Sec.  74.1233   Processing FM translator and booster station applications.

   (a) Applications for FM translator and booster 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. For FM translator
   stations, a major change is any change in frequency (output channel) except
   changes  to  first, second or third adjacent channels, or intermediate
   frequency 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. All other changes will be
   considered  minor.  All major changes are subject to the provisions of
    Sec.  Sec. 73.3580 and 1.1104 of this chapter pertaining to major changes.

   (2) In the second group are applications for licenses and all other changes
   in the facilities of the authorized station.

   (b) Processing booster and reserved band FM translator applications.

   (1) Applications for minor modifications for reserved band FM translator
   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, conflicting 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 a first acceptable application will be grouped,
   according  to filing date, behind the lead application in a 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 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)  All  other applications for booster stations and reserved band FM
   translator stations will be processed as nearly as possible in the order in
   which they are filed. Such applications will be placed in the processing
   line in numerical sequence, and will be drawn by the staff for study, the
   lowest  file  number first. In order that those applications which are
   entitled  to  be grouped for processing may be fixed prior to the time
   processing  of  the  earliest filed application is begun, the FCC will
   periodically release a Public Notice listing reserved band applications that
   have been accepted for filing and announcing a date (not less than 30 days
   after publication) on which the listed applications will be considered
   available and ready for processing and by which all mutually exclusive
   applications and/or petitions to deny the listed applications must be filed.

   (3) Applications for reserved band FM translator stations will be processed
   using filing window procedures. The FCC will specify by Public Notice, a
   period for filing reserved band FM translator applications for a new station
   or for major modifications in the facilities of an authorized station. FM
   translator applications for new facilities or for major modifications will
   be accepted only during these specified periods. 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.

   (4) Timely filed applications for new facilities or for major modifications
   for  reserved  band  FM  Translators will be processed pursuant to the
   procedures  set  forth  in  subpart  K  of Part 73 ( Sec. 73.7000 et seq. )
   Subsequently, the FCC will release Public Notices identifying: mutually
   exclusive groups of applications; 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 of this chapter; 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. 73.7004 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 application, it will be
   granted. If an application is found not to be acceptable for filing, the
   application will be returned, and subject to the amendment requirements of
    Sec. 73.3522 of this chapter.

   (c) In the case of an application for an instrument of authorization, other
   than a license pursuant to a construction permit, grant will be based on the
   application,  the  pleadings filed, and such other matters that may be
   officially noticed. Before a grant can be made it must be determined that:

   (1) There is not pending a mutually exclusive application.

   (2)  The  applicant is legally, technically, financially and otherwise
   qualified;

   (3) The applicant is not in violation of any provisions of law, the FCC
   rules, or established policies of the FCC; and

   (4) A grant of the application would otherwise serve the public interest,
   convenience and necessity.

   (d) Processing non-reserved band FM translator applications.

   (1) Applications for minor modifications for non-reserved band FM translator
   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, conflicting applicants. The FCC will
   periodically release a Public Notice listing those applications accepted for
   filing.  Applications  received  on  the  same  day will be treated as
   simultaneously filed and, if they are found to be mutually exclusive, must
   be  resolved  through  settlement  or technical amendment. Conflicting
   applications received after the filing of a first acceptable application
   will be grouped, according to filing date, behind the lead application in a
   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
   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) of
   this  chapter,  a  period  for  filing non-reserved band FM translator
   applications for a new station or for major modifications in the facilities
   of an authorized station. FM translator 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 these specified periods. 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 translator applicants will be subject to the provisions of
    Sec.  Sec. 1.2105  and  73.5002(a)  regarding  the submission of the short-form
   application, FCC Form 175, and all appropriate certifications, information
   and  exhibits  contained  therein.  To  determine  which FM translator
   applications are mutually exclusive, FM translator applicants must submit
   the  engineering data contained in FCC Form 349 as a supplement to the
   short-form  application. Such engineering data will not be studied for
   technical acceptability, but will be protected from subsequently filed
   applications 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 translator applicants will be subject to the provisions of  Sec. 1.2105
   regarding the modification and dismissal of their short-form applications.

