Goto Section: 90.159 | 90.168 | Table of Contents
Revised as of September 1, 2021
Goto Year:2020 |
§ 90.165 Procedures for mutually exclusive applications.
Mutually exclusive commercial mobile radio service applications are
processed in accordance with part 1 of this chapter and with the rules
in this section, except for mutually exclusive applications for
licenses in the 220-222 MHz service and the 929-930 MHz Paging service,
which are processed in accordance with the rules in subpart P and
subpart T of this part.
Two or more pending applications are mutually exclusive if the grant of
one application would effectively preclude the grant of one or more of
the others under Commission rules governing the services involved.
(a) Separate applications. Any applicant that files an application
knowing that it will be mutually exclusive with one or more
applications should not include in the mutually exclusive application a
request for other channels or facilities that would not, by themselves,
render the application mutually exclusive with those other
applications. Instead, the request for such other channels or
facilities should be filed in a separate application.
(b) Filing groups. Pending mutually exclusive applications are
processed in filing groups. Mutually exclusive applications in a filing
group are given concurrent consideration. The Commission may dismiss as
defective (pursuant to § 1.934 of this chapter) any mutually exclusive
application(s) whose filing date is outside of the date range for
inclusion in the filing group. The types of filing groups used in
day-to-day application processing are specified in paragraph (c)(3) of
this section. A filing group is one of the following types:
(1) Same-day filing group. A same-day filing group comprises all
mutually exclusive applications whose filing date is the same day,
which is normally the filing date of the first-filed applications(s).
(2) Thirty-day notice and cut-off filing group. A 30-day notice and
cut-off filing group comprises mutually exclusive applications whose
filing date is no later than thirty (30) days after the date of the
Public Notice listing the first-filed application(s) (according to the
filing dates) as acceptable for filing.
(3) Window filing group. A window filing group comprises mutually
exclusive applications whose filing date is within an announced filing
window. An announced filing window is a period of time between and
including two specific dates, which are the first and last dates on
which applications (or amendments) for a particular purpose may be
accepted for filing. In the case of a one-day filing window, the two
dates are the same. The dates are made known to the public in advance.
(c) Procedures. Generally, the Commission may grant one application in
a filing group of mutually exclusive applications and dismiss the other
application(s) in the filing group that are excluded by the grant,
pursuant to § 1.935 of this chapter.
(1) Selection methods. In selecting the application to grant, the
Commission may use competitive bidding, random selection, or
comparative hearings, depending on the type of applications involved.
(2) Dismissal of applications. The Commission may dismiss any
application in a filing group that is defective or otherwise subject to
dismissal under § 1.934 of this chapter, either before or after
employing selection procedures.
(3) Type of filing group used. Except as otherwise provided in this
part, the type of filing group used in processing of two or more
mutually exclusive applications depends on the purpose(s) of the
(i) If any mutually exclusive application filed on the earliest filing
date is an application for modification and none of the mutually
exclusive applications is a timely-filed application for renewal, a
same-day filing group is used.
(ii) If any mutually exclusive application filed on the earliest filing
date is an application for modification, a same-day filing group is
(4) Disposition. If there is only one application in any type of filing
group, the Commission may grant that application and dismiss without
prejudice any mutually exclusive applications not in the filing group.
If there is more than one mutually exclusive application in a filing
group, the Commission disposes of these applications as follows:
(i) Applications in a 30-day notice and cut-off filing group.
(A) If all of the mutually exclusive applications in a 30-day notice
and cut-off filing group are applications for initial authorization,
the Commission administers competitive bidding procedures in accordance
with subpart Q of part 1 of this chapter. After such procedures, the
application of the successful bidder may be granted and the other
applications may be dismissed without prejudice.
(B) If any of the mutually exclusive applications in a 30-day notice
and cut-off filing group is an application for modification or an
application for facilities, the Commission may attempt to resolve the
mutual exclusivity by facilitating a settlement between the applicants.
If a settlement is not reached within a reasonable time, the Commission
may designate all applications in the filing group for comparative
consideration in a hearing. In this event, the result of the hearing
disposes all of the applications in the filing group.
(ii) Applications in a same-day filing group. If there are two or more
mutually exclusive applications in a same-day filing group, the
Commission may attempt to resolve the mutual exclusivity by
facilitating a settlement between the applicants. If a settlement is
not reached within a reasonable time, the Commission may designate all
applications in the filing group for comparative consideration in a
hearing. In this event, the result of the hearing disposes all of the
applications in the filing group.
(iii) Applications in a window filing group. Applications in a window
filing group are processed in accordance with the procedures for a
30-day notice and cut-off filing group in paragraph (c)(4)(ii) of this
(d) Terminology. For the purposes of this section, terms have the
(1) The “filing date” of an application is the date on which that
application was received in a condition acceptable for filing or the
date on which the most recently filed major amendment to that
application was received, whichever is later, excluding major
amendments in the following circumstances:
(i) The major amendment reflects only a change in ownership or control
found by the Commission to be in the public interest;
(ii) The major amendment as received is defective or otherwise found
unacceptable for filing; or
(iii) The application being amended has been designated for hearing and
the Commission or the presiding officer accepts the major amendment.
(2) An “application for initial authorization” is:
(i) Any application requesting an authorization for a new system or
(ii) Any application requesting authorization for an existing station
to operate on an additional channel, unless the additional channel is
for paired two-way radiotelephone operation, is in the same frequency
range as the existing channel(s), and will be operationally integrated
with the existing channel(s) such as by trunking; or
(iii) any application requesting authorization for a new transmitter at
a location more than 2 kilometers (1.2 miles) from any existing
transmitters of the applicant licensee on the requested channel or
[ 59 FR 59959 , Nov. 21, 1994, as amended at 63 FR 68964 , 68965, Dec. 14,
1998; 82 FR 41548 , Sept. 1, 2017]
Goto Section: 90.159 | 90.168
Goto Year: 2020 |
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