§ 73.872   Selection procedure for mutually exclusive LPFM applications.

   (a)  Following  the close of each window for new LPFM stations and for
   modifications in the facilities of authorized LPFM stations, the Commission
   will issue a public notice identifying all groups of mutually exclusive
   applications. Such applications will be awarded points to determine the
   tentative selectee. Unless resolved by settlement pursuant to paragraph (e)
   of this section, the tentative selectee will be the applicant within each
   group with the highest point total under the procedure set forth in this
   section, except as provided in paragraphs (c) and (d) of this section .

   (b) Each mutually exclusive application will be awarded one point for each
   of the following criteria, based on certifications that the qualifying
   conditions are met and submission of any required documentation:

   (1) Established community presence. An applicant must, for a period of at
   least two years prior to application and at all times thereafter, have
   qualified as local pursuant to § 73.853(b). Applicants claiming a point for
   this criterion must submit any documentation specified in FCC Form 318 at
   the time of filing their applications.

   (2)  Local program origination. The applicant must pledge to originate
   locally at least eight hours of programming per day. For purposes of this
   criterion,  local  origination is the production of programming by the
   licensee, within ten miles of the coordinates of the proposed transmitting
   antenna. Local origination includes licensee produced call-in shows, music
   selected and played by a disc jockey present on site, broadcasts of events
   at local schools, and broadcasts of musical performances at a local studio
   or festival, whether recorded or live. Local origination does not include
   the broadcast of repetitive or automated programs or time-shifted recordings
   of non-local programming whatever its source. In addition, local origination
   does not include a local program that has been broadcast twice, even if the
   licensee broadcasts the program on a different day or makes small variations
   in the program thereafter.

   (3) Main studio. The applicant must pledge to maintain a publicly accessible
   main studio that has local program origination capability, is reachable by
   telephone, is staffed at least 20 hours per week between 7 a.m. and 10 p.m.,
   and  is located within 16.1 km (10 miles) of the proposed site for the
   transmitting antenna for applicants in the top 50 urban markets and 32.1 km
   (20 miles) for applicants outside the top 50 urban markets. Applicants
   claiming a point under this criterion must specify the proposed address and
   telephone number for the proposed main studio in FCC Form 318 at the time of
   filing their applications.

   (4) Local program origination and main studio. The applicant must make both
   the  local  program  origination  and main studio pledges set forth in
   paragraphs (b)(2) and (3) of this section.

   (5) Diversity of ownership. An applicant must hold no attributable interests
   in any other broadcast station.

   (6) Tribal Applicants serving Tribal Lands. The applicant must be a Tribal
   Applicant,  as  defined  in  § 73.853(c), and the proposed site for the
   transmitting antenna must be located on that Tribal Applicant's “Tribal
   Lands,”  as  defined in § 73.7000. Applicants claiming a point for this
   criterion must submit the documentation set forth in FCC Form 318 at the
   time of filing their applications.

   (c) Voluntary time-sharing. If mutually exclusive applications have the same
   point total, any two or more of the tied applicants may propose to share use
   of the frequency by electronically submitting, within 90 days of the release
   of a public notice announcing the tie, a time-share proposal. Such proposals
   shall  be  treated  as  minor amendments to the time-share proponents'
   applications,  and  shall  become  part  of  the  terms of the station
   authorization. Where such proposals include all of the tied applications,
   all  of  the tied applications will be treated as tentative selectees;
   otherwise, time-share proponents' points will be aggregated.

   (1) Time-share proposals shall be in writing and signed by each time-share
   proponent, and shall satisfy the following requirements:

   (i)  The proposal must specify the proposed hours of operation of each
   time-share proponent;

   (ii) The proposal must not include simultaneous operation of the time-share
   proponents; and

   (iii) Each time-share proponent must propose to operate for at least 10
   hours per week.

