Sec.  73.3573   Processing FM broadcast station applications.

   (a) Applications for FM broadcast stations are divided into two groups:

   (1) In the first group are applications for new stations or for major
   changes in the facilities of authorized stations. A major change for an FM
   station authorized under this part is any change in frequency or community
   of license which is in accord with a present allotment contained in the
   Table of Allotments ( Sec. 73.202(b)) of this part. A licensee or permittee may
   seek the higher or lower class adjacent channel, intermediate frequency or
   co-channel or the same class adjacent channel of its existing FM broadcast
   station authorization by filing a minor change application. Other requests
   for change in frequency or community of license for FM stations must first
   be submitted in the form of a petition for rule making to amend the Table of
   Allotments. Long-form applications submitted pursuant to  Sec. 73.5005 of this
   part for a new FM broadcast service may propose a higher or lower class
   adjacent channel, intermediate frequency or co-channel. For reserved
   frequency noncommercial educational and Class D FM stations, a major change
   is any change in community of license, any change in frequency except
   changes to first, second or third adjacent channels, and any change in
   antenna location where the station would not continue to provide 1 mV/m
   service to some portion of its previously authorized 1 mV/m service area. A
   major change in ownership is a situation where the original party or parties
   to the application do not retain more than 50% ownership interest in the
   application as originally filed.

   (2) The second group consists of applications for licenses and all other
   changes in the facilities of authorized stations.

   (b)(1) The FCC may, after the acceptance of an application for modification
   of facilities, advise the applicant that such application is considered to
   be one for a major change and therefore subject to the provisions of
    Sec.  Sec. 73.3522, 73.3580 and 1.1111 of this chapter pertaining to major changes.
   Such major modification applications in the non-reserved band will be
   dismissed as set forth in paragraph (f)(2)(i) of this section.

   (2) An amendment to a non-reserved band application which would effect a
   major change, as defined in paragraph (a)(1) of this section, will not be
   accepted, except as provided for in paragraph (f)(2)(i) of this section.

   (3) A new file number will be assigned to a reserved band application for a
   new station or for major changes in the facilities of an authorized station,
   when it is amended so as to effect a major change, as defined in paragraph
   (a)(1) of this section. Where an amendment to a reserved band application
   would require a new file number, the applicant will have the opportunity to
   withdraw the amendment at any time prior to designation for hearing, if
   applicable; and may be afforded, subject to the discretion of the
   Administrative Law Judge, an opportunity to withdraw the amendment after
   designation for hearing.

   (c) An application for changes in the facilities of any existing station
   will continue to carry the same file number even though (pursuant to FCC
   approval) an assignment of license or transfer of control of such licensee
   or permittee has taken place if, upon consummation, the application is
   amended to reflect the new ownership.

   (d) If, upon examination, the FCC finds that the public interest,
   convenience and necessity will be served by the granting of an application
   for FM broadcast facilities, the same will be granted. If the FCC is unable
   to make such a finding and it appears that a hearing may be required, the
   procedure given in  Sec. 73.3593 will be followed. In the case of mutually
   exclusive applications for reserved channels, the procedures in subpart K of
   this part will be followed. In the case of mutually exclusive applications
   for unreserved channels, the procedures in subpart I of this part will be
   followed.

   (e) Processing reserved channel FM broadcast station applications. (1)
   Applications for minor modifications for reserved channel FM broadcast
   stations, as defined in paragraph (a)(2) of this section, may be filed at
   any time, unless restricted by the FCC, and will be processed on a “first
   come/first served” basis, with the first acceptable application cutting off
   the filing rights of subsequent, competing applicants. The FCC will
   periodically release a Public Notice listing those applications accepted for
   filing. Conflicting applications received on the same day will be treated as
   simultaneously filed and mutually exclusive. Conflicting applications
   received after the filing of the first acceptable application will be
   grouped, according to filing date, behind the lead application in the queue.
   The priority rights of the lead applicant, against all other applicants, are
   determined by the date of filing, but the filing date for subsequent
   conflicting applicants only reserves a place in the queue. The right of an
   applicant in a queue ripens only upon a final determination that the lead
   applicant is unacceptable and that the queue member is reached and found
   acceptable. The queue will remain behind the lead applicant until the
   construction permit is finally granted, at which time the queue dissolves.

