[Code of Federal Regulations]

[Title 47, Volume 2]

[Revised as of October 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 47CFR21.31]



[Page 42-43]

 

                       TITLE 47--TELECOMMUNICATION

 

                    CHAPTER I--FEDERAL COMMUNICATIONS

                         COMMISSION (CONTINUED)

 

PART 21_DOMESTIC PUBLIC FIXED RADIO SERVICES--Table of Contents

 

                   Subpart B_Applications and Licenses

 

Sec. 21.31  Mutually exclusive applications.



    (a) Except with respect to applications for new or modified response 

stations hubs, booster stations, and point-to-multipoint I channel 

stations, and to applications for modified main stations, filed on the 

same day or during the same window, the Commission will consider 

applications to be mutually exclusive if their conflicts are such that 

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.

    (b) An application will be entitled to be included in a random 

selection process or 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) An application otherwise mutually exclusive with one of more 

previously filed applications, but filed after the appropriate date 

prescribed in paragraph (b)(2) 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).

    (e) For the 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 Sec. 

21.23), except under any of the following circumstances:

    (1) The application has been designated for comparative hearing, or 

for comparative evaluation (pursuant to Sec. 21.35), and the Commission 

or the presiding officer accepts the amendment pursuant to Sec. 

21.23(b);

    (2) The amendment resolves frequency conflicts with authorized 

stations or other pending applications which would otherwise require 

resolution by hearing, by comparative evaluation pursuant to Sec. 

21.35, or by random selection pursuant to Sec. 21.33 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, unless the amendment is for more than a pro forma change of 

ownership or control (bankruptcy, death or legal disability) of a 

pending Multipoint Distribution



[[Page 43]]



Service application in which event the application will be dismissed;

    (4) The amendment reflects only a change in ownership or control 

which results from an agreement under Sec. 21.29 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, unless the amendment is for one (or more) 

pending Multipoint Distribution Service application (or applications) in 

which event the application (or applications) will be dismissed;

    (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.



[44 FR 60534, Oct. 19, 1979, as amended at 45 FR 65600, Oct. 3, 1980; 45 

FR 70468, Oct. 24, 1980; 50 FR 5993, Feb. 13, 1985; 52 FR 27554, July 

22, 1987; 52 FR 37780, Oct. 9, 1987; 55 FR 10462, Mar. 21, 1990; 58 FR 

11797, Mar. 1, 1993; 61 FR 26674, May 28, 1996; 63 FR 65101, Nov. 25, 

1998; 64 FR 63730, Nov. 22, 1999; 65 FR 46617, July 31, 2000]