**DA 07-3521**

**Released: August 9, 2007**

**Media Bureau Announces NCE FM New Station and Major Change**

**Filing Procedures For October 12 -- October 19, 2007 Window;**

**Limited Application Filing Freeze to Commence on September 8, 2007**

As directed by the Commission,[^1] this Public Notice announces
procedures and filing requirements that will apply to the first
noncommercial educational ("NCE") FM new station and major change filing
window. As previously disclosed, the window will open on Friday, October
12, 2007, and close on Friday, October 19, 2007. The window is available
for FM reserved band (channels 201 -- 220) proposals.[^2] In conjunction
with this window, the Commission will not accept reserved band minor
change applications or non-reserved band adjacent channel (channels 221
-- 223) applications after 11:59 p.m., September 7, 2007. The freeze
will continue in effect until the close of the window.

**First-Time Applicants.** Applicants that have not previously filed an
NCE FM application will find useful, step-by-step information about the
application and licensing process at
www.fcc.gov/mb/audio/howtoapply.html. First-time applicants should note
especially that: (1) NCE stations are licensed only to non-profit
educational organizations (not individuals); (2) NCE FM new station
licensing opportunities are more readily available in rural areas and
smaller communities; (3) the Commission does not publish a list of
"available" frequencies or provide a "channel finder tool" to local
"available" frequencies; and (4) applicants generally craft their
technical proposals with the assistance of consulting engineers. One
source for locating consulting engineers is the Association of Federal
Communications Consulting Engineers, http://www.afcce.org/Members.htm.

**Potential Application Cap.** Today, the Commission is releasing a
Public Notice that seeks public comment on a potential limit on the
number of applications that a party may file during the window.[^3] The
Public Notice tentatively concludes that a party to an application filed
in the window may hold attributable interests in no more than a total of
ten applications filed in the window.[^4] Under that proposal, if it is
determined that any party to an application has an attributable interest
in more than ten applications, the Bureau would retain the ten
applications that were filed first -- based on application file number
-- and dismiss all other applications. This potential application cap is
intended to deter speculation and permit the expeditious processing of
the window-filed applications with limited Bureau resources. Pending new
and major change applications filed under former licensing procedures
would not count toward the cap. Major modification applications also
would not count toward the cap. The procedure for commenting on this
proposed limitation is described in that Public Notice. Comments are due
within 15 days of the date of Federal Register publication of that
Public Notice, and reply comments are due within 25 days of the date of
Federal Register publication of that Public Notice.

**Filing Freeze.** A limited application filing freeze will commence on
September 8, 2007, and continue until the close of the window. The
freeze will include all reserved band minor change applications and
amendments, and, due to their potentially preclusive impact on window
filings, Channel 221, 222, and 223 non-reserved band minor change
applications and amendments. This freeze is necessary to promote
transparency and predictability for window filers. It also is designed
to provide sufficient time for applicants and consulting engineers to
verify the availability of spectrum and perfect applications, while
minimizing expenditures on facility proposals that otherwise could be
blocked by minor change filings immediately prior to the opening of the
window.

**Filing Requirements.** Applicants must file new proposals
electronically on Form 340. Such applicants must complete all sections
of the application form. Applicants with pending proposals, typically
NCE FM new station applications that were filed under prior licensing
procedures but not cut-off prior to the 2000 Commission-imposed NCE
comparative licensing freeze, must file amendments electronically on
Form 340. Amendments must include completed Section III (Fair
Distribution of Service), Section IV (Point System Factors), V (Tie
Breakers), and VI (Certification). **The failure to electronically amend
and fully complete a pending application during the October window will
result in its dismissal with prejudice.** Updated ownership information,
if necessary, also must be submitted during the window. In the *NCE
Omnibus Order*, the Commission determined that it would be unreasonable
to penalize applicants for routine and inevitable changes in applicant
governing bodies over time. On this basis the Commission waived and
directed the staff to waive Section 73.3573 of the Commission's Rules
(the "Rules") for NCE FM applicants that experienced gradual but
substantial ownership changes over time but not as a result of a party
or parties efforts to gain control over an NCE station application.[^5]
An affected applicant should request a Rule waiver as part of its
window-filed ownership amendment.

**Comparative Consideration of Applications.** Maximum qualifications
for new applications filed in the window are established at the time of
filing.[^6] Maximum qualifications for pending applications are
established as of the close of the window.[^7] The Commission will take
into account any negative change in an applicant's comparative position
after the close of the window. The Commission will not take into account
any enhancement in an applicant's comparative position after the close
of the window.[^8]

**Fair Distribution Analysis.** The following principles apply to fair
distribution of service analyses. [^9] Consistent with the methodology
used to award FM allocations Priory (1) (providing a first receptive
service) and Priority (2) (providing a second receptive service)
preferences, NCE first and second service calculations must include
outstanding construction permits for new unbuilt NCE FM stations.[^10]
In cases in which a same-area NCE FM station holds both a license and a
construction permit, calculations must be based on the licensed facility
unless the licensee has commenced operations in accordance with its
permit pursuant to program test authority and a covering license
application is on file as of the close of the window. Also consistent
with FM allocations policy, vacant allotments and pending applications
are not counted for determining first and second NCE service levels.
Analyses will be based on service and population data as of the close of
the window.[^11] A previously released Public Notice provides additional
information on the application of the fair distribution methodology to
competing NCE FM proposals.[^12]

**Documentation Supporting Point System Claims.** An applicant must
place in its public inspection file documentation that supports each of
its point system claims.[^13] An applicant also must submit copies of
this documentation to the Commission.[^14] The Bureau strongly
recommends that applicants include copies of this documentation as
exhibits to their application submissions to satisfy this filing
requirement.

