§ 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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