[Federal Register Volume 85, Number 233 (Thursday, December 3, 2020)]
[Rules and Regulations]
[Pages 78028-78029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23306]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 19-3; FCC 20-121; FRS 17135]


Reexamination of the Comparative Standards and Procedures for 
Licensing Noncommercial Educational Broadcast Stations and Low Power FM 
Stations

AGENCY: Federal Communications Commission.

ACTION: Dismissal of petition for reconsideration.

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SUMMARY: In this document the Federal Communications Commission 
(Commission) addresses the Petition for Reconsideration (Petition) 
filed by Discount Legal, regarding the Commission's Report and Order in 
the Noncommercial Educational (NCE) comparative standards proceeding 
(2019 NCE R&O). The Commission dismisses the Petition as procedurally 
defective, and alternatively and independently, denies the Petition.

DATES: Request for Petition for Reconsideration of the final rule 
published at 85 FR 23941 (April 30, 2020). The Commission adopted the 
Order on Reconsideration dismissing and denying the Petition for 
Reconsideration on September 1, 2020.

FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Chief, Media Bureau, 
Audio Division, (202) 418-2721; Lisa Scanlan, Deputy Division Chief, 
Media Bureau, Audio Division, (202) 418-2704; Amy Van de Kerckhove, 
Attorney Advisor, Media Bureau, Audio Division, (202) 418-2726.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration (Reconsideration Order) in the NCE comparative 
standards proceeding, MB Docket No. 19-3, FCC 19-127, released March 
20, 2020, published at 85 FR 7880 on February 12, 2020. The full text 
of the Reconsideration Order is available electronically via the FCC's 
Electronic Document Management System (EDOCS) website at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment 
Filing System (ECFS) website at http://www.fcc.gov/ecfs. (Documents 
will be available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat.) Alternative formats are available for people with 
disabilities (braille, large print, electronic files, audio format), by 
sending an email to [email protected] or calling the Commission's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY).

Synopsis

    1. Introduction. In this Reconsideration Order, the Commission 
addresses the Petition for Reconsideration filed by Discount Legal 
seeking reconsideration of the 2019 NCE Report and Order. The Petition 
asks the Commission to authorize ``secondary grants'' in mutually 
exclusive (MX) FM radio noncommercial educational (NCE) groups, after 
the initial resolution of the MX applications. The Commission dismisses 
the Petition as procedurally defective, and alternatively and 
independently, denies the Petition.
    2. Background. Conflicting NCE FM applications, which cannot all be 
granted consistent with the Commission's technical rules, are 
considered mutually exclusive. The Commission places conflicting 
applications into MX groups, resolves the MX groups by applying the NCE 
comparative procedures, and tentatively selects an application for 
grant from each separate MX group. Specifically, the Commission 
compares NCE MX groups under the point system and awards each 
application a maximum of seven merit points based on public-interest 
criteria. The application with the most points in an MX group is 
designated the tentative selectee. The Bureau staff then accepts the 
tentatively-selected applications for filing, which triggers a 30-day 
period for the filing of petitions to deny. Petitions based on claims 
that the exclusion, or inclusion, of challenged or claimed points could 
alter the outcome in the particular MX group are referred to the 
Commission for a new points analysis.
    3. When the Commission adopted the point system, it considered and 
rejected proposals to engage in secondary application analyses, whereby 
it would reevaluate the unsuccessful applications in an MX group that 
did not directly conflict with the ultimate tentative selectee of the 
group. The Commission explained that its primary goal was to select the 
best qualified applicants in an administratively efficient way.
    4. The Commission opened a filing window for new NCE stations in 
2007, and in 2010, the Commission issued the first of its comparative 
points orders resolving MX groups from the 2007 window. In the order, 
the Commission reiterated its policy ``that only one application should 
be granted out of each mutually exclusive group, while providing the 
competing applicants the opportunity to file again in the next filing 
window.''
    5. Several dismissed applicants subsequently challenged their 
dismissals and argued that their applications should also be granted 
because they were not mutually exclusive with the tentative selectees 
in their respective MX groups. The Commission again reaffirmed its one-
grant policy in three 2015 Memorandum Opinions and Orders, rejecting 
petitioners' requests for secondary grants. The Commission explained 
that its policy basis not to engage in secondary grants was supported 
by the dual reasons of not granting inferior applications and promoting 
administrative efficiency.
    6. Finally, in the 2019 NCE Report and Order, the Commission 
considered and rejected Discount Legal's suggestion that it adopt a 
secondary grant practice. The Commission reaffirmed its longstanding 
one-grant policy. In the Petition, Discount Legal renews the arguments 
in favor of a secondary grant policy made in its comments.
    7. Discussion. The Commission dismisses the Petition as repetitive 
and procedurally defective. On alternative and independent grounds, the 
Commission denies the Petition as meritless and affirms its 
longstanding one-grant policy, which is supported by the dual 
rationales of expeditiously granting high-quality applications and 
limiting administrative burdens.
    8. High Quality Applications. The Commission rejects Discount 
Legal's assertion that the potential disparities between the quality of 
unsuccessful applicants in an MX group is ``irrelevant.'' The 
Commission's one-grant policy is designed to encourage the best 
possible application submissions in every filing window. The current 
policy creates competitive

