§  73.3573   Processing FM broadcast station applications.

   (a) Applications for FM broadcast stations are divided into two groups:

   (1) In the first group are applications for new stations or for major
   changes of authorized stations. A major change in ownership is any
   change where the original party or parties to the application do not
   retain more than 50 percent ownership interest in the application as
   originally filed. In the case of a Class D or an NCE FM reserved band
   channel station, a major facility change is any change in antenna
   location which would not continue to provide a 1 mV/m service to some
   portion of its previously authorized 1 mV/m service area. In the case
   of a Class D station, a major facility change is any change in
   community of license or any change in frequency other than to a first-,
   second-, or third-adjacent channel. A major facility change for a
   commercial or a noncommercial educational full service FM station, a
   winning auction bidder, or a tentative selectee authorized or
   determined under this part is any change in frequency or community of
   license which is not in accord with its current assignment, except for
   the following:

   (i) A change in community of license which complies with the
   requirements of paragraph (g) of this section;

   (ii) A change to a higher or lower class co-channel, first-, second-,
   or third-adjacent channel, or intermediate frequency;

   (iii) A change to a same-class first-, second-, or third-adjacent
   channel, or intermediate frequency;

   (iv) A channel substitution, subject to the provisions of Section 316
   of the Communications Act for involuntary channel substitutions.

   (2) The second group consists of applications for licenses and all
   other changes in the facilities of authorized stations.

   (b)(1) The FCC may, after the acceptance of an application for
   modification of facilities, advise the applicant that such application
   is considered to be one for a major change and therefore subject to the
   provisions of § §  73.3522, 73.3580 and 1.1111 of this chapter pertaining
   to major changes. Such major modification applications in the
   non-reserved band will be dismissed as set forth in paragraph (f)(2)(i)
   of this section.

   (2) An amendment to a non-reserved band application which would effect
   a major change, as defined in paragraph (a)(1) of this section, will
   not be accepted, except as provided for in paragraph (f)(2)(i) of this
   section.

   (3) A new file number will be assigned to a reserved band application
   for a new station or for major changes in the facilities of an
   authorized station, when it is amended so as to effect a major change,
   as defined in paragraph (a)(1) of this section. Where an amendment to a
   reserved band application would require a new file number, the
   applicant will have the opportunity to withdraw the amendment at any
   time prior to designation for hearing, if applicable; and may be
   afforded, subject to the discretion of the Administrative Law Judge, an
   opportunity to withdraw the amendment after designation for hearing.

   (c) An application for changes in the facilities of any existing
   station will continue to carry the same file number even though
   (pursuant to FCC approval) an assignment of license or transfer of
   control of such licensee or permittee has taken place if, upon
   consummation, the application is amended to reflect the new ownership.

   (d) If, upon examination, the FCC finds that the public interest,
   convenience and necessity will be served by the granting of an
   application for FM broadcast facilities, the same will be granted. If
   the FCC is unable to make such a finding and it appears that a hearing
   may be required, the procedure given in §  73.3593 will be followed. In
   the case of mutually exclusive applications for reserved channels, the
   procedures in subpart K of this part will be followed. In the case of
   mutually exclusive applications for unreserved channels, the procedures
   in subpart I of this part will be followed.

   (e) Processing reserved channel FM broadcast station applications. (1)
   Applications for minor modifications for reserved channel FM broadcast
   stations, as defined in paragraph (a)(2) of this section, may be filed
   at any time, unless restricted by the FCC, and will be processed on a
   “first come/first served” basis, with the first acceptable application
   cutting off the filing rights of subsequent, competing applicants. The
   FCC will periodically release a Public Notice listing those
   applications accepted for filing. Conflicting applications received on
   the same day will be treated as simultaneously filed and mutually
   exclusive. Conflicting applications received after the filing of the
   first acceptable application will be grouped, according to filing date,
   behind the lead application in the queue. The priority rights of the
   lead applicant, against all other applicants, are determined by the
   date of filing, but the filing date for subsequent conflicting
   applicants only reserves a place in the queue. The right of an
   applicant in a queue ripens only upon a final determination that the
   lead applicant is unacceptable and that the queue member is reached and
   found acceptable. The queue will remain behind the lead applicant until
   the construction permit is finally granted, at which time the queue
   dissolves.

   (2) The FCC will specify by Public Notice a period for filing reserved
   channel FM applications for a new station or for major modifications in
   the facilities of an authorized station. FM reserved channel
   applications for new facilities or for major modifications will be
   accepted only during the appropriate filing period or “window.”
   Applications submitted prior to the window opening date identified in
   the Public Notice will be returned as premature. Applications submitted
   after the specified deadline will be dismissed with prejudice as
   untimely.

