The Federal Communications Commission (FCC or Commission) has issued a Public Notice providing an overview of the procedures and requirements for applications in the upcoming filing window for noncommercial educational (NCE) FM new station construction permits.1 The filing window will open November 2, 2021, and close at 6:00 pm EST on November 9, 2021.2
Noncommercial FM licenses are awarded to nonprofit educational organizations. The filing window represents a rare opportunity for educational institutions to obtain FM broadcast licenses, which many educational institutions utilize as a core part of their educational curriculum. The licensing process is expected to be competitive, and entities potentially interested in applying for a license should begin analyzing the opportunity now in order to be prepared for the November filing window.
The filing window will be the first time in ten years that the FCC has accepted applications for new noncommercial FM station licenses. The FCC expects a large volume of applications due to the length of time that has passed since the last filing window. Due to the congested airwaves in urban areas, most available channels are expected to be found in rural areas.
Applications must be filed electronically using FCC Form 2100, Schedule 340.
An applicant must certify that it is either a nonprofit educational institution, governmental entity other than a school, or nonprofit educational organization, and must certify that the NCE FM station will be used for the advancement of an educational program. The requirement that programming advances an educational objective may be satisfied by a variety of programs, including “instructional programs, programming selected by students, bible study, cultural programming, in-depth news coverage, and children’s programs such as Sesame Street that entertain as they teach.” Programming need not be exclusively educational in nature, but must be noncommercial, with no advertisements and no support for or opposition to a candidate for political office.
Each applicant must have sufficient net liquid assets on hand or committed sources of funds to construct the proposed facility and operate it for three months, and be prepared to provide supporting documentation upon request.
Reasonable Site Assurance
At the time it files its application, an applicant must have reasonable assurance that its specified site will be available for the construction and operation of the proposed facilities. The applicant must provide the name and contact information of the person contacted to verify the site’s availability.
Comparative Consideration of Applications
When applications are considered mutually exclusive (MX) (i.e., filed for the same geographic area), the FCC will conduct a three part analysis consisting of: (1) where applicants propose service to different communities, a “threshold fair distribution study;” (2) a point system analysis for applications proposing to serve the same community, or application conflicts not resolved under the fair distribution analysis; and (3) if necessary, a tie-breaker determination based on applicant-provided data and certifications.
Fair Distribution of Service Analysis
Priority will be given to (in order): (1) applications proposing the first overall reception service to any population or area; (2) the applicant is a Tribal Applicant, the proposed community of license is located on Tribal Lands, and the proposed facility would be the first local tribal-owned NCE transmission service in the community; (3) applications proposing a first NCE radio service to “a significant population;” and (4) applications proposing a second NCE radio service to a significant population. Applicants seeking such priority will be required to provide supporting documentation.
Point System Selection Criteria
The point system awards a maximum of seven merit points, based on four criteria: (1) established local applicant; (2) diversity of ownership; (3) state-wide network; and (4) technical parameters.
Established local applicant (3 points)
To qualify for the three points as an “established local applicant,” an applicant must certify that it has been local and established in the community to be served continuously for at least two years immediately prior to the application filing. To be considered local, a non-governmental applicant must have a physical headquarters, campus, or 75% of its governing board members residing within 25 miles of the reference coordinates of the proposed community of license. Substantiating documentation must also be submitted.
Diversity of ownership (2 points)
To qualify for the two points for “diversity of ownership,” an applicant must certify and demonstrate that the principal community contours of its proposed NCE FM station do not overlap with those of any other full-service radio station or non-fill in translator station in which the applicant, or any party to the application, holds an attributable interest.
State-wide network (2 points)
The FCC awards two points for certain state-wide networks providing programming to accredited schools.
Technical parameters (2 points)
The FCC awards up to two points to an applicant that proposes the best technical proposal in an MX group (i.e., proposes service to the largest population and area).
The first tiebreaker is the number of radio or television station authorizations attributable to each applicant (the applicant with the fewest attributable authorizations wins). The second tiebreaker is the number of pending radio station applications attributable to each applicant, and the final tiebreaker is prior NCE applications.
A limited application filing freeze will commence on October 5, 2021, and continue until the close of the filing window.
The upcoming filing window represents a rare opportunity for educational organizations to obtain an FM broadcast license. Interested applicants should begin preparing their applications. Because the FCC does not publish a list of “available” frequencies or provide a “channel finder tool” to locate available frequencies, applicants will typically retain a broadcast engineering consultant to perform frequency searches. And we are available to provide assistance with preparation of the legal portion of the application.
1Media Bureau Announces NCE FM New Station Filing Procedures and Requirements for November 2-9, 2021, Window, Public Notice, MB Docket No. 20-343 (rel. July 23, 2021).
2 Applications submitted before November 2 or after 6:00 pm EST on November 9 will be dismissed.