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FCC Streamlines Radio Station Community of License and Frequency Modification Procedures

December 4, 2006

The FCC has adopted a Report and Order ("Report") making it significantly easier for commercial and non-commercial FM and AM radio stations to change their communities of license and to request frequency changes not involving facilities upgrades. Once the new rules take effect, these types of requests may be filed at any time on a first-come, first-served basis in a standard "minor change" application f01111. Previously, such changes could be proposed only during special filing windows that were open only sporadically, and were subject to competing applications.

Changes to a Station's Community of License

Beginning on the 30^th day following the publication of the Report in the Federal Register, a station may file to change its community of license on FCC Form 301, without having to wait for the FCC to open a filing window, provided the following procedures are met:

• The application must be "mutually exclusive" with the station's existing facilities. Commercial FM stations must demonstrate that, based on the spacing requirements found in Section 73.207 of the FCC's rules, a station could operate from either the existing or the proposed facilities, but not both. Non-Commercial FM stations must demonstrate that the interfering signal contour of the proposed facility overlaps with at least some portion of the relevant contour of the existing facility. AM stations must demonstrate the same type of signal contour overlap, but only with respect to their daytime signals.

• The applicant must demonstrate that the proposal represents a net service benefit, pursuant to Section 307(b) of the Communications Act, under the FM allotment priorities that have been in place since 1982. The FM allotment priorities are (1) first full-time aural service; (2) second full-time aural service; (3) first local service; and (4) other public interest matters, with equal weight given to priorities (2) and (3). When an applicant seeks a Priority (3) preference for a community that is part of or located near an Urbanized Area (which is the most common), the Commission reiterated that it will continue to rely on the 16 factors set forth in the 1988 decision Faye and Richard Tuck to
  determine the outcome. The applicant will also have to confirm the status of the proposed community utilizing Commission-approved factors.
• In the case of an AM station that was obtained in an auction filing window, the licensee or permitee cannot file a request to change the station's community of license prior to that station going on the air with service to the original community of license. However, such a change could be filed if the new community would compare equally or more favorably to the communities specified by the other mutually exclusive applications that were filed during that filing window.

• If an applicant has not built out the facilities specified on its construction permit, the proposal to change the community of license must be mutually exclusive with either its built and operating facilities or its original allotment.

In addition, the applicant must provide local newspaper and/or broadcast notice following the filing of the application, in a similar fashion as is required of applicants for license assignments and renewals. Following the filing of the application, the FCC staff will have notice of it published in the Federal Register, and will not act on the application until at least 60 days after such Federal Register publication.

The FCC also announced that it will remove all currently authorized and awarded FM facilities from the FM Table of Allotments. Going forward, the FM Table will include only vacant allotments that do not correspond to an authorized station or reserved assignment.

Requests for Channel Changes

An FM station may also request to change its channel to a non-adjacent frequency by filing a "minor change" application on FCC Form 301. However, a request for a non-adjacent class upgrade or downgrade must be filed by means of a traditional petition for rulemaking. New allotments and changes to vacant allotments must also continue to be made by rulemaking petition.

Related Matters

In response to a request, the FCC will now require that a party filing a petition for rule making to add a new FM station, whether as an original proposal or counterproposal, simultaneously file an application for construction permit, which includes an FCC processing fee of over $3,000. The Commission also indicated that it would defer acting on a proposal to its limit to five the number of changes to the FM Table of Allotments that could be proposed in any one petition for rulemaking. The Commission stated that it wanted additional time to evaluate the effects of the other allocations changes made in the Report before rendering a decision.

The changes announced in the Report will become effective 30 days after publication in the Federal Register. We expect a flood of applications to be filed on that day. Please let us know as soon as possible whether you expect to file any applications for community of license or frequency changes, as it would be crucial to file them on the first day permissible.

In addition, we would be pleased to respond to any other questions you may have regarding the new procedures.

 

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