Petitions to Deny and Informal Objections

Congratulations! You successfully submitted an application for a low power FM (LPFM) station, and now your radio's fate lies in the purgatory of federal bureaucracy. If the FCC deems your application sufficient, it will officially accept your application for filing.  (On CBDS, your application status will read “ACCEPTED FOR FILING”). Once this happens, a process begins during which the public can challenge your application.

The opportunity for public participation is the primary way that the FCC verifies that the information in your application is true.  The public has two vehicles to draw attention to problems in your application – a Petition to Deny and an informal objection.

This instructional webpage provides an overview of the objection process, shows how to write and submit objections and replies, and gives a taste of what lies ahead.  

Notes:

• For more detailed (and confusing) information, you can review the official regulations pertaining to Petitions to Deny and informal objections. The rules can be found here (the pertinent rules are 73.3584 to 73.3589).
• The easiest mistake to make is to lie to the FCC. DO NOT LIE TO THE FCC. Lying will jeopardize your application more than any other mistake you could possibly make. Thus, if during this process, questions are raised about your application, and you realize you made a mistake or presented something inaccurately by mistake -- admit the mistake, correct it, and explain it.
• We are not lawyers. Whether you are lodging or defending against an objection, it may be advisable to hire an attorney to assist you. Prometheus has long-standing relationships with a number of broadcast attorneys with expertise in FCC procedures.  If you would like us to refer you to an attorney, please email info [at] prometheusradio.org. Or you can check out our legal resources page on Radio Spark.

Contents

1 - Petition to Deny vs. informal objections
2 - Timeline
3 - How to write (w/ examples)
4 - How to submit
5 - What happens next

Petition to Deny vs. informal objections

Broadly speaking, the requirements and procedures for Petitions to Deny are more stringent and complicated than for informal objections. The requirements for a Petition to Deny are as follows:

• Standing. In practice, standing at the FCC includes only three kinds of parties: competitors suffering signal interference, direct economic competitors, and audience members.
• Whom you can file against. While you may only file a Petition to Deny against a Singleton applicant or the tentative selectee in an MX group, you can file an informal objection against any applicant at any time.
• Copies. In addition to sending your pleading to the FCC, you must also serve a copy directly to the applicant against whom you're filing the petition. The form submitted to the FCC must have attached a certificate of service stating that you've done so. 
• An afffidavit stating that the the issues cited in your pleading are your personal knowledge and 100% true. 

While it is generally more effective to file a Petition to Deny, even if a Petition to Deny violates some of the technical requirements described above, the FCC will consider the information it contains as an informal objection.  The impact on the application-in-question is essentially the same.

Timeline - Petition to Deny, Opposition, and Reply

(With respect to deadlines, we recommend that you apply the same rules to informal objections as pertain to Petitions to Deny.)

Petitions to Deny must be filed within 30 days of the day that the FCC issues a Public Notice listing the application as accepted for filing.  The applicant has only 10 days from the day a Petition to Deny is filed to oppose the Petition to Deny, called an "Opposition to Petition to Deny." If the Petition to Deny is filed early, the applicant still only has 10 days from the day it was filed to file an Opposition. This includes weekends and holidays, although if your deadline falls on a weekend or holiday, you have until the following weekday to file. The Petitioner can file a Reply to the applicant’s Opposition within 5 days after the time for filing Oppositions has expired.  Unlike the filing period for the Petition to Deny and the Opposition, this 5 day period does not include weekends or holidays.

How to write

Petitions to Deny and informal objections should state specific facts to demonstrate that approval of the application is inconsistent with the public interest, convenience, and necessity. Most often, they will allege some factual deficiency with the application.

General instructions for a Petition to Deny

• It should be typed and on 8 1/2 x 11 inch paper.
• At the top of the document, it should include the file number of the application-in-question (available in the FCC's public notice announcing the applications accepted for filing).
• At the end of the document, it should include a certificate of service and signed affidavit. 

Don't bother filing if you are just going to insult the other party. The person or organization filing a Petition to Deny may say some things that makes you mad. Responding to attacks that are not factual is not in your interest. Stick to the facts. Calling the other person a liar will not help you. Filing documents or a signed statement showing the allegation to be false will help you.

