IV. Where a Public Broadcaster Is An Applicant For A Frequency Outside Of The Reserved Band, The Commission Should Use A Modified Selection Process That Preserves The Public Interest In Diversity
Instead of using a competitive bidding system contrary to the Balanced Budget Act of 1997 and long-standing and well-justified precedent, the Commission should implement a modified selection process when faced with mutually-exclusive applications for non-reserved broadcast frequencies where one or more of the applicants is a public broadcaster. This process should recognize the public interest in extending noncommercial broadcast service to unserved communities, expanding the diversity of voices, viewpoints and programming available on the air, promoting localism, maximizing existing noncommercial services, and maintaining existing levels of service.
As an initial matter, the Commission should implement "engineering solutions, negotiations or other tools that avoid mutual exclusivity altogether." When such mechanisms do not result in a clear license award, the Commission should consider a system which prioritizes mutually-exclusive applications for full-service broadcast stations as follows:
Each applicant would receive points based on their satisfaction of the above criteria. The applicant which receives the most points under this system would receive the requested permit or license. The Commission could prohibit any applicant which obtains an FCC permit or license as a result of the point system from assigning or transferring the permit or license for a period of time, such as the initial license period. If a public broadcaster which obtained its permit or license as a result of its noncommercial educational status sought to assign or transfer the permit or license to an entity proposing a commercial service, or to convert from a noncommercial to a commercial license, the Commission could then hold an auction.
This approach carries out the intent of Section 307(b) of the Communications Act, as amended, which requires the Commission to distribute licenses among states and communities so as to "provide a fair, efficient, and equitable distribution of radio service." It also furthers the public interest in the availability of public broadcast service to all citizens of the United States. Moreover, it promotes the diversification of ownership and programming, an objective that the Commission has stated it would like to preserve in this proceeding.
A similar approach is used by the NTIA’s Public Telecommunications Facilities Program ("PTFP"). The NTIA prioritizes PTFP requests that propose a first broadcast signal to a geographic area and first local origination capacity in a geographic area. It also gives special consideration to applications that foster ownership of, operation of, and participation in public telecommunications entities by minorities and women.
In the case of mutually-exclusive applications for FM translator stations, the Commission should continue to use its current prioritization system. Under Section 74.1233 of the Commission’s rules, the Commission gives priority to those FM translator stations proposing to provide fill-in service. In other cases, where it cannot find different frequencies for the translators, the Commission grants applications based on the following priorities: (1) first full-time aural service; (2) second full-time aural service; and (3) other public interest matters including, but not limited to, the number of aural services received in the proposed service area, the need for or lack of public radio service, and other matters such as the relative size of the proposed communities and their growth rate. Where these procedures do not resolve mutual exclusivity, the Commission grants the applications on a first-come, first-served basis.
Notwithstanding the above set of priorities, public radio applicants seeking to replace a displaced FM translator should receive permits on a first-come, first-served basis. This is consistent with the Commission’s efforts to maintain existing levels of service when TV translators are displaced during the transition to digital television.
Finally, the Commission should not use auctions where a public radio station located on an AM station or unreserved FM station applies to modify its facilities. These stations should be permitted to maximize or modify their facilities, to the extent maximization or modification does not create interference with other operating stations. Furthermore, any modification application by a commercial FM or AM station should protect any previously or simultaneously filed applications by a noncommercial educational licensee wherever it is located, just as the Commission has proposed to avoid cross-band mutually-exclusive situations. Where these processes do not resolve mutual exclusivity, the Commission should employ the priority system described above.