§  73.3523   Dismissal of applications in renewal proceedings.

   (a) An applicant for construction permit, that has filed an application
   that is mutually exclusive with an application for renewal of a license
   of an AM, FM or television station (hereinafter competing applicant”)
   filed on or before May 1, 1995, and seeks to dismiss or withdraw its
   application and thereby remove a conflict between applications pending
   before the Commission, must obtain the approval of the Commission.

   (b) If a competing applicant seeks to dismiss or withdraw its
   application prior to the Initial Decision stage of the hearing on its
   application, it must submit to the Commission a request for approval of
   the dismissal or withdrawal of its application, a copy of any written
   agreement related to the dismissal or withdrawal of its application,
   and an affidavit setting forth:

   (1) A certification that neither the applicant nor its principals has
   received or will receive any money or other consideration in exchange
   for dismissing or withdrawing its application;

   (2) A statement that its application was not filed for the purpose of
   reaching or carrying out an agreement with any other applicant
   regarding the dismissal or withdrawal of its application; and

   (3) The terms of any oral agreement relating to the dismissal or
   withdrawal of its application.

   In addition, within 5 days of the applicant's request for approval,
   each remaining competing applicant and the renewal applicant must
   submit an affidavit setting forth:

   (4) A certification that neither the applicant nor its principals has
   paid or will pay any money or other consideration in exchange for the
   dismissal or withdrawal of the application; and

   (5) The terms of any oral agreement relating to the dismissal or
   withdrawal of the application.

   (c) If a competing applicant seeks to dismiss or withdraw its
   application after the Initial Decision stage of the hearing on its
   application, it must submit to the Commission a request for approval of
   the dismissal or withdrawal of its application, a copy of the any
   written agreement related to the dismissal or withdrawal, and an
   affidavit setting forth:

   (1) A certification that neither the applicant nor its principals has
   received or will receive any money or other consideration in excess of
   the legitimate and prudent expenses of the applicant;

   (2) The exact nature and amount of any consideration paid or promised;

   (3) An itemized accounting of the expenses for which it seeks
   reimbursement;

   (4) A statement that its application was not filed for the purpose of
   reaching or carrying out an agreement with any other applicant
   regarding the dismissal or withdrawal of its application; and

   (5) The terms of any oral agreement relating to the dismissal or
   withdrawal of its application.

   In addition, within 5 days of the applicant's request for approval,
   each remaining party to any written or oral agreement must submit an
   affidavit setting forth:

   (6) A certification that neither the applicant nor its principals has
   paid or will pay money or other consideration in excess of the
   legitimate and prudent expenses of the withdrawing applicant in
   exchange for the dismissal or withdrawal of the application; and

   (7) The terms of any oral agreement relating the dismissal or
   withdrawal of the application.

   (d) For the purpose of this section:

   (1) Affidavits filed pursuant to this section shall be executed by the
   applicant, permittee or licensee, if an individual; a partner having
   personal knowledge of the facts, if a partnership; or an officer having
   personal knowledge of the facts, if a corporation or association.

   (2) An application shall be deemed to be pending before the Commission
   from the time an application is filed with Commission until an order of
   the Commission granting or denying the application is no longer subject
   to reconsideration by the Commission or to review by any court.

   (3) “Legitimate and prudent expenses” are those expenses reasonably
   incurred by an applicant in preparing, filing, and prosecuting its
   application.

   (4) “Other consideration” consists of financial concessions, including
   but not limited to the transfer of assets or the provision of tangible
   pecuniary benefit, as well as nonfinancial concessions that confer any
   type of benefit on the recipient.

   [ 54 FR 22598 , May 25, 1989, as amended at  61 FR 18291 , Apr. 25, 1996]

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