In a Nutshell

First, the FCC will prepare a list of competing applications (referred to by the FCC as Mutually eXclusive or MX), organized into groups of applicants for the same frequency, in the same area. Please note that physical distance between sites (plus applying for the same channel) is what places you in a particular group -- If you were applying in New York City, you could be grouped with someone from all the way in Northern New Jersey and someone else in Connecticut. The applicants you are grouped with depends only on the distance between your sites, not the locality that you are trying to serve.

If there are not enough licenses for all the applicants, the FCC must pick among the applicants. The FCC will first identify which applications conflict with each other -- these are called mutually exclusive applications. The FCC will use the point system (described below) to determine who should receive the license. The FCC will then announce the list of mutually exclusive applicants, and their point totals, including tied applicants. This list will probably come out in late April/early May, and it will be posted on the FCC's website.

Applicants can cooperate with each other to remove the conflicts in two ways. First, if all the mutually exclusive applicants agree to work together, virtually any proposal to allocate the licenses can be submitted to the FCC. This is called a universal settlement and it can happen at any time -- you can do this now, without waiting for the list of MX applicants to even come out, if you have an idea about who you'll be competing with. Second, any number of tied applicants can pool their points if they agree to a time-sharing proposal that grants at least 10 hours per week to each applicant. Applicants will have 30 or 60 days, measured from the day the FCC makes the announcement, to submit their written time-sharing agreement to the FCC. The FCC will put the announcement on its web site. It may or may not give applicants individual notice. Prometheus will do its best to inform as many applicants as possible. Keep your eyes and ears, and the eyes and ears of your fellow LPFM applicants, open!

The Point System

As you may remember, the FCC has a point system for preferred characteristics of applicants. When you filed your application, your organization claimed between zero and three points based on checking boxes on the form that your organization had certain characteristics or intended to operate for a certain number of hours. The answers you gave in those boxes will be used by the FCC as it decides your priority in a competitive licensing situation. The FCC will evaluate applicants according to three criteria -- they will assign points for these criteria, the applicant with the most points will receive the license. Applicants will receive one point for each of the following three criteria:

(1) "Established community presence" -- the applicant must certify that it met the FCC's "local" criteria for the last two years (headquarters, campus, or 75% of board within 10 miles of the proposed antenna.)

(2) The applicant pledges to operate at least 12 hours per day;

(3) The applicant pledges it will broadcast at least 8 hours per day of programming that was produced within 10 miles of the antenna.

If applicants are tied and there are eight or fewer applicants for the particular frequency, the FCC will divide the eight-year license term into equal parts, and give each applicant one of the parts. After 8 years, the license will again be available to the public. If there is a tie between more than eight applicants, the FCC will divide the license term among the eight applicants with the longest "established community presence," as defined above.

You can read the actual chapter and verse from the FCC on this situation at:

Has anything changed on your application since you filed it all those years ago? You are responsible to keep your application up to date.

This is the tricky part. You may know nothing about these people. Our hope is that most people will be reasonable and fair-minded. Usually they are. But we have already seen situations where competing applicants were vicious and deceitful. We have even seen situations where an applicant could have made a minor change to get out of a competing situation, but instead found some piddling inconsistency on an inconsequential issue in his competitors application form and put in a petition to deny just to get the other group out of the way. Very underhanded. So proceed with an open mind, but also a full understanding of the rules and all due caution. It is not a bad idea to ask around town and see if anyone has heard of your competitors. Email is a good form of communication because you have a record of what was said.

Regardless of these possible risks, it is very important to get in touch with them as soon as you can. Remember that the phone numbers and mailing addresses may be old and it can often take weeks to track someone down and set up a meeting with them. You need as much time as possible to work out something that you both agree is acceptable. You might propose a neutral third party be present at the meeting to keep everyone civil and honest, like a city councilor or a professional mediator. To reitierate: if you do not negotiate, everyone loses. (except in the unusual and time consuming case that there is a successful petition to deny against you or your opponent).

A. Universal Settlements:

The best thing you can do is negotiate a universal settlement. A universal settlement is an agreement where ALL of the tied applicants agree to a way that they can co-operate. The FCC will accept a wide variety of possible settlements. Your groups could merge operations, or you can have two different studios and one transmitter site, or even two different transmitters that turn on and off at agreed upon times. We are happy to review your proposed settlements and let you know if we think they will pass muster with the FCC.

