§ 73.872   Selection procedure for mutually exclusive LPFM applications.

   (a) Following the close of each window for new LPFM stations and for
   modifications in the facilities of authorized LPFM stations, the
   Commission will issue a public notice identifying all groups of
   mutually exclusive applications. Such applications will be awarded
   points to determine the tentative selectee. Unless resolved by
   settlement pursuant to paragraph (e) of this section, the tentative
   selectee will be the applicant within each group with the highest point
   total under the procedure set forth in this section, except as provided
   in paragraphs (c) and (d) of this section .

   (b) Each mutually exclusive application will be awarded one point for
   each of the following criteria, based on certifications that the
   qualifying conditions are met and submission of any required
   documentation:

   (1) Established community presence. An applicant must, for a period of
   at least two years prior to application and at all times thereafter,
   have qualified as local pursuant to § 73.853(b). Applicants claiming a
   point for this criterion must submit any documentation specified in FCC
   Form 318 at the time of filing their applications.

   (2) Local program origination. The applicant must pledge to originate
   locally at least eight hours of programming per day. For purposes of
   this criterion, local origination is the production of programming by
   the licensee, within ten miles of the coordinates of the proposed
   transmitting antenna. Local origination includes licensee produced
   call-in shows, music selected and played by a disc jockey present on
   site, broadcasts of events at local schools, and broadcasts of musical
   performances at a local studio or festival, whether recorded or live.
   Local origination does not include the broadcast of repetitive or
   automated programs or time-shifted recordings of non-local programming
   whatever its source. In addition, local origination does not include a
   local program that has been broadcast twice, even if the licensee
   broadcasts the program on a different day or makes small variations in
   the program thereafter.

   (3) Main studio. The applicant must pledge to maintain a publicly
   accessible main studio that has local program origination capability,
   is reachable by telephone, is staffed at least 20 hours per week
   between 7 a.m. and 10 p.m., and is located within 16.1 km (10 miles) of
   the proposed site for the transmitting antenna for applicants in the
   top 50 urban markets and 32.1 km (20 miles) for applicants outside the
   top 50 urban markets. Applicants claiming a point under this criterion
   must specify the proposed address and telephone number for the proposed
   main studio in FCC Form 318 at the time of filing their applications.

   (4) Local program origination and main studio. The applicant must make
   both the local program origination and main studio pledges set forth in
   paragraphs (b)(2) and (3) of this section.

   (5) Diversity of ownership. An applicant must hold no attributable
   interests in any other broadcast station.

   (6) Tribal Applicants serving Tribal Lands. The applicant must be a
   Tribal Applicant, as defined in § 73.853(c), and the proposed site for
   the transmitting antenna must be located on that Tribal Applicant's
   “Tribal Lands,” as defined in § 73.7000. Applicants claiming a point for
   this criterion must submit the documentation set forth in FCC Form 318
   at the time of filing their applications.

   (c) Voluntary time-sharing. If mutually exclusive applications have the
   same point total, any two or more of the tied applicants may propose to
   share use of the frequency by electronically submitting, within 90 days
   of the release of a public notice announcing the tie, a time-share
   proposal. Such proposals shall be treated as minor amendments to the
   time-share proponents' applications, and shall become part of the terms
   of the station authorization. Where such proposals include all of the
   tied applications, all of the tied applications will be treated as
   tentative selectees; otherwise, time-share proponents' points will be
   aggregated.

   (1) Time-share proposals shall be in writing and signed by each
   time-share proponent, and shall satisfy the following requirements:

   (i) The proposal must specify the proposed hours of operation of each
   time-share proponent;

   (ii) The proposal must not include simultaneous operation of the
   time-share proponents; and

   (iii) Each time-share proponent must propose to operate for at least 10
   hours per week.

   (2) Where a station is authorized pursuant to a time-sharing proposal,
   a change of the regular schedule set forth therein will be permitted
   only where a written agreement signed by each time-sharing permittee or
   licensee and complying with requirements in paragraphs (c)(1)(i)
   through (iii) of this section is filed with the Commission, Attention:
   Audio Division, Media Bureau, prior to the date of the change.

   (3) Where a station is authorized pursuant to a voluntary time-sharing
   proposal, the parties to the time-sharing agreement may apportion among
   themselves any air time that, for any reason, becomes vacant.

   (4) Concurrent license terms granted under paragraph (d) of this
   section may be converted into voluntary time-sharing arrangements
   renewable pursuant to § 73.3539 by submitting a universal time-sharing
   proposal.

   (d) Involuntary time-sharing. (1) If a tie among mutually exclusive
   applications is not resolved through voluntary time-sharing in
   accordance with paragraph (c) of this section, the tied applications
   will be reviewed for acceptability. Applicants with tied, grantable
   applications will be eligible for equal, concurrent, non-renewable
   license terms.

   (2) If a mutually exclusive group has three or fewer tied, grantable
   applications, the Commission will simultaneously grant these
   applications, assigning an equal number of hours per week to each
   applicant. The Commission will determine the hours assigned to each
   applicant by first assigning hours to the applicant that has been
   local, as defined in § 73.853(b), for the longest uninterrupted period
   of time, then assigning hours to the applicant that has been local for
   the next longest uninterrupted period of time, and finally assigning
   hours to any remaining applicant. The Commission will offer applicants
   an opportunity to voluntarily reach a time-sharing agreement. In the
   event that applicants cannot reach such agreement, the Commission will
   require each applicant subject to involuntary time-sharing to
   simultaneously and confidentially submit their preferred time slots to
   the Commission. If there are only two tied, grantable applications, the
   applicants must select between the following 12-hour time slots 3
   a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. If there are three tied, grantable
   applications, each applicant must rank their preference for the
   following 8-hour time slots: 2 a.m.-9:59 a.m., 10 a.m.-5:59 p.m., and 6
   p.m.-1:59 a.m. The Commission will require the applicants to certify
   that they did not collude with any other applicants in the selection of
   time slots. The Commission will give preference to the applicant that
   has been local for the longest uninterrupted period of time. The
   Commission will award time in units as small as four hours per day. In
   the event an applicant neglects to designate its preferred time slots,
   staff will select a time slot for that applicant.

   (3) Groups of more than three tied, grantable applications will not be
   eligible for licensing under this section. Where such groups exist, the
   Commission will dismiss all but the applications of the three
   applicants that have been local, as defined in § 73.853(b), for the
   longest uninterrupted periods of time. The Commission then will process
   the remaining applications as set forth in paragraph (d)(2) of this
   section.

   (4) If concurrent license terms granted under this section are
   converted into universal voluntary time-sharing arrangements pursuant
   to paragraph (c)(4) of this section, the permit or license is renewable
   pursuant to § § 73.801 and 73.3539.

   (e) Settlements. Mutually exclusive applicants may propose a settlement
   at any time during the selection process after the release of a public
   notice announcing the mutually exclusive groups. Settlement proposals
   must comply with the Commission's rules and policies regarding
   settlements, including the requirements of § § 73.3525, 73.3588 and
   73.3589. Settlement proposals may include time-share agreements that
   comply with the requirements of paragraph (c) of this section, provided
   that such agreements may not be filed for the purpose of point
   aggregation outside of the 90 day period set forth in paragraph (c) of
   this section.

   [ 65 FR 7640 , Feb. 15, 2000, as amended at  65 FR 67304 , Nov. 9, 2000;  67 FR 13232 , Mar. 21, 2002;  73 FR 3217 , Jan. 17, 2008;  78 FR 2108 , Jan. 9,
   2013]

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