   (3) Concurrently with the filing of a new or major modification
   application for a reserved noncommercial educational channel, the
   applicant shall submit to the FCC's public reference room and to a
   local public inspection file consistent with §  73.3527(e)(2),
   supporting documentation of points claimed, as described in the
   application form.

   (4) Timely filed applications for new facilities or for major
   modifications for reserved FM channels will be processed pursuant to
   the procedures set forth in subpart K of this part (§  73.7000 et seq. )
   Subsequently, the FCC will release Public Notices identifying: mutually
   exclusive groups of applications; applications selected pursuant to the
   fair distribution procedures set forth in §  73.7002; applications
   received during the window filing period which are found to be
   non-mutually exclusive; tentative selectees determined pursuant to the
   point system procedures set forth in §  73.7003; and acceptable
   applications. The Public Notices will also announce: additional
   procedures to be followed for certain groups of applications; deadlines
   for filing additional information; and dates by which petitions to deny
   must be filed in accordance with the provisions of §  73.3584. If the
   applicant is duly qualified, and upon examination, the FCC finds that
   the public interest, convenience and necessity will be served by the
   granting of the application, it will be granted. If an application is
   determined unacceptable for filing, the application will be returned,
   and subject to the amendment requirements of §  73.3522.

   (f) Processing non-reserved FM broadcast station applications. (1)
   Applications for minor modifications for non-reserved FM broadcast
   stations, as defined in paragraph (a)(2) of this section, may be filed
   at any time, unless restricted by the FCC, and, generally, will be
   processed in the order in which they are tendered. The FCC will
   periodically release a Public Notice listing those applications
   accepted for filing. Processing of these applications will be on a
   “first come/first serve” basis with the first acceptable application
   cutting off the filing rights of subsequent applicants. All
   applications received on the same day will be treated as simultaneously
   tendered and, if they are found to be mutually exclusive, must be
   resolved through settlement or technical amendment. Applications
   received after the tender of a lead application will be grouped,
   according to filing date, behind the lead application in a queue. The
   priority rights of the lead applicant, as against all other applicants,
   are determined by the date of filing, but the filing date for
   subsequent applicants for that channel and community only reserves a
   place in the queue. The rights of an applicant in a queue ripen only
   upon a final determination that the lead applicant is unacceptable and
   if the queue member is reached and found acceptable. The queue will
   remain behind the lead applicant until a construction permit is finally
   granted, at which time the queue dissolves.

   (2)(i) The FCC will specify by Public Notice, pursuant to §  73.5002(a),
   a period for filing non-reserved band FM applications for a new station
   or for major modifications in the facilities of an authorized station.
   FM applications for new facilities or for major modifications, whether
   for commercial broadcast stations or noncommercial educational
   broadcast stations, as described in 47 U.S.C. 397(6), will be accepted
   only during the appropriate filing period or “window.” Applications
   submitted prior to the window opening date identified in the Public
   Notice will be returned as premature. Applications submitted after the
   specified deadline will be dismissed with prejudice as untimely.

   (ii) Such FM applicants will be subject to the provisions of § §  1.2105
   and 73.5002 regarding the submission of the short-form application, FCC
   Form 175, and all appropriate certifications, information and exhibits
   contained therein. FM applicants may submit a set of preferred site
   coordinates as a supplement to the short-form application. Any specific
   site indicated by FM applicants will not be studied for technical
   acceptability, but will be protected from subsequently filed
   applications as a full-class facility as of the close of the window
   filing period. Determinations as to the acceptability or grantability
   of an applicant's proposal will not be made prior to an auction.

   (iii) FM applicants will be subject to the provisions of § §  1.2105 and
   73.5002(c) regarding the modification and dismissal of their short-form
   applications.

   (3) Subsequently, the FCC will release Public Notices:

   (i) Identifying the short-form applications received during the window
   filing period which are found to be mutually exclusive, including any
   applications for noncommercial educational broadcast stations, as
   described in 47 U.S.C. 397(6), as well as the procedures the FCC will
   use to resolve the mutually exclusive applications;

   (ii) Establishing a date, time and place for an auction;

   (iii) Providing information regarding the methodology of competitive
   bidding to be used in the upcoming auction, bid submission and payment
   procedures, upfront payment procedures, upfront payment deadlines,
   minimum opening bid requirements and applicable reserve prices in
   accordance with the provisions of §  73.5002;

   (iv) Identifying applicants who have submitted timely upfront payments
   and, thus, are qualified to bid in the auction.

