In the past, when more than one applicant applied for a broadcast license, the FCC initiated a comparative hearing on the merits to determine the proper recipient of the license. In 1993, the United States Court of Appeals for the District of Columbia Circuit ruled that the commercial comparative hearing process was unlawful. Thereafter, the FCC froze all ongoing comparative cases and initiated a proceeding to establish a new method of choosing among mutually exclusive applicants for broadcast licenses. During this process, Congress intervened and mandated, through the Balanced Budget Act of 1997, that in such situations, commercial broadcast licenses were to be allocated through auctions but exempted noncommercial educational licenses, public safety licenses and DTV licenses allocated to full-power broadcasters. However, the Act did not specify what method the FCC should use in situations where there were mutually exclusive applications for noncommercial educational licenses.
After years of deliberations, the FCC decided on April 4, 2000 to use filing windows and a point system to select among mutually exclusive applications for reserved NCE channels. However, in situations where mutually exclusive applicants proposed to operate NCE TV service on non-reserved channels - a situation that may occur in spectrum congested markets and that includes all of the NCE TV translators operating in the system - the FCC decided to use auction procedures.
In 2001, after an appeal by APTS, CPB and NPR, the U.S. Court of Appeals for the District of Columbia Circuit invalidated the use of auctions where there were mutually exclusive applications for non-reserved spectrum. Importantly, it stated that "nothing in the Act authorizes the Commission to hold auctions for licenses issued to NCEs to operate in the unreserved spectrum."
The matter was then returned to the FCC. On February 14, 2002, the FCC issued a Notice of Proposed Rulemaking to seek comment on three proposals to implement the Court's order: (a) barring NCE entities from applying for non-reserved channel; (b) permitting NCE entities to acquire licenses for non-reserved channels when no commercial entity applies for them; or (c) providing NCE entities opportunities to reserve additional channels. On April 10, 2003, the FCC issued its decision after extensive advocacy by APTS opposing any proposal to bar or otherwise restrict access to nonreserved spectrum.
The FCC chose not to ban public TV stations from applying for non-reserved channels but decided that it would dismiss any applications for full power public TV stations on non-reserved channels if there were conflicting commercial applications. However, the FCC also stated that it will continue to allow applicants for full power public TV stations to petition the FCC to reserve additional TV channels if an already-reserved channel is not available and there is a need for public TV service in a given area.
Although the FCC reaffirmed the principle that applicants for full-power public TV operations are exempt from auctions when applying for non-reserved frequencies, the FCC determined that low-power public TV translators will be subject to auction if mutually exclusive with other commercial and/or noncommercial applicants, unless the translators are to be operated by a municipality transmitting only NCE programs. The FCC based this decision on a very narrow reading of the statute (47 U.S.C. § 309 (j)(2) and §397(6)) and its own rules that do not include public TV translators in its definition of those entities that are eligible to be licensed by the FCC as noncommercial educational stations. However, if engineering solutions are possible, the FCC will afford translator applicants a prior opportunity for settlement with competing applicants. Because public TV translators are not licensed according to a Table of Allotments but on a drop-in basis, the opportunity to reserve a frequency does not apply to these stations.
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