**PUBLIC NOTICE**![](media/image1.png){width="0.7388888888888889in"
height="0.7458333333333333in"}

**FEDERAL COMMUNICATIONS COMMISSION** **News Media Information: (202)
418-0500**

# 445 12th STREET, S.W. Internet: [http://www.fcc.gov](http://www.fcc.gov/) WASHINGTON, D.C. 20554 TTY: 1-888-835-5322 

#  

**DA 05-1604**

**June 15, 2005**

### AM Auction No. 84 Mutually Exclusive Applicants Subject to Auction

**Settlement Period Announced for Certain Mutually Exclusive Application
Groups;**

**September 16, 2005 Deadline Established for Section 307(b)
Submissions**

**Report No. AUC-05-84-E (Auction No. 84)**

On November 6, 2003, the Media Bureau and the Wireless
Telecommunications Bureau (collectively the "Bureaus") announced a
five-day period, from January 26, 2004, to January 30, 2004, for the
filing of applications for new AM stations and major modifications to
authorized AM stations.[^1] By this Public Notice, the Bureaus provide,
as Attachment 84-MX, a list of all applications received during the
filing window that are mutually exclusive with other applications
submitted in the filing window.[^2] Accordingly, these applications are
subject to the Commission's competitive bidding procedures.[^3] By this
Public Notice, the Bureaus announce a settlement period for certain
specified groups of mutually exclusive AM applicants and a deadline for
filing 47 U.S.C. § 307(b) supplementary information, if relevant. The
deadline for both is **September 16, 2005**.

**Anti-Collusion Rule**. The prohibition of collusion set forth in
Section 1.2105(c) of the Commission's rules becomes effective upon the
filing of FCC Form 175, Application to Participate in an FCC Auction,
and applies to all broadcast service auctions.[^4] However, in certain
circumstances, the Commission will allow a limited opportunity to
settle, or otherwise resolve mutual exclusivities by means of
engineering solutions, following filing of the FCC Form 175
applications.[^5] Specifically, pursuant to Section 73.5002(d) of the
Commission's rules, only applicants in mutually exclusive AM application
groups which include either (1) at least one AM major modification
application, or (2) at least one noncommercial educational ("NCE")
application,[^6] will be provided a limited opportunity to resolve their
mutual exclusivities and may submit settlement agreements or technical
amendments to the Commission during the period that commences with the
release of this public notice and ends **September 16, 2005**.[^7] Once
this settlement period is completed, the anti-collusion restrictions
will again take effect for such applicants. Mutually exclusive AM
application groups eligible for settlement are listed in Attachment
84-MX under Category I. An AM NCE application must resolve all mutual
exclusivities to commercial applications in the same MX group. An AM NCE
application which remains in conflict with a commercial application
after the close of the settlement window will be returned as
unacceptable for filing, and the remaining applications for AM
commercial broadcast stations will be processed in accordance with
competitive bidding procedures.[^8] Mutually exclusive groups consisting
of only new commercial AM station applications for the same community
will proceed directly to auction.[^9]

Applicants that are permitted to resolve their mutual exclusivities
through settlement, described *supra*, must ensure that their settlement
agreements comply with the provisions of Section 311(c) of the
Communications Act of 1934, as amended ("the Act"), and the pertinent
requirements of Section 73.3525 of the Commission's rules, including,
*inter alia,* reimbursement restrictions.[^10] In the interest of
expediting new AM service to the public, the Commission will accept both
universal -- in which all applicants in the particular MX group
participate -- and non-universal settlements. Universal settlements,
however, are encouraged. Applicants must submit a joint request for
approval of settlement and a copy of the settlement agreement. Each
party to the settlement must submit the affidavits required by 47 C.F.R.
Section 73.3525(a). Surviving applicants must also submit a complete FCC
Form 301, Application for Construction Permit for Commercial Broadcast
Station, for the pertinent application(s).[^11] Applicants must
simultaneously submit the required Form 301 application fee and a Form
159, Remittance Advice.[^12]