   (4) If, after the close of the appropriate window filing period, a
   non-reserved FM allotment remains vacant, the window remains closed
   until the FCC, by Public Notice, specifies a subsequent period for
   filing non-reserved band FM applications for a new station or for major
   modifications in the facilities of an authorized station pursuant to
   paragraph (f)(2)(i) of this section. After the close of the filing
   window, the FCC will also release a Public Notice identifying the
   short-form applications which are found to be non-mutually exclusive,
   including any applications for noncommercial educational broadcast
   stations, as described in 47 U.S.C. 397(6). These non-mutually
   exclusive applicants will be required to submit the appropriate
   long-form application within 30 days of the Public Notice and, for
   applicants for commercial broadcast stations, pursuant to the
   provisions of §  73.5005(d). Non-mutually exclusive applications for
   commercial broadcast stations will be processed and the FCC will
   periodically release a Public Notice listing such non-mutually
   exclusive applications determined to be acceptable for filing and
   announcing a date by which petitions to deny must be filed in
   accordance with the provisions of § §  73.5006 and 73.3584. Non-mutually
   exclusive applications for noncommercial educational broadcast
   stations, as described in 47 U.S.C. 397(6), will be processed and the
   FCC will periodically release a Public Notice listing such non-mutually
   exclusive applications determined to be acceptable for filing and
   announcing a date by which petitions to deny must be filed in
   accordance with the provisions of § §  73.7004 and 73.3584. If the
   applicant is duly qualified, and upon examination, the FCC finds that
   the public interest, convenience, and necessity will be served by the
   granting of the non-mutually exclusive long-form application, it will
   be granted.

   (5)(i) Pursuant to §  1.2107 of this chapter and §  73.5005, a winning
   bidder that meets its down payment obligations in a timely manner must,
   within 30 days of the release of the public notice announcing the close
   of the auction, submit the appropriate long-form application for each
   construction permit for which it was the winning bidder. Long-form
   applications filed by winning bidders shall include the exhibits
   identified in §  73.5005(a).

   (ii) Winning bidders are required to pay the balance of their winning
   bids in a lump sum prior to the deadline established by the Commission
   pursuant to §  1.2109(a) of this chapter. Long-form construction permit
   applications will be processed and the FCC will periodically release a
   Public Notice listing such applications that have been accepted for
   filing and announcing a date by which petitions to deny must be filed
   in accordance with the provisions of § §  73.5006 and 73.3584.
   Construction permits will be granted by the Commission only after full
   and timely payment of winning bids and any applicable late fees, and if
   the applicant is duly qualified, and upon examination, the FCC finds
   that the public interest, convenience and necessity will be served.

   (iii) All long-form applications will be cut-off as of the date of
   filing with the FCC and will be protected from subsequently filed
   long-form applications and rulemaking petitions. Applications will be
   required to protect all previously filed commercial and noncommercial
   applications. Winning bidders filing long-form applications may change
   the technical proposals specified in their previously submitted
   short-form applications, but such change may not constitute a major
   change. If the submitted long-form application would constitute a major
   change from the proposal submitted in the short-form application or the
   allotment, the long-form application will be returned pursuant to
   paragraph (f)(2)(i) of this section.

   (6)(i) When a non-reserved channel FM allotment is added to the Table
   of FM Allotments using the Tribal Priority described in Note 5 to this
   section, the FCC will specify by Public Notice a window filing period
   during which only those applicants that satisfy all of the eligibility
   criteria listed in Note 5 to this section with regard to the specific
   Tribal Priority FM allotment(s) listed in the Public Notice may file a
   long-form application for the Tribal Priority FM allotment. Only
   applications from applicants meeting the “threshold qualifications”
   listed in Note 5 will be accepted during this window filing period.

   (ii) If only one application for the Tribal Priority FM allotment is
   accepted for filing during the threshold qualifications window, the
   long-form application will be processed. If two or more applications
   for the Tribal Priority FM allotment are accepted for filing during the
   threshold qualifications window, the FCC will specify by Public Notice
   a period of time, after the close of the threshold qualifications
   window but before the next FM auction, during which the parties may
   negotiate a settlement or bona fide merger, as a way of resolving the
   conflict between their applications. Parties to a settlement must
   comply with §  73.3525 of the Commission's rules. If a settlement or
   bona fide merger is reached, the surviving application will be
   processed. If no settlement or bona fide merger is reached among the
   threshold qualifications window applicants, the Tribal Priority FM
   allotment will be offered at auction as described in paragraphs (f)(2)
   through (f)(5) of this section, except that only those applicants whose
   applications were accepted for filing pursuant to paragraph (f)(6)(i)
   of this section may participate in the initial auction of the Tribal
   Priority FM allotment.