[[Page 78029]]

pressure toward this end because applicants know that only the best 
application in an MX group will win.
    9. The Commission also rejects Discount Legal's argument that ``the 
idea than an applicant must be dismissed because it is comparatively 
inferior to an unqualified applicant being dismissed'' violates the 
Supreme Court's holding in Ashbacker Radio Corp. v. FCC. The Commission 
previously considered and rejected this argument in a prior decision 
affirming the one-grant policy and explained that Ashbacker ``[does 
not] require the Commission to engage in secondary analyses of inferior 
applications simply because they do not conflict with the tentative 
selectee.''
    10. Administrative Burdens. The Commission rejects Discount Legal's 
contention that the concern about administrative burdens ``does not 
hold up.'' Discount Legal does not consider the extensive work required 
following the issuance of tentative selectee orders. The Commission 
explains that a tentative selection is not final until the entire 
administrative process of resolving petitions to deny, and any 
subsequent pleadings, is complete. Commission review of any petitions 
and associated point audits is a weighty and oftentimes lengthy 
process, requiring extensive analysis to determine the status of every 
tentative selectee's application and the merits of every petition to 
deny. If a petition to deny is granted, a new tentative selectee must 
be chosen, and petitions to deny must again be entertained.
    11. The one-grant policy incentivizes applicants to resolve mutual 
exclusivities through the more expeditious settlement process, thereby 
accelerating new NCE service to the public. The Commission rejects 
Discount Legal's argument that it is irrational to allow multiple 
grants in an MX group in the settlement context but not engage in 
secondary analysis through the point system. This argument does not 
account for the fundamentally different nature of the two conflict-
resolution methods and the time each process entails.
    12. The Commission also rejects the argument that secondary grants 
would better accomplish the section 152 and 303(g) statutory objectives 
of efficient and effective radio use. The Commission explains that 
simply granting as many applications as possible in any given window 
will not result in greater long-term efficiency and effectiveness. 
Rather, the one-grant policy better serves the policy goals of sections 
152 and 303(g) by incentivizing better applications as well as 
cooperative settlements that encourage more intensive and higher 
quality use of spectrum.
    13. Established One-Grant Policy. Finally, the Commission's rejects 
Discount Legal's argument that the one-grant policy was not endorsed by 
the Commission, but rather, originated with the Bureau staff. The 
Commission explains that Discount Legal's characterization is directly 
at odds with the Commission's explicit mandate in the 2001 NCE 
Comparative MO&O, the subsequent Commission decisions stating that the 
Bureau correctly applied the NCE Comparative MO&O, and the Commission's 
recent reaffirmation of the one-grant policy in the 2019 Report and 
Order. These decisions reflect that it has been, and remains, the 
resolve of the Commission--not the staff--that the Bureau process 
applications based on a ``one-grant'' policy.

Ordering Clauses

    14. It is ordered that the Petition for Reconsideration filed on 
March 12, 2020, by Discount Legal is dismissed, and alternatively and 
independently, is denied.
    15. It is further ordered that should no further petitions for 
reconsideration or petitions for judicial review be timely filed, MB 
Docket No. 19-3 shall be terminated, and its docket closed.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2020-23306 Filed 12-2-20; 8:45 am]
BILLING CODE 6712-01-P