[Code of Federal Regulations]

[Title 47, Volume 5]

[Revised as of October 1, 2005]

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

[CITE: 47CFR101.45]



[Page 615-617]

 

                       TITLE 47--TELECOMMUNICATION

 

                         COMMISSION (CONTINUED)

 

PART 101_FIXED MICROWAVE SERVICES--Table of Contents

 

                   Subpart B_Applications and Licenses

 

Sec. 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 Sec. 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.



[[Page 616]]



    (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 Sec. 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 Sec. 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 Sec. 101.51 of this part), and 

the Commission or the presiding officer accepts the amendment pursuant 

to Sec. 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 Sec. 

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 Sec. 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



[[Page 617]]



    (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 Sec. 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]