§  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 90 days of the release
   of a public notice announcing the tie, a time-share proposal. Such
   proposals shall be treated as minor amendments to the time-share
   proponents' applications, and shall become part of the terms of the
   station authorization. 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 authorized 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 permittee or
   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.

   (3) Where a station is authorized pursuant to a voluntary time-sharing
   proposal, the parties to the time-sharing agreement may apportion among
   themselves any air time that, for any reason, becomes vacant.

   (4) Successive license terms granted under paragraph (d) may be
   converted into voluntary time-sharing arrangements renewable pursuant
   to § 73.3539 by submitting a universal time-sharing proposal.

   (d) Successive license terms. (1) If a tie among mutually exclusive
   applications is not resolved through voluntary 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 § 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.

   (3) If successive license terms granted under this section are
   converted into universal voluntary time-sharing arrangements pursuant
   to paragraph (c)(4) of this section, the permit or license is renewable
   pursuant to § § 73.801 and 73.3539.

   (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 § § 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 90 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;  73 FR 3217 , Jan. 17, 2008]