Updated July 6, 2023
When the FCC has a filing window, there's a possibility that two or more applicatons were filed that would not be able to be granted because each application would specify facilities that would conflict with each other. These applications are referred to as "mutually exclusive" or "MX" for short. To address these situations, the FCC has put procedures in place to process these applications.
Special circumstance where MX applications can be dismissed
Traveler's Information Service - Public safety agencies (public sector) can waive the ownership limit rules for LPFM stations as long as each station is located within their juristiction and the applications do not meet any competing applications. Public safety users can designate a single "priority" application that would not be automatically dismissed but will more forward in the MX resolution process. (See 73.855(b)(4))
How the application process works once the window closes
During the filing window, there is no way that anyone can see how anyone else filed. This keeps things fair for everyone.
Once the filing window closes, the FCC will then release the information on all of the applications filed. REC has tools that will read these applications and determine their status as either a singleton (where there are no competing applications) or MX (where there are competing applications). An application will be considered MX if it is located within 24 km (14.9 miles) of another LPFM proposal on the same channel or within 14 km (8.7 miles) of another LPFM proposal on a first-adjacent channel (+/- 0.2 MHz). All MX applications with common conflicts are placed in a "MX Group" and those groups will each compete within each group. In 2013, there were over 400 MX Groups nationwide. REC will release our unofficial list of MX Groups through our Window Tracker Tool within a few days of the close of the window.
Singleton applications
First on the FCC's agenda will be to determine the singleton applications. Again, these are the ones with no conflicts. Once the FCC determines an application to be a singleton, they will do some further checks to assure application accuracy and to assure that the applicant qualifies for an LPFM station. If all is good, they will accept the application for filing by listing the application on the daily "Applications" Public Notice, which can be found at FCC.today. Once the application goes to Public Notice, There will be a 30 day period for any Petitions to Deny or Informal Objections. Once an application makes it through that process and otherwise meets all other requirements, it will be granted. Applications with objections or petitions will be held and then eventually reviewed by FCC staff attorneys for a decision on the issues raised in the objection/petition before a decision is made whether to grant or dismiss the application.
Identification of the MX Groups - Minor change window
The FCC will then release a Public Notice which then defines the MX Groups and which applications are in each group. In 2013, this came out about one month after the close of the window. Even though REC may have published a list of MX Groups, the FCC release will be the official list and will assign a number to each group. At the time this list is released, the FCC will open a 60 day period in which minor changes can be made to resolve application conflicts. During this period, amendments must be minor, meaning:
- They must specify the same channel, or the first-, second-, or third-adjacent channels or intermediate frequency channels (+/- 53 or 54 channels, +/- 10.6 or 10.8 MHz).
- They must either specify the same transmitting site or can specify a location up to 11.2 km (about 7 miles) away. (Longer moves are allowed in cases where either there is 60 dBu contour overlap between the current and proposed sites or if the move is being made to co-locate the station with another applicant in the same MX group as part of a universal [all members of the group] time share agreement).
Amendments can also be used to make other administrative corrections to the applications. Amendments cannot be made to change an applicant's point claim or local establishment date in a way that will improve their comparative position (such as changing a 4 point application to a 5 point application). Amendments must meet all §73.807 and §73.825 distance separation requirements and must not cause any new conflicts.
If an applicant is able to amend their application to clear a conflict and break out of an MX Group, their application will be then considered as singleton and will go through the singleton process listed above.
Indetification of the Tentative Selectees - Major change window
The FCC will then release one or more Public Notices which will define the "score" that each applicant has and for applicant or applicants with the highest score, they will be declared tentative selectees. The lists of tentative selectees may span over several public notices. In 2013, the FCC released three different public notices covering different regions of the country. The first of these notices was released about 8 months after the close of the window.
With the release of this Public Notice, all applicants that are listed in the notice (including those who do not have the leading number of points) will have a 90 day opportunity to make major changes to their applications in order to break out of conflicts. Major changes are those that were not allowed in the previous 60-day window, but still must meet all §73.807 and §73.825 distance requirements and not create any new conflicts.
Up to three applicants who were declared as tentative selectees can use this period to enter into a voluntary time share agreement where each station would only broadcast at certain times. Each group must propose to operate at least 5 days per week and at least two hours on those days. No two applicants can propose to simultaneously broadcast at the same time. The entire 168 hour weekly schedule does not need to be filled. Applicants who enter into a voluntary time share agreement will then be able to aggregate their points to increase their score. For example, if two lead applicants in the MX Group have 5 points and they enter into a voluntary time share, then each will have 10 points. Time share agreements with applications that do not have an equal score (such as one with 5 and one with 4 points) is not allowed, nor are "non-lead" applicants allowed to aggregate their points (such as two 4-point applicants in a MX Group where there is at least one 5-point applicant).
