§  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) Renewal filing group. A renewal filing group comprises a
   timely-filed application for renewal of an authorization and all
   timely-filed mutually exclusive competing applications (see section
   1.949 of this chapter).

   (2) 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).

   (3) 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.

   (4) 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 one of the mutually exclusive applications is a timely-filed
   application for renewal of an authorization, a renewal filing group is
   used.

   (ii) 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.

   (iii) If all of the mutually exclusive applications filed on the
   earliest filing date are applications for initial authorization, a
   30-day notice and cut-off 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 renewal filing group. All mutually exclusive
   applications in a renewal filing group are designated for comparative
   consideration in a hearing.

   (ii) 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.

   (iii) 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.

   (iv) 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]

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