Sec.  21.31   Mutually exclusive applications.

   

   (a) Except with respect to applications for new or modified response
   stations hubs, booster stations, and point-to-multipoint I channel
   stations, and to applications for modified main stations, filed on the
   same day or during the same window, the Commission will consider
   applications to be mutually exclusive if their conflicts are such that
   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.

   (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 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.

   [ 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;  63 FR 65101 ,
   Nov. 25, 1998;  64 FR 63730 , Nov. 22, 1999;  65 FR 46617 , July 31, 2000]