Sec. 21.31  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'' to mean interference which would result in 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) An application 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) An application otherwise mutually exclusive with one of more 
previously filed applications, but filed after the appropriate date 
prescribed in paragraph (b)(2) 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).
    (e) 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. 21.23), except under any of the following circumstances:
    (1) The application has been designated for comparative hearing, or 
for comparative evaluation (pursuant to Sec. 21.35), and the Commission 
or the presiding officer accepts the amendment pursuant to 
Sec. 21.23(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. 21.35, 
or by random selection pursuant to Sec. 21.33 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

[[Page 34]]

interest, and for which a requested exemption from the ``cut-off'' 
requirements of this section is granted, unless the amendment is for 
more than a pro forma change of ownership or control (bankruptcy, death 
or legal disability) of a pending Multipoint Distribution Service 
application in which event the application will be dismissed;
    (4) The amendment reflects only a change in ownership or control 
which results from an agreement under Sec. 21.29 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, unless the amendment is for one (or more) 
pending Multipoint Distribution Service application (or applications) in 
which event the application (or applications) will be dismissed;
    (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.
    (iv) The change of status by a MDS applicant from common carrier to 
non-common carrier, or from non-common carrier to common carrier.
[ 44 FR 60534 , Oct. 19, 1979, as amended at  45 FR 65600 , Oct. 3, 1980;  45 FR 70468 , Oct. 24, 1980;  50 FR 5993 , Feb. 13, 1985;  52 FR 27554 , July 
22, 1987;  52 FR 37780 , Oct. 9, 1987;  55 FR 10462 , Mar. 21, 1990;  58 FR 11797 , Mar. 1, 1993;  61 FR 26674 , May 28, 1996]