Applicants that are permitted to resolve their mutual exclusivities by
means of technical amendments, described *supra*, may do so by
submitting a complete FCC Form 301, Application for Construction Permit
for Commercial Broadcast Station, for the pertinent application(s).
Applicants must simultaneously submit the required Form 301 application
fee and Form 159, Remittance Advice.[^13] The application must resolve
all technical conflicts between it and all other applications in the
specified MX group. An applicant submitting a Form 301 application to
resolve a mutual exclusivity by means of a technical amendment may
change the engineering proposal specified in its previously submitted
Form 175 application, but such change must be minor, as defined by the
applicable AM service rules, and must not create new application
conflicts.[^14] Form 301 applications that create new application
conflicts will be returned. The Commission also will accept
non-universal technical amendments. []{.mark}

**Section 307(b) Determination.** In the *Broadcast First Report and
Order*, the Commission determined that its competitive bidding authority
should be harmonized with its statutory duty under Section 307(b) of the
Act to effect an equitable distribution of radio stations throughout the
United States. Therefore, the Commission directed the staff to undertake
a traditional Section 307(b) analysis prior to conducting an auction for
mutually exclusive AM applications proposing to serve different
communities.[^15] Accordingly, for those mutually exclusive groups
listed in Attachment 84-MX proposing to serve different communities, a
Section 307(b) analysis is required.

In order to evaluate the Section 307(b) considerations, each applicant
within a mutually exclusive group consisting of proposals to serve
different communities must submit by **September** **16, 2005**, an
amendment which includes the following: (1) the area and population
within the proposed 2 mV/m and 0.5 mV/m daytime contours, and the
nighttime interference-free contour (if fulltime operation is proposed);
(2) the number of stations licensed to the proposed community of
license; (3) the number of stations providing protected service to the
proposed community of license; (4) the population (according to the
latest Census data) of the proposed community of license; (5) where
relevant to establish the precondition of a licensable community, a
description of the civic, cultural, religious, social and commercial
attributes of the proposed community of license; and (6) any other
information determined relevant by the applicant.[^16] Submitted Section
307(b) data must be based on the technical proposal as specified in the
AM Auction No. 84 filing window application. A mutually exclusive AM
applicant may not change the technical proposal specified in its AM
Auction No. 84 filing window application, except as provided,
*supra*.[^17] If a mutually exclusive group that is eligible to submit
settlements or engineering solutions does not do so by September 16,
2005, and the applications in that group propose to serve different
communities of license, each applicant within the group must submit an
amendment addressing the Section 307(b) criteria by **September 16,
2005**.[^18] The staff will dismiss, without further processing, the
previously filed FCC Form 175 application (and Section I and Section
III-A Tech Box of the FCC Form 301 submission) of any applicant which
fails to file a settlement, technical amendment, or a Section 307(b)
amendment by this date.[^19]

**Filing Procedures.** Joint requests for approval of settlement
agreement must be filed in original and two copies, plus one additional
copy for each applicant that is a party to the settlement, **on or
before September 16, 2005**, with the Commission\'s Secretary, Marlene
Dortch, Office of the Secretary, Federal Communications Commission, 445
Twelfth Street, S.W. Room TW-A325, Washington, D.C. 20054. In addition,
it is requested that a courtesy copy of all such filings be delivered to
Elizabeth Robinson, Audio Division, Media Bureau, Federal Communications
Commission, 445 12^th^ Street, S.W., Room 2-B450, Washington, D.C.
20554.

All FCC Form 301 applications must be filed electronically through the
Media Bureau's Consolidated Database System (CDBS) online electronic
forms filing system. When filing the complete FCC Form 301, applicants
must select "Long Form Application for AM Auction No. 84" on the
Pre-form for Form 301 (Question 2 -- Application Purpose). In addition,
the CDBS file number previously issued to the Section I and Section
III-A Tech Box Form 301 filed in the AM Auction No 84 filing window must
be entered on the Pre-form in the field "Eng. Proposal File
Number."[^20] Instructions for use of the electronic filing system are
available in the CDBS User's Guide, which can be accessed from the
electronic filing web site at:

