§ 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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