The groups addressed in this Order consist of applications that were filed or amended in October 2007, during the first filing window for NCE FM applications. These applicants have had an opportunity to settle among themselves and are now subject to a simplified, comparative process codified in Part 73, Subpart K, of the Commission’s Rules (the “Rules”). During the first step of this process the Bureau, acting pursuant to delegated authority, uses service area population data and certifications provided by the applicants to perform a threshold analysis.
MX Group numbers 39, 59, 66, 72, 111, 125, 126, 128, 144, 189, 191, 356. Petitions to deny must be filed within 30 days of the release of this MO&O.
THRESHOLD FAIR DISTRIBUTION PROCEDURES
2. A threshold “fair distribution” analysis is performed on mutually exclusive NCE FM groups only if applicants within the group propose to serve different communities and will provide a new first and/or second NCE aural service to a substantial population. In such cases, the Bureau, consistent with
Section 307(b) of the Communications Act of 1934, as amended (the “Act”),performs a threshold determination as to whether grant of any of the applications would best further the fair, efficient, and equitable distribution of radio service among communities. An NCE FM applicant is eligible to receive a Section 307(b) preference if it would provide a first or second reserved band channel NCE aural service to at least ten percent of the population (in the aggregate), within the proposed station’s service area, provided that the population served is at least 2,000 people. An applicant must support its fair distribution claim with an exhibit identifying the population residing within the proposed station’s 60 dBu service contour and the number of people that would receive a new first or second NCE aural service.
If only one applicant qualifies for a “fair distribution” preference, the preference is dispositive with respect to applications for different communities. If more than one applicant in a mutually exclusive group qualifies for the preference, we compare each applicant’s first service population coverage totals. An applicant will receive a dispositive fair distribution preference by proposing a first NCE aural service to at least 5,000 more potential listeners than the next highest applicant’s first service total. If no applicant is entitled to a first service preference, we consider combined first and second NCE aural service population totals and apply the same 5,000-listener threshold. At each stage of the Section 307(b) analysis, any applicant that is comparatively disfavored in terms of eligibility or service totals is eliminated. The process ends when the Bureau determines that one applicant is entitled to a preference or that none of the remaining applicants can be selected or eliminated
2. based on a Section 307(b) preference. In the latter case, all remaining applicants proceed to a point system analysis. Applicants that have received a Section 307(b) preference are required to construct and operate technical facilities substantially as proposed, and cannot downgrade service to the area on which the preference was based for a period of four years of on-air operations.
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