FCC Record, Volume 27, No. 7, Pages 5674 to 6652, May 23 - June 15, 2012 Page: 5,713
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concerned with providing service to smaller communities, not only to large population centers."' Indeed,
the Commission continues to recognize that small communities have needs that sometimes outweigh
those of larger cities.19 Had the Commission adopted a standard, as put forth by ASDA, based solely on
population, proponents seeking to serve large cities would always be preferred over applicants proposing
service to smaller communities. This outcome would be inconsistent with the Commission's statutory
mandate to distribute radio licenses in a fair, efficient and equitable manner.20
In addition, ASDA contends that the reservation standard is "irrational," based on its belief that
had it applied for a channel in the reserved band, it would have been named tentative selectee.2'
Specifically, it maintains that the Commission would have compared the respective population coverage
totals of the ASDA and JSU proposals as part of the fair distribution analysis. It asserts that the fair
distribution analysis would not have been dispositive because neither would provide a first service or
aggregated first plus second service to at least 5,000 more people than the other, and that the applications
would have proceeded to a points hearing,'where ASDA claims it would have prevailed.22
Assuming arguendo that ASDA is comparing "apples to apples,"23 we find that its application of
the fair distribution analysis is flawed. In reserved band NCE comparative proceedings that do not
involve a Tribal Applicant, the Commission's first step is to determine whether any applicant is eligible
for a threshold Section 307(b) preference, i.e., whether any applicant would provide a first or second
reserved channel NCE service to at least 10 percent of the population served.24 If only one applicant will
provide such service, that applicant will be selected as a threshold matter.2s5 Thus, even in the reserved
band context, an NCE FM applicant still must meet the 10 percent population threshold in order to receive
a Section 307(b) preference. It is only when more than one applicant in a mutually exclusive group
qualifies for a Section 307(b) preference that first service population coverage totals are compared.26
Accordingly, the outcome of the current proceeding would have been exactly the same in a reserved band
context. ASDA's application would have failed to qualify for a fair distribution preference because it did
not meet the 10 percent threshold. As such, JSU would have prevailed.
18 See Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Further Notice of
Proposed Rulemaking, 13 FCC Red 21167, n.35 (1998).
'9 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, Second
Report and Order, 26 FCC Red 2556, 2568-69 (2011).
20 47 U.S.C. 307(b).
21 Petition at 2. To the extent that ASDA generally alleges that our processes are "ripe for gamesmanship," ASDA
may raise this issue in a petition for rulemaking with the Commission, pursuant to Section 1.401 of the Rules. See
47 C.F.R. 1.401.
22 JSU proposes to provide a new NCE service to 17,896 people; ASDA proposes to provide a new NCE service to
23 As noted above, the reservation standard is used at the allotment stage, while a Section 307(b) analysis occurs as
part of the comparative process in the reserved band. All applications for an allotment specify the allotted
community whereas Section 307(b) analyses are conducted in the reserved band only if applicants propose to serve
24 73 C.F.R. 73.7002(b).
25 Id a
fh Comparative Consideration Order, 26 FCC Red at 7011.
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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/m1/56/: accessed September 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.