73.872
Part 73, Subpart G, Section 73.872 is a core regulation for the Low Power FM (LPFM) broadcast service that addresses the selection process of mutually exclusive (competing) applications filed during a filing window.
During the LPFM filing window, the FCC will accept applications for new stations and major changes to existing stations. During the window period, the LMS system will suppress the applications filed from being viewed by the public in the sake of fairness. Once the window closes, the LMS system will release all of the applications filed during the window for public inspection.
Applications that are considered "mutually exclusive" (or "MX") are those that could not be granted because they conflict with other applications proposing facilities that would not meet the distance separation requirements between the LPFM stations. These conflicts will happen if two applications are for the same channel and are less than 24 kilometers (14.9 miles) apart or they are on the first-adjacent channel and are less than 14 kilometers (8.7 miles) apart.
LPFM applications that do not conflict with other LPFM applications filed during the window are considered "singleton" and are not subject to this rule. Those applications will be identified and placed on public notice as accepted for filing, which will open a 30 day period for the filing of Petitions to Deny and once that period is over and the FCC has made their final technical and legal checks of the application, it will be granted a construction permit. The singleton applications will be the first to be granted following an LPFM window.
Point System and local establishment date
Main article: Point system.
Local establishment date
During the filing window, the applicant will need to designate the date that the organization was first locally established in the community and remained local ever since. In order to be considered local, the applicant must have their headquarters, a campus or have at least 75 percent of the organization's board members reside within 10 miles (16.1 km) of the proposed LPFM transmitting antenna if the transmitting antenna is inside the Top 50 media markets or within 20 miles (32.2 km) if the station is outside of the top 50 markets.
Point system
The application will ask five questions regarding the point system. This will determine the number of points the applicant will be credited for. Some points require additional documentation or information on the application. The article about the Point System has more information on those requirements.
Points can be claimed for:
- Established Local Applicant - (1 point) - The applicant meets the above definition for being local and that the organization has existed for at least two years prior to the filing date of the application.
- Local Programming - (1 point) - The applicant pledges to provide at least 8 hours of locally originated programming per day.
- Main Studio - (1 point) - The applicant pledges to establish a main studio location that is accessible to the public at least 20 hours per week.
- Broadcast Diversity - (1 point) - The applicant has no other attributable interests in any other broadcast station, including those permitted under §73.860.
- Tribal Priority - (1 point) - The applicant is considered a tribal applicant pursuant to §73.853 and the proposed station is on tribal lands.
- An additional 1 point bonus will be awarded if the applicant claims both the Local Programming and Main Studio Points.
Local establishment date myth
There has been a common misunderstanding that in order to file in the LPFM window, the organization has to have been established for a minimum of two years. This is not correct. The age of the local organization does not matter, however, being locally established for at least two years allows the applicant to claim the Established Local Applicant point, which would give the applicant an advantage if the application is considered mutually exclusive.
Processing of MX applications after the close of the filing window
Determining whether an application is MX and creation of MX Groups
First, the FCC will identify the applications considered MX and then review which applications have common MX applications associated with them and place them in a single group. For example, let's look at how conflicting applications could create a single MX group:
| LOCATION 1
15 km west of Location 2 |
LOCATION 2
15 km east of Location 1 7 km west of Location 2 |
LOCATION 3
7 km east of Location 2 10 km west of Location 4 |
LOCATION 4
10 km east of Location 3 |
|---|---|---|---|
| Station A: on 98.5 | Station B: on 98.5
Station C: on 98.5 Station D: on 98.7 |
Station E: on 98.7 | Station F: on 98.9 |
In the above scenario, all six of these applications all conflict and therefore would be in an MX group. When you break them down by which applications are directly conflicted with other applications, you will see the commonalities that require them to be bunched up in an MX group:
| A | B | C | D | E | F | |
|---|---|---|---|---|---|---|
| A | -- | MX | MX | Clear | Clear | Clear |
| B | MX | -- | MX | MX | MX | Clear |
| C | MX | MX | -- | MX | MX | Clear |
| D | Clear | MX | MX | -- | MX | Clear |
| E | Clear | MX | MX | MX | -- | MX |
| F | Clear | Clear | Clear | Clear | MX | -- |
Since all of those applicants have some common conflicts with other applicants, they are brought together within a single MX Group of 6 applicants.
MX Group List publication and settlement period
Following the LPFM filing window, the FCC will release a Public Notice that includes the conflicting/MX applicants and placed into groups similar to the example above. The FCC will also propose the scores for each application based on the point system. Depending on how many applications were filed in the window, the FCC may divide the MX groups into regions of the country and release multiple public notices. In 2013, the FCC split the nation into three regions and released separate public notices for each region.
We can show how each applicant in our example is ranked:
| Station | Channel | Local presence date | Points claimed during the window | Total Score |
|---|---|---|---|---|
| A | 253 | February 1, 2017 | Established local, main studio, local programming and diversity. | 5 |
| B | 253 | May 5, 2021 | Main studio, local programming and diversity. | 4 |
| C | 253 | July 20, 1984 | Established local, main studio, local programming and diversity. | 5 |
| D | 254 | Dec 28, 1998 | Established local, main studio, local programming and diversity. | 5 |
| E | 254 | June 15, 2022 | Main studio, local programming and diversity. | 4 |
| F | 255 | Feb 29, 2004 | Established local, main studio, local programming and diversity. | 5 |
In the Public Notice, the FCC will show each MX group and each applicant in the group in a manner similar to the example above. The Notice will also reflect any points that were deducted from any applicant if they did not qualify for the points, such as for not providing information on their local presence or if they are not eligible for a diversity point due to other attributable interests under the "Student Station Rule".
