Now that hundreds of non-profits have filed thousands of applications for new FM educational channels, communications lawyers say the filers have begun a protracted, sometimes frustrating and certainly expensive process of being awarded a non-commercial broadcast license.
Described as being “put through the legal wringer” by one legal expert, applicants face the arduous task of gaining approval of the FCC, which is likely to take years in many cases.
Last fall’s filing window resulted in 3,630 applications, according to the commission, with Texas producing the most (332) and Delaware the fewest (nine). An analysis by Radio World shows that educational institutions, religious groups and a variety of community-based groups make up the majority of the applicant pool.
Most frequency applications filed were for areas outside major urban areas, or at least on the fringe of larger markets. Experts say since many of the 3,630 are mutually exclusive, meaning multiple applicants applied for the same frequency, the total number of new channels assigned is hard to predict.
“Until the FCC sorts out all of the mutually exclusive groups and starts to winnow through them, we can’t speculate with any reliability at all as to how many may ultimately be granted,” said Harry Cole, communications attorney with Fletcher, Heald & Hildredth and a Radio World contributor.
The FCC limited to 10 the number of applications any one party could file, to prevent a repeat of the aftermath of the FM translator station filing window in 2003, when it was hit by a flood of more than 13,000 applications.
The applicant pool is varied and includes organizations such as the WAY-FM Media Group, a Christian broadcaster, as well as the Native American Seminole Tribe of Florida, which filed two applications in that state.
“One surprise is that there were initially only 250 applications that were not mutually exclusive with at least one other application. That means over 90 percent of the apps filed will require settlements or technical adjustments if they are ever to be granted,” said John Crigler, a communications attorney specializing in public media with Garvey Schubert Barer.
Technical adjustments could include accepting a decrease in the requested power level.
The FCC did offer an expedited settlement opportunity for NCE FM mutually exclusive applicants; it expired in early January. Crigler believes relatively few settlements were filed with the FCC before the deadline because of a short window of opportunity.
That means the vast majority of applications remain tangled in mutually exclusive — or competing — groups, Crigler said.
NCE applicants contacted by Radio World said they are eager for the opportunity to serve their communities.
One is the New Bohemia Group Inc., a neighborhood-based art and cultural district in Cedar Rapids, Iowa, which filed an application for a channel in nearby Coggon.
“We want a community-based radio station to capture all of the culture in our neighborhood. We will represent what community radio is all about,” said Michael Richards, founding board member of The New Bohemia Group. “We will truly be the voice for the community.”
Richards described New Bohemia as an area of several city blocks in Cedar Rapids originally settled by Czech and Slovak immigrants and inhabited by a culturally diverse population, including Lebanese, Bosnian, Asian and Sudanese immigrants.
“We are concerned about the consolidation of media. There are very few openings for alternative voices. Typically, radio stations don’t reflect what we are about here at the street level,” Richards said.
The organization is launching an Internet station in the next few months, Richards said, which should help in preparations to launch a 5 kW radio station at 88.7 MHz if and when the FCC grants the non-profit group a broadcast license.
“We have gone through several fundraising campaigns. We have tower space in Coggon. We should be able to hit the ground running,” Richardson said.
Bob Naismith, president of Korkee Inc., a non-profit based in Charlevoix, Mich., had envisioned a network of non-commercial stations across Michigan’s sparsely populated Upper Peninsula when he applied for 10 frequencies there. However, eight applications are mutually exclusive, meaning other applicants are vying for the same frequencies.
“We will see how it all works out and which ones we receive construction permits for. The technology is there to operate a group of stations across a geographic region at a reasonable cost. That was what we had hoped for,” he said.
Naismith, who has previously owned commercial radio and TV properties, said he envisioned a “middle of the road music format” on the stations with underwriting supplied by local businesses.
“We will negotiate with the other groups” that are competing for the same frequencies with us “to determine what we can do. Sometimes just tiny technical adjustments can clean up conflicts,” Naismith said.
Other groups were less sure of their plans if they are granted construction permits. For example, Muncy Hills Broadcasting, Inc., near State College, Pa., filed 10 applications for licenses in Pennsylvania, New York and Maryland, but will make programming decisions based on how many stations it winds up with and where those are located.
A company spokesman said, “Decisions on direction and intent will be decided later. The big question still remains, ‘How many stations will actually be awarded?’”
The FCC declined to speculate on how many new NCE channels may eventually be handed out from last year’s filing window. Of the 9,083 FMs in this country, 2,817 are designated as non-commercial, according to the FCC Web site.
The discussion also is not to be confused with an application limit eventually imposed on FM translators. While the last translator window opened in 2003, it wasn’t until late 2007 that the FCC announced a “post hoc” limit — meaning a number of mass filers had to choose which of their still-surviving, mutually-exclusive applications they wanted to continue to push for. The most recent ruling was made before the NCE filing window in October.