The FCC has reached a decision in the long-contested MX Group #37, which included four applicants filing to operate on 102.5 in San Francisco. During the 2013 window, five organizations including SF Indefest, San Francisco Public Press (SFPP), Outsound, San Francisco Community Radio (SFCR) to use 102.5. All four applicants claimed 5 points and therefore were all tentative selectees. A fifth applicant, Independent Arts and Media (IAM) was dismissed just prior to the MX window due to a inconsistent application. A board member appeared on more than one application.
During the MX window, Outsound and SFPP filed a time share agreement to aggregate their points. SFCR and SF Indefest also filed a similar time share agreement. After the MX window, all groups except Independent Arts and Media were 10 points thus resulting in the dismissal of IAM. Several petitions to deny and informal objections were also filed during the window.
In one of the petitions, SF Indefest and SFCR claim that applicant Outsound should not be given points for having a main studio location because the location given was not publicly accessible. Outsound contends that the main studio address given is not ideal for unplanned public access and further states that it can't afford such open access accommodations in San Francisco due to the highest rental rates in the country and that they intend to honor its pledge to maintain an accessible main studio via appointment and would move it upon grant. The FCC determined that Outsound was required to provide an actual main studio address during the application process and not what the FCC considered as a "placeholder". As a result, Outsound loses their main studio point as well as the "bonus" point for having both a main studio and 8 hours a day of local programming.
In another peititon, SFPP claims that SF Indefest is not eligible for an LPFM station because a party to the application had allegedly been involved in the operation of a pirate radio station in San Francisco. Indefest claims that accusations are based on archived websites and not personal knowledge and that the "station" involved was actually an internet only station. To address this issue, the FCC sent a Letter of Inquiry to SF Indefest to investigate the allegations of a pirate past. In their reply, SF Indefest invokes Fifth Amendment rights against self-incrimination and stating that it is unwilling to provide "documents that might tend to incriminate others or might provide leads for those seeking to develop criminal charges against others". Following the unlicensed operations provisions of the Radio Broadcast Protection Act, the FCC determined that Indefest's refusal to cooperate in a FCC investigation, even with invoking the Fifth Amendment, is grounds to deny a license. As a result, the FCC dismisses SF Indefest.
The FCC did deny arguments made regarding whether SFCR had local presence in San Francisco and suspected overlapping board members between SFPP and IAM.
In the end, Outsound was reduced from 5 points to 3 points and therefore is no longer able to aggregate their points with SFPP. SF Indefest has been dismissed due to a failure to cooperate in a Letter of Inquiry and therefore is no longer able to aggregate their points with SFCR. This has resulted in a tie between San Francisco Public Press and San Francisco Community Radio. To resolve the tie, the FCC will give these two groups an opportunity to reach their own time share agreement otherwise, they will be subject to involuntary time sharing.
This decision was made by the full Federal Communications Commission. Anytime in an MX situation when the Meida Bureau proposes to reduce the points of an applicant (which happened in the case of Outsound), the Report and Order must go to the full Commission for approval.
