Two or more pending applications become mutually exclusive (MX) if they cannot both be granted because of the FCC rules related to protections between translators. This would mean:
- A translator proposal on the same channel (co-channel) as another translator proposal has an overlap of the 40 dBu interfering contour of the subject proposal and the 60 dBu service contour of another translator proposal.
- A translator proposal on the first-adjacent channel (+/- 0.2 MHz) as another translator proposal has an overlap of the 54 dBu interfering contour of the subject proposal and the 60 dBu service contour of another translator proposal.
- A translator proposal on the second or third-adjacent channel (+/- 0.4 or 0.6 MHz) as another translator proposal has an overlap of the 100 dBu interfering contour of the subject proposal and the 60 dBu service contour of another translator proposal.
All translator proposals with some kind of common mutual exclusivity will be assigned to a specific "MX Group" and they will all compete against each other. It is important to remember that because mutual exclusivity can extend to the third-adjacent channel, it may be possible that in some cases, that a single MX Group can extend over multiple channels and across a wider area.
Each of these MX Groups will be assigned a group number by the FCC and the FCC will eventually publish a public notice identifying each MX Group and the applications in each MX Group. Every application in the MX Group will now be competing against each other.
Any proposal that was originally filed and does not have any of the conflicts shown above will not be assigned an MX Group number. Instead, they will be declared "singleton" and as long as all other requirements are met, would be grantable without having to go through the MX process.
We are expecting that an opportunity will be made available for window applicants assigned to an MX Group to be able to amend their application to make an amendment to their application to modify their engineering proposal in order to "break out" of the MX Group and become singleton. These changes can include:
- Channel change (only the 20 channels between 88.1~91.9 can be used, you will not be able to change to the non-reserved (92.1~107.9) band).
- Site location change.
- Change in proposed effective radiated power.
- Change in antenna engineering (such as a change from a nondirectional to a directional antenna or a change in an existing directional pattern proposal).
It may also be possible for members of the MX Group to reach a settlement agreement where all members of the MX Group agree to make changes which can include coordinated engineering changes or agreeing to withdraw their application. In cases where a member of the MX Group agrees to withdraw their application as part of a settlement agreement, they may be able to seek compensation from the prevailing group member for charges incurred in the application process as part of the overall settlement agreement terms.
Please note that time sharing is not applicable to FM translators like it is for full-service NCE and LPFM filing windows. It is not possible for any kind of agreement where points are aggregated like there is in LPFM.
If, after the opportunities for remediation and settlement agreements has passed, that there is still mutual exclusivity in the MX Group, then the FCC will go to comparative selection process. During this process, a tentative selectee will be determined.
Comparative selection process for NCE FM translator windows
Keep in mind, this process shown only applies to FM translator proposals in the 88.1~91.9 reserved band and does not apply to filing windows that involve the 92.1~107.9 non-reserved band, which are resolved through auctions.
Fill-in translator priority
Fill-in translators are those where the 60 dBu service contour of the proposed facility is entirely within the 60 dBu service contour of the primary station to be rebroadcast in the proposal (or in the case where the primary station is a noncommercial AM station, the 60 dBu contour of the translator proposal is entirely inside the wider of the 2 mV/m daytime contour of the AM station or a 25 mile radius around the AM transmitter site).
If there are any fill-in translator proposals in the MX Group, those proposals will have priority and any proposals that do not originally propose fill-in service will be eliminated. If there is more than one fill-in proposal in the MX Group, then only the fill-in proposals will be further compared in the point system below and all of the non fill-in proposals will be eliminated. If there are no fill-in proposals in the MX Group, then all proposals in the MX Group will be considered in the point system below.
The point system
On the original application filed, applicants will be able to claim point factors if they qualify for them. While applications can be amended during the filing window period, applications cannot be amended after the filing window closes in order to improve an application's comparative position in the point system. Applications can be amended to reduce comparative position in light of errors or certain changes that have taken place with the applicant.
Any claim for points, must be backed up by proper documentation in an exhibit with the original application. This supporting document cannot be added through amendment after the filing window closes as to do so, would be considered an attempt to improve a comparative position.
The Media Bureau will evaluate each point system claim and then send the proposed point totals to the full Commission for their approval.
Established Local Applicant
3 points are awarded for established local applicants. An established local applicant is considered an applicant, which for the past 24 months from the "snapshot date" (the last day of the window) has been physically headquartered, has a campus or 75% of their board members within 25 miles of the reference coordinates of the community to be served by the translator.
The reference coordinates are normally the coordinates that are recognized by the US Bureau of the Census for that community. You can find those reference coordinates by doing a community search in FCCdata.org. Please note that as of the time of this writing, REC has an inquiry into staff for clarification on handling in cases where the proposed community is not listed by the Census as a designated place. Unlike full-service NCE FM (which this point system is based off of), there is no specific community coverage requirement for FM translators and it is more likely that a translator proposal may be for a community not in the Census. Once we get clarification on this, we will update this FAQ answer.
Applicants claiming the Established Local Applicant points must include evidence of their presence through providing articles of incorporation and disclosing the address of the headquarters or the residential addresses of all board members and demonstrating how those are within 25 miles. It is best to use a map with a 25 mile circle and points showing the headquarters or 75% of the board members. You will also need to indicate how long this headquarters or the board members have been at this location.
