Sec.  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  Sec. 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) Renewal filing group. A renewal filing group comprises a timely-filed
   application for renewal of an authorization and all timely-filed mutually
   exclusive competing applications (see section 1.949 of this chapter).

   (2) 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).

   (3) 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.

   (4) 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  Sec. 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
    Sec. 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 applications.

   (i) If one of the mutually exclusive applications is a timely-filed
   application for renewal of an authorization, a renewal filing group is used.

   (ii) 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.

   (iii) If all of the mutually exclusive applications filed on the earliest
   filing date are applications for initial authorization, a 30-day notice and
   cut-off filing group is used.

   (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 renewal filing group. All mutually exclusive
   applications in a renewal filing group are designated for comparative
   consideration in a hearing.

   (ii) 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.

   (iii) 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.

   (iv) 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 section.

   (d) Terminology. For the purposes of this section, terms have the following
   meanings:

   (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 station;

   (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 channel block.

   [ 59 FR 59959 , Nov. 21, 1994, as amended at  63 FR 68964 , 68965, Dec. 14,
   1998]