   (2) The FCC will specify by Public Notice a period for filing reserved
   channel FM applications for a new station or for major modifications in the
   facilities of an authorized station. FM reserved channel applications for
   new facilities or for major modifications will be accepted only during the
   appropriate filing period or “window.” Applications submitted prior to the
   window opening date identified in the Public Notice will be returned as
   premature. Applications submitted after the specified deadline will be
   dismissed with prejudice as untimely.

   (3) Concurrently with the filing of a new or major modification application
   for a reserved noncommercial educational channel, the applicant shall submit
   to the FCC's public reference room and to a local public inspection file
   consistent with  Sec. 73.3527(e)(2), supporting documentation of points claimed,
   as described in the application form.

   (4) Timely filed applications for new facilities or for major modifications
   for reserved FM channels will be processed pursuant to the procedures set
   forth in subpart K of this part ( Sec. 73.7000 et seq.) Subsequently, the FCC
   will release Public Notices identifying: mutually exclusive groups of
   applications; applications selected pursuant to the fair distribution
   procedures set forth in  Sec. 73.7002; applications received during the window
   filing period which are found to be non-mutually exclusive; tentative
   selectees determined pursuant to the point system procedures set forth in
    Sec. 73.7003; and acceptable applications. The Public Notices will also
   announce: additional procedures to be followed for certain groups of
   applications; deadlines for filing additional information; and dates by
   which petitions to deny must be filed in accordance with the provisions of
    Sec. 73.3584. If the applicant is duly qualified, and upon examination, the FCC
   finds that the public interest, convenience and necessity will be served by
   the granting of the application, it will be granted. If an application is
   determined unacceptable for filing, the application will be returned, and
   subject to the amendment requirements of  Sec. 73.3522.

   (f) Processing non-reserved FM broadcast station applications. (1)
   Applications for minor modifications for non-reserved FM broadcast stations,
   as defined in paragraph (a)(2) of this section, may be filed at any time,
   unless restricted by the FCC, and, generally, will be processed in the order
   in which they are tendered. The FCC will periodically release a Public
   Notice listing those applications accepted for filing. Processing of these
   applications will be on a “first come/first serve” basis with the first
   acceptable application cutting off the filing rights of subsequent
   applicants. All applications received on the same day will be treated as
   simultaneously tendered and, if they are found to be mutually exclusive,
   must be resolved through settlement or technical amendment. Applications
   received after the tender of a lead application will be grouped, according
   to filing date, behind the lead application in a queue. The priority rights
   of the lead applicant, as against all other applicants, are determined by
   the date of filing, but the filing date for subsequent applicants for that
   channel and community only reserves a place in the queue. The rights of an
   applicant in a queue ripen only upon a final determination that the lead
   applicant is unacceptable and if the queue member is reached and found
   acceptable. The queue will remain behind the lead applicant until a
   construction permit is finally granted, at which time the queue dissolves.

   (2)(i) The FCC will specify by Public Notice, pursuant to  Sec. 73.5002(a), a
   period for filing non-reserved band FM applications for a new station or for
   major modifications in the facilities of an authorized station. FM
   applications for new facilities or for major modifications, whether for
   commercial broadcast stations or noncommercial educational broadcast
   stations, as described in 47 U.S.C. 397(6), will be accepted only during the
   appropriate filing period or “window.” Applications submitted prior to the
   window opening date identified in the Public Notice will be returned as
   premature. Applications submitted after the specified deadline will be
   dismissed with prejudice as untimely.

   (ii) Such FM applicants will be subject to the provisions of  Sec.  Sec. 1.2105 and
   73.5002 regarding the submission of the short-form application, FCC Form
   175, and all appropriate certifications, information and exhibits contained
   therein. FM applicants may submit a set of preferred site coordinates as a
   supplement to the short-form application. Any specific site indicated by FM
   applicants will not be studied for technical acceptability, but will be
   protected from subsequently filed applications as a full-class facility as
   of the close of the window filing period. Determinations as to the
   acceptability or grantability of an applicant's proposal will not be made
   prior to an auction.

