FM Broadcast Filing Window - Reserved Band (88~92) Non-commercial Educational

REVISED JANUARY 2, 2022.

Filing wIndow:
Full-service Non-commercial educational (NCE) reserved band original construction permits.  

Window dates:
The last filing window was held November 2, 2021~November 9, 2021.  There is no information on when the next window will be, but it make not happen for several years.

Basic details:
This window would be for original construction permits in the NCE “reserved band”.  The reserved band is the 20 channels between 88.1 and 91.9.  Existing licensees may file "major" modifications in this window.  Major modifications are when the modification is mutually exclusive with the current applied for facility (meaning you can't set up both facilities).

Applicant requirements and limitations:
Stations can't be licensed to individuals or for-profit corporations.

This application window is open to any non-profit organization that is recognized by any state as a not for profit corporation.  Organizations are not required to be an IRS 501(c) status.  The corporate status must be valid on the date of filing and must remain valid.  It is important to assure that the organization maintains their state annual report filings to avoid a lapse.  New organizations must have their corporation documents stamped by the state on a date prior to the date of filing (even if that date is in the middle of the window period).  Your organization will need to obtain a FCC Registration Number (FRN).  These can be applied for online and must represent the organization.  If your organization has an EIN issued by the IRS, please have that ready.

In this window, there will be a cap of 10 applications per applicant. Also, if someone has attributable interest in more than one organization, those organizations can't have more than 10 applications combined.  In other words, the same board member can't be involved with more than 10 applications, even if those applications are from separate (and otherwise unrelated) nonprofit organizations. In the event of “mutual exclusive” (MX) applications, the number of applications filed in this window and the number of authorizations an organization already has could play a role in the selection process. 

Current LPFM licensees:
A current licensee of an LPFM station may apply for a full-service NCE station in this window.  If they do so, they must disclose that they are currently the licensee of an LPFM station and must include a pledge that prior to “program test” (completion of construction) of the new full-power facility, the organization would have divested their LPFM station.  This could mean either surrendering the LPFM license for cancellation or assigning it to another qualified non-profit organization.  If the license is assigned, the assignment must be consummated (completion of the assignment process) prior to program testing.  In addition, the LPFM license can’t be sold for a profit, however, the assignor (current licensee) can be compensated for the reasonable and prudent expenses involved with the construction, but not the day to day operations of the LPFM station. 

Service technical details:
Applicants must propose a facility that meets the minimum for a Class A FM station.  This means a minimum of 100 watts (0.1 kW) at 30 meters height above average terrain (6 kilometer service contour).  Facilities proposed may be up to 50 or 100 kW depending on where in the country the station is located. 

NCE-FM stations protect other reserved band full-service stations using contour overlap on co-, first-, second- and third-adjacent channels.   The interfering contour of the proposed facility must not overlap the protected contour of the incumbent facility and vice versa.  NCE-FM stations must also protect full-service stations in the non-reserved band (92.1~107.9) on co-, first-, second- and third-adjacent channels as well as intermediate frequency (+ 10.6 and 10.8 MHz) using minimum distance separation.  NCE-FM stations located near the international border must provide protection to foreign stations in accordance with the appropriate international agreements.

NCE-FM stations are not required to protect existing LPFM stations and FM translator stations.  NCE-FM is a primary service and therefore has the rights to displace LPFM and translator stations. 

It is anticipated that by the time the window does open, there may still be rules to require NCE stations to protect full-service Channel 6 TV stations.  Currently, there are only 10 full-service Channel 6 stations operating in the USA.  There are many more Low Power TV (LPTV) stations on Channel 6 but these need not need to be protected by primary NCE radio stations such as the one being proposed in the filing window.  There are specific protection formulas that are used to determine how a NCE station can protect a TV Channel 6 station. 

Site assurance:
NCE applicants are required to have “assurance” to use the site that is proposed on the application.  Assurance is not a binding contract but instead is a “meeting of the minds” or otherwise, a general understanding that if the applicant is granted a construction permit, the applicant should be allowed to build at the site.  The FCC will require the name and phone number for a site contact during the application process.

Directional antennas:
Directional antennas may be utilized however they must meet the minimum requirement of (1) not having a difference of 2 dB per 10 degrees and in no case shall the antenna radiate at 15 dB under the highest power on the antenna.  This means that many directional antennas commonly used by FM translators can’t be used by full-service NCE stations.  Directional antenna installations must be verified by a proof of performance from the manufacturer and a verification statement from a licensed surveyor that the antenna was constructed per the FCC authorization.

