The Federal Communications Commission has moved to approve two applications for noncommercial educational (NCE) construction permits — despite another licensee filing an objection saying that the applications themselves are inconsistent and should be dismissed.
MyBridge Radio filed two applications during the 2021 NCE FM filing window for new stations in Nebraska, with one in Norfolk and the other in Schuyler. Afterward, the applications were deemed mutually exclusive by the Media Bureau and thus identified as part of MX Group 139. Shortly thereafter, MyBridge filed a minor technical amendment to the Norfolk application to remove it from the MX group.
A month later, Triangle Access Broadcasting filed an objection, claiming that the MyBridge applications were inconsistent applications. Both cannot be granted, Triangle said, because Commission Rules prohibit contour overlap for applications for new NCE FM stations. Triangle argued that the Media Bureau should have dismissed the later-filed Schuyler application “thus eliminating the burden of processing an inconsistent application and creating delays in the processing of other valid applications.”
As background, the commission’s Inconsistent Applications Rule was adopted during a time when all mutually exclusive broadcast applications were resolved in comparative hearings. This was done in an effort to prohibit the filing of inconsistent or conflicting applications by the same applicant. And the rule was put in place because such comparative hearings could end up wasting the commission’s resources, unfairly prejudice other applications or delay service to the public. According to the commission, the primary purpose of the Inconsistent Applications Rule was to expedite application processing procedures and avoid the disruption of having two inconsistent applications being studied by the staff at the same time.
But as part of an earlier ruling, the commission found that the Inconsistent Applications Rule was not applicable in a competitive bidding context because the procedures adopted for processing mutually exclusive auction applications rendered the rule irrelevant. Today, the current NCE FM comparative process includes safeguards to protect commission time and resources and to enable efficient application processing.
In addition, when NCE FM applications are classified as mutually exclusive, the bureau does not process and review each application for acceptability and grantability. Rather, the department only reviews, accepts for filing, and processes the one application identified as the tentative selectee of the MX group. And before the comparative review process, the bureau encourages mutually exclusive applicants to enter into settlements or file technical amendments to resolve conflicts and expedite the grant of applications.
The commission’s Inconsistent Applications Rule conflicts with these safeguards and therefore should not be applied to these applications. And in this instance, Triangle cites no instance of an NCE FM application being successfully dismissed under this rule.
The commission also noted that even if the Inconsistent Applications Rule were applicable to mutually exclusive applications for new NCE FM stations, the bureau would have good cause to grant a waiver of the rule to promote a more functional comparative system for new NCE FM applications.
The commission also found that MyBridge’s filing of its Norfolk and Schuyler applications do not frustrate the policy of administrative effectiveness because the bureau staff did not review the applications for technical and legal acceptability until each became a singleton as a result of the Dec. 14, 2021, amendment — meaning that the bureau did not expend time or resources reviewing an application that was not grantable.
Plus, the commission said, the public interest would be frustrated by dismissing applications that the bureau never even noted were subject to dismissal.
As a result, the commission decided to waive the Inconsistent Applications Rule to the extent necessary, deny Triangle’s objection and grant both the Norfolk application and the Schuyler application.