc to provide the
26
requisite certification in the form set forth in Appendix B
of the Report and Order in Docket 84-750, supra, will result
in the application being deemed not substantiaily complete.
Questions 6 and 8 of Section II, Form 301 deai with matters
crucial to multiple~ownership determinations. In response to these
questions, applicants are to indicate whether or not they or their
relatives (immediate family) have any other pending applications or
broadcast interests. If the answer to either question is
positive, explanatory exhibits must be provided. Leaving these
questions unanswered, as a practical matter, makes it impossible for
the processing staff to begin a muitiple-ownership analysis. In
light of our expressed policy dealing with the filing of multiple
applications (see Second Report and Order in Docket 84-231, FCC
85-124, Adopted March 14, 1985 and Released April 12, 1985),
failure to respond prevents the staff from beginning its ownership
analysis and thus renders the applicant's filing not substantially
complete.
Compliance with the Commission's technical rules is evaluated in
the course of an acceptability study. Certain engineering data
must be present for such a technical acceptability study to be
made. The absence of one or more elements of those data, listed
below, prevents a determination of acceptability and thus renders
‚the application not substantially complete.
ae The geographic coordinates, to the nearest second, of the
proposed transmitter site must be provided. Absence of these
data makes it impossible to determine the distances from the
proposed site to other proposed or existing broadcast
facilities and to the community of License. In the
colamerciail FM service, spacing determines acceptability of an
application where mutual exclusivity exists with respect to a
given allocation, see Trend Broadcasting, Inc., 18 FCC 2d 749
(1969), and determines when mutual exclusivity exists between
applicants for or permittees of different allocations. The
geographic location also determines whether protection must
be afforded to Commission monitoring facilities and to radio
quiet zones (see 47 C.F.R. §73.1030), marks the center of the
“bianketing” area (see 47 C.F.R. 973.315), and is fundamental
to analysis of a proposal's environmentai effects and
electromagnetic effects on other, nearby communications
facilities.
b. A transmitter site map as described in Form 301, Section V-B,
teem 13, and in our Public Notice, Mimeo 3693, released April
5, 1935. Such a map allows the staff to verify the
coordinates of the proposed site, the presence of other,
27
nearby communications facilities and of obstructing terrain
features (see 47 C.F.R. 873.315), and the ground elevation of
the transmitter site. The last parameter has a key infiuence
on important features of the antenna installation~~radiat ion~
center. heights above ground and mean sea level, from which,
with other data, antenna height above average terrain (HAAT)
is derived.
The channel number and community of the allocation must be
supplied. Since the commercial FM allocation system is
organized on the basis of a Table comprising numbered
channels and targeted communities, any evaluation of an
application must consider these fundamental items.
Effective Radiated Power must be specified. Our technical
rules prescribe minimum and maximum permissible power levels.
Application processing includes a determination that proposed
operating power falls within the range defined for the
particular class of station occupying or intended to occupy
the allocation. Certain allocations have limitations imposed
on ERP, as do some stations authorized prior to implementation
of the Table Method of Allocations. International agreements
also influence permissible ERP levels in border areas. The
operating power is so basic a parameter of a broadcast
facility that it simply must be specified. Accordingly, its
absence will render an application not substantially
complete.
Aiso necessary are the antenna heights above average terrain,
above ground levei, and above mean sea level. These three
are interrelated and must be specified consistently, as is
the case with all other crucial engineering parameters.
Antenna height is as elemental a facility parameter as is
ERP. It also is subject to permissible-range vaiues as a
function of station class and, with ERP, determines the coverage
area of a facility for a given signal strength. Antenna
height is also limited in certain cases by international
treaty or by allocation constraints. Antenna height and ERP
are also used to determine adverse potential to radio quiet
zones, adjacent and co-channel "grandfathered" stations, and
to FCC monitoring facilities. Antenna height above ground
affects the environmental and aerial~navigation aspects of a
facility proposal. Clearly, the various antenna heights are
employed in a number of processing evaluations by the staff.
Their absence, or the absence of any one of them, renders the
application not substantially complete.
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£. An answer to Item 7, Section V-B must be provided, as whether or
not a directional antenna is proposed is a fundamental issue.
If a positive response is given, all data specified in 47
C.F.R, §73.316(d) must be included in an accompanying
engineering exhibit. Without this information, the
processing staff cannot determine the proper location of
signal-strength contours, whether city-grade coverage is
provided as required, whether adequate protection to
short~spaced stations is to be given, and whether or not the
proposed directional. response complies with our technical
rules and appears to be stable.
Be A map or maps satisfying the requirements of Item 10, Section
V-B and clearly and legibly showing the proposed 60 and 70
dBu contours and the legal boundaries of the community of
license must be provided. Such maps permit ascertainment of
compliance with city~grade requirements and permit
verification of signal-strength contour predictions. They
are also employed in determining comparative levels of
proposed service.
h. Section V-G must be provided as part of any Form 301
application proposing construction of a new facility or any.
change in transmitter site or antenna~structure height to
existing facilities. In accord with our existing procedure,
for side~mounting proposals involving an existing support
structure, Section V-G shall show the application's purpose
as, "Alteration of existing antenna structure." The
"Facilities Requested" portion shall contain a description of
the side~mounting proposal. Section V-G will be accompanied
by a tower-sketch exhibit as required by Item 6.
Further, because of the critical importance of the applicant's certification
of the correctness of the data contained in the appiication as of the date
of filing, unsigned applications will not be accepted for tender.
If any of the above information is missing, the application will be returned
as not sufficient for tender. If any of the above information is present
but, on the face of the application, visibly incorrect or inconsistent, the
application will be treated in accordance with the following guidelines. If
the needed information can be derived or the discrepancy resolved,
confidentiy and reliably, drawing on the application as a whole, such defect
will not render the application not sufficient for tender. However, if the
critical data cannot be derived or the inconsistency resolved within the
confines of the application and with a high degree of confidence, the
presence of the clearly void data will be treated as functionally equivalent
to the absence of such data. In such instances, the defective application
will be deemed not sufficient for tender. If the application is returned
29
during the imitial check as not sufficient for tender, we will not permit
the applicant to remedy the defect and have its resubmitted application
accepted nunc pro tune in order to be grouped with other applications filed
by a window closing date or in order to be considered first filed when a
window does not apply.
Where an application is timely filed within and in response to a filing
window, at the initial screening we will consider the application as
originally filed, together with any amendments filed within the window
period. Where "first come, first serve" processing rules apply, the
application only as originally filed will be considered. If an applicant
discovers that its "first come" application is not sufficient for tender, it
must file a new, corrected application (and request return of its earlier
application) to cure the tenderability defect. Nunc pro tunc treatment will
not be afforded in such cases.
Tf any of the defects listed above are overlooked during the initial review
and are found later in the process, the application wili be returned as
inadvertently accepted for tender and, if resubmitted, will not be accepted
nunc pro tunc. Return of the application will void the application
reference number inadvertently assigned and whatever rights of tender might
have been associated with it.
An application found to be sufficient for tender will be studied to
determine its acceptability for filing, that is, to determine whether it is in
compiiance with applicable Commission rules. If it is found acceptable for
filing, it wili be inciuded in a Public Notice of Acceptance. If found to
be unacceptable for filing, it wili be returned and will not be accepted
later on a nunc pro tune basis.
If an application is accepted for filing but is subsequently found not to be
grantable, the applicant, if not mutually exclusive with other applicants,
will be given one opportunity to correct the application. If the acceptable
but not grantable application is mutually exciusive, an appropriate issue
will be specified in the Hearing Designation Order, or a post~designation
amendment, if appropriate, will be required.