   (iii) FM applicants will be subject to the provisions of  Sec.  Sec. 1.2105 and
   73.5002(c) regarding the modification and dismissal of their short-form
   applications.

   (3) Subsequently, the FCC will release Public Notices:

   (i) Identifying the short-form applications received during the window
   filing period which are found to be mutually exclusive, including any
   applications for noncommercial educational broadcast stations, as described
   in 47 U.S.C. 397(6), as well as the procedures the FCC will use to resolve
   the mutually exclusive applications;

   (ii) Establishing a date, time and place for an auction;

   (iii) Providing information regarding the methodology of competitive bidding
   to be used in the upcoming auction, bid submission and payment procedures,
   upfront payment procedures, upfront payment deadlines, minimum opening bid
   requirements and applicable reserve prices in accordance with the provisions
   of  Sec. 73.5002;

   (iv) Identifying applicants who have submitted timely upfront payments and,
   thus, are qualified to bid in the auction.

   (4) If, after the close of the appropriate window filing period, a
   non-reserved FM allotment remains vacant, the window remains closed until
   the FCC, by Public Notice, specifies a subsequent period for filing
   non-reserved band FM applications for a new station or for major
   modifications in the facilities of an authorized station pursuant to
   paragraph (f)(2)(i) of this section. After the close of the filing window,
   the FCC will also release a Public Notice identifying the short-form
   applications which are found to be non-mutually exclusive, including any
   applications for noncommercial educational broadcast stations, as described
   in 47 U.S.C. 397(6). These non-mutually exclusive applicants will be
   required to submit the appropriate long-form application within 30 days of
   the Public Notice and, for applicants for commercial broadcast stations,
   pursuant to the provisions of  Sec. 73.5005(d). Non-mutually exclusive
   applications for commercial broadcast stations will be processed and the FCC
   will periodically release a Public Notice listing such non-mutually
   exclusive applications determined to be acceptable for filing and announcing
   a date by which petitions to deny must be filed in accordance with the
   provisions of  Sec.  Sec. 73.5006 and 73.3584. Non-mutually exclusive applications for
   noncommercial educational broadcast stations, as described in 47 U.S.C.
   397(6), will be processed and the FCC will periodically release a Public
   Notice listing such non-mutually exclusive applications determined to be
   acceptable for filing and announcing a date by which petitions to deny must
   be filed in accordance with the provisions of  Sec.  Sec. 73.7004 and 73.3584. If the
   applicant is duly qualified, and upon examination, the FCC finds that the
   public interest, convenience, and necessity will be served by the granting
   of the non-mutually exclusive long-form application, it will be granted.

   (5)(i) Pursuant to  Sec. 1.2107 of this chapter and  Sec. 73.5005, a winning bidder
   that meets its down payment obligations in a timely manner must, within 30
   days of the release of the public notice announcing the close of the
   auction, submit the appropriate long-form application for each construction
   permit for which it was the winning bidder. Long-form applications filed by
   winning bidders shall include the exhibits identified in  Sec. 73.5005(a).

   (ii) These applications will be processed and the FCC will periodically
   release a Public Notice listing such applications that have been accepted
   for filing and announcing a date by which petitions to deny must be filed in
   accordance with the provisions of  Sec.  Sec. 73.5006 and 73.3584 of this chapter. If
   the applicant is duly qualified, and upon examination, the FCC finds that
   the public interest, convenience and necessity will be served by the
   granting of the winning bidder's long-form application, a Public Notice will
   be issued announcing that the construction permit is ready to be granted.
   Each winning bidder shall pay the balance of its winning bid in a lump sum
   within 10 business days after release of the Public Notice, as set forth in
    Sec. 1.2109(a) of this chapter and  Sec. 73.5003. Construction permits will be
   granted by the Commission following the receipt of the full payment.

   (iii) All long-form applications will be cut-off as of the date of filing
   with the FCC and will be protected from subsequently filed long-form
   applications and rulemaking petitions. Applications will be required to
   protect all previously filed commercial and noncommercial applications.
   Winning bidders filing long-form applications may change the technical
   proposals specified in their previously submitted short-form applications,
   but such change may not constitute a major change. If the submitted
   long-form application would constitute a major change from the proposal
   submitted in the short-form application or the allotment, the long-form
   application will be returned pursuant to paragraph (f)(2)(i) of this
   section.

