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by Robert Emeritz
The FCC Dec. 29 adopted rules limiting eligibility for authorizations associated with allotments added to the FM Table of Allotments using the recently established Tribal Priority to the Tribes whom the Tribal Priority was intended to benefit. (Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, FCC, MB Docket No. 09-52, 12/29/11).
The Commission declared the amendment to §73.3573 of the Rules a part of its ongoing efforts "to enhance the ability of federally recognized Native American Tribes and Alaska Native Villages not only to receive radio service tailored to their specific needs and cultures, but to increase ownership of such radio stations by Tribes and Tribal-owned entities."
"We established the Tribal Priority in this proceeding to promote the sovereign rights of Tribes by enabling them to provide vital radio services to their communities and set their own communications priorities and goals," the Commission observed.
"We believe that the threshold qualifications procedure we adopt accommodates both the needs of Tribes desiring to provide commercial FM broadcast service to Tribal citizens and our long-standing policies designed to facilitate and expedite new radio service to the public."
The Tribal Priority, adopted in the First Report and Order in the Rural Radio Service proceeding, was a new Section 307(b) allocation priority applicable only to Tribes and entities owned or controlled by Tribes proposing new radio services that primarily would serve Tribal Lands.
The Commission became concerned about the efficacy of the priority and the Tribal bidding credit that accompanied it, however. In the commercial FM context, the Tribal Priority was applied at the allotment stage of the licensing process, when the FM channel is allotted at a community, but the Tribe proposing the allotment could still be outbid by a non-Tribal applicant in the subsequent auction of that allotment, which would frustrate the purpose of the Tribal Priority.
To remedy the situation, the Commission has now adopted a threshold requirement that an applicant seeking to apply for a commercial FM channel allocated pursuant to the Tribal Priority demonstrate that it would qualify for the Tribal Priority for that channel.
Noting that it is "mindful of our fundamental interest in expediting new radio service to communities and preventing the so-called warehousing of scarce spectrum," the Commission declared, "The procedures we adopt herein are intended to balance these concerns by accommodating both those Tribes and Tribal entities that wish to initiate commercial FM service quickly and those that might need additional time to muster the resources needed to apply for a new station and complete construction."
Once a Tribal Allotment is allocated, the Commission will announce by Public Notice a Threshold Qualifications Window ("TQ Window"). During the TQ Window, any Tribe or Tribal entity that could qualify to add that particular Tribal Allotment, including the original proponent of the allotment, may file FCC Form 301 for the Tribal Allotment. Such an applicant must demonstrate that it meets all of the eligibility criteria for grant of a Tribal Priority at the allotment stage.
Having adopted the threshold qualifications approach, the Commission declined to adopt its original proposal of a Tribal bidding credit. "We continue to believe that a bidding credit, of whatever magnitude, is insufficient to ensure that Tribal Allotments will end up in the hands of qualifying Tribal applicants," the Commission observed. And if the new procedures work as expected, and produce some situations where multiple qualifying Tribes or Tribal entities are bidding on a Tribal Allotment at auction," all would likely qualify for the same Tribal or new entrant bidding credits," rendering a bidding credit without purpose.
Commissioner Michael Copps, concurring, declares, "This is a down-payment on the FCC's commitment to enhance the ownership of Tribal entities by establishing certain criteria which will prioritize ownership for qualified Tribes or Tribal entities. I commend the Chairman for moving quickly on this item. It is my hope and expectation that the Commission will continue this important work in the months and years ahead."
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