§  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
   § §  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 §  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 §  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 §  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 §  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 §  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
   § §  22.201 through 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 §  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]

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