MYTH: An LPFM applicant can claim the Established Community Presence point even if their corporation is less than two years old as long as 75% of the board members have resided in the local area for two years.
We have heard many versions of this myth. Some would suggest that if the board members have lived within 10 or 20 miles of the transmitting antenna for the past two years, that they qualify. Others state that if the board members have resided within 10 or 20 miles of the station and have been involved in "charity work", that they would qualify. The underlying issue here is that the corporation itself was established with the state less than two years ago.
This issue was originally addressed by the FCC in the original 2000 Report and Order that created the LPFM service. In paragraph 140 of the R&O, the FCC justified the criteria for Established Community Presence by stating:
This criterion will favor organizations that have been operating in the communities where they propose to construct an LPFM station and thus have "track records" of community service and established constituencies within their communities.
In reference to commenters who wanted Established Community Presence to be extended to provide preferences "based on prior community service and/or community support", the Commission stated:
These suggested factors could be subjective in nature, however, and could be burdensome to demonstrate and verify. In addition, we believe that preferring organizations that have been in existence and physically present in the community for two years will help prevent maneuvering of the point system by those who might otherwise establish multiple organizations to file LPFM applications.
While the Established Community Presence point was reexamined again in the 2012 Sixth Report and Order, the issue of local presence of board members prior to the establishment of the corporation was not addressed.
The current rule (§73.872(b)(1)) requires that in order to claim the Established Community Presence point, the applicant (the organization) must, for a period of two years prior to the application and at all times thereafter, have qualified as local pursuant to §73.853(b).
The second prong of §73.853(b) allows for local qualification if the applicant "has 75% of its board members residing within" 10 or 20 miles of the transmitting antenna. Since the corporation was not existence for at least two years, the board members could not be board members for two years, even if they lived in the local community all of their life.
As such, the Commission's opinion on this issue was originally defined in 2000 and has not changed since.
FACT: An organization that has been considered a corporation (consistent with state law, including laws regarding unincorporated associations) for less than two years cannot claim the Established Community Presence point, even if at least 75% of their board members resided in the local area for more than two years.