§ 73.7002   Fair distribution of service on reserved band FM channels.

   (a) If timely filed applications for full service stations on reserved FM
   channels are determined to be mutually exclusive, and will serve different
   communities, the Commission will first determine, as a threshold issue,
   whether grant of a particular application would substantially further the
   fair distribution of service goals enunciated in section 307(b) of the
   Communications Act, 47 U.S.C. 307(b).

   (b) In an analysis performed pursuant to paragraph (a) of this section, a
   full-service FM applicant that identifies itself as a Tribal Applicant, that
   proposes Tribal Coverage, and that proposes the first reserved channel NCE
   service owned by any Tribal Applicant at a community of license located on
   Tribal  Lands,  will  be awarded a construction permit. If two or more
   full-service FM applicants identify themselves as Tribal Applicants and meet
   the above criteria, the applicant providing the most people with reserved
   channel NCE service to Tribal Lands will be awarded a construction permit,
   regardless of the magnitude of the superior service or the populations of
   the  communities  of  license  proposed,  if different. If two or more
   full-service FM applicants identifying themselves as Tribal Applicants each
   meet the above criteria and propose identical levels of NCE aural service to
   Tribal Lands, only those applicants shall proceed to be considered together
   in a point system analysis. In an analysis performed pursuant to paragraph
   (a) of this section that does not include a Tribal Applicant, a full service
   FM  applicant  that  will provide the first or second reserved channel
   noncommercial educational (NCE) aural signal received by at least 10% of the
   population within the station's 60dBu (1mV/m) service contours will be
   considered to substantially further fair distribution of service goals and
   to be superior to mutually exclusive applicants not proposing that level of
   service, provided that such service to fewer than 2,000 people will be
   considered insignificant. First service to 2,000 or more people will be
   considered superior to second service to a population of any size. If only
   one applicant will provide such first or second service, that applicant will
   be selected as a threshold matter. If more than one applicant will provide
   an equivalent level (first or second) of NCE aural service, the size of the
   population to receive such service from the mutually exclusive applicants
   will be compared. The applicant providing the most people with the highest
   level of service will be awarded a construction permit, if it will provide
   such service to 5,000 or more people than the next best applicant. If none
   of the applicants in a mutually exclusive group would substantially further
   fair distribution goals, all applicants will proceed to examination under a
   point system. If two or more applicants will provide the same level of
   service to an equivalent number of people (differing by less than 5,000),
   only those equivalent applicants will be considered together in a point
   system.

   (c) For a period of four years of on-air operations, an applicant receiving
   a decisive preference pursuant to this section is required to construct and
   operate  technical  facilities substantially as proposed and shall not
   downgrade  service  to  the  area  on  which the preference was based.
   Additionally, for a period beginning from the award of a construction permit
   through four years of on-air operations, a Tribal Applicant receiving a
   decisive preference pursuant to this section may not:

   (1)  Assign or transfer the authorization except to another party that
   qualifies as a Tribal Applicant;

   (2) Change the facility's community of license; or

   (3) Effect a technical change that would cause the facility to provide less
   than full Tribal Coverage.

   [ 65 FR 36380 , June 8, 2000, as amended at  66 FR 15356 , Mar. 19, 2001;  75 FR 9807 , Mar. 4, 2010]

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