The applicants with the highest point totals will be considered as tentative selectees. In our Sample MX Group #1, those applicants would be Stations A, C, D and F. The FCC will open a 30 day Petition to Deny period on all of those applicants.
The FCC will also open a 90 day settlement period affecting all applicants. During this period of time, applicants may file amendments to make minor site moves (up to 11.2 km/6.96 miles or to locations where there is 60 dBu overlap of the original site and the amended site). They can also change to any channel, including those that would otherwise be considered "major" in order to break out of the MX group and make the applicant singleton.
In our example above, let's say that Station E was able to make a change to Channel 298 (107.5). They would no longer be in the group and therefore would be singleton. This would also "orphan" Station F as they are only MX with Station E. In this case, Station E would become accepted for filing and a 30 day Petition to Deny period would open on that application. In addition, Station F would be grantable after the 30 day Petition to Deny period. For the sake of further discussion, we will leave Station E in our example as is. In addition, let's say in our example that Station A was able to move to a new site 9 kilometers (5.6 miles) further to the west and stay on the same channel. Since they would be now at least 24 kilometers from the other MX stations, they would break out of the group, become singleton and could be grantable after the Petition to Deny period.
During this settlement period, lead applicants remaining in the group (for our example: Stations C, D and F), would be able to enter into voluntary time share agreement where each applicant agrees on a schedule. In the time share agreement, each applicant must propose at least 10 hours of operation per week and there cannot be any simultaneous operation of any two applicants within the group. The applicants will need to amend their applications to reflect the time share agreement reached.
Aggregation of points
During the settlement period, lead applicants remaining in the group that reach a time share agreement will also be able to aggregate their points in order to win the group. Using our Sample MX Group #1, let's say that during the settlement period Stations C and D reach a time share agreement that Station F is not a part of. In this case, Stations C and D would be able to aggregate their points. With an approved voluntary time share agreement, Stations C and D would each have 10 points because of aggregation and that would win over Station F with only 5 points. Stations C and D would be granted construction permits for time share operation and Station F would be dismissed. In addition, the non-lead applicants (B and E in our example) would also be dismissed prior to or after the conclusion of the settlement period.
Dismissal of non-tentative selectees
Even though there is a 90-day settlement period, we had found that the FCC may dismiss the non-tentative selectees (e.g. those with only 4 points where the lead applicant(s) have 5 points) prior to the end of the settlement period. If this happens and the non tentative-selectee has a technical solution that would break them out of the MX group, they can amend their application, request reinstatement nunc pro tunc and propose the new facilities. This must be done within 30 days of when the dismissal was announced on Public Notice.
Involuntary time sharing
In the event that no time share agreements are reached between the lead applicants that were declared tentative selectees, the FCC would then invoke involuntary time sharing. For MX groups with 4 or more equally qualified applicants, they would take the top 3 applicants based on local presence dates and move those forward, all remaining applications with younger establishment dates would be dismissed. Then, by order of local presence dates, oldest being first, the FCC will confidentially contact the applicant to see which time slot they want based on the following pre-defined time slots:
| If there are two equally qualified applicants | If there are three equally qualified applicants |
|---|---|
| 3:00 AM ~ 2:59 PM | 2:00 AM ~ 9:59 AM |
| 3:00 PM ~ 2:59 AM | 10:00 AM ~ 5:59 PM |
| 6:00 PM ~ 1:59 AM |
In three applicant groups, after the applicant with the oldest local establishment date makes their choice, then the applicant with the second oldest establishment date makes their choice. The applicant remaining will receive the slot that remains. If applicants do not respond to the FCC's inquiry, then they will be assigned slots at Staff's discretion.
For our example above, let's bring Station A back into the MX group and say that no applicant reached a time share agreement. In this case, Station A would be dismissed for being the youngest organization and the FCC will contact Station C for their time slot choice, then Station D will get the second choice and then Station F will receive what is left over.
Non-renewable licenses
Applicants that reach the involuntary time sharing stage will receive construction permits and licenses that contain a condition that the license is non-renewable. This non-renewable condition can be removed if either:
- The other applicants are removed from the time share group because of a cancelled construction permit, a cancelled license or they make a technical change that takes them out of the MX group.
- If the applicant makes a technical change that takes them out of the MX group; or
- If all 2 or 3 applicants (depending on the size of the group) reach a universal time share agreement (involving all of the applicants) to share time, even if the time slot hours in the voluntary time share agreement are the same as those assigned through the involuntary time share.
Main Studio and Local Programming pledges
LPFM applicants that won their MX group through the point system where other applicants are dismissed by points would be subject to the main studio and local programming pledges if they had claimed those points. Requirements for each pledge are detailed in the Point System.
Assignment of license
As detailed further in §73.865, LPFM applicants that won their MX group through the point system must license and operate the station for four years before they can assign the license to another organization unless the incoming organization (proposed assignee) can make a showing that they have the same or greater number of points using the Point System criteria and in the case of a time share grant in the MX group, their local presence date is older than the station with the youngest local presence date in the group. In our example, let's say that Stations C and D won the group based on aggregated points. Station C now wants to assign their license within the first 4 years of licensed operation. In order to assign the license within the first four years, the proposed assignee must be able to claim 5 points and have a local presence date earlier than December 28, 1998 (as that is the youngest organization in the group).