§  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 § § 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 (§ 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 § 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 § 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 § 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 § 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
   § § 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
   § 1.2105 regarding the modification and dismissal of their short-form
   applications.

   (iv) Consistent with § 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 § 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 § 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 § § 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 § § 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 § 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
   § 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 § 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 § § 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 § 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
   § 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]