**LPFM Divestiture Pledges.** A divestiture pledge is generally
ineffective as a mechanism to avoid the

attribution of broadcast interests held at the close of the window for
the purpose of qualifying for points under the NCE diversity
criterion.[^15] The Commission, however, has carved out an exception for
non-fill-in translators if the applicant pledges to request the
cancellation of the translator authorization upon the new NCE FM
station's commencement of operations.[^16] Further, in the *Omnibus
Order*, the Commission waived the Rules to accept a contingent pledge to
divest a Class D station license prior to the commencement of operations
by a same-area full service NCE FM station.[^17]

We recognize that LPFM stations may find themselves in circumstances
similar to those on which the Class D Rule waiver was based.
Specifically, an LPFM licensee may be seeking substantial service
improvements by surrendering an authorization that is, in significant
respects, secondary to full service station authorizations and
applications. We also note that the Rules prohibit an LPFM station from
holding an attributable interest in any other non-LPFM broadcast
authorization.[^18] Thus, in any event, the Rules would require the
divestiture of an LPFM authorization prior to the grant of an NCE FM
full service construction permit. An applicant that seeks to avoid the
attribution of an LPFM interest must as part of its window-filed
application: (1) propose the divestiture of the LPFM interest prior to
grant of its NCE FM construction permit application; and (2) request a
waiver of the Rule that would otherwise result in the attribution of the
LPFM interest in the applicant's diversity criterion point system
determination.

**Tiebreakers.** When reporting pending applications in Section V(1),
applicants should include the subject application and all other
applications that have been or will be filed in the window. Applicants
should include any application at issue in the *NCE Omnibus Order* that
has not been granted, dismissed, or denied prior to the opening of the
window. Applicants should not include requests to participate in an
auction filed on Form 175.

**Site Assurance.** At the time its application is filed, an applicant
must have reasonable assurance that its specified site will be available
for the construction and operation of its proposed facilities.[^19] Each
applicant should be prepared to submit supporting documentation upon
Commission request.

**Financial Qualifications.** Form 340 requires each applicant for a new
NCE FM station to certify that, at the time its application is filed,
the applicant has sufficient net liquid assets on hand or committed
sources of funds to construct the proposed facility and operate it for
three months, without additional funds.[^20] Each applicant should be
prepared to submit supporting documentation upon Commission request.

**Electronic Filing Instructions.** Applications for new facilities,
major changes in existing facilities, and amendments to not cut-off
applications must be filed **between October 12, 2007, and October 19,
2007.** All FCC Form 340 applications and amendments must be filed
electronically through the Media Bureau's Consolidated Database System
(CDBS) online electronic filing system. Paper-filed not cut-off FCC Form
340 submissions filed prior to April 22, 2000, for which no amendment to
FCC Form 340 is submitted during the window will be dismissed.

The CDBS electronic filing system has numerous business rules and other
edit checks that ensure that filings are substantially complete when
filed. When filing a new or major change proposal, applicants must
select "New station" or "Major Change in licensed facility,"
respectively, on the Pre-form for Form 340 (Question 2 -- Application
Purpose).[^21] When filing an amendment to an existing application,
applicants must select "Minor Amendment to pending application" on the
Pre-form for Form 340 (Question 2 -- Application Purpose). In addition,
the file number issued to the previously filed Form 340 must be entered
on the Pre-form in the field "File Number." 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/e-file]{.underline}

The Guide can be accessed by clicking on the "Broadcast Radio and
Television Electronic Filing System (CDBS)" link at the electronic
filing web site, above. This action will take the user to the Media
Bureau's CDBS Electronic Filing System site. The user should then click
on the "User's Guide" link. Internet access to the CDBS online
electronic forms filing system requires, at a minimum, a browser such as
Netscape version 3.04 or Internet Explorer version 3.51, or later. For
assistance with electronic filing, call the Audio Division Help Desk at
(202) 418-2662.

Applicants are encouraged to access the system and prepare their
applications and amendments at their earliest convenience. Applicants
may begin to complete applications *immediately*. Applicants are also
encouraged to submit their applications early during the window to
ensure proper submission. Applications and amendments filed during the
window will not be made available to the public until after the close of
the filing window. To ensure the security of its application, it is
important that the applicant shares its CDBS account passwords with only
those individuals who are authorized to view and/or modify proposals in
progress.

