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Commission Declines to Arbitrate Ohio LPFM Dispute

Case involves what was originally a five-way time share

Two low-power FM stations that can’t agree on a revised frequency-sharing agreement will have to work it out for themselves without FCC arbitration. The commission staff has declined to get involved in the dispute.

The case at hand is the license for WCRS in Columbus, Ohio, which allows operation from 3 to 8 p.m. The licensee, Simply Living, seeks longer hours and hoped the commission would waive the requirement that a modification to a time-share agreement requires written approval of all parties. It also asked the FCC to arbitrate a disagreement with Bexley Public Radio Foundation, its co-occupant of the frequency.

Things came about this way:

Simply Living and Bexley were two of five mutually exclusive applicants for an LPFM. All five signed a time-share agreement that the commission approved, but eventually only these two built stations.

Later, two other applicants asked the FCC to assign their CPs and operating hours to Simply Living, but then withdrew that request. The FCC first reissued Simply Living’s license to include the longer operating hours, then overrode its action and reissued the license with the original operating hours.

Simply Living said that the FCC should waive the requirement that any change to a time-share agreement requires written approval of all parties, saying the agreement was obsolete because three of the parties don’t even operate stations. A waiver, it argued, would allow the FCC to help Simply Living and Bexley reach a new agreement. It also said it had been unable to reach agreement with Bexley over air time, and asked the FCC to conduct arbitration. Leaving air time unused, it argued, doesn’t serve the public interest.

The ruling this week was by Peter Doyle, chief of the Audio Division of the Media Bureau, who cited several reasons for saying no. He said the commission had created “powerful incentive[s]” to encourage voluntary cooperation between time-share licensees, and that nothing prevents the licensees from agreeing to outside dispute resolution procedures. “The Audio Division is prepared to give effect promptly to any agreement reached under these procedures that otherwise complies with the commission’s rules,” he wrote.

To accommodate licensees who fail to reach universal voluntary agreements “would be rewarding such applicants’ unwillingness or inability to reach such agreements,” he continued, reiterating earlier policy.

FCC arbitration would be unlikely to result in prompt resolution, he continued; and a commission decision divvying up the vacant airtime “would itself be subject to administrative and judicial challenge.” Further, the use of significant commission resources to resolve “this simple one-issue dispute” is unwarranted.

Doyle added: “We note that this continuing stalemate will likely ensure that neither Simply Living nor Bexley will acquire additional airtime. During the next LPFM window, new applicants, but neither of the current time-share licensees, will have the opportunity to apply for the vacant airtime.”