Antennas with only vertical polarization may not be used. There are specific exceptions that may permit the use of a vertical only antenna in connection with the protection of TV Channel 6.  See §73.525 for more details.

Community coverage requirements:
A community of license must be specified.  This community must be recognized or could be recognized as a community for “allotment” purposes.  This means that the community should have some kind of identity to it (people identify themselves as being from that community) and at the minimum, the community be listed in the US Census Bureau’s Gazetteer as at least a “census designated place”.  The proposed technical facility must place a coverage contour (also known as a 60 dBu contour) over at least 50% of the population of the proposed community of license.

Competing applications (MX):
Following the window, the FCC will announce which applications are “MX” and will afford an opportunity for applicants to make a “minor” change in order to “escape” the MX group.  A minor change must have an overlapping 60 dBu contour between the current and the proposed facility. Channel changes to any reserved band channel are allowed.  If remediation is not possible, we move forward to the MX comparative process.

In the event of competing applications, a complex process is used to determine who “wins”.

First, the FCC gives ultimate priority to "white areas".. these are a few sparse places in the United States that currently do not get community coverage from any FM or AM broadcast station (commercial or noncommercial) when the application is MX with another application that claims tribal priority.

Next, the Commission will give priority to tribal entities that meet specifc criteria.

Next, the FCC will give priority to applicants that propose service in areas that currently do not receive two reserved band NCE radio services (based on 60 dBu service contour).  In order to achieve this priority, the proposal must provide first or second NCE service to at least 10% of the population of the proposed service contour. If the first or second NCE population provided by one applicant exceeds 5,000 persons over the other applicant, that applicant will win.  Proposals to provide first educational service to more than 2,000 persons will have priority over those providing second educational service (this figure is based on the aggregated first and second service population). The proposed communities of license must be different in order to be evaluated.  Otherwise, we go to the point system.  For groups of applications where none are proposing first or second NCE service, we go right to the point system.

In the point system, the applicant can claim the following “points”:

In the event that there is a tie after the points are determined, the tie will be broken in the following ways:

• The number of existing authorizations the organization has nationally. (fewer the better)
• The number of applications filed in this window. (fewer the better)
• Whether or not the applicant filed in a previous NCE window and was defeated on points.

Special rules apply for tribal entities.  Please contact REC for details.

In the event there is still a tie, then both applicants will be given the opportunity to reach a time sharing agreement.  If no agreement is met, the FCC will assign hours.  If the FCC assigns the hours and no timeshare agreement is met, then licenses will be non-renewable.  To make the licenses renewable, a time share agreement can be reached at any time (even if it is for the same hours).

If an applicant wins their channel on points (thus resulting into another group being dismissed by the FCC), then that winning group is subject to certain restrictions on moving or transferring the station to another organization for the first four years of full operation of the station.  In addition, applications that are granted as a result of beating other applicants based on population/land area or first/second service priorities must construct a facility that serves the population/land area originally claimed and must maintain those facilities for a minimum of 4 years after the facility is constructed and licensed before it can be downgraded or otherwise modified.

Nature of broadcast service
This window is for noncommercial educational (NCE) broadcast stations.  THIS IS NOT FOR COMMERCIAL ENTERPRISES.  If you want to profit from running a radio station, don’t bother filing in this window.  NCE stations may acknowledge “underwriters”, those who give money to the station.  Underwriting acknowledgements can include identifying information such as name, address, phone number, website and even a brief description of the business.  The announcements may not “promote” the business or a certain aspect of the business.  There are strict controls on the language that can be used on the air to make these acknowledgements.  These messages should be made with a station’s voice and not the voice of the underwriter.  VIOLATIONS OF THE RULES REGARDING COMMERCIALS ON NCE STATIONS CAN LEAD TO FINES IN THE TENS-OF-THOUSANDS. 

Educational Statement
Since NCE radio services are only licensed to educational organizations to advance an educational purpose, new NCE licensees must demonstrate that they are truly educational organizations.  This does not mean that the organization must have classrooms.  NCE applicants need to provide descriptions of the nature of its proposed station programming, and if possible, program schedules.  The NCE applicant should also demonstrate how the proposed station programming will be used to advance its educational purpose.