Common arguments in a Petition to Deny
A Petition to Deny can challenge any fact in an application. Some of the more common grounds to dismiss an LPFM application are:

• Lack of appropriate incorporation status.
• A challenge to whether 75% of the board members actually live in the service area of the station.
• A challenge stating that the "parties to the application" listed in Question 3 are not really the people in control of the organization.  For example, the Petitioner might argue that a person who previously engaged in unlicensed broadcasting is really in charge of your organization.
• A challenge to the age of your organization.

Any fact in your application including your character, however, can be the subject of a Petition to Deny.  See these attachments for examples:

• Attachment 1
• Attachment 2
• Attachment 3

How to submit

You can access the CDBS system here.

At this stage in the game you may already have a User ID and Password, but if not click ‘Create New Account’ and follow the instructions, filling in all requested info. REMEMBER TO WRITE DOWN YOUR USER ID! It’s a sequence of random numbers and you will not remember it.

Logging in will bring you to the main menu screen:

at the bottom of which you'll find the option 'Additional non-form Filings'

Click this and click the last option on the next screen, ‘Informal Objection / Petition to Deny / Petition for Reconsideration / Application for Review / Opposition / Reply / Supplement’.

If clicking this brings you to this page:

then you need to update the contact representative info on your account. You can do so either by clicking ‘Account Maintenance’ at the top of the main menu screen or by clicking ‘Update Account’ directly from the error screen. Click the dropdown menu at the top of the ‘Account Maintenance’ screen, select ‘Contact Rep’ and fill out all the requested info.

If your account info is squared away, clicking ‘Informal Objection / Petition to Deny / Petition for Reconsideration / Application for Review / Opposition / Reply / Supplement’ should bring you to the pre-form page.

Write something in the field labeled ‘Form Description’ to help you recognize the form. This isn’t visible to the FCC and has no bearing on their decision, but it’s required to proceed. Check off whichever type of form you intend to file and enter the applicant’s ID number, which you can find in the CDBS application search engine. Click ‘Enter’.

You’re finally at the page with the actual form. Click the ‘Exhibit 1’ button in Section 5 and upload your pleading and other relevant attachments. (Remember, the FCC only accepts attachments in PDF file format.) Electronically sign the document by filling in your full name and the date. Click ‘Validate’ to make it official (this doesn’t submit your form) and click ‘Informal Menu’.

At the ‘Informal Menu’ screen, you can click ‘Print Form’ to view it as it’ll be seen by the FCC and check for errors. You may also by run it through the CDBS’s built-in diagnostics by clicking ‘Test File’. Clicking ‘File Form’ will submit your form for real.

What happens next

After a Petition to Deny is filed against your application, the FCC treats your application as a special matter.  Most importantly, whenever you or anyone else provides information to the FCC about your application, they MUST provide the same information at the same time to everyone who has filed in regard to your application. This means that:

• You cannot call FCC staff on the phone to give them facts about your application (unless you set up a conference call with the other side on the line).
• The person or organization who filed the Petition to Deny also cannot call the FCC staff on the phone to discuss the facts in their Petition or in your application.
• If you want to provide information to the FCC, do it in writing, and send a copy to the person or organization that filed a Petition to Deny on the same day you send it to the FCC.
• If the person or organization that filed the Petition to Deny provides information to the FCC, they must mail a copy to you.
• You may call the FCC staff on the phone only to ask question about status (such as where in the process is your application, or to make sure they have received a document you mailed in).

It is a good idea to keep a record for yourself of any time that you speak to the FCC. Write down the name of the person, which part of the FCC they work in, and what you said and they said. 

After the Petition to Deny, the Opposition, and the Reply, the FCC will look at the facts and questions raised about your application.  The FCC has a few options. First, it can reject the Petition to Deny, and grant your application. Second, it can grant the Petition to Deny, and deny your application. In either case, the FCC must write an explanation of its judgement. Third, the FCC can decide that it needs more facts. Usually, if it needs more facts, it will write you a letter asking you questions.

If you receive a letter from the FCC, don't panic. The FCC usually writes a letter to describe the information that it will need to grant you a license. Thus, you should read it carefully and supply the information they need. Answer their questions in a letter and send a copy to the other side. As stated above, do not lie to the FCC.  If you have a lawyer helping you, ask your lawyer to help.

Good luck!