Goto Section: 1.934 | 1.937 | Table of Contents
FCC 1.935
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 1.935 Agreements to dismiss applications, amendments or pleadings.
Parties that have filed applications that are mutually exclusive with one or
more other applications, and then enter into an agreement to resolve the
mutual exclusivity by withdrawing or requesting dismissal of the
application(s), specific frequencies on the application or an amendment
thereto, must obtain the approval of the Commission. Parties that have filed
or threatened to file a petition to deny, informal objection or other
pleading against an application and then seek to withdraw or request
dismissal of, or refrain from filing, the petition, either unilaterally or
in exchange for a financial consideration, must obtain the approval of the
Commission.
(a) The party withdrawing or requesting dismissal of its application (or
specific frequencies on the application), petition to deny, informal
objection or other pleading or refraining from filing a pleading must submit
to the Commission a request for approval of the withdrawal or dismissal, a
copy of any written agreement related to the withdrawal or dismissal, and an
affidavit setting forth:
(1) A certification that neither the party nor its principals has received
or will receive any money or other consideration in excess of the legitimate
and prudent expenses incurred in preparing and prosecuting the application,
petition to deny, informal objection or other pleading in exchange for the
withdrawal or dismissal of the application, petition to deny, informal
objection or other pleading, or threat to file a pleading, except that this
provision does not apply to dismissal or withdrawal of applications pursuant
to bona fide merger agreements;
(2) The exact nature and amount of any consideration received or promised;
(3) An itemized accounting of the expenses for which it seeks reimbursement;
and
(4) The terms of any oral agreement related to the withdrawal or dismissal
of the application, petition to deny, informal objection or other pleading,
or threat to file a pleading.
(b) In addition, within 5 days of the filing date of the applicant's or
petitioner's request for approval, each remaining party to any written or
oral agreement must submit an affidavit setting forth:
(1) 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 petitioner in exchange for withdrawing or dismissing
the application, petition to deny, informal objection or other pleading; and
(2) The terms of any oral agreement relating to the withdrawal or dismissal
of the application, petition to deny, informal objection or other pleading.
(c) No person shall make or receive any payments in exchange for withdrawing
a threat to file or refraining from filing a petition to deny, informal
objection, or any other pleading against an application. For the purposes of
this section, reimbursement by an applicant of the legitimate and prudent
expenses of a potential petitioner or objector, incurred reasonably and
directly in preparing to file a petition to deny, will not be considered to
be payment for refraining from filing a petition to deny or an informal
objection. Payments made directly to a potential petitioner or objector, or
a person related to a potential petitioner or objector, to implement
non-financial promises are prohibited unless specifically approved by the
Commission.
(d) For the purposes of this section:
(1) Affidavits filed pursuant to this section must be executed by the filing
party, 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) Each application, petition to deny, informal objection or other pleading
is deemed to be pending before the Commission from the time the petition to
deny is filed with the Commission until such time as an order or
correspondence of the Commission granting, denying or dismissing it 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 a party in preparing to file, filing, prosecuting and/or settling its
application, petition to deny, informal objection or other pleading for
which reimbursement is sought.
(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 non-financial concessions that confer any type
of benefit on the recipient.
(e) Notwithstanding the provisions of this section, any payments made or
received in exchange for withdrawing a short-form application for a
Commission authorization awarded through competitive bidding shall be
subject to the restrictions set forth in § 1.2105(c) of this chapter.
[ 63 FR 68931 , Dec. 14, 1998]
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Goto Section: 1.934 | 1.937
Goto Year: 2014 |
2016
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