§  1.934   Defective applications and dismissal.

   (a) Dismissal of applications. The Commission may dismiss any
   application in the Wireless Radio Services at the request of the
   applicant; if the application is mutually exclusive with another
   application that is selected or granted in accordance with the rules in
   this part; for failure to prosecute or if the application is found to
   be defective; if the requested spectrum is not available; or if the
   application is untimely filed. Such dismissal may be "without
   prejudice," meaning that the Commission may accept from the applicant
   another application for the same purpose at a later time, provided that
   the application is otherwise timely. Dismissal "with prejudice" means
   that the Commission will not accept another application from the
   applicant for the same purpose for a period of one year. Unless
   otherwise provided in this part, a dismissed application will not be
   returned to the applicant.

   (1) Dismissal at request of applicant. Any applicant may request that
   its application be withdrawn or dismissed. A request for the withdrawal
   of an application after it has been listed on Public Notice as
   tentatively accepted for filing is considered to be a request for
   dismissal of that application without prejudice.

   (i) If the applicant requests dismissal of its application with
   prejudice, the Commission will dismiss that application with prejudice.

   (ii) If the applicant requests dismissal of its application without
   prejudice, the Commission will dismiss that application without
   prejudice, unless:

   (A) It has been designated for comparative hearing; or

   (B) It is an application for which the applicant submitted the winning
   bid in a competitive bidding process.

   (2) If an applicant who is a winning bidder for a license in a
   competitive bidding process requests dismissal of its short-form or
   long-form application, the Commission will dismiss that application
   with prejudice. The applicant will also be subject to default payments
   under Subpart Q of this part.

   (3) An applicant who requests dismissal of its application after that
   application has been designated for comparative hearing may submit a
   written petition requesting that the dismissal be without prejudice.
   Such petition must demonstrate good cause and be served upon all
   parties of record. The Commission may grant such petition and dismiss
   the application without prejudice or deny the petition and dismiss the
   application with prejudice.

   (b) Dismissal of mutually exclusive applications not granted. The
   Commission may dismiss mutually exclusive applications:

   (1) For which the applicant did not submit the winning bid in a
   competitive bidding process; or

   (2) That receive comparative consideration in a hearing but are not
   granted by order of the presiding officer.

   (c) Dismissal for failure to prosecute. The Commission may dismiss
   applications for failure of the applicant to prosecute or for failure
   of the applicant to respond substantially within a specified time
   period to official correspondence or requests for additional
   information. Such dismissal will generally be without prejudice if the
   failure to prosecute or respond occurred prior to designation of the
   application for comparative hearing, but may be with prejudice in cases
   of non-compliance with § 1.945 of this part. Dismissal will generally
   be with prejudice if the failure to prosecute or respond occurred after
   designation of the application for comparative hearing. The Commission
   may dismiss applications with prejudice for failure of the applicant to
   comply with requirements related to a competitive bidding process.

   (d) Dismissal as defective. The Commission may dismiss without
   prejudice an application that it finds to be defective. An application
   is defective if:

   (1) It is unsigned or incomplete with respect to required answers to
   questions, informational showings, or other matters of a formal
   character;

   (2) It requests an authorization that would not comply with one or more
   of the Commission's rules and does not contain a request for waiver of
   these rule(s), or in the event the Commission denies such a waiver
   request, does not contain an alternative proposal that fully complies
   with the rules;

   (3) The appropriate filing fee has not been paid; or

   (4) The FCC Registration Number (FRN) has not been provided.

   (5) It requests a vanity call sign and the applicant has pending
   another vanity call sign application with the same receipt date.

   (e) Dismissal because spectrum not available. The Commission may
   dismiss applications that request spectrum which is unavailable
   because:

   (1) It is not allocated for assignment in the specific service
   requested;

   (2) It was previously assigned to another licensee on an exclusive
   basis or cannot be assigned to the applicant without causing harmful
   interference; or

   (3) Reasonable efforts have been made to coordinate the proposed
   facility with foreign administrations under applicable international
   agreements, and an unfavorable response (harmful interference
   anticipated) has been received.

   (f) Dismissal as untimely. The Commission may dismiss without prejudice
   applications that are premature or late filed, including applications
   filed prior to the opening date or after the closing date of a filing
   window, or after the cut-off date for a mutually exclusive application
   filing group.

   [ 63 FR 68930 , Dec. 14, 1998, as amended at  66 FR 47895 , Sept. 14, 2001;
    71 FR 66461 , Nov. 15, 2006]