The helpful folks at law firm Garvey, Schubert and Barer prepared this sample settlement -- they are planning on preparing a few other model settlements appropriate for different situations.

After the settlements are in, the Commission will make your application known to the public and anyone in the public has thirty days to file a "petition to deny." Anyone can give any reason for this. Almost all petitions to deny are ignored -- however, it could cause you some extra paperwork and if in the review of the application the FCC discovers that you have lied about something, your application might be denied. It may be the tactic of some nasty commercial radio stations who are still sore because they are mean people and didn't want anyone to get LPFM licenses: they may file petitions to deny for every station that applies in town. Keep this in mind: if your application is honest and you've covered all your bases, you have nothing to fear from these boneheads. It goes without saying that you can also file petitions to deny if there is another applicant who in some way intends to abuse the LPFM license that they are applying for. You should also remember that other LPFM applicants may file a petition to deny against you, in order to knock you out of the running... Don't be scared, because it probably won't happen to you. But be ready for it if it does happen!

And now, some official FCC information.

		THE FCC SELECTION PROCEEDURE
		[Code of Federal Regulations] [Title 47, Volume 4] [Revised as of October 1, 2001] From the U.S. Government Printing Office via GPO Access [CITE: 47CFR73.872] [Page 277-278] TITLE 47--TELECOMMUNICATION CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION (Continued) PART 73--RADIO BROADCAST SERVICES--Table of Contents Subpart G--Low Power FM Broadcast Stations (LPFM) Sec. 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 application certification that the qualifying conditions are met: (1) Established community presence. An applicant must, for a period of at least two years prior to application, have been physically headquartered, have had a campus, or have had seventy-five percent of its board members residing within 10 miles of the coordinates of the proposed transmitting antenna. Applicants claiming a point for this criterion must submit the documentation set forth in the application form at the time of filing their applications. (2) Proposed operating hours. The applicant must pledge to operate at least 12 hours per day. (3) 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. (c) Voluntary time-sharing. If mutually exclusive applications have the same point total, any two or more of the tied applicants may propose to share use of the frequency by submitting, within 30 days of the release of a public notice announcing the tie, a time-share proposal. Such proposals shall be treated as amendments to the time-share proponents' applications, and shall become part of the terms of the station license. 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 to determine the tentative selectees. (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 licensed pursuant to a time-sharing proposal, a change of the regular schedule set forth therein will be permitted only where an written agreement signed by each time-sharing licensee and complying with requirements (i) through (iii) of paragraph (c)(1) of this section is filed with the Commission, Attention: Audio Services Division, Mass Media Bureau, prior to the date of the change. (d) Successive license terms. (1) If a tie among mutually exclusive applications is not resolved through time-sharing in accordance with paragraph (c) of this section, the tied applications will be reviewed for acceptability and applicants with tied, grantable applications will be eligible for equal, successive, non-renewable license terms of no less than one year each for a total combined term of eight years, in accordance with Sec. 73.873. Eligible applications will be granted simultaneously, and the sequence of the applicants' license terms will be determined by the sequence in which they file applications for licenses to cover their construction permits based on the day of filing, except that eligible applicants proposing same-site facilities will be required, within 30 days of written notification by the Commission staff, to submit a written settlement agreement as to construction and license term sequence. Failure to submit such an agreement will result in the dismissal of the applications proposing same-site facilities and the grant of the remaining, eligible applications. [[Page 278]] (2) Groups of more than eight tied, grantable applications will not be eligible for successive license terms under this section. Where such groups exist, the staff will dismiss all but the applications of the eight entities with the longest established community presences, as provided in paragraph (b)(1) of this section. If more than eight tied, grantable applications remain, the applicants must submit, within 30 days of written notification by the Commission staff, a written settlement agreement limiting the group to eight. Failure to do so will result in dismissal of the entire application group. (e) 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 include all of the applicants in a group and must comply with the Commission's rules and policies regarding settlements, including the requirements of Secs. 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 thirty-day period set forth in paragraph (c) of this section. [65 FR 7640, Feb.15, 2000, as amended at 65 FR 67304, Nov. 9, 2000]

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