(Updated) FCC Announces Tentative Selectees in 93 MX Groups

Identified applicants have 60 days to make major changes and 90 days to reach time share and settlement agreements.

Photo credit: ajmexico @ flickr - Creative Commons CC-BY 2.0

Edited October 20, 2024 to add footnotes regarding major amendments and the handling of non-tentative selectees.

The Federal Communications Commission has announced the tentative selectees in 93 groups of applicants from the 2023 Third Generation LPFM Filing Window that were considered as mutually exclusive. These were the applicants who made proposals that conflicted with other applications filed in the same window where the grant of both applications would result in a violation of the distance separation rules.

Points Criteria

LPFM proposals were scored based on 6 different types of criteria:

• Established Community Presence (ECP) - For the past two years, the applicant organization’s headquarters or campus, or 75% of the organization’s board members were located within 20 miles of the transmitting antenna (10 miles for stations physically located within the boundaries of the Nielsen Audio Top-50 media markets) and the applicant provided proper documentation, such as certification from their state’s Secretary of State to demonstrate the establishment date and localism.

• Diversity - The applicant has no other broadcast holdings.

• Main Studio - The applicant pledges to operate a publicly accessible main studio located within 10 miles of the transmitting antenna for at least 20 hours per week.

• Local Programming - The applicant pledges to carry at least 8 hours of programming per day that is produced from within 10 or 20 miles of the transmitting antenna (based on market size).

• Main Studio & Local Programming Bonus Point - Point awarded if the applicant makes both the Main Studio and Local Programming pledges.

• Tribal - The applicant is a Tribal entity and the LPFM serves Tribal lands.

Point Adjustments

Applicants who claim points, especially where it comes to the ECP point must demonstrate their qualification for the points by submitting supporting documentation. That documentation must be submitted prior to the close of the filing window. Any documentation received after that would be considered an attempt to improve comparative position and was not accepted by the FCC.

The FCC did adjust a total of 48 points in 35 MX Groups. A majority of the points adjusted were claims of the ECP point in which the applicant was either established for less than two years from the close date of the filing window or they did not provide the proper Secretary of State documentation to demonstrate their establishment date and localism.

Time Share Agreements

Applicants who share the same number of points and that point value is the lead scores within the group may enter into a time share agreement. Up to three equally qualified applicants within the same MX Group may reach such a time share. Applicants who submit an acceptable time share agreement will have their points agggregated. For example, if a MX Group has three 5-point applicants and two reach a voluntary time share agreement, they will aggregate their points for a total of 10 points and will defeat the applicant that did not join the time share.

Universal time share agreements consisting of all group members, even with varying scores can also be proposed for all MX Groups with either two or three members.

Settlement Agreements

Applicants within a MX Group may reach a settlement agreement which may involve the withdrawal of one or more applicants. Settlement agreements may be filed in conjunction with time share agreements in larger MX Groups. Settlements must include proper statements that the application was not filed for the sole purpose of reaching the settlement agreement and that any consideration (payment) made to other members does not exceed the reasonable and prudent expenses of the applicant.

Time share and settlement agreements may be filed within 90 days of today, October 16, 2024.

Major and Minor Amendments

Minor change amendments may be made at any time. A minor change is one that meets the following criteria:

• The applicant remains on the same channel or can move to a first-, second- or third-adjacent channel (+/- 0.2, 0.4 or 0.6 MHz) or to an intermediate frequency channel (+/- 10.6 or 10.8 MHz).

• If the proposed transmitter site is moved to a different location, the new location is within 11.2 kilometers of the originally applied for location or a contour study is made to demonstrate that there is 60 dBu (F[50,50]) contour overlap between the originally filed location and the proposed amendment location based on full LPFM facilities.

Amendments that do not meet both of those criteria are considered major. Major amendments may be filed for the next 60 days from today.¹ Major amendments must continue to meet the distance separation requirements of §73.807 (amendments involving 88.1~91.9 must also meet the §73.825 criteria for TV channel 6). Major amendments may request a second-adjacent channel waiver. Even though the FCC removed the restrictions on channel changes and distance, the applicant must continue to meet the definition of a local applicant as defined in §73.853 of the Rules.

The only applicants that can do major changes during this 60 day period are those who were identified as MX in this public notice.² Existing LPFM stations and those that are otherwise still pending and not mentioned in the notice may not file major changes.

Minor and major amendments can be made unilaterally or as part of a settlement agreement. Such amendments must remove the applicant from the MX Group and does not create a new conflict. Amendments will be accepted first come, first served with all amendments made on the same day considered as simultaneously filed.