   (iv) Consistent with  Sec. 1.2105(a), beginning January 1, 1999, all short-form
   applications must be filed electronically.

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

   (i) Identifying the short-form applications received during the appropriate
   filing  period  or  “window” which are found to be mutually exclusive,
   including any applications for noncommercial educational broadcast stations,
   as defined 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) After the close of the filing window, the FCC will also release a Public
   Notice  identifying  any 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 of this chapter. 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 of
   this  chapter.  Non-mutually  exclusive applications for noncommercial
   educational broadcast stations, as described by 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 of this chapter. If the
   applicants are 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, the same will be granted.

   (5)(i) Pursuant to  Sec. 1.2107 of this chapter, 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 of this chapter.

   (ii) Winning bidders are required to pay the balance of their winning bids
   in a lump sum prior to the deadline established by the Commission pursuant
   to  Sec. 1.2109(a) of this chapter. Long-form construction permit 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. Construction permits will be granted by
   the Commission only after full and timely payment of winning bids and any
   applicable late fees, and if the applicant is duly qualified, and upon
   examination,  the  FCC finds that the public interest, convenience and
   necessity will be served. If a winning bidder fails to pay the balance of
   its winning bid in a lump sum by the applicable deadline as specified by the
   Commission, it will be allowed to make payment within ten (10) business days
   after the payment deadline, provided that it also pays a late fee equal to
   five (5) percent of the amount due in accordance with  Sec. 1.2109(a) of this
   chapter. Construction of the FM translator station shall not commence until
   the grant of such permit to the winning bidder and only after full and
   timely payment of winning bids and any applicable late fees.

   (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
   translator  applications. Applications will be required to protect all
   previously filed 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 (d)(2)(i) of
   this section.

   (e)  Selection  of  mutually  exclusive  reserved  band  FM translator
   applications.

   (1) Applications for FM translator stations proposing to provide fill-in
   service (within the primary station's protected contour) of the commonly
   owned primary station will be given priority over all other applications.

   (2) Where applications for FM translator stations are mutually exclusive and
   do not involve a proposal to provide fill-in service of commonly owned
   primary stations, the FCC may stipulate different frequencies as necessary
   for the applicants.

   (3) Where there are no available frequencies to substitute for a mutually
   exclusive application, the FCC will apply the same point system identified
   for full service reserved band FM stations in  Sec. 73.7003(b) of this chapter.
   In the event of a tie, the FCC will consider:

   (i) Existing authorizations. Each applicant's number of existing radio
   authorizations  (licenses  and  construction  permits  for AM, FM, and
   FM-translators  but  excluding  fill-in translators) as of the time of
   application  shall  be  compared,  and  the  applicant with the fewest
   authorizations will be chosen as tentative selectee. If each applicant is
   applying for a fill-in translator only, and consideration of its other radio
   stations is not dispositive, its number of existing fill-in translator
   authorizations will also be considered, and the fill-in applicant with the
   fewest fill-in authorizations will be chosen as tentative selectee.

   (ii) Existing applications. If a tie remains, after the tie breaker in
   paragraph (e)(3)(i) of this section, the remaining applicant with the fewest
   pending radio new and major change applications (AM, FM, and non fill-in FM
   translators) will be chosen as tentative selectee. If each applicant is
   applying for a fill-in translator only, and consideration of its other radio
   stations is not dispositive, its number of existing fill-in translator
   applications will also be considered, and the fill-in applicant with the
   fewest fill-in authorizations will be chosen as tentative selectee.

   (iii) Where the procedures in paragraphs (e)(1), (e)(2) and (e)(3)(i) and
   (e)(3)(ii) of this section fail to resolve the mutual exclusivity, the
   applications will be processed on a first-come-first-served basis.

   [ 63 FR 48632 , Sept. 11, 1998, as amended at  64 FR 19502 , Apr. 21, 1999;  65 FR 36382 , June 8, 2000;  66 FR 15357 , Mar. 19, 2001;  67 FR 45375 , July 9,
   2002;  68 FR 26229 , May 15, 2003;  71 FR 6229 , Feb. 7, 2006]