Sec.  73.872   Selection procedure for mutually exclusive LPFM applications.

   (a)  Following  the close of each window for new LPFM stations and for
   modifications in the facilities of authorized LPFM stations, the Commission
   will issue a public notice identifying all groups of mutually exclusive
   applications. Such applications will be awarded points to determine the
   tentative selectee. Unless resolved by settlement pursuant to paragraph (e)
   of this section, the tentative selectee will be the applicant within each
   group with the highest point total under the procedure set forth in this
   section, except as provided in paragraphs (c) and (d) of this section .

   (b) Each mutually exclusive application will be awarded one point for each
   of the following criteria, based on application certification that the
   qualifying conditions are met:

   (1) Established community presence. An applicant must, for a period of at
   least two years prior to application, have been physically headquartered,
   have had a campus, or have had seventy-five percent of its board members
   residing within 10 miles of the coordinates of the proposed transmitting
   antenna. Applicants claiming a point for this criterion must submit the
   documentation set forth in the application form at the time of filing their
   applications.

   (2) Proposed operating hours. The applicant must pledge to operate at least
   12 hours per day.

   (3)  Local program origination. The applicant must pledge to originate
   locally at least eight hours of programming per day. For purposes of this
   criterion,  local origination is the production of programming, by the
   licensee, within ten miles of the coordinates of the proposed transmitting
   antenna.

   (c) Voluntary time-sharing. If mutually exclusive applications have the same
   point total, any two or more of the tied applicants may propose to share use
   of the frequency by submitting, within 30 days of the release of a public
   notice announcing the tie, a time-share proposal. Such proposals shall be
   treated as amendments to the time-share proponents' applications, and shall
   become  part of the terms of the station license. Where such proposals
   include all of the tied applications, all of the tied applications will be
   treated as tentative selectees; otherwise, time-share proponents' points
   will be aggregated to determine the tentative selectees.

   (1) Time-share proposals shall be in writing and signed by each time-share
   proponent, and shall satisfy the following requirements:

   (i)  The proposal must specify the proposed hours of operation of each
   time-share proponent;

   (ii) The proposal must not include simultaneous operation of the time-share
   proponents; and (iii) Each time-share proponent must propose to operate for
   at least 10 hours per week.

   (2) Where a station is licensed pursuant to a time-sharing proposal, a
   change of the regular schedule set forth therein will be permitted only
   where a written agreement signed by each time-sharing licensee and complying
   with requirements in paragraphs (c)(1)(i) through (iii) of this section is
   filed with the Commission, Attention: Audio Division, Media Bureau, prior to
   the date of the change.

   (d)  Successive  license  terms. (1) If a tie among mutually exclusive
   applications  is  not resolved through time-sharing in accordance with
   paragraph (c) of this section, the tied applications will be reviewed for
   acceptability and applicants with tied, grantable applications will be
   eligible for equal, successive, non-renewable license terms of no less than
   one year each for a total combined term of eight years, in accordance with
    Sec. 73.873. Eligible applications will be granted simultaneously, and the
   sequence of the applicants' license terms will be determined by the sequence
   in which they file applications for licenses to cover their construction
   permits  based  on  the day of filing, except that eligible applicants
   proposing same-site facilities will be required, within 30 days of written
   notification  by  the Commission staff, to submit a written settlement
   agreement as to construction and license term sequence. Failure to submit
   such an agreement will result in the dismissal of the applications proposing
   same-site facilities and the grant of the remaining, eligible applications.

   (2) Groups of more than eight tied, grantable applications will not be
   eligible for successive license terms under this section. Where such groups
   exist, the staff will dismiss all but the applications of the eight entities
   with the longest established community presences, as provided in paragraph
   (b)(1) of this section. If more than eight tied, grantable applications
   remain, the applicants must submit, within 30 days of written notification
   by the Commission staff, a written settlement agreement limiting the group
   to  eight.  Failure  to  do  so will result in dismissal of the entire
   application group.

   (e) Mutually exclusive applicants may propose a settlement at any time
   during the selection process after the release of a public notice announcing
   the mutually exclusive groups. Settlement proposals must include all of the
   applicants  in a group and must comply with the Commission's rules and
   policies regarding settlements, including the requirements of  Sec.  Sec. 73.3525,
   73.3588, and 73.3589. Settlement proposals may include time-share agreements
   that comply with the requirements of paragraph (c) of this section, provided
   that such agreements may not be filed for the purpose of point aggregation
   outside of the thirty-day period set forth in paragraph (c) of this section.

   [ 65 FR 7640 , Feb.15, 2000, as amended at  65 FR 67304 , Nov. 9, 2000;  67 FR 13232 , Mar. 21, 2002]