This is by far the most common myth in LPFM. It can be attributed to confusion between two different rules, one of eligibility and the other which involves comparative points.
§73.872(b)(1) awards a point, during the filing window process for new LPFM stations for organizations that, in the past two consecutive years, have had either a headquarters or 75% of their board members within the local area.
§73.853 provides the eligibility for LPFM licensing. In paragraph (b), it states that only local applicants may apply for licenses. Subparagraph (b)(1) Local applicants are considered those that have a headquarters, chapter or branch within the local area. Subparagraph (b)(2) extends the definition to organizations that have at least 75% of their board members in the local area. Subparagraph (b)(3) addresses public safety applicants. Subparagraph (b)(4), which was amended to the rule about 12 years later, addresses Tribal nations.
§73.853 and any other qualification related rules even speak to a minimum presence requirement for the organization. Such minimum presence is only mentioned in §73.872, which relates to the point system used by the Commission for comparative review of mutually exclusive applications.
There are no conjunctions (and, but, or, etc.) after subparagraph (b)(1) and there is an “or” conjunction at the end of subparagraph(b)(2). This would suggest that there are three criteria that are all independent of each other (e.g. “this, that or the other”). This would suggest that only one of the choices would apply:
- Headquarters, chapter or branch within the local area;
- 75% of the board members within the area; or
- If a public safety agency, jurisdiction in the area.
We also note that on most FCC applications involving LPFM, it does ask the applicant to certify that they meet the qualifications. These forms have a yes/no question for the headquarters within the local area and a separate yes/no question for 75% of the board members, as well as separate yes/no questions for public safety and Tribal applicants.
Since the writing of §73.853(b), subparagraphs (1) through (3) are written as a single sentence with an “or” conjunction, it would suggest that only one of the three items would need to apply. We also note that the Form 318 Instructions published by the FCC, on Page 6, show the community-based criteria as:
- Physical headquarters,
- 75% of the board,
or
- Proposes a public safety radio service within its jurisdiction.
- In the case of Tribal, Tribal lands are within the service area of the LPFM.
FACT: Non-profit educational organizations and educational institutions may qualify for LPFM by having either their headquarters within OR 75% of their board membership residing within the local area as of the date of filing and all times thereafter. There is NO minimum length of time where an organization needs to be incorporated in order to be qualified.
“Local Area” is considered the area that is within 20 miles (32.1 km) of the LPFM station transmitter site except in counties and partial counties that are linked to one of the Nielsen Audio Top 50 Metro Markets. In the latter case, the local area is within 10 miles (16.1 km) of the LPFM transmitter site.
