Wednesday, February 03, 2010

FCC establishes licensing preference for Native Americans (and other changes)

From FCC-10-24A1:

The FCC today adopted a number of changes in their treatment of applications for new radio stations. The most dramatic changes involve an attempt to promote the construction of tribally-owned stations in Native American areas. However, some other changes were also made. A Further Notice of Proposed Rulemaking was also issued, calling for further inquiry into two questions.


A. Establish a preference for Native American groups for stations serving tribal lands.

A Tribal Priority will be issued if:
- The applicant is a federally-recognized Tribe; a consortium of several Tribes; or an organization 51% or more controlled by one or more Tribes, [0] and:
- At least 50% of the city-grade coverage area of the station (daytime only, for AM stations) would cover tribal lands, and:
- The station would provide first or second radio service to a non-negligible population, or would be the first station licensed to a community on tribal lands.

(“Tribal lands” are defined as “Indian Reservations” and areas adjacent to reservations which have been designated by the Bureau of Indian Affairs as appropriate for the extension of Native American social services.)

For AM applications:
An application with Tribal Priority will have precedence over non-tribal applicants unless a non-tribal applicant proposes to cover an area that would not be served by the tribal applicant and is not served by any other station. (the FCC will not allow Tribal Priority to deny an area any radio service)

Once a license is awarded through Tribal Priority, the station must operate[1] for at least four years with an ownership that is at least 70% tribally-controlled. For this period, the community of license may not be changed, and no technical changes could be made which would cause more than half of the principal-community (“city-grade”) coverage area to fall off tribal lands.

For commercial FM applications:
A proposal to allot a channel to a community on tribal lands would take priority over a proposal to allot a channel on non-tribal lands. For example, if the Menomonee Tribe proposed to allot 92.3A to Keshena, Wisconsin on their reservation, while Cumulus proposed to allot the same channel to off-reservation Shawano, seven miles away, the channel would go to Keshena.

Any applicant, whether qualified for a Tribal Priority or not, could file for a permit to use the channel. (while the Menomonee Tribe may succeed in getting the channel allotted to Keshena, Cumulus could well end up receiving the permit to use the channel.) Any station thus awarded would be prohibited from changing its city-of-license for four years,[1] and would be prohibited from making technical changes that would cause more than half of the principal-community coverage to fall off tribal lands.

For non-commercial FM applications:
Tribal Priority would trump all other applications except those which propose to provide the first radio service to a population that would not be served by the tribal station.

The holding requirements would be the same as for AM – the station must operate[1] for at least four years under at least 70% tribal control; the community of license must not be changed for that period; and no technical changes that would cause more than 50% of the city-grade coverage to fall outside tribal lands would be permitted.

B. Limit downgrades to AM permits after receiving a fair-distribution preference.

When awarding an AM permit, applicants who propose to serve a significantly greater number of people receive preference. The Commission fears applicants may propose a certain level of service in order to “trump” other applicants and win the permit – and then amend the permit to specify a lower level of service.

The Commission has decided that applicants who win a permit this way must serve[1] at least 80% of the originally-proposed population for at least four years. Further, such licensees may not change their city of license for four years.

C. Require applications for new AM stations (or major changes) be “Technically Eligible for Auction Processing at Time of Filing”.

In recant AM Auction #84, the FCC found 14% of the applications filed were defective. In the 321 cases where preliminary applications were not mutually-exclusive with other applications, 91 applicants never filed the complete technical data necessary to finish processing – and of the 230 applicants who did file, nearly 30% filed technically-deficient applications.

The Commission has ruled that in future AM auctions, for applications to be accepted they must show:
- The principal community (city of license) will receive the required signal level day and night.[2]
- Existing stations, existing permits for new stations, and previously-filed applications for new stations or changes to existing stations will be protected from interference day and night.[3]

Applications that do not meet one or more of these criteria will be placed on Public Notice as “Technically Ineligible for Filing”. Applicants will be given a single chance to amend the power, antenna parameters, or tower site in order to come into compliance. Amendments to frequency or city-of-license will not be accepted. The Public Notice will set a deadline for such amendments – today's action suggests this deadline is likely to be on the order of 30 days.

D. “Permanentize” the acceptability of technical modifications and settlements that don't clear all mutual exclusivities.

Usually, when broadcast applications are accepted, two or more mutually-exclusive applications will be filed. It may be possible to resolve the mutual exclusivity if two or more applicants agree to make technical changes, or to have one or more applicants withdraw their application(s). The rules had only required the Commission to accept these settlements if they resolve all the mutual exclusivities.

It had, however, been Commission practice in recent auctions to accept such settlements if any of the mutual exclusivities is cleared – if at least one application becomes immediately grantable as a result. The FCC has decided to codify that practice in their regulations.

E. Establish authority to limit the number of AM applications that may be filed in a window.

In AM Auction 32, 171 applicants filed 258 proposals; in Auction 84, 460 applicants filed 1,311 proposals. The Commission fears many of these applications may have been speculative – the applicant filed a large number of proposals in the hopes that one or more would be granted, but without intention of building all of them.

The Commission has decided to allow the Media Bureau staff to decide whether to set a limit on the number of applications any party may file in any given AM auction, and to establish what that limit should be.

F. Provide flexibility in the deadline for filing long-form applications after an auction.

Applicants file a “short-form” application before going to a broadcast auction. Those which win the auction then have 30 days to file a complete “long-form” application. Some FM auctions have closed just before Thanksgiving – requiring winning bidders to complete their long-form paperwork during the Thanksgiving/Christmas holiday season.

One commenter made the obvious suggestion: that the Commission should avoid scheduling auctions to close just before a holiday! What they actually did do... was to delegate authority to the Media Bureau to extend the filing deadline.

G. Clarify the New Entrant Bidding Credit Unjust Enrichment Rule.
H. Clarify the Maximum New Entrant Bidding Credit Eligibility.

These still need clarification – I don't know what they're talking about even after they clarify things! This has to do with a credit provided to auction participants who don't already own broadcasting stations.


A. Implement a Tribal Bidding Credit.

While the proposals to promote broadcast ownership among Native American Tribes are pretty generous for non-commercial operations, they are not nearly so generous for commercial stations. Tribes may receive a preference for the allotment of channels on their lands, but non-tribal entities will compete, at auction, with the tribes for the right to use those channels.

The New Entrant Bidding Credits discussed above would likely benefit most tribes. Still, they'll find it difficult to compete with well-heeled large broadcast groups. Two entities suggested the FCC provide a further bidding credit to qualified Tribes. The Commission asks whether such a credit should be provided, and if so, whether it should be in addition to, or replacing, the New Entrant credit.

B. Extend the Tribal Priority to tribes with no reservations.

While there are 563 Native American Tribes in the U.S., there are only 312 reservations. (and some Tribes have more than one) This means there are more than 250 Tribes which do not control any “tribal lands” on which Tribal Priority would apply.

The Commission asks whether they should make provisions for Tribal Priority for Tribes which do not have tribal lands. Should a minimum population density of members establish “tribal lands”?


[0] Any such Tribes must have a portion of their tribal lands within the proposed station's city-grade coverage area. Other Tribes may be part owners, but their participation is on the same basis as non-Native people.

[1] Four years' service means the station must be on the air for at least four years while meeting the requirements. The duration of an unbuilt construction permit doesn't count.

[2] Principal community coverage is not required at night for class D stations. However, no new Class D licenses are being granted.

[3] Class D stations need not be protected at night.

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