§  73.7002   Fair distribution of service on reserved band FM channels.

   (a) If timely filed applications for full service stations on reserved
   FM channels are determined to be mutually exclusive, and will serve
   different communities, the Commission will first determine, as a
   threshold issue, whether grant of a particular application would
   substantially further the fair distribution of service goals enunciated
   in section 307(b) of the Communications Act, 47 U.S.C. 307(b).

   (b) In an analysis performed pursuant to paragraph (a) of this section,
   a full-service FM applicant that identifies itself as a Tribal
   Applicant, that proposes Tribal Coverage, and that proposes the first
   reserved channel NCE service owned by any Tribal Applicant at a
   community of license located on Tribal Lands, will be awarded a
   construction permit. If two or more full-service FM applicants identify
   themselves as Tribal Applicants and meet the above criteria, the
   applicant providing the most people with reserved channel NCE service
   to Tribal Lands will be awarded a construction permit, regardless of
   the magnitude of the superior service or the populations of the
   communities of license proposed, if different. If two or more
   full-service FM applicants identifying themselves as Tribal Applicants
   each meet the above criteria and propose identical levels of NCE aural
   service to Tribal Lands, only those applicants shall proceed to be
   considered together in a point system analysis. In an analysis
   performed pursuant to paragraph (a) of this section that does not
   include a Tribal Applicant, a full service FM applicant that will
   provide the first or second reserved channel noncommercial educational
   (NCE) aural signal received by at least 10% of the population within
   the station's 60dBu (1mV/m) service contours will be considered to
   substantially further fair distribution of service goals and to be
   superior to mutually exclusive applicants not proposing that level of
   service, provided that such service to fewer than 2,000 people will be
   considered insignificant. First service to 2,000 or more people will be
   considered superior to second service to a population of any size. If
   only one applicant will provide such first or second service, that
   applicant will be selected as a threshold matter. If more than one
   applicant will provide an equivalent level (first or second) of NCE
   aural service, the size of the population to receive such service from
   the mutually exclusive applicants will be compared. The applicant
   providing the most people with the highest level of service will be
   awarded a construction permit, if it will provide such service to 5,000
   or more people than the next best applicant. If none of the applicants
   in a mutually exclusive group would substantially further fair
   distribution goals, all applicants will proceed to examination under a
   point system. If two or more applicants will provide the same level of
   service to an equivalent number of people (differing by less than
   5,000), only those equivalent applicants will be considered together in
   a point system.

   (c)(1) For a period of four years of on-air operations, an applicant
   receiving a decisive preference pursuant to this section is required to
   construct and operate technical facilities substantially as proposed.
   During this period, such applicant may make minor modifications to its
   authorized facilities, provided that either:

   (i) The modification does not downgrade service to the area on which
   the preference was based; or

   (ii) Any potential loss of first and second NCE service is offset by at
   least equal first and, separately, combined first and second NCE
   service population gain(s), and the applicant would continue to qualify
   for a decisive Section 307(b) preference.

   (2) Additionally, for a period beginning from the award of a
   construction permit through four years of on-air operations, a Tribal
   Applicant receiving a decisive preference pursuant to this section may
   not:

   (i) Assign or transfer the authorization except to another party that
   qualifies as a Tribal Applicant;

   (ii) Change the facility's community of license; or

   (iii) Effect a technical change that would cause the facility to
   provide less than full Tribal Coverage.

   [ 65 FR 36380 , June 8, 2000, as amended at  66 FR 15356 , Mar. 19, 2001;
    75 FR 9807 , Mar. 4, 2010;  85 FR 7891 , Feb. 12, 2020]