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 six 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.
- Bonus Point - (1 point) - 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. No more than 3 applicants can aggregate their points. Points can only be aggregated between the applicants with the most points in the MX group. (For example: a 5 point applicant would not be able to aggregate points with a 4 point applicant to reach 9 points for both applicants.)
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.
Applicants may agree at any time from after the close of the window to the time before the FCC implements the involuntary time share procedures to aggregate their points and enter into a time share agreement.
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).
Second Settlement Period
If the FCC accepts a time share agreement with three applicants and one of those applicants drops out of the time share group, the FCC can re-open another 90 day settlement period to allow the remaining two applicants to reach a new agreement.
Regulatory history
This rule was created in the initial 2000 LPFM Report and Order with points provided for 2 years established community presence, operation at least 12 hours per day and local origination for at least 8 hours per day. Unsettled ties were handled through "successive" license terms where an MX group where an 8-year license term would be split up into 8 separate short term non-renewable licenses (e.g. if there were two tied applicants, each would get a 4 year non-renewable license). In the 2000 Order on Reconsideration, the local programming criteria was clarified to state that the local programming must come from the licensee. In the 2007 Third Report and Order, language was added to allow time share licensees to be able to reach a revised settlement to take any time made vacant through attrition and to allow non-renewable licenses to be renewable if a time sharing agreement is reached. In 2012, the Sixth Report and Order changed the preference points to remove the proposed operating hours (12 hours a day) point and add points for main studio and broadcast diversity as well as a bonus point if the applicant pledged by local programming and a main studio. The Tribal Priority point was also added. Successive licenses were removed and replaced with a concurrent license where involuntary time shares were used with non-renewable licenses unless a subsequent settlement was reached. In the 2020 LPFM/NCE Administrative Order, a maximum number of applicants that could aggregate their points was capped at 3. A new "do-over" rule was added where if a member of a previously accepted time share group drops out, the FCC will open another 90 day period for the remaining time share members to reach a new agreement.
Federal Register citation
65 FR 7640, Feb. 15, 2000, as amended at 65 FR 67304, Nov. 9, 2000; 67 FR 13232, Mar. 21, 2002; 73 FR 3217, Jan. 17, 2008; 78 FR 2108, Jan. 9, 2013; 85 FR 7889, Feb. 12, 2020
Text of regulation 47 CFR §73.872
§ 73.872 Selection procedure for mutually exclusive LPFM applications.
(a) Following the close of each window for new LPFM stations and for modifications in the facilities of authorized LPFM stations, the Commission will issue a public notice identifying all groups of mutually exclusive applications. Such applications will be awarded points to determine the tentative selectee. Unless resolved by settlement pursuant to paragraph (e) of this section, the tentative selectee will be the applicant within each group with the highest point total under the procedure set forth in this section, except as provided in paragraphs (c) and (d) of this section .
(b) Each mutually exclusive application will be awarded one point for each of the following criteria, based on certifications that the qualifying conditions are met and submission of any required documentation:
(1) Established community presence. An applicant must, for a period of at least two years prior to application and at all times thereafter, have qualified as local pursuant to § 73.853(b). Applicants claiming a point for this criterion must submit any documentation specified in FCC Form 318 at the time of filing their applications.
(2) Local program origination. The applicant must pledge to originate locally at least eight hours of programming per day. For purposes of this criterion, local origination is the production of programming by the licensee, within ten miles of the coordinates of the proposed transmitting antenna. Local origination includes licensee produced call-in shows, music selected and played by a disc jockey present on site, broadcasts of events at local schools, and broadcasts of musical performances at a local studio or festival, whether recorded or live. Local origination does not include the broadcast of repetitive or automated programs or time-shifted recordings of non-local programming whatever its source. In addition, local origination does not include a local program that has been broadcast twice, even if the licensee broadcasts the program on a different day or makes small variations in the program thereafter.
(3) Main studio. The applicant must pledge to maintain a publicly accessible main studio that has local program origination capability, is reachable by telephone, is staffed at least 20 hours per week between 7 a.m. and 10 p.m., and is located within 16.1 km (10 miles) of the proposed site for the transmitting antenna for applicants in the top 50 urban markets and 32.1 km (20 miles) for applicants outside the top 50 urban markets. Applicants claiming a point under this criterion must specify the proposed address and telephone number for the proposed main studio in FCC Form 318 at the time of filing their applications.
(4) Local program origination and main studio. The applicant must make both the local program origination and main studio pledges set forth in paragraphs (b)(2) and (3) of this section.
(5) Diversity of ownership. An applicant must hold no attributable interests in any other broadcast station.
(6) Tribal Applicants serving Tribal Lands. The applicant must be a Tribal Applicant, as defined in § 73.853(c), and the proposed site for the transmitting antenna must be located on that Tribal Applicant's “Tribal Lands,” as defined in § 73.7000. Applicants claiming a point for this criterion must submit the documentation set forth in FCC Form 318 at the time of filing their applications.
