FCC Opens Window for Filing for 12 New Noncommercial TV Stations While Other Commercial Filing Windows on Hold

The FCC last week released a Public Notice announcing the opening of a filing window for parties interested in building new noncommercial TV stations at 12 communities in the following states: Alabama, Alaska, California, Idaho, Iowa, New Mexico, Oregon, Texas, and Virginia.  Applications by nonprofit educational organizations can be filed in a window opening on December 4 and ending at 6 PM Eastern Time on December 11.  The Public Notice describes the filing procedures and eligibility requirements, and sets out how, if there are multiple applicants for any channel, the applications will be evaluated under the FCC’s “points system” for choosing between competing noncommercial applicants. 

Seeing this filing window raised questions among some broadcasters as to when there will be filing windows for other services, particularly ones where commercial stations can apply.  There has not been a window for filing for new FM stations since 2021 (see our article here noting that many channels in the auction immediately after the pandemic went unsold and could be re-auctioned in the future).  The last filing window for new commercial TV channels opened in 2022.  No filing window for new LPTV stations or TV translators has occurred since 2009, largely because applications were on hold during the TV incentive auction and repacking of the TV band (see our article here – but note that there is currently an opportunity for major channel changes by LPTV and translator stations, but not for new stations).  There has been no window for new AM stations in well over 20 years (except for special windows to allow applicants for channels where station licenses had been surrendered to the FCC).  And no window for new FM translators has been open since 2003 (see our article here about the final resolution of applications from that window – 15 years later), except for the special windows for translators to be used with AM stations, and the last of those windows closed in 2017 (see our article here).  Why have there been no commercial filing windows for so long?

When there are filings for new stations, there is always the possibility of mutually exclusive applications – when more than one applicant seeks operations on the same or adjacent channels in the same area, and all of the applicants cannot build new stations that can operate at the same time without interference.  Where there are mutually exclusive applicants, the FCC must choose between them.  The FCC makes the choice between mutually exclusive applicants for new noncommercial stations through a points system favoring local applicants and those that are well-established local entities with no existing broadcast holdings.  The points system is described in the Public Notice about the upcoming noncommercial TV window, and in our blog articles here and here.  In contrast, decisions as to who will be awarded a contested commercial frequency are made though auctions.  This need for auctions is what has held up any new window involving commercial stations.

The FCC was granted authority to conduct auctions by Congress in the 1990s, but that authority was granted for only a limited period of time.  The authority had always been extended by Congress up until last year, when auction authority expired in March 2023.  A Congressional Research Service study sets out the history of the FCC’s auction authority and explains some of the options for an extension of that authority.  In Congress, there have been many proposals to simply extend the authority for a set period of time, and other proposals to extend that authority indefinitely.  But some members of Congress have wanted to address other telecommunications issues at the same time, including the use of certain government spectrum that could be repurposed for commercial uses, and questions about the needs of the Department of Defense for communications spectrum and the role that DoD should play in regulation and use of such spectrum.  While everyone seems to agree that the FCC’s authority to conduct auctions should be extended, these other issues, and Congress’ general inability to deal with complex issues that have no immediate time deadline, have allowed the authority to languish, meaning that the FCC cannot open windows for commercial channels as it has no way to deal with mutually exclusive applications that will undoubtedly result.

Thus, the Media Bureau has been limited to opening windows for applicants not subject to auctions, like this noncommercial TV window, and the LPFM window that opened in December 2023.  The recent channel change opportunity for LPTV and TV translators was handled on a first-come, first-served basis, and was open only to existing stations, thus the Commission presumably was not overly concerned about too many mutually exclusive (MX) applications, although we have heard that there are about 8 such MX groups involving applications that were filed on the same day.  The FCC may permit those applicants to negotiate settlements, technical solutions, or other non-auction methods of resolving those MX situations.

So, until this Congressional issue is resolved, don’t expect any big windows for commercial broadcast frequencies.  Even when it is resolved, there will likely be a backlog of auctions in all FCC services, not just broadcast ones, that will mean that these broadcast windows will likely trickle out over time.  Let’s all hope that Congress acts quickly on to resolve the lack of FCC auction authority.