Reminder to Noncommercial FM Stations – Operating Less Than 12 Hours a Day Can Bring Forced Time-Share Requirement
November 18, 2022
A recent FCC staff decision dismissing an application for a new noncommercial educational (NCE) FM station on technical grounds highlighted a rarely used section of the FCC rules, Section 73.561(b). That section provides that, when an NCE FM station does not regularly operate for at least 12 hours per day, another noncommercial entity can file an application proposing to use the frequency during the hours that the station is not operating and, if the existing licensee and the new applicant cannot agree on a shared operating schedule, the new applicant can ask the FCC to force the shared-time operation (for more on the recent case, see our summary in our weekly update of broadcast regulatory actions for last week).
The rule states that the FCC will typically only force a time share operation when an application asking for share-time authority is on file during the pendency of the existing station’s license renewal application. As most radio license renewals have already been granted during the recent three-year cycle for radio license renewals that ended earlier this year, most NCE stations do not face a real risk of a forced share-time operation until the next renewal cycle starts in 2027. But an application seeking frequency sharing can be filed at any time in situations where an NCE FM station does not regularly operate for at least 12 hours per day, forcing negotiations about a shared time operation, and no doubt increasing scrutiny on the station during its next renewal. Thus, such NCE stations should review their operating schedules now and think about ways to minimize the risk of a forced share-time operation.
NCE stations need to understand that, if they do not operate for 12 hours every day, they stand a risk of having to share their frequency with another broadcaster. This can be particularly problematic for stations associated with an educational institution where the station shuts down when there are breaks in the academic schedule – or when students are otherwise not available to operate the station. Section 73.561 of the FCC rules sets out the following minimum operating schedule for NCE stations:
All noncommercial educational FM stations are required to operate at least 36 hours per week, consisting of at least 5 hours of operation per day on at least 6 days of the week; however, stations licensed to educational institutions are not required to operate on Saturday or Sunday or to observe the minimum operating requirements during those days designated on the official school calendar as vacation or recess periods.
While operating only 5 or 6 hours a day may be permissible, it does put the licensee at risk of having to share its frequency with another licensee who may have programming objectives that are totally different from those of the current operator. The pandemic forced many NCE stations to learn how to operate remotely or in an automated fashion for significant periods of time. These same practices may need to be examined as a potential way to avoid a share-time request. Plan ahead – while the 2027 renewal period may seem far away, careful planning now can avoid concerns when that renewal period rolls around again.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.