Goto Section: 101.31 | 101.51 | Table of Contents
FCC 101.45
Revised as of October 1, 2010
Goto Year:2009 |
2011
§ 101.45 Mutually exclusive applications.
(a) The Commission will consider applications to be mutually exclusive
if their conflicts are such that the grant of one application would
effectively preclude by reason of harmful electrical interference, or
other practical reason, the grant of one or more of the other
applications. The Commission will presume "harmful electrical
interference" exists when the levels of § 101.105 are exceeded, or when
there is a material impairment to service rendered to the public
despite full cooperation in good faith by all applicants or parties to
achieve reasonable technical adjustments which would avoid electrical
conflict.
(b) A common carrier application, except in the Local Multipoint
Distribution Service and in the 24 GHz Service, will be entitled to
comparative consideration with one or more conflicting applications
only if:
(1) The application is mutually exclusive with the other application;
and
(2) The application is received by the Commission in a condition
acceptable for filing by whichever "cut-off" date is earlier:
(i) Sixty (60) days after the date of the public notice listing the
first of the conflicting applications as accepted for filing; or
(ii) One (1) business day preceding the day on which the Commission
takes final action on the previously filed application (should the
Commission act upon such application in the interval between thirty
(30) and sixty (60) days after the date of its public notice).
(c) Whenever three or more applications are mutually exclusive, but not
uniformly so, the earliest filed application established the date
prescribed in paragraph (b)(2) of this section, regardless of whether
or not subsequently filed applications are directly mutually exclusive
with the first filed application. (For example, applications A, B, and
C are filed in that order. A and B are directly mutually exclusive, B
and C are directly mutually exclusive. In order to be considered
comparatively with B, C must be filed within the "cut-off" period
established by A even though C is not directly mutually exclusive with
A.)
(d) Private operational fixed point-to-point microwave applications for
authorization under this part will be entitled to comparative
consideration with one or more conflicting applications in accordance
with the provisions of § 1.227(b)(4) of this chapter.
(e) An application otherwise mutually exclusive with one or more
previously filed applications, but filed after the appropriate date
prescribed in paragraphs (b) or (d) of this section, will be returned
without prejudice and will be eligible for refiling only after final
action is taken by the Commission with respect to the previously filed
application (or applications).
(f) For purposes of this section, any application (whether mutually
exclusive or not) will be considered to be a newly filed application if
it is amended by a major amendment (as defined by § 1.929 of this
chapter), except under any of the following circumstances:
(1) The application has been designated for comparative hearing, or for
comparative evaluation (pursuant to § 101.51 of this part), and the
Commission or the presiding officer accepts the amendment pursuant to
§ 1.927 of this chapter;
(2) The amendment resolves frequency conflicts with authorized stations
or other pending applications which would otherwise require resolution
by hearing or by comparative evaluation pursuant to § 101.51 provided
that the amendment does not create new or additional frequency
conflicts;
(3) The amendment reflects only a change in ownership or control found
by the Commission to be in the public interest, and for which a
requested exemption from the "cut-off" requirements of this section is
granted;
(4) The amendment reflects only a change in ownership or control which
results from an agreement under § 1.935 of this chapter whereby two or
more applicants entitled to comparative consideration of their
applications join in one (or more) of the existing applications and
request dismissal of their other application (or applications) to avoid
the delay and cost of comparative consideration;
(5) The amendment corrects typographical, transcription, or similar
clerical errors which are clearly demonstrated to be mistakes by
reference to other parts of the application, and whose discovery does
not create new or increased frequency conflicts; or
(6) The amendment does not create new or increased frequency conflicts,
and is demonstrably necessitated by events which the applicant could
not have reasonably foreseen at the time of filing, such as, for
example:
(i) The loss of a transmitter or receiver site by condemnation, natural
causes, or loss of lease or option;
(ii) Obstruction of a proposed transmission path caused by the erection
of a new building or other structure; or
(iii) The discontinuance or substantial technological obsolescence of
specified equipment, whenever the application has been pending before
the Commission for two or more years from the date of its filing.
(g) Applicants for the 932.5-935/941.5-944 MHz bands shall select a
frequency pair. Applicants for these bands may select an unpaired
frequency only upon a showing that spectrum efficiency will not be
impaired and that unpaired spectrum is not available in other bands.
During the initial filing window, frequency coordination is not
required, except that an application for a frequency in the 942-944 MHz
band must be coordinated to ensure that it does not affect an existing
broadcast auxiliary service licensee. After the initial filing window,
an applicant must submit evidence that frequency coordination has been
performed with all licensees affected by the application. All frequency
coordination must be performed in accordance with § 101.103. In the
event of mutually exclusive applications occurring during the initial
filing window for the 932.5-935/941.5-944 MHz bands, applicants shall
be given the opportunity to resolve these situations by applying for an
alternative frequency pair, if one is available. To the extent that
there are no other available frequencies or to the extent that mutually
exclusive applications remain after this process is concluded,
lotteries shall be conducted for each frequency pair among all
remaining mutually exclusive applications, assuming appropriate
coordination with existing broadcast auxiliary stations can be
concluded, where necessary. In the event of mutually exclusive
applications being received for these bands on the same day after the
initial filing window has closed and a subsequent filing window opened,
lotteries shall be conducted for each frequency pair among all mutually
exclusive applications.
[ 61 FR 26677 , May 28, 1996, as amended at 62 FR 23164 , Apr. 29, 1997;
62 FR 24582 , May 6, 1997; 63 FR 6103 , Feb. 6, 1998; 63 FR 68982 , Dec.
14, 1998; 65 FR 59357 , Oct. 5, 2000]
Goto Section: 101.31 | 101.51
Goto Year: 2009 |
2011
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