Solid Rock Foundation has been granted a construction permit for a noncommercial educational FM station in Sunray, Texas.
The FCC rejected Triangle Access Broadcasting Inc.’s objection that Solid Rock had filed “inconsistent applications” when it also sought an NCE station in neighboring Stinnett during the 2021 NCE filing window.
The two Solid Rock Foundation applications were at first determined to be mutually exclusive and identified as part of Mutually Exclusive (MX) Group 195, according to a summary of the case from the FCC. The foundation later filed minor technical amendments to both applications to remove them from the MX group. The bureau then granted the unopposed Stinnett application in March.
However, Triangle contested the Sunray application, arguing that under the FCC’s rules, the applications should be deemed “inconsistent” and that violation of the rule can’t be cured by later filing an amendment.
Sunray and Stinnett are in north Texas, north of Amarillo and near the panhandle of Oklahoma, separated by approximately 30 miles. Sunray and Stinnett — both of which have populations of less than 2,000 people, according to the 2010 U.S. Census — have no other local full-power radio services.
In explaining its decision, the commission says it had adopted the “inconsistent applications” rule in an era when all mutually exclusive broadcast applications were resolved via comparative hearings. The rule prohibits the filing of inconsistent or conflicting applications by, on behalf of, or for the benefit of, the same applicant.
The primary purpose of the rule was to expedite application processing procedures by avoiding the disruption of having two inconsistent applications simultaneously being studied by the staff, according to the FCC summary.
However, the FCC says that rationale no longer applies. “The current NCE FM comparative process includes multiple safeguards to protect commission time and resources and enable efficient application processing,” it explained in its ruling.
Further, if an applicant amends a mutually exclusive application to become a singleton, the Media Bureau will, at that point only, study and process the application.
The FCC goes so far to say it would have granted a waiver of the rule in this case “to promote a more functional comparative system for new NCE applications.”
“The Media Bureau, therefore, never expended time or resources reviewing an application that was not grantable. Additionally, the public interest would be frustrated by dismissing an application that the Media Bureau never warned was subject to dismissal, and which MB staff can ultimately grant.”
Seeking “fair and effective” rules
Triangle Access Broadcasting is based in Raleigh, N.C., and operates an LPFM in Raleigh. Steven White, director of Triangle, told Radio World that in challenging the Solid Rock applications, the organization — despite the geographic distance between the groups — was more or less acting as an advocate for future filers of FM applications.
“There is no distance limit to establishing precedents that may come back to affect us. Should Triangle be in a position to apply for other stations in the future, we would desire fair and effective rules and policies, so we participated here to not lose the effectiveness of the beneficial rule against conflicting applications,” White wrote in an email.
“Triangle sees the filing of conflicting applications as problematic because extra applications cut off availability to others in the modification and settlement phases, and because a policy of allowing conflicting applications will encourage parties to file additional applications up to a window limit. This can make MX groups larger and more complicated.”
He said Triangle accepts the “waiver” alternative and believes that Solid Rock will build both granted FM NCE stations.
An email seeking comment from Solid Rock Foundation was not returned.