<http://www.fcc.gov/mb/elecfile.html>

A surviving NCE AM applicant in a settlement agreement, or an NCE AM
applicant that proposes to resolve mutual exclusivity through an
engineering solution, must also file electronically FCC Form 301. In
accordance with Section 1.1114(c) of the Commission's rules, these Form
301 applications are exempt from application filing fees. To establish
NCE eligibility, [^21] these AM NCE applicants must supplement their
Form 301 filings with answers to questions 2 through 5, Section II --
Legal and Financial of FCC Form 340, Application for Construction Permit
for Reserved Channel Noncommercial Educational Broadcast Station, March
2001 edition. Responses to questions 2 through 5 of the FCC Form 340,
including any requisite exhibits, must be filed as an attachment to the
Form 301.

The mutually exclusive applicants' FCC Form 301 Section I and Section
III-A Tech Box submissions filed during the AM Auction No. 84 filing
window are available for review in CDBS. For assistance with electronic
filing, call the Audio Division Help Desk at (202) 418-2662.

An original and two copies of Section 307(b) submissions must be filed
**on or before September 16, 2005**, with the Commission\'s Secretary,
Marlene Dortch, Office of the Secretary, Federal Communications
Commission, 445 Twelfth Street, S.W. Room TW-A325, Washington, D.C.
20054. In addition, it is requested that a courtesy copy of all such
Section 307(b) filings be delivered to Elizabeth Robinson, Audio
Division, Media Bureau, Federal Communications Commission, 445 12^th^
Street, S.W., Room 2-B450, Washington, D.C. 20554.

The staff will withhold further action on the mutually exclusive AM
applications listed in Attachment 84-MX, pending submission of
settlement agreements or engineering proposals to resolve mutual
exclusivity and/or Section 307(b) supplementary information. For
additional information, contact Lisa Scanlan, Thomas Nessinger, Susan
Crawford or Ann Gallagher of the Audio Division at (202) 418-2700.

***This Public Notice contains the following Attachment:***

**Attachment 84-MX:** AM Mutually Exclusive Applications Subject to
Auction

**FCC NOTICE REQUIRED BY THE PAPERWORK REDUCTION ACT**

The public reporting for this collection of information is estimated to
range from 0.5 to 3 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and maintaining
the required data, and completing and reviewing the collection of
information. If you have any comments on these burden estimates, or on
how we can improve the collection(s) and reduce the burden(s) they cause
you, please write to Cathy Williams, Federal Communications Commission,
AMD-PERM, Room 1-C823, 445 12^th^ Street S.W., Washington, DC 20554,
Paperwork Reduction Project (3060-0996). We will also accept your
comments regarding the Paperwork Reduction Act aspects of the
collection(s) via the Internet if sent to <Cathy.Williams@fcc.gov>.
Please do not send completed applications to this address.

Remember - You are not required to respond to a collection of
information sponsored by the Federal government, and the government may
not conduct or sponsor this collection unless it displays a currently
valid OMB Control Number or if we fail to provide you with this notice.
This collection has been assigned OMB Control Number 3060-0996.

**THE FOREGOING NOTICE IS REQUIRED BY THE PAPERWORK REDUCTION ACT OF
1995, P.L. 104-13, OCTOBER 1, 1995, 44 U.S.C. Section 3507.**

**\-- FCC \--**

[^1]: "AM New Station and Major Modification Auction Filing Window;
    Minor Modification Application Freeze; Notice and Filing
    Requirements Regarding January 26 -- 30, 2004 Window for Certain AM
    Construction Permits Applications; Notice Regarding Freeze on the
    Acceptance of AM Minor Change Construction Permit Applications from
    January 12 to January 30, 2004," *Public* *Notice*, 18 FCC Rcd 23016
    (2003) ("*AM Window* *Public Notice*").

