Sec.  21.23   Amendment of applications.

   

   (a)(1) Any pending application may be amended as a matter of right if
   the application has not been designated for hearing, or for
   comparative evaluation pursuant to Sec. 21.35, or for the random selection
   process, provided, however, that the amendments must comply with the
   provisions of Sec. 21.29 as appropriate and the Commission has not
   otherwise forbidden the amendment of pending applications.

   (2) A Multipoint Distribution Service application tentatively selected
   for qualification review by the random selection process may be
   amended as a matter of right up to 14 days after the date of the
   public notice announcing the tentative selection, provided, however,
   that the amendments must comply with the provisions of Sec. 21.29 as
   appropriate and the Commission has not otherwise forbidden the
   amendment of pending applications.

   (3) Provided, however, applications may not be amended if the
   amendments seek more than a pro forma change of ownership or control
   (bankruptcy, death or legal disability) of a pending Multipoint
   Distribution Service application and any amendment or application will
   be dismissed if the amendment or application seeks more than a pro
   forma change of ownership or control.

   (b) Requests to amend an application designated for hearing or for
   comparative evaluation or for tentative selection for qualification
   review by the random selection process may be granted only if a
   written petition demonstrating good cause is submitted and properly
   served on the parties of record, except that Multipoint Distribution
   Service applications tentatively selected in a random selection
   process may be amended as a matter of right as provided in paragraph
   (a) of this section. Provided, however, requests to amend applications
   will not be granted that seek more than a pro forma change of
   ownership or control (bankruptcy, death or legal disability) of a
   pending Multipoint Distribution Service application and any
   application seeking more than a pro forma change of ownership or
   control will be dismissed.

   (c) The Commission will classify amendments on a case-by-case basis.
   Whenever previous amendments have been filed, the most recent
   amendment will be classified by reference to how the information in
   question stood as of the latest Public Notice issued which concerned
   the application. An amendment will be deemed to be a major amendment
   subject to Sec. 21.27 and Sec. 21.31 under any of the following circumstances:

   (1) If in the Multipoint Distribution Service, the amendment results
   in a substantial modification of the engineering proposal such as (but
   not necessarily limited to):

   (i) A change in, or addition of, a radio frequency channel;

   (ii) A change in polarization of the transmitted signal;

   (iii) A change in type of transmitter emission or an increase in
   emission bandwidth of more than ten (10) percent;

   (iv) A change in the geographic coordinates of a station's
   transmitting antenna of more than ten (10) seconds of latitude or
   longitude, or both;

   (v) Any change which increases the antenna height by 3.0 meters (10
   feet) or more;

   (vi) Any technical change which would increase the effective radiated
   power in any horizontal or vertical direction by more than one and
   one-half (1.5) dB; or

   (vii) Any changes or combination of changes which would cause harmful
   electrical interference to an authorized facility or result in a
   mutually exclusive conflict with another pending application.

   (2) Except during the sixty (60) day amendment period provided for in
   Sec. 21.27(d), any amendment to an application for a new or modified
   response station hub, booster station or point-to-multipoint I
   channel(s) station or to an application for a modified main station
   that reflects any change in the technical specifications of the
   proposed facility, includes any new or modified analysis of potential
   interference to another facility or submits any interference consent
   from a neighboring licensee, shall result in the application being
   assigned a new file number and being treated as newly filed.

   (3) If the amendment would convert a proposal, such that it may have a
   significant impact upon the environment under Sec. 1.1307 of the
   Commission's rules, which would require the submission of an
   environmental assessment, see Sec. 1.1311 of this chapter, and Commission
   environmental review, see Sec. Sec. 1.1308 and 1.1312 of this chapter.

   (4) If the amendment results in a substantial and material alteration
   of the proposed service.

   (5) If the amendment specifies a substantial change in benefical
   ownership or control (de jure or de facto) of an applicant such that
   the change would require, in the case of an authorized station, the
   filing of a prior assignment or transfer of control application under
   section 310(d) of the Communications Act of 1934 [47 U.S.C. 310(d)].
   Such a change would not be considered major where the assignment or
   transfer of control is for legitimate business purposes other than the
   acquisition of applications.

   (6) If the amendment, or the cumulative effect of the amendment, is
   determined by the Commission otherwise to be substantial pursuant to
   section 309 of the Communications Act of 1934.

   (d) The applicant must serve copies of any amendments or other written
   communications upon the following parties:

   (1) Any applicant whose application appears on its face to be mutually
   exclusive with the application being amended, including those
   applicants originally served under Sec. 21.902;

   (2) Any applicant whose application has been found by the Commission,
   as published in a public notice, to be mutually exclusive with the
   application being amended; and

   (3) Any party who has filed a petition to deny the application or
   other formal objection, when that petition or formal objection has not
   been resolved by the Commission.

   (e) The Commission may waive the service requirements of paragraph (e)
   of this section and prescribe such alternative procedures as may be
   appropriate under the circumstances to protect petitioners' interests
   and to avoid undue delay in a proceeding, if an applicant submits a
   request for waiver which demonstrates that the service requirement is
   unreasonably burdensome. Requests for waiver shall be served on
   petitioners. Oppositions to the petition may be filed within five (5)
   days after the petition is filed and shall be served on the applicant.
   Replies to oppositions will not be entertained.

   (f) Any amendment to an application shall be signed and shall be
   submitted in the same manner, and with the same number of copies, as
   was the original application. Amendments may be made in letter form if
   they comply in all other respects with the requirements of this
   chapter.

   [ 44 FR 60534 , Oct. 19, 1979, as amended at  46 FR 23450 , Apr. 27, 1981;
    50 FR 5992 , Feb. 13, 1985;  50 FR 45614 , Nov. 1, 1985;  52 FR 37779 ,
   Oct. 9, 1987;  55 FR 20397 , May 16, 1990;  56 FR 57816 , Nov. 14, 1991;
    58 FR 11797 , Mar. 1, 1993;  58 FR 44894 , Aug. 25, 1993;  61 FR 26674 ,
   May 28, 1996;  64 FR 63730 , Nov. 22, 1999;  65 FR 46617 , July 31, 2000]