   (iii) If no application is accepted for filing during the threshold
   qualifications window, and the party that initially proposed the Tribal
   Priority FM allotment requests by letter to the Audio Division, Media
   Bureau, that its pending long-form application not be immediately
   processed, the Tribal Priority FM allotment will be auctioned as
   described in paragraphs (f)(2) through (f)(5) of this section in the
   normal course for vacant FM allotments. When a Tribal Priority FM
   allotment is offered at auction for the first time, only those
   applicants meeting the threshold qualifications for that specific
   Tribal Priority FM allotment, as described in Note 5 to this section,
   may participate in the auction of that allotment.

   (iv) Should no applicant meeting threshold qualifications, as described
   in Note 5 to this section, apply to bid on a Tribal Priority FM
   allotment in the first auction in which it is offered, or should no
   applicant meeting threshold qualifications qualify to bid in the first
   auction in which a Tribal Priority FM allotment is offered, then the
   Tribal Priority FM allotment will be offered in a subsequent auction.
   Any such subsequent auction of a Tribal Priority FM allotment shall
   proceed as described in paragraphs (f)(2) through (f)(5) of this
   section, and any qualified applicant may participate in the auction of
   the Tribal Priority FM allotment in such subsequent auction, regardless
   of whether it meets the threshold qualifications with regard to that
   specific Tribal Priority FM allotment.

   (g) Applications proposing to change the community of license of an FM
   station or assignment are considered to be minor modifications under
   paragraphs (a)(2), (e)(1), and (f)(1) of this section, and are subject
   to the following requirements:

   (1) The applicant must attach an exhibit to its application containing
   information demonstrating that the proposed community of license change
   constitutes a preferential arrangement of allotments or assignments
   under Section 307(b) of the Communications Act of 1934, as amended (47
   U.S.C. 307(b));

   (2) The facilities specified by the applicant at the proposed community
   of license must be mutually exclusive, as defined in §  73.207 or
   73.509, with the applicant's current facilities or its current
   assignment, in the case of a winning auction bidder or tentative
   selectee; and

   (3) Notwithstanding the provisions of §  73.3580(a), the applicant must
   comply with the local public notice provisions of § §  73.3580(c)(3),
   73.3580(d)(3), and 73.3580(f). The exception contained in §  73.3580(e)
   shall not apply to an application proposing to change the community of
   license of an FM station.

   (4) Non-reserved band applications must demonstrate the existence of a
   suitable assignment or allotment site that fully complies with
   § §  73.207 and 73.315 without resort to §  73.213 or §  73.215.

   Note 1 to §  73.3573: Applications to modify the channel and/or class to
   an adjacent channel, intermediate frequency (IF) channel, or co-channel
   may utilize the provisions of the Commission's Rules permitting short
   spaced stations as set forth in §  73.215 as long as the applicant shows
   by separate exhibit attached to the application the existence of an
   allotment reference site which meets the allotment standards, the
   minimum spacing requirements of §  73.207 and the city grade coverage
   requirements of §  73.315. This exhibit must include a site map or, in
   the alternative, a statement that the transmitter will be located on an
   existing tower. Examples of unsuitable allotment reference sites
   include those which are offshore, in a national or state park in which
   tower construction is prohibited, on an airport, or otherwise in an
   area which would necessarily present a hazard to air navigation.

   Note 2 to §  73.3573: Processing of applications for new low power
   educational FM applications: Pending the Commission's restudy of the
   impact of the rule changes pertaining to the allocations of 10-watt and
   other low power noncommercial educational FM stations, applications for
   such new stations, or major changes in existing ones, will not be
   accepted for filing. Exceptions are: (1) In Alaska, applications for
   new Class D stations or major changes in existing ones are acceptable
   for filing; and (2) applications for existing Class D stations to
   change frequency are acceptable for filing. In (2), upon the grant of
   such application, the station shall become a Class D (secondary)
   station. (See First Report and Order, Docket 20735, FCC 78-386,  43 FR 25821 , and Second Report and Order, Docket 20735, FCC 78-384,  43 FR 39704 .) Effective date of this FCC imposed “freeze” was June 15, 1978.
   Applications which specify facilities of at least 100 watts effective
   radiated power will be accepted for filing.

   Note 3 to §  73.3573: For rules on processing FM translator and booster
   stations, see §  74.1233 of this chapter.

