Sec. 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 Sec. 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, will be entitled to be included in a random 
selection process or 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 be included in a 
random selection process or to comparative consideration with one or 
more conflicting applications in accordance with the provisions of 
Sec. 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 the 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 
Sec. 101.29), except under any of the following circumstances:
    (1) The application has been designated for comparative hearing, or 
for comparative evaluation (pursuant to Sec. 101.51), and the Commission 
or the presiding officer accepts the amendment pursuant to 
Sec. 101.29(b);
    (2) The amendment resolves frequency conflicts with authorized 
stations or other pending applications which would otherwise require 
resolution by hearing, by comparative evaluation pursuant to 
Sec. 101.51, or by random selection pursuant to Sec. 101.49 provided 
that the amendment does not create new or additional frequency 
conflicts;
    (3) The amendment reflects only a change in ownership or control 
found

[[Page 739]]

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 Sec. 101.41 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 Sec. 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.
    (h) Renewal applications will not be included in a random selection 
process.
[ 61 FR 26677 , May 28, 1996, as amended at  62 FR 23164 , Apr. 29, 1997;  62 FR 24582 , May 6, 1997]