§  101.45   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" exists when the levels of §  101.105 are exceeded, or
   when there is 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) A common carrier application, except in the Local Multipoint
   Distribution Service and in the 24 GHz Service, will be entitled 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) Private operational fixed point-to-point microwave applications for
   authorization under this part will be entitled to comparative
   consideration with one or more conflicting applications in accordance
   with the provisions of §  1.227(b)(4) of this chapter.

   (e) An application otherwise mutually exclusive with one or more
   previously filed applications, but filed after the appropriate date
   prescribed in paragraphs (b) or (d) 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).

   (f) For 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 §  1.929 of this
   chapter), except under any of the following circumstances:

   (1) The application has been designated for comparative hearing, or for
   comparative evaluation (pursuant to §  101.51 of this part), and the
   Commission or the presiding officer accepts the amendment pursuant to
   §  1.927 of this chapter;

   (2) The amendment resolves frequency conflicts with authorized stations
   or other pending applications which would otherwise require resolution
   by hearing or by comparative evaluation pursuant to §  101.51 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;

   (4) The amendment reflects only a change in ownership or control which
   results from an agreement under §  1.935 of this chapter 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;

   (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.

   (g) Applicants for the 932.5-935/941.5-944 MHz bands shall select a
   frequency pair. Applicants for these bands may select an unpaired
   frequency only upon a showing that spectrum efficiency will not be
   impaired and that unpaired spectrum is not available in other bands.
   During the initial filing window, frequency coordination is not
   required, except that an application for a frequency in the 942-944 MHz
   band must be coordinated to ensure that it does not affect an existing
   broadcast auxiliary service licensee. After the initial filing window,
   an applicant must submit evidence that frequency coordination has been
   performed with all licensees affected by the application. All frequency
   coordination must be performed in accordance with §  101.103. In the
   event of mutually exclusive applications occurring during the initial
   filing window for the 932.5-935/941.5-944 MHz bands, applicants shall
   be given the opportunity to resolve these situations by applying for an
   alternative frequency pair, if one is available. To the extent that
   there are no other available frequencies or to the extent that mutually
   exclusive applications remain after this process is concluded,
   lotteries shall be conducted for each frequency pair among all
   remaining mutually exclusive applications, assuming appropriate
   coordination with existing broadcast auxiliary stations can be
   concluded, where necessary. In the event of mutually exclusive
   applications being received for these bands on the same day after the
   initial filing window has closed and a subsequent filing window opened,
   lotteries shall be conducted for each frequency pair among all mutually
   exclusive applications.

   [ 61 FR 26677 , May 28, 1996, as amended at  62 FR 23164 , Apr. 29, 1997;
    62 FR 24582 , May 6, 1997;  63 FR 6103 , Feb. 6, 1998;  63 FR 68982 , Dec.
   14, 1998;  65 FR 59357 , Oct. 5, 2000]

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