   (2) Where a station is authorized pursuant to a time-sharing proposal, a
   change of the regular schedule set forth therein will be permitted only
   where a written agreement signed by each time-sharing permittee or licensee
   and complying with requirements in paragraphs (c)(1)(i) through (iii) of
   this section is filed with the Commission, Attention: Audio Division, Media
   Bureau, prior to the date of the change.

   (3) Where a station is authorized pursuant to a voluntary time-sharing
   proposal, the parties to the time-sharing agreement may apportion among
   themselves any air time that, for any reason, becomes vacant.

   (4) Concurrent license terms granted under paragraph (d) of this section may
   be converted into voluntary time-sharing arrangements renewable pursuant to
   § 73.3539 by submitting a universal time-sharing proposal.

   (d)  Involuntary  time-sharing.  (1) If a tie among mutually exclusive
   applications is not resolved through voluntary time-sharing in accordance
   with paragraph (c) of this section, the tied applications will be reviewed
   for acceptability. Applicants with tied, grantable applications will be
   eligible for equal, concurrent, non-renewable license terms.

   (2)  If  a mutually exclusive group has three or fewer tied, grantable
   applications, the Commission will simultaneously grant these applications,
   assigning  an  equal  number  of hours per week to each applicant. The
   Commission will determine the hours assigned to each applicant by first
   assigning  hours  to  the applicant that has been local, as defined in
   § 73.853(b), for the longest uninterrupted period of time, then assigning
   hours  to  the  applicant  that  has  been  local for the next longest
   uninterrupted period of time, and finally assigning hours to any remaining
   applicant.  The  Commission  will  offer  applicants an opportunity to
   voluntarily reach a time-sharing agreement. In the event that applicants
   cannot reach such agreement, the Commission will require each applicant
   subject to involuntary time-sharing to simultaneously and confidentially
   submit their preferred time slots to the Commission. If there are only two
   tied,  grantable  applications, the applicants must select between the
   following 12-hour time slots 3 a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. If there
   are three tied, grantable applications, each applicant must rank their
   preference  for  the following 8-hour time slots: 2 a.m.-9:59 a.m., 10
   a.m.-5:59  p.m.,  and 6 p.m.-1:59 a.m. The Commission will require the
   applicants to certify that they did not collude with any other applicants in
   the selection of time slots. The Commission will give preference to the
   applicant that has been local for the longest uninterrupted period of time.
   The Commission will award time in units as small as four hours per day. In
   the event an applicant neglects to designate its preferred time slots, staff
   will select a time slot for that applicant.

   (3) Groups of more than three tied, grantable applications will not be
   eligible for licensing under this section. Where such groups exist, the
   Commission will dismiss all but the applications of the three applicants
   that  have  been  local,  as  defined  in  § 73.853(b), for the longest
   uninterrupted  periods  of  time. The Commission then will process the
   remaining applications as set forth in paragraph (d)(2) of this section.

   (4) If concurrent license terms granted under this section are converted
   into universal voluntary time-sharing arrangements pursuant to paragraph
   (c)(4) of this section, the permit or license is renewable pursuant to
   § § 73.801 and 73.3539.

   (e) Settlements. Mutually exclusive applicants may propose a settlement at
   any time during the selection process after the release of a public notice
   announcing the mutually exclusive groups. Settlement proposals must comply
   with the Commission's rules and policies regarding settlements, including
   the requirements of § § 73.3525, 73.3588 and 73.3589. Settlement proposals may
   include time-share agreements that comply with the requirements of paragraph
   (c) of this section, provided that such agreements may not be filed for the
   purpose of point aggregation outside of the 90 day period set forth in
   paragraph (c) of this section.

   [ 65 FR 7640 , Feb. 15, 2000, as amended at  65 FR 67304 , Nov. 9, 2000;  67 FR 13232 , Mar. 21, 2002;  73 FR 3217 , Jan. 17, 2008;  78 FR 2108 , Jan. 9, 2013]

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