(c) Voluntary time-sharing. If mutually exclusive applications have the same point total, no more than three of the tied applicants may propose to share use of the frequency by electronically submitting, within 90 days of the release of a public notice announcing the tie, a time-share proposal. Such proposals shall be treated as minor amendments to the time-share proponents' applications and shall become part of the terms of the station authorization. Where such proposals include all of the tied applications, all of the tied applications will be treated as tentative selectees; otherwise, time-share proponents' points will be aggregated. Applicants may agree, at any time before the Media Bureau implements the involuntary time-share procedures pursuant to paragraph (d) of this section, to aggregate their points to enter into a time-share agreement. Applicants can only aggregate their points and submit a time-share agreement if each is designated a tentative selectee in the same mutually exclusive group, and if each applicant has the basic qualifications to receive a grant of its application.
(1) Time-share proposals shall be in writing and signed by each time-share proponent, and shall satisfy the following requirements:
(i) The proposal must specify the proposed hours of operation of each time-share proponent;
(ii) The proposal must not include simultaneous operation of the time-share proponents; and
(iii) Each time-share proponent must propose to operate for at least 10 hours per week.
(2) Where a station is authorized pursuant to a time-sharing proposal, a change of the regular schedule set forth therein will be permitted only where a written agreement signed by each time-sharing permittee or licensee and complying with requirements in paragraphs (c)(1)(i) through (iii) of this section is filed with the Commission, Attention: Audio Division, Media Bureau, prior to the date of the change.
(3) Where a station is authorized pursuant to a voluntary time-sharing proposal, the parties to the time-sharing agreement may apportion among themselves any air time that, for any reason, becomes vacant.
(4) Concurrent license terms granted under paragraph (d) of this section may be converted into voluntary time-sharing arrangements renewable pursuant to § 73.3539 by submitting a universal time-sharing proposal.
(5) In the event a tentatively accepted time-share agreement is dismissed, the Commission staff will release another public notice, initiating a second 90-day period for all remaining tentative selectees within the affected MX group to enter into either a voluntary time-share arrangement or a universal settlement in accordance with paragraph (c) or (e) of this section. If the tie is not resolved in accordance with paragraph (c) or (e) of this section, the tied applications will be reviewed for acceptability, and applicants with tied, grantable applications will be eligible for involuntary time-sharing in accordance with paragraph (d) of this section.
(d) Involuntary time-sharing.
(1) If a tie among mutually exclusive applications is not resolved through voluntary time-sharing in accordance with paragraph (c) of this section, the tied applications will be reviewed for acceptability. Applicants with tied, grantable applications will be eligible for equal, concurrent, non-renewable license terms.
(2) If a mutually exclusive group has three or fewer tied, grantable applications, the Commission will simultaneously grant these applications, assigning an equal number of hours per week to each applicant. The Commission will determine the hours assigned to each applicant by first assigning hours to the applicant that has been local, as defined in § 73.853(b), for the longest uninterrupted period of time, then assigning hours to the applicant that has been local for the next longest uninterrupted period of time, and finally assigning hours to any remaining applicant. The Commission will offer applicants an opportunity to voluntarily reach a time-sharing agreement. In the event that applicants cannot reach such agreement, the Commission will require each applicant subject to involuntary time-sharing to simultaneously and confidentially submit their preferred time slots to the Commission. If there are only two tied, grantable applications, the applicants must select between the following 12-hour time slots 3 a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. If there are three tied, grantable applications, each applicant must rank their preference for the following 8-hour time slots: 2 a.m.-9:59 a.m., 10 a.m.-5:59 p.m., and 6 p.m.-1:59 a.m. The Commission will require the applicants to certify that they did not collude with any other applicants in the selection of time slots. The Commission will give preference to the applicant that has been local for the longest uninterrupted period of time. The Commission will award time in units as small as four hours per day. In the event an applicant neglects to designate its preferred time slots, staff will select a time slot for that applicant.
(3) Groups of more than three tied, grantable applications will not be eligible for licensing under this section. Where such groups exist, the Commission will dismiss all but the applications of the three applicants that have been local, as defined in § 73.853(b), for the longest uninterrupted periods of time. The Commission then will process the remaining applications as set forth in paragraph (d)(2) of this section.
(4) If concurrent license terms granted under this section are converted into universal voluntary time-sharing arrangements pursuant to paragraph (c)(4) of this section, the permit or license is renewable pursuant to §§ 73.801 and 73.3539.
(e) Settlements. Mutually exclusive applicants may propose a settlement at any time during the selection process after the release of a public notice announcing the mutually exclusive groups. Settlement proposals must comply with the Commission's rules and policies regarding settlements, including the requirements of §§ 73.3525, 73.3588 and 73.3589. Settlement proposals may include time-share agreements that comply with the requirements of paragraph (c) of this section, provided that such agreements may not be filed for the purpose of point aggregation outside of the 90 day period set forth in paragraph (c) of this section.