To complete the filing process, applicants must select the specific
application under "Work in Progress" and then click on the "File Form"
button. Applicants that have successfully filed Form 340 will
immediately receive a CDBS response similar to the following:

**FCC MB -- CDBS Electronic Filing**

**Application Reference Number: 20071019AAS**

**Successfully filed at Oct 19 2007 12:01AM**

Applicants that believe they have filed correctly and have not received
such a message from the electronic filing system should log into their
CDBS account and determine the status of the application. If the status
is other than "Ready" or "Filed," the application has NOT been properly
filed and will NOT be processed.

**The Commission staff will return applications and amendments not
submitted in accordance with the procedures described in this Public
Notice. All applications filed in this window are exempt**

**from filing fees. Nevertheless, the staff may be unable to process
some applications due to "red light" issues.**[^22] **Applicants are
encouraged to check the red light status of their FCC Registration
Number (FRN) by using the following web site immediately after filing
FCC Form 340 in order to avoid processing delays:**

[www.fcc.gov/redlight]{.underline}

For additional information, contact:

Assistance with FRN numbers and passwords: FRN Help Desk 1-(877)
480-3201, Option 4

Electronic filing assistance: Konrad Herling or David Trout (202)
418-2662

Legal inquiries: Irene Bleiweiss, Amy Van de Kerckhove, or Peter H.
Doyle, (202) 418-2700

Engineering inquiries: James Bradshaw or Rudy Bonacci, (202) 418-2700

By: Chief, Media Bureau

**- FCC -**

[^1]: *Comparative Consideration of 76 Groups of Mutually Exclusive
    Applications for Permits to Construct New or Modified Noncommercial
    Educational FM Stations,* Memorandum Opinion and Order, FCC 07-40 at
    ¶ 203 (rel. Mar. 27, 2007) ("*NCE Omnibus Order"*).

[^2]: ^?^ *See Media Bureau announces NCE FM New Station and Major
    Modification Application Filing Window for New and Certain Pending
    Proposals; Window to Open on October 12, 2007*, Public Notice, DA
    07-1613 (rel. Apr. 4, 2007).

[^3]: *See FCC Seeks Comment on Proposed Application Limit for NCE FM
    New Station Applications in October 12 -- October 19, 2007 Window*,
    FCC 07-145 (rel. Aug. 9, 2007).

[^4]: ^?^ *See NCE R&O*, 15 FCC Rcd at 7418-20 (extending commercial
    attribution principles to NCE applications).

[^5]: *NCE Omnibus Order at* ¶ 60.

[^6]: ^?^ 47 C.F.R. § 73.7003(e).

[^7]: ^?^ 47 C.F.R. § 73.7003(f)(3).

[^8]: ^?^ *See* 47 C.F.R. § 73.7003(e).

[^9]: *See* 47 C.F.R. § 73.7002.

[^10]: *See, e.g.,* *Baker v. FCC*, 834 F.2d 181 (D.C. Cir. 1987).

[^11]: *See NCE MO&O*, 16 FCC Rcd at 5083 (¶26).

[^12]: *See Mass Media Bureau Provides Examples of Application of NCE
    Section 307(b) Criteria*, Public Notice, 16 FCC Rcd 10892 (MMB
    2001).

[^13]: ^?^ *See NCE R&*O, 15 FCC Rcd at 7423; *see also* Form 340,
    Section IV; *see also* Instructions For FCC Form 340, Section IV.

[^14]: ^?^ *Id*.

[^15]: ^?^ *See NCE MO&O*, 16 FCC Rcd at 5109, n.24.

[^16]: ^?^ *See NCE MO&O,* 16 FCC Rcd at 5102-03.

[^17]: ^?^ *See Omnibus Order* at ¶ 47.

[^18]: ^?^ *See* 47 C.F.R. § 73.860.

[^19]: *See, e.g., William F. and Anne K. Wallace*, Memorandum Opinion
    and Order, 49 FCC 2d 1424, 1427 (1974); *62 Broadcasting*, Decision,
    4 FCC Rcd 1768 (1989); *South Florida Broadcasting*, Memorandum
    Opinion and Order, 57 RR2d 495 (1984).

[^20]: ^?^ *See* Form 340, Section II, Question 15.

[^21]: Although applicants may file "major modification of construction
    permit" applications, the Bureau strongly discourages such filings.
    They will be subject to competing proposals. Such an applicant will
    have no assurance that its major modification proposal will be
    comparatively preferred to mutually exclusive filings or, assuming
    that it is, that the application will be granted prior to the
    expiration of the underlying construction permit. The Bureau will
    automatically dismiss any major modification application upon
    expiration of the associated permit. It is imperative that an
    applicant submitting a major modification of construction permit
    application have an alternate plan to complete station construction
    prior to the construction permit deadline.

[^22]: Applications filed in the window will be subject to the
    Commission's "Red Light Rule" implementing the Debt Collection
    Improvement Act will be enforced. *See* 47 C.F.R. § 1.1910. Under
    this Rule, the Commission will not process applications and other
    requests for benefits filed by parties that have outstanding debts
    owed to the Commission.