It is also important that at the time of filing that your nonprofit corporation status is valid and in good standing with the state. The entire application may be denied if on the window close date, the corporation has been suspended or dissolved at the Secretary of State department in your state. The most common reason for this happening is due to failure to file an annual report. Many states allow suspended corporations to file an annual report which will reinstate the corporation retroactive to the date of the original lapse. This must be done before filing the original FCC application in this window. This cannot be fixed after the fact.
Public sector applicants can claim Established Local Applicant if the community being served is within the agency's jurisdiction.
Local Diversity of Ownership
2 points are awarded for applicants with no attributable interests in any other radio broadcast station license or authorized construction permit where:
- The 60 dBu service contour of the proposed translator does not overlap the 70 dBu service contour of any attributable FM, LPFM or non fill-in FM translator station.
- The 60 dBu service contour of the proposed translator does not overlap the 5 mV/m daytime contour of any attributable AM station.
Please note, REC has a request for clarification before staff in order to address the Diversity points where it comes to an LPFM station as the original proceedings for the point system rules pre-date the creation of the LPFM service. We predict that LPFM stations will be treated like any other FM broadcast facility.
To demonstrate this point, the applicant should include a contour map showing the 60 dBu service contour of the original translato r proposal and the 70 dBu or 5 mV/m contours of other nearby attributable authorizations.
It is important to realize, especially in the full-service NCE FM context, an attributable interest may include stations that are licensed to different organizations. This can happen in cases where a board member for the licensee of the proposal is also a board member of another NCE station, has an ownership interest in a commercial station, or supplies at least 15% of the weekly programming to another station. For more details on attributable interests, see §73.3555 of the FCC Rules.
State-wide Network
This point factor is rarely used, if ever in radio. It awards 2 points for an applicant who does not qualify for the Local Diversity of Ownership point that is either:
- A public or private entity with authority over a minimum of 50 accredited full-time elementary and/or secondary schools within a single state encompassed by the service contour of the proposed translator;
- A public or private institution of higher learning with a minimum of 5 full-time campuses within a single state encompassed by the service contour of the proposed translator; or
- A public or private organization, with or without direct authority over schools; AND
- That entity regularly provides programming to the schools in furtherance of their curriculum and the proposed translator station will increase the number of schools that it will regularly serve.
State-wide Network is a relic of the very old days of educational radio stations as it is intended for stations that use radio or television for delivery of academic material (lectures, etc.) to radio or TV receivers inside of classrooms.
Technical Points
1 point is awarded to the applicant covering the largest geographic area and population within the proposed 60 dBu contour provided that the proposal covers at least 10% more land area AND 10% more population than the next best technical proposal. 2 points instead of 1 point is awarded if the proposal if the proposal covers at least 25% more land area AND 25% more population than the next best technical proposal.
The application will require the entry of the land area and population if this point factor is claimed.
Tie-breakers
If, after awarding the points in the point system above, two or more applicants remain tied, the tie-breakers will be used to determine the tentative selectee.
The application will include a place to make a claim to the number of existing authorizations and pending applications as described below.
Existing authorizations
Each applicants number of existing attributable interest (see the information above about what that means) licenses and authorizations (both commercial and noncommercial) (authorizations meaning both licenses and original construction permits) for full-service FM, LPFM, and non fill-in translators nationally as of the time of the application shall be compared. The proposal with the fewest of these authorizations will be chosen as the tentative selectee.
If each applicant is applying for a fill-in translator only, and consideration of its other radio stations is not dispositive, its number of existing fill-in translator authorizations will also be considered and the fill-in applicant with the fewest fill-in authorizations will be chosen as the tentative selectee.
Pending applications
If there is still a tie, the FCC will look at number of pending applications for new stations (including in this window) and major changes. The proposal with the least number of pending applications will be declared the tentative selectee.
If each applicant is applying for a fill-in translator only, and consideration of its other radio stations is not dispositive, its number of existing fill-in translator authorizations will also be considered and the fill-in applicant with the fewest fill-in authorizations will be chosen as the tentative selectee.
First-come-first-served
If there is still a tie, then the applications will be processed on a first-come-first-served basis. Presumably, in the LMS environment, this would suggest the applicant with the lowest file number.
Tentative selectees, informal objections and petitions to deny
Once the tentative selectee is announced through public notice, this will open a 30-day period where the application is accepted for filing, and challenges can be made on the factors used to determine the tentative selectee. If during this challenge process, the tentative selectee is changed, then the new tentative selectee is announced and a new 30-day period will be conducted for that tentative selectee.
It is important to remember that only the tentative selectee in an MX Group is considered as "accepted for filing". This means that unless the applicant is a tentative selectee, it is not appropriate to file an informal objection or petition to deny against an applicant in an MX Group.
Proposals that are considered as "singleton" either based on their original application or based on an amended application to remediate mutual exclusivity will be announced through public notice (either on the daily "Applications" public notice or through a separate public notice) as "accepted for filing". Once an application is declared "accepted for filing", there will be a 30-day period for petitions to deny and informal objections. It is not appropriate to file those pleadings before an application is declared as "accepted for filing".
Unlike CDBS, there is no clear way on the LMS application status to see if an application has been accepted for filing. You have to use the "PN Search" functionality in LMS or manually check public notices. In cases where the acceptance is announced through the daily "Applications" public notice, REC's eLMS service will make an effort to discover the acceptance and change the status within the REC systems to show that acceptance. You should be able to view that in FCCdata and in the Filing Window Application Tracking System.