[^2]: In determining mutual exclusivity the staff applied the following
    rule sections: 47 C.F.R. §§ 73.37, 73.182, 73.183(b)(1). *See also
    Review of the Technical Assignment Criteria for the AM Broadcast
    Service,* *Report and Order*, 6 FCC Rcd 6273 (1991), *recon granted
    in part and denied in part*, 8 FCC Rcd 3250 (1993) and *Nelson
    Enterprises, Inc*., 18 FCC Rcd 3414 (2003) (clarifying standards to
    establish mutual exclusivity between window-filed AM applications).

[^3]: *See* 47 U.S.C. § 309(j); 47 C.F.R. § 73.5000(a); *see generally
    Implementation of Section 309(j) of the Communications Act \--
    Competitive Bidding for Commercial Broadcast and Instructional
    Television Fixed Service Licenses*, *First Report and Order,* 13 FCC
    Rcd 15920 (1998) ("*Broadcast First Report and Order*"), *on
    recon*., *Memorandum Opinion and Order*, 14 FCC Rcd 8724 (1999), *on
    further recon., Memorandum Opinion and Order*, 14 FCC Rcd 12541
    (1999).

[^4]: *See* 47 C.F.R. § § 1.2105(c), 73.5002(d).

[^5]: *See* *Broadcast First Report and Order*, 13 FCC Rcd at 15927,
    15980-81. *See also* *Reexamination of the Comparative Standards for
    Noncommercial Educational Applicants, Second Report and Order*, 18
    FCC Rcd 6691 (2003) ("*NCE* *Second Report and Order*").

[^6]: NCE applicants checked the box labeled "noncommercial educational"
    on their FCC Form 175 applications.

[^7]: *See* 47 C.F.R. § 73.5002(c) and (d).

[^8]: *Id*.

[^9]: *Id.* *See also Orion Communications Limited v. FCC*, 213 F.3d 761
    (D.C. Cir. 2000).

[^10]: *See* 47 U.S.C. § 311(c); 47 C.F.R. § 73.3525.

[^11]: *See* "Filing Procedures," *infra.*

[^12]: Effective August 10, 2004, this fee is \$3,310.00. *See* schedule
    of charges at 47 C.F.R. § 1.1104. Method and forms of payment are
    addressed in 47 C.F.R. §§ 1.1109, 1.1110. *See also* the Media
    Services Application Fee Filing Guide and the FCC Form 301
    instructions.

[^13]: *See supra* note 11.

[^14]: *See* 47 C.F.R. § 73.3571.

[^15]: *See Broadcast First Report and Order*, 13 FCC Rcd at 15964.

[^16]: The Commission's service priorities when making a Section 307(b)
    determination are: (1) first full-time aural service; (2) second
    full-time aural service; (3) first local service, and (4) other
    public interest matters. *Second Report and Order, FM Channel
    Policies/Procedures*, 90 FCC 2d 88, 90-93 (1982); *recon. denied,*
    56 RR 2d 448 (1984). Priorities (2) and (3) are given equal weight.
    These priorities were first applied in Section 307(b) determinations
    in the AM context by the Review Board in *Alessandro Broadcasting
    Co.*, 56 RR 2d 1568 (Rev. Bd. 1984). This request for Section 307(b)
    information offers each applicant the flexibility to advance its
    application based upon its distinct circumstances. The relevance of
    each applicant's submission will be assessed during the staff's
    Section 307(b) review. It may be the case that certain of this
    information may not be material to the staff's Section 307(b)
    determination.

[^17]: *See Broadcast First Report and Order*, 13 FCC Rcd at 15976.

[^18]: NCE applicants that failed to successfully resolve mutual
    exclusivities are returned as unacceptable for filing and therefore
    do not submit Section 307(b) information. *See* 47 C.F.R. §
    73.5002(c).

[^19]: *See* 47 C.F.R. § 73.3568(a)(1).

[^20]: The CDBS file number issued to the Section I and Section III-A
    Tech Box Form 301 filed in the AM Auction No. 84 filing window is
    listed in Attachment A to this public notice.

[^21]: Section 73.503(a) of the Commission's rules states that an NCE
    broadcast station "will be licensed only to a nonprofit educational
    organization and upon showing that the station will be used for the
    advancement of an educational program." 47 C.F.R. § 73.503.