   Note 1 to  Sec. 73.3573: Applications to modify the channel and/or class of an FM
   broadcast station to an adjacent channel, intermediate frequency (IF)
   channel, or co-channel shall not require any other amendments to the Table
   of Allotments. Such applications may resort to the provisions of the
   Commission's Rules permitting short spaced stations as set forth in  Sec. 73.215
   as long as the applicant shows by separate exhibit attached to the
   application the existence of an allotment reference site which meets the
   allotment standards, the minimum spacing requirements of  Sec. 73.207 and the
   city grade coverage requirements of  Sec. 73.315. This exhibit must include a
   site map or, in the alternative, a statement that the transmitter will be
   located on an existing tower. Examples of unsuitable allotment reference
   sites include those which are offshore, in a national or state park in which
   tower construction is prohibited, on an airport, or otherwise in an area
   which would necessarily present a hazard to air navigation.

   Note 2 to  Sec. 73.3573: Processing of applications for new low power educational
   FM applications: Pending the Commission's restudy of the impact of the rule
   changes pertaining to the allocations of 10-watt and other low power
   noncommercial educational FM stations, applications for such new stations,
   or major changes in existing ones, will not be accepted for filing.
   Exceptions are: (1) In Alaska, applications for new Class D stations or
   major changes in existing ones are acceptable for filing; and (2)
   applications for existing Class D stations to change frequency are
   acceptable for filing. In (2), upon the grant of such application, the
   station shall become a Class D (secondary) station. (See First Report and
   Order, Docket 20735, FCC 78–386,  43 FR 25821 , and Second Report and Order,
   Docket 20735, FCC 78–384,  43 FR 39704 .) Effective date of this FCC imposed
   “freeze” was June 15, 1978. Applications which specify facilities of at
   least 100 watts effective radiated power will be accepted for filing.

   Note 3 to  Sec. 73.3573: For rules on processing FM translator and booster
   stations, see  Sec. 74.1233 of this chapter.

   Note 4 to  Sec. 73.3573: A Class C station operating with antenna height above
   average terrain (“HAAT”) of less than 451 meters is subject to
   reclassification as a Class C0 station upon the filing of a triggering
   application for construction permit that is short-spaced to such a Class C
   station under  Sec. 73.207 but would be fully spaced to such a station considered
   as a Class C0 assignment. Triggering applications may utilize  Sec. 73.215.
   Triggering applications must certify that no alternative channel is
   available for the proposed service. Available alternative frequencies are
   limited to frequencies that the proposed service could use at the specified
   antenna location in full compliance with the distance separation
   requirements of  Sec. 73.207, without any other changes to the FM Table of
   Allotments. Copies of a triggering application and related pleadings must be
   served on the licensee of the affected Class C station. If the staff
   concludes that a triggering application is acceptable for filing, it will
   issue an order to show cause why the affected station should not be
   reclassified as a Class C0 station The order to show cause will provide the
   licensee 30 days to express in writing an intention to seek authority to
   modify the subject station's technical facilities to minimum Class C HAAT or
   to otherwise challenge the triggering application. If no such intention is
   expressed and the triggering application is not challenged, the subject
   station will be reclassified as a Class C0 station, and processing of the
   triggering application will be completed. If an intention to modify is
   expressed, an additional 180-day period will be provided during which the
   Class C station licensee must file an acceptable construction permit
   application to increase antenna height to at least 451 meters HAAT. Upon
   grant of such a construction permit application, the triggering application
   will be dismissed. Class C station licensees must serve on triggering
   applicants copies of any FAA submissions related to the application grant
   process. If the construction is not completed as authorized, the subject
   Class C station will be reclassified automatically as a Class C0 station.
   The reclassification procedure also may be initiated through the filing of
   an original petition for rule making to amend the FM Table of Allotments as
   set forth in Note 2 to  Sec. 1.420(g).

   [ 63 FR 48627 , Sept. 11, 1998, as amended at  64 FR 19502 , Apr. 21, 1999;  65 FR 36379 , June 8, 2000;  65 FR 79780 , Dec. 20, 2000;  67 FR 45374 , July 9,
   2002;  68 FR 26228 , May 15, 2003]