   Note 4 to §  73.3573: A Class C station operating with antenna height
   above average terrain (“HAAT”) of less than 451 meters is subject to
   reclassification as a Class C0 station upon the filing of a triggering
   application for construction permit that is short-spaced to such a
   Class C station under §  73.207 but would be fully spaced to such a
   station considered as a Class C0 assignment. Triggering applications
   may utilize §  73.215. Triggering applications must certify that no
   alternative channel is available for the proposed service. Available
   alternative frequencies are limited to frequencies that the proposed
   service could use at the specified antenna location in full compliance
   with the distance separation requirements of §  73.207, without any
   other changes to the FM Table of Allotments. Copies of a triggering
   application and related pleadings must be served on the licensee of the
   affected Class C station. If the staff concludes that a triggering
   application is acceptable for filing, it will issue an order to show
   cause why the affected station should not be reclassified as a Class C0
   station The order to show cause will provide the licensee 30 days to
   express in writing an intention to seek authority to modify the subject
   station's technical facilities to minimum Class C HAAT or to otherwise
   challenge the triggering application. If no such intention is expressed
   and the triggering application is not challenged, the subject station
   will be reclassified as a Class C0 station, and processing of the
   triggering application will be completed. If an intention to modify is
   expressed, an additional 180-day period will be provided during which
   the Class C station licensee must file an acceptable construction
   permit application to increase antenna height to at least 451 meters
   HAAT. Upon grant of such a construction permit application, the
   triggering application will be dismissed. Class C station licensees
   must serve on triggering applicants copies of any FAA submissions
   related to the application grant process. If the construction is not
   completed as authorized, the subject Class C station will be
   reclassified automatically as a Class C0 station. The reclassification
   procedure also may be initiated through the filing of an original
   petition for rule making to amend the FM Table of Allotments as set
   forth in Note 2 to §  1.420(g).

   Note 5 to §  73.3573: The “Tribal Priority” is that established by the
   Commission in Policies to Promote Rural Radio Service and to Streamline
   Allotment and Assignment Procedures, MB Docket 09-52. See First Report
   and Order and Further Notice of Proposed Rule Making, MB Docket 09-52,
   FCC 10-24,  75 FR 9797 ,  75 FR 9856 ,  75 FR 73976 ; Second Report and
   Order, First Order on Reconsideration, and Second Further Notice of
   Proposed Rule Making, MB Docket 09-52, FCC 11-28,  76 FR 14362 ,  76 FR 18942 ; Third Report and Order, MB Docket 09-52, FCC 11-190. To qualify
   for the Tribal Priority, and thus meet “threshold qualifications” for a
   particular allotment, an applicant must demonstrate that it meets all
   of the following eligibility criteria: (a) The applicant is either a
   federally recognized Tribe or Tribal consortium, or an entity 51
   percent or more of which is owned or controlled by a Tribe or Tribes.
   Qualifying Tribes or Tribal entities must be those at least a portion
   of whose Tribal Lands lie within the principal community contour of the
   proposed facility. Although the 51 or greater percent Tribal control
   threshold need not consist of a single Tribe, the qualifying entity
   must be 51 percent or more owned or controlled by Tribes at least a
   portion of whose Tribal Lands lie within the facility's principal
   community contour; (b)(1) at least 50 percent of the area within the
   proposed principal community contour is over that Tribe's Tribal Lands,
   or (2) the proposed principal community contour (i) encompasses 50
   percent or more of that Tribe's Tribal Lands, (ii) serves at least
   2,000 people living on Tribal Lands, and (iii) the total population on
   Tribal Lands residing within the proposed service contour constitutes
   at least 50 percent of the total covered population (and, in the case
   of either (b)(1) or (b)(2) the proposed principal community contour
   does not cover more than 50 percent of the Tribal Lands of a Tribe that
   is not a party to the application); (c) the proposed community of
   license must be located on Tribal Lands; and (d) the proposed service
   must constitute first or second aural (reception) service, or first
   local Tribal-owned commercial transmission service at the proposed
   community of license. For purposes of this section, the definition of
   “Tribal Lands” is the same as that set forth at footnote 15 of the
   First Report and Order and Further Notice of Proposed Rule Making, FCC
   10-24, and as further set forth at paragraphs 8-10 and 59 of the Second
   Report and Order, First Order on Reconsideration, and Second Further
   Notice of Proposed Rule Making, FCC 11-28.

   [ 63 FR 48627 , Sept. 11, 1998, as amended at  64 FR 19502 , Apr. 21, 1999;
    65 FR 36379 , June 8, 2000;  65 FR 79780 , Dec. 20, 2000;  67 FR 45374 ,
   July 9, 2002;  68 FR 26228 , May 15, 2003;  71 FR 6228 , Feb. 7, 2006;  71 FR 76220 , Dec. 20, 2006;  77 FR 2922 , Jan. 20, 2012]

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