Applicants who are able to amend to break out of the MX Group by resolving all conflicts will then be treated as a singleton application.
After the 90 day period runs out, the FCC will evaluate each MX Group and if only one applicant still has the leading score, they will be granted. If there was a voluntary time share agreement in the group between two or three applicants where their score was aggregated, they will win the group and both applications will be granted. If there remains 2 or 3 tied applicants with the highest score and no time share agreement has been made, they will go to an involuntary time share. If there are 4 or more tied applicants with the highest score, the three tied applicants with the oldest community establishment dates will be put into an involuntary time share and the remaining applications will be dismissed. All applicants that still remain in the MX group that do not have the highest score in the group will be dismissed.
The Point System
When the FCC declares that a group of applications are MX, they will use a point system to determine the most qualified applicants. Points are earned as follows:
Established Community Presence - For a period of at least two years prior to the filing window, organizations that have at least 75% of it's board members living within 10 miles of the proposed transmitting antenna.
Local Program Origination - Applicant pledges to originate at least 8 hours a day of local programming. Local programming is considered produced within 10 miles of the transmitting antenna. The FCC considers "local programming" as:
- Licensee produced call-in shows,
- Music slected and played by a DJ present on site,
- Broadcasts of events at local schools,
- Broadcasts of musical performances at a local studio or festival, whether recorded or live.
Local origination does not include the broadcast of repetitive or automated programs or time-shifted recordings of non-local programming whatever its source. In addition, local programming does not include a local program that has been broadcast twice even if the licensee broadcasts the program on a different day or makes small variations in the program.
Main Studio - Applicant pledges to maintain a publicaly available main studio with local program origination capability. The studio must be reachable by telephone and is staffed at least 20 hours per week between 7AM and 10PM. Studio must be located within 10 miles of the transmitting antenna in the top 50 urban markets and within 20 miles elsewhere.
Local Programming and Main Studio bonus point - Applicants who can pledge local programming and main studio can claim an extra point for a total of three points.
Diversity of Ownership - Applicat does not hold any attributable interest in any other broadcast station (for example, a translator owner obtaining an LPFM facility or a student operated station operated by an institution with other broadcast holdings).
Tribal Applicant - Organization must be at least 51% tribal-owned and operated and the transmitter site must be on tribal land.
Voluntary Time Sharing
If there are two or three conflicting applications, the FCC will allow applicants to propose a voluntary time sharing agreement. If all conflicting applicants agree to a time share arrangement, the FCC will consider them tentative selectees for the channel otherwise in the case of partial settlements, those points will be aggregated (added up between the multiple applicants) and the group with the most points will be the tentative selectee.
A valid time share agreement requires that each applicant proposes to broadcast at least 10 hours per week and no two time share proponents may broadcast at the same time (even if two stations in the time share group are more than 24 km apart on the same channel, more than 14 km apart on first adjacent channels or at any distance on second adjacent channels).
No more than 3 applicants can be in a time share group.
Involuntary Time Sharing
If the tie can not be broken through voluntary time sharing, the FCC will invoke involuntary time sharing on the applicants. If there are more than 3 applicants in the group, the top-3 applicants based on length of community presence will remain in the group while the remaining applications will be dismissed.
The FCC will designate the following time slots:
| If there are two tied applicants: | If there are three tied applicants: |
|
3:00 AM ~ 2:59 PM |
2:00 AM ~ 9:59 AM 10:00 AM ~ 5:59 PM 5:59 PM ~ 1:59 AM |
Each remaining proponent will rank their choice and the applicant with the longest community presence will get their first preference.
All licenses that are granted through involuntary time sharing are non-renewable unless a voluntary time share agreement is eventually reached, even if the schedule is the same.
Successive License Terms (first window 2000/2001 only)
Successive license terms are no longer used. For historical purposes, we will keep the information in strikeout here:
When after a settlement opportunity has been given and there is still a tie for the most qualified applicant, the FCC will declare a tie and grant construction permits to all parties.
Once the station is built, the license will be granted for a portion of the 8 year license based on the number of applicants in the tie. For example, if there were two different groups, each group would get a 4 year license. When each station can go on the air is based on when their full license is granted.
Successive licenses are NOT RENEWABLE.
LPFM applicants reaching this point run the risk that once they build their station, they may have to wait up to 7 years before they can broadcast.
If after a settlement window, there are more than 8 equally qualified applicants, the FCC will find the 8 most qualified applicants based on how long the organization has been established. If there are still over 8 equally qualified applicants, the FCC will dismiss the entire group.
Resources
FCC rules regarding time sharing can be found in 73.872.
