Sec.  22.131   Procedures for mutually exclusive applications.

   

   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 Public Mobile
   Services  involved. The Commission uses the general procedures in this
   section  for  processing mutually exclusive applications in the Public
   Mobile  Services. Additional specific procedures are prescribed in the
   subparts  of this part governing the individual Public Mobile Services
   (see Sec. Sec. 22.509, 22.717, and 22.949) and in part 1 of this chapter.

   (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 Sec. 1.945 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 Sec. 1.935 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 application(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 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 that are excluded by that grant,
   pursuant to Sec. 1.945 of this chapter.

   (1)  Selection  methods.  In  selecting  the application to grant, the
   Commission will use competitive bidding.

   (2)   Dismissal  of  applications.  The  Commission  may  dismiss  any
   application  in  a filing group that is defective or otherwise subject
   to  dismissal  under  Sec. 1.945  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 the processing of two or more
   mutually  exclusive  applications  depends  upon 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, except that, for Phase
   I unserved area applications in the Cellular Radiotelephone Service, a
   one-day window filing group is used (see Sec. 22.949).

   (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  FCC administers competitive bidding procedures in accordance with
   Sec. 22.201  through  Sec. 22.227  and subpart Q of part 1 of this chapter, as
   applicable.  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, 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  FCC 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 of 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;

   (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; or

   (iv)  Any  application  to  expand  the  CGSA of a cellular system (as
   defined in Sec. 22.911), except during the five-year build-out period.

   (v)  Any "short-form" application (filed on FCC Form 175) requesting a
   new paging geographic area authorization.

   [ 59 FR 59954 , Nov. 21, 1994, as amended at  62 FR 11629 , Mar. 12, 1997;
    63 FR 68943 , Dec. 14, 1998]