§ 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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