FCC Record, Volume 27, No. 7, Pages 5674 to 6652, May 23 - June 15, 2012 Page: 5,712
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people." In upholding the latter reservation standard, in the NCE Second Report and Order"2 the
Commission specifically advised prospective NCE applicants that the first or second NCE service
requirement does not end upon allotment but remains applicable at the application stage.'3 An application
which relied on this reservation standard for allotment purposes but which fails to satisfy this requirement
is eliminated and will not proceed to the point system analysis.'4
In its application, ASDA asserted that the total population within its 60dBu contour is 199,229
people, and that a total of 48,196 people (approximately 24% of the total population) within its contour
would receive either a first or second NCE service. Accordingly, ASDA contended that it met the
In its Petition, JSU claims that the total population in ASDA's 60dBu contour is actually 214,704
people, and asserts that ASDA's application failed to account for five NCE authorizations within its
contour's - one licensed NCE FM station and four NCE FM construction permit authorizations granted
prior to the opening of the February 2010 Filing Window.'6 When these authorizations are taken into
account, JSU claims that ASDA's aggregate first and second NCE service would serve only 15,550
people (6.8 percent of the total population) within its proposed service area and therefore fails to meet the
10 percent threshold. We have reviewed JSU's calculations and confirm that ASDA does not meet the
Commission's reservation standard.
In its Opposition, ASDA concedes that it overlooked existing NCE authorizations and thus does
not meet the reservation standard. ASDA asserts, however that the Commission's ten percent threshold
criterion is "irrational" and "absurd"17 and asks the Bureau to examine the total number of underserved
people receiving the new NCE service, rather than the percentage they constitute of the total service area.
We find ASDA's argument unpersuasive.
The Commission's decision to establish a percentage-based reservation standard rests on sound
statutory policy goals. From the inception of the channel reservation standard, the Commission has been
" 47 C.F.R. 73.202(a)(1). These population and percentage requirements are similar to those used in a threshold
fair distribution analysis conducted pursuant to Section 307(b) of the Communications Act of 1934, as amended
("Act") in the reserved band context. However, as discussed above, the reservation standard is applied at the
allotment stage, when an applicant seeks to take a non-reserved band channel and reserve it for NCE use, while a
Section 307(b) analysis occurs as part of the comparative process in the reserved band. There is no 307(b) analysis
in a non-reserved band comparison because all applicants are applying for the same community in the Table of
12 See Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Second Report
and Order, 18 FCC Red 6691, 6705 (2003) ("NCE Second Report and Order").
13 See NCE Second Report and Order, 18 FCC Rcd at 6705 ("Reserved allotments will be conditioned on the
construction and licensing of an NCE station that provides the requisite level of first and second NCE service. In the
event that all applications for a reserved band allotment fail to propose such service, the allotment will become
unreserved by operation of law and subject to the Commission's competitive bidding licensing procedures."). See
also 47 C.F.R. 73.202(a)(1)(ii).
"4 Comparative Consideration Order, 26 FCC Red at 7009.
" JSU also claims that ASDA is unclear in its application about which site tower it plans to operate from and such
ambiguity raises a question as to whether ASDA has reasonable site assurance. However, in light of our findings
herein, we do not reach the merits of this argument.
"16 Petition at 2.
"7 Opposition at 1.
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 7, Pages 5674 to 6652, May 23 - June 15, 2012, book, June 2012; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc111171/m1/55/: accessed September 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.