Today (Thursday, July 25, 2024), the Media Bureau of the Federal Communications Commission has granted reconsideration on a dismissed LPFM application for Holy Mother Mary (HMM) proposing to operate at Cascade, Iowa and has temporarily reinstated their application.
In response to their application, the Media Bureau staff originally dismissed the application stating that because of a short-spacing to a vacant allotment at Asbury, Iowa, the technical proposal does not meet the minimum distance separation requirements of §73.807 of the FCC Rules. They further stated that because this was a short-spacing that violated §73.807, it could not be cured through an amendment filed nunc pro tunc, pursuant to §73.870(c) of the rules.
In their Petition for Reconsideration, HMM argued that the prohibition on curative amendments in §73.870(c) only apply to “all applications and facilities in existence” as of the date of the procedures public notice and that a vacant allotment is not an existing application or facility. They further stated that allotments are not shown in the LMS database and that the FCC has, in a previous case, dismissed and then subsequently reinstated an application after determining that the dismissal resulted from an area of unsettled law.
First of all, let’s touch on a couple pieces of the jargon used in here.
Nunc pro tunc. The term nunc pro tunc is Latin leaning “now for then”. When a filing, whether it is an FCC filing or other legal filing is made nunc pro tunc, the intention is that the subsequent filing is intended to completely replace the previous filing. Under an older FCC policy regarding the curability of patently defective broadcast applications, the FCC does allow for an amendment to be filed against a dismissed application in order to cure the defect for which it was dismissed for unless there is a specific rule that prohibits it. §73.870(c) is such a rule. The need for this rule, which has been on the books since the creation of the service is to assure that applications received do meet the minimum requirements. In cases where nunc pro tunc is allowed, only one amendment may be filed and that amendment must clear all defects on the application, not just the ones that were specifically called out. Nunc pro tunc is a “second chance”, there is no “third chances”. Also very importantly, the nunc pro tunc amendment must propose a change that would be normally allowed as a minor amendment to the original application.
FM allotment. In the non-reserved portion of the FM band, sometimes referred to as the “commercial band” (92~108 MHz), the frequencies, classes and locations for full-service FM stations are determined using an allotment process. Allotments assure for fair distribution of radio services across the several states. When a party wishes to add FM service to a particular community, they must first petition the FCC through a rulemaking proceeding to amend the table of allotments to add the allotment to the community. That allotment request must meet all of the technical spacing rules (§73.207) and other requirements such as community coverage. During the rulemaking proceeding, competing shows of interest for other communities may be presented at that time (counter proposals). Once the FCC determines that the community is qualified to be a community for allotment purposes and the request meets all other requirements, the petition will be granted and the allotment for a specific channel, class and location are added to the FM Table of Allotments (§73.202). Those allotments are protected by FM and LPFM stations based on the class of service for the allotment. The allotment is not an actual facility. Also keep in mind that if a full-service FM license is completely cancelled, the FM station may go away but the allotment remains in place. Therefore, the allotment is not an actual facility, but more of a reference point on the map.
Vacant allotments will be available in a future FM auction. At this time, the FCC does not have auction authority and thus cannot hold an FM auction. Therefore, the allotment will remain dormant until such a time after auction authority is restored to the Commission.
Back to the case at hand. In their decision, Staff agreed that §73.870(c) does not apply to violations of the minimum spacing requirements if the short-spaced item is an allotment as an allotment is not an “application or facility in existence” and on those grounds, the FCC granted Reconsideration, reinstated the application and gave the applicant 30 days to file a curative amendment to try to resolve the issue.
Upon noticing the issue, the applicant did request an amendment that would have changed the station from Channel 254 (98.7) to Channel 228 (93.5). The FCC would deny that request as it is not a change to a first-adjacent, second-adjacent, third-adjacent or intermediate frequency channel, thus meaning it would not be a minor amendment. From their current location, REC was unable to find an alternate channel for HMM that would meet the §73.807 minimum distances. There are no alternate sites within 11.2 km which can meet the distance requirements on any of the adjacent channels.
The takeaway from this is that the Staff determined that while LPFM stations are required to meet §73.807 in respect to vacant allotments, the dismissal for that reason does not rise to the intention of §73.870(c). This is similar to LPFMs that may be dismissed for Channel 6 short-spacing under §73.825 or certain administrative defects on the application (such as a missing Secretary of State document or weak educational statement).
Therefore, if an LPFM application filed during the window is dismissed solely for a short-spacing to a vacant allotment and not also to other actual facilities or applications, that application can be cured nunc pro tunc as long as the amendment can be done as a minor change compared to the original defective application and that all defects are cured on the amended application.
Vacant allotments in LMS
REC wishes to take a moment to discuss an item that was raised in the decision letter that is not directly related to HMM’s specific application. This has to do with the retrieval of vacant allotments in the raw data feed that is provided for LMS by the Commission.
Prior to September, 2019, when FM radio engineering was handled through CDBS, the ability to find vacant allotments was fairly easy as they were treated like any other FM engineering record and most of the same tables were used for both physical FM facilities and “virtual” FM allotment records.
When the conversion to LMS took place, the FCC never released any kind of “transition guide” or other documentation to assist raw data users in the transition. We were all on our own. Historically, the FCC has done a much better job in documenting CDBS raw data than it did to support LMS. Likewise, there was never any guidance by the Commission on how to protect these facilities based on the raw data.
In our opinion, the lack of transparency by the FCC during the CDBS to LMS transition was in violation either directly or in the spirit of the OPEN Government Data Act, which not only requires agencies to provide data, but also to support it and promote it. While the US Bureau of the Census does a fantastic job in supporting and promoting the use of their datasets, the FCC just throws the data out there with one incomplete document and expects the raw data user to decipher it.
REC does support HMM’s statement that allotments are difficult or otherwise not in LMS. We do agree that allotments are shown in the LMS raw data dump, but they are not in there they way they should be and the Commission provides no insight on how to find them.
The failures of the overall FCC (not necessarily the front line Media Bureau staff) has caused this issue with HMM to take place and has also bamboozled other applicants in the past. These failures are why REC has invested a ton of time to develop our Enhanced License Management System (eLMS). eLMS includes internal tables that are a hybrid between CDBS and LMS (leaning towards CDBS) and are much more straight forward.
REC is calling on the Office of the Managing Director to investigate this issue. If we need to file a formal complaint regarding alleged violations of the OPEN Government Data Act, we will. All raw datasets from a government agency must be documented and supported, period.