Parties to the application
As this is an NCE window and involves non-profit organizations, then all board members are a party to the application.  Board members should be vetted for various character issues such as past felony convictions as well as past cases of providing false information to the government.  Normally, up to 20% of the board members may be non-US citizens (remember: green cards and TPS are not considered being a citizen, even if they are a legal resident).  There is an extensive process for organizations with more than 20% foreign citizens on their board.  Board members must also not be on a denial of federal benefits under the U.S. Anti-Drug Act (the same law that denies student loans).  Board members may not also be on the board of an organization that holds an LPFM license (unless that LPFM station is being divested). 

It is proposed that the same board member can't be involved with more than 10 applications, even if those applications are coming from distinctively different nonprofit organizations.

Responsibilities of licensee
Once a facility is completely constructed, the application for license is filed.  Once granted, the facility is fully licensed.  Broadcast licenses are issued for 8-year terms however the original license will be issued for the period of time from when the license is granted until the date when all radio broadcast licenses for that state expire.  The renewal process is fairly easy. 

Full-service NCE licensees are also required to maintain an online public inspection file and must add information once every quarter to outline the various local issues that were addressed by the station.  Once every two years and following certain triggering events, NCE licensees must file an ownership report that outlines the current make-up of the board of directors.  Any board changes (including gradual) that exceed 50% from the original application must be first approved by the FCC in a transfer of control process.  This process will need to be repeated whenever the 50% or more of the board members change again.

NCE applicants and licensees are required to file ownership reports.  Biennial ownership reports are due on December 1 of all odd-numbered years (i.e. every two years).  Ownership reports are also filed within 30 days of the grant of an original construction permit, within 30 days of consummating an assignment of license (transferring the station to a different nonprofit organization) or transfer of control (more than 50% change in parties within the same organizations).  Ownership reports may also need to be filed when applying for a station license (after construction) when circumstances have changed since the filing of the last ownership report.

NCE licensees are not required to have a physical main studio that is accessible to the public but must maintain a local or toll free telephone number which can be accessed by the general public during normal business hours.

Public notice
At the time of the filing window, the FCC rules regarding public notices would have changed.  Under the new rules, an applicant for an original construction permit will be required to give public notice of their filing.  There will be specific wording for this announcement within the FCC rules.  The public notice can be placed on a website that is operated by the organization applying for the construction permit.  The notice must run on the website for at least 30 days following the time when the original construction permit application has been accepted for filing by the FCC.  Organizations without websites would be required to list their notice on a website for their community such as a local newspaper website, city government website (if they will even allow such listings) or through the state's broadcasters association.

Costs
Building and operating a radio station is not cheap.  In the NCE service, you can use newer or older transmitting equipment.  Older transmitters may not have the failsafe modes in them to detect out-of-tolerance situations and immediately take action. They will require more TLC by a qualified engineer who can watch over the operation.  Using older transmitters out of tolerance can lead to notices of violation and possible fines.    Depending on your station’s output power, expect to spend from $3000 to over $30,000 for a transmitter.  Your antenna size and cost will also depend on how much power you are running.  Simple non-directional antennas at lower power (250 watts or less) may cost around $700 to start.   Higher power may mean more “bays” and that will lead to higher costs.  Directional antennas, especially those with a custom design can get very expensive.  Expect to pay into the 5 figures. 

All broadcast stations are required to be equipped with an emergency alert system (EAS) encoder/decoder.  Expect to pay at least $3,500 for this piece of equipment.  In addition, software updates that keep up with changes made by the federal government may lead to additional charges once every few years.

Broadcast stations that carry copyrighted music over the air must pay annual royalty fees to up to three performing rights organizations (ASCAP, BMI and SESAC).  Their rates are set by a federal copyright royalty board.  Rates vary based on whether the station is music centric (more than 20% music) or talk centric (more than 20% talk).   Depending on the station’s population served, the total annual royalties can run from about $1,600 to as much as about $17,000.  Stations that decide to “stream” their audio over the internet are even higher and also include other organizations (SoundExchange).  Radio stations licensed to accredited schools may be able to get lower rates.  Royalty rates increase every year.

When determining the costs of running a radio station, you also need to take into consideration the day to day costs including power, other infrastructure as well as any applicable property taxes and upkeep on the equipment. 

For noncommercial educational broadcast applicants and licensees, the FCC (federal government) does not charge any application or regulatory fees.