Anybody who wants one of 350 FM stations scheduled to go on the block in December better get going with those applications.
Despite a court decision throwing the auction in doubt and the skepticism of many in the radio industry about whether the agency can keep to the timetable, FCC officials are still sticking to the application window, slated to be open between Sept. 24 and Oct. 5.
At the heart of the FCC's dilemma is a federal appeals court ruling throwing out rules that forced public and other noncommercial broadcasters to bid for channels located on the commercial part of the spectrum. The FCC is trying to rewrite the channel-allocation rules in time to head off a delay of the Dec. 5 bidding date.
Although FM frequencies between 88 and 92 MHz are reserved for noncommercial users, such users also may operate on unreserved portions of the spectrum.
Difficulties slowing the rewrite are preventing the FCC from scheduling auctions for another 100 FM channels, 250 AM frequencies and four TV stations.
Until now, solutions to the problem of locating noncoms have been floated only by National Public Radio and public-advocacy groups, which brought the suit against the previous bidding requirements. Their suggestions: Either use the point system currently used for the noncommercial band or apply a need-based formula giving noncommercial applicants the edge when a market has few public stations.
Those ideas are generating little enthusiasm among commercial broadcasters, who fear that noncommercial applicants will have a big advantage.
The current noncommercial point system grants licenses to top-scoring applicants based on points won for local ownership, service to local schools, and technical performance. Ties would be decided in favor of applicants with the fewest licenses and pending applications.
Media Access Project Deputy Director Cheryl Leanza believes a completely different point system can be designed that would not disadvantage commercial broadcasters. "It's premature for them to protest because a specific proposal hasn't been formulated," she notes.
Both sides do agree on one point. They say the FCC would be wise to postpone the application and auction dates. The number of competing requests from noncommercial applicants will be needlessly inflated, according to Leanza, because many are likely to file requests in all 350 markets unless they can accurately predict their chances in specific markets. "Proceeding on this timetable will maximize the number of mutually exclusive applications," she explains.
The dilemma is so intractable that Congress ultimately will be forced to step in, predicts Peter Tannenwald, also a broadcast-industry attorney. "It's an unworkable situation that Congress needs to address," he observes.
Commercial and public broadcasters are leery of getting Congress involved because both sides could lose ground to religious broadcasters, who so far are sitting out the fight over the court-ordered rewrite. Religious stations are eligible for noncommercial licenses, too, and have benefited from the court's decision.