90.165 Procedures for mutually exclusive applications.§ 90.165 Procedures for mutually exclusive applications.
Mutually exclusive commercial mobile radio service applications are processed in accordance with part 1 of this chapter and with the rules in this section, except for mutually exclusive applications for licenses in the 220-222 MHz service and the 929-930 MHz Paging service, which are processed in accordance with the rules in subpart P and subpart T of this part.
Two or more pending applications are mutually exclusive if the grant of one application would effectively preclude the grant of one or more of the others under Commission rules governing the services involved.
(a) Separate applications. Any applicant that files an application knowing that it will be mutually exclusive with one or more applications should not include in the mutually exclusive application a request for other channels or facilities that would not, by themselves, render the application mutually exclusive with those other applications. Instead, the request for such other channels or facilities should be filed in a separate application.
(b) Filing groups. Pending mutually exclusive applications are processed in filing groups. Mutually exclusive applications in a filing group are given concurrent consideration. The Commission may dismiss as defective (pursuant to § 1.934 of this chapter) any mutually exclusive application(s) whose filing date is outside of the date range for inclusion in the filing group. The types of filing groups used in day-to-day application processing are specified in paragraph (c)(3) of this section. A filing group is one of the following types:
(1) Same-day filing group. A same-day filing group comprises all mutually exclusive applications whose filing date is the same day, which is normally the filing date of the first-filed applications(s).
(2) Thirty-day notice and cut-off filing group. A 30-day notice and cut-off filing group comprises mutually exclusive applications whose filing date is no later than thirty (30) days after the date of the Public Notice listing the first-filed application(s) (according to the filing dates) as acceptable for filing.
(3) Window filing group. A window filing group comprises mutually exclusive applications whose filing date is within an announced filing window. An announced filing window is a period of time between and including two specific dates, which are the first and last dates on which applications (or amendments) for a particular purpose may be accepted for filing. In the case of a one-day filing window, the two dates are the same. The dates are made known to the public in advance.
(c) Procedures. Generally, the Commission may grant one application in a filing group of mutually exclusive applications and dismiss the other application(s) in the filing group that are excluded by the grant, pursuant to § 1.935 of this chapter.
(1) Selection methods. In selecting the application to grant, the Commission may use competitive bidding, random selection, or comparative hearings, depending on the type of applications involved.
(2) Dismissal of applications. The Commission may dismiss any application in a filing group that is defective or otherwise subject to dismissal under § 1.934 of this chapter, either before or after employing selection procedures.
(3) Type of filing group used. Except as otherwise provided in this part, the type of filing group used in processing of two or more mutually exclusive applications depends on the purpose(s) of the applications.
(i) If any mutually exclusive application filed on the earliest filing date is an application for modification and none of the mutually exclusive applications is a timely-filed application for renewal, a same-day filing group is used.
(ii) If any mutually exclusive application filed on the earliest filing date is an application for modification, a same-day filing group is used.
(4) Disposition. If there is only one application in any type of filing group, the Commission may grant that application and dismiss without prejudice any mutually exclusive applications not in the filing group. If there is more than one mutually exclusive application in a filing group, the Commission disposes of these applications as follows:
(i) Applications in a 30-day notice and cut-off filing group.
(A) If all of the mutually exclusive applications in a 30-day notice and cut-off filing group are applications for initial authorization, the Commission administers competitive bidding procedures in accordance with subpart Q of part 1 of this chapter. After such procedures, the application of the successful bidder may be granted and the other applications may be dismissed without prejudice.
(B) If any of the mutually exclusive applications in a 30-day notice and cut-off filing group is an application for modification or an application for facilities, the Commission may attempt to resolve the mutual exclusivity by facilitating a settlement between the applicants. If a settlement is not reached within a reasonable time, the Commission may designate all applications in the filing group for comparative consideration in a hearing. In this event, the result of the hearing disposes all of the applications in the filing group.
(ii) Applications in a same-day filing group. If there are two or more mutually exclusive applications in a same-day filing group, the Commission may attempt to resolve the mutual exclusivity by facilitating a settlement between the applicants. If a settlement is not reached within a reasonable time, the Commission may designate all applications in the filing group for comparative consideration in a hearing. In this event, the result of the hearing disposes all of the applications in the filing group.
(iii) Applications in a window filing group. Applications in a window filing group are processed in accordance with the procedures for a 30-day notice and cut-off filing group in paragraph (c)(4)(ii) of this section.
(d) Terminology. For the purposes of this section, terms have the following meanings:
(1) The “filing date” of an application is the date on which that application was received in a condition acceptable for filing or the date on which the most recently filed major amendment to that application was received, whichever is later, excluding major amendments in the following circumstances:
(i) The major amendment reflects only a change in ownership or control found by the Commission to be in the public interest;
(ii) The major amendment as received is defective or otherwise found unacceptable for filing; or
(iii) The application being amended has been designated for hearing and the Commission or the presiding officer accepts the major amendment.
(2) An “application for initial authorization” is:
(i) Any application requesting an authorization for a new system or station;
(ii) Any application requesting authorization for an existing station to operate on an additional channel, unless the additional channel is for paired two-way radiotelephone operation, is in the same frequency range as the existing channel(s), and will be operationally integrated with the existing channel(s) such as by trunking; or
(iii) any application requesting authorization for a new transmitter at a location more than 2 kilometers (1.2 miles) from any existing transmitters of the applicant licensee on the requested channel or channel block.[59 FR 59959, Nov. 21, 1994, as amended at 63 FR 68964, 68965, Dec. 14, 1998; 82 FR 41548, Sept. 1, 2017]