Point Pledge Applicability

After the 90 day period is over, the FCC will reevaluate each MX Group. If at that time, there is still applicants who have a lower score than the tentative selectee(s), those applicants will be dismissed. If applicants are dismissed in this manner, the tentative selectee(s) of the MX Group will be subject to any main studio and/or local programming pledges that they made.

The point pledges will not apply if points were not used to dismiss another applicant. For example, if an applicant files an amendment to break out of the MX Group to become a “singleton”, that applicant does not have point pledges. If, in a MX Group of two applicants, one applicant makes a change to break up the group, neither applicant will have pledges. There are many different potential scenarios possible.

Public Notice Requirements

§73.3580 of the FCC Rules requires that any application that is accepted for filing by the FCC must make a public notice of their application. This is normally done on the applicant organization’s website. The public notice must remain on the website for a minimum of 30 days and applicants need to draft a statement that details when the public notice ran and how it could have been accessed. This statement does not need to be submitted to the FCC.

Applicants who are listed on today’s notice as a tentative selectee (in bold print in attachment A) must start the 30-day public notice period as soon as possible.

Applicants who break out of MX Groups or otherwise become Accepted for Filing must also do the 30-day public notice process once their application appears on a public notice as accepted for filing.

More information about the public notice requirement can be found here.

NOTE: Social Media (Facebook, X/Twitter, Instagram, etc.) cannot be used in lieu of a website for delivering the public notice.

Petitions to Deny/Informal Objections

During the first 30 days from the Points Public Notice, Petitions to Deny can be filed against any applicant identified as a tentative selectee. Petitions to Deny can only be filed by competing applicants in the MX Group, broadcast stations in the same area as the LPFM proposal(s) or local resident’s within the LPFM station’s proposed listening area. The Petition must provide factual information about why the application should be denied. Petitions to Deny are formal presentations with specific time limits for oppositions and replies as well as a service requirement. These are best handled through a qualified attorney.

Informal objections can be filed by any person (regardless of whether they have standing for a Petition to Deny) but must convey the same level of facts.

Again, the FCC will only consider Petitions to Deny and Informal Objections filed against an applicant that has been accepted for filing, which any applicant that is identified as a tentative selectee would be.

Dates to Remember

October 23, 2024: Tentative selectees must have commenced their 30-day website public notice by this date.

November 15, 2024: Deadline for petitions to deny against a tentative selectee.

December 16, 2024 (extended one day due to deadline falling on a Sunday): Final day to file major amendments.³

January 14, 2025: Deadline for time share and settlement agreements.

REC is in the process of updating our Filing Window Application Tracking System to reflect today’s notice.

Clients of REC Networks during the filing window will be contacted with their options. One amendment to break out of a MX Group is included with your rate. REC Clients can also use the Client LPFM Search at LPFM.app to assist them with checking potential locations.

REC will accept requests for work from other applicants seeking to make a modification amendment (major or minor). Those requests will be handled at rates in accordance with the REC Networks LPFM Rate Card revised August 5, 2024.

Those needing assistance (both current clients and potential clients) should send an email to lpfm@recnet.com for assistance.

1. We note that this 60-day deadline is a departure from the way this was handled in the Second Generation LPFM Filing Window in 2013. In that window, the deadline was 90 days for major amendments. While we will not dwell into staff’s explanation of why 60 days was chosen at this time, such a deadline will improve staff processing efficiency and we agree with staff’s decision to shorten this window, especially since major amendments are handled on a first come, first served basis.

2. In the 2013 Second Generation LPFM Filing Window, staff had a practice of dismissing applications that were not tentative selectees after 30 days, despite the 90 day deadline. This prompted a large number of Petitions for Reconsideration as applicants were lead to believe that they had 90 days to file major amendments. REC raised this issue with staff and were assured that this practice will not be done for the 2023 Third Generation window non-tentative selectees. We are not sure however if staff will dismiss after 60 days. This should not be done, especially in MX Groups where informal objections or petitions to deny are raised and the outcome of the pleading may result in the full Commission needing to adjust additional points or disqualify an applicant thus opening the door for a new tentative selectee(s).

3. The FCC’s Public Notice actually announces this deadline as December 15, 2024 at 6PM EST. On Friday, October 18, 2024, REC’s Michelle Bradley spoke with the FCC staff attorney who is working on the MX post-window process and advised that December 15, 2024 falls on a Sunday. §1.4(e)(1) of the FCC rules defines the term “holiday” to include, among other things, any Sunday. §1.4(j) states that if a filing date falls on a holiday, the document shall be filed the next business day, which in this case, is Monday. Staff did agree with our analysis, which we must disclose is non-binding (as any advice from staff is considered). While it is unlikely to happen, REC did ask for staff to issue an Erratum to the public notice to clarify that because of §1.4(j), the filing deadline should be December 16, 2024.