§  73.3525   Agreements for removing application conflicts.

   (a) Except as provided in §  73.3523 regarding dismissal of
   applications in comparative renewal proceedings, whenever applicants
   for a construction permit for a broadcast station enter into an
   agreement to procure the removal of a conflict between applications
   pending before the FCC by withdrawal or amendment of an application or
   by its dismissal pursuant to §  73.3568, all parties thereto shall,
   within 5 days after entering into the agreement, file with the FCC a
   joint request for approval of such agreement. The joint request shall
   be accompanied by a copy of the agreement, including any ancillary
   agreements, and an affidavit of each party to the agreement setting
   forth:

   (1) The reasons why it is considered that such agreement is in the
   public interest;

   (2) A statement that its application was not filed for the purpose of
   reaching or carrying out such agreement;

   (3) A certification that neither the applicant nor its principals has
   received any money or other consideration in excess of the legitimate
   and prudent expenses of the applicant; Provided That this provision
   shall not apply to bona fide merger agreements;

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

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

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

   (b) Whenever two or more conflicting applications for construction
   permits for broadcast stations pending before the FCC involve a
   determination of fair, efficient and equitable distribution of service
   pursuant to section 307(b) of the Communications Act, and an agreement
   is made to procure the withdrawal (by amendment to specify a different
   community or by dismissal pursuant to §  73.3568) of the only
   application or applications seeking the same facilities for one of the
   communities involved, all parties thereto shall file the joint request
   and affidavits specified in paragraph (a) of this section.

   (1) If upon examination of the proposed agreement the FCC finds that
   withdrawal of one of the applications would unduly impede achievement
   of a fair, efficient and equitable distribution of radio servce among
   the several States and communities, then the FCC shall order that
   further opportunity be afforded for other persons to apply for the
   facilities specified in the application or applications to be withdrawn
   before acting upon the pending request for approval of the agreement.

   (2) Upon release of such order, any party proposing to withdraw its
   application shall cause to be published a notice of such proposed
   withdrawal at least twice a week for 2 consecutive weeks within the
   3-week period immediately following release of the FCC's order, in a
   daily newspaper of general circulation published in the community in
   which it was proposed to locate the station. However, if there is no
   such daily newspaper published in the community, the notice shall be
   published as follows:

   (i) If one or more weekly newspapers of general circulation are
   published in the community in which the station was proposed to be
   located, notice shall be published in such a weekly newspaper once a
   week for 3 consecutive weeks within the 4-week period immediately
   following the release of the FCC's order.

   (ii) If no weekly newspaper of general circulation is published in the
   community in which the station was proposed to be located, notice shall
   be published at least twice a week for 2 consecutive weeks within the
   3-week period immediately following the release of the FCC's order in
   the daily newspaper having the greatest general circulation in the
   community in which the station was proposed to be located.

   (3) The notice shall state the name of the applicant; the location,
   frequency and power of the facilities proposed in the application; the
   location of the station or stations proposed in the applications with
   which it is in conflict; the fact that the applicant proposes to
   withdraw the application; and the date upon which the last day of
   publication shall take place.

   (4) Such notice shall additionally include a statement that new
   applications for a broadcast station on the same frequency, in the same
   community, with substantially the same engineering characteristics and
   proposing to serve substantially the same service area as the
   application sought to be withdrawn, timely filed pursuant to the FCC's
   rules, or filed, in any event, within 30 days from the last date of
   publication of the notice (notwithstanding any provisions normally
   requiring earlier filing of a competing application), will be entitled
   to comparative consideration with other pending mutually exclusive
   affidavits.

   (5) Within 7 days of the last day of publication of the notice, the
   applicant proposing to withdraw shall file a statement in triplicate
   with the FCC giving the dates on which the notice was published, the
   text of the notice and the name and location of the newspaper in which
   the notice was published.

   (6) Where the FCC orders that further opportunity be afforded for other
   persons to apply for the facilities sought to be withdrawn, no
   application of any party to the agreement will be acted upon by the FCC
   less than 30 days from the last day of publication of the notice
   specified in paragraph (b)(2) of this section. Any applications for a
   broadcast station on the same frequency in the same community, with
   substantially the same engineering characteristics and proposing to
   serve substantially the same service area as the application sought to
   be withdrawn, filed within the 30-day period following the last date of
   publication of the notice (notwithstanding any provisions normally
   requiring earlier filing of a competing application), or otherwise
   timely filed, will be entitled to comparative consideration with other
   pending mutually exclusive applications. If the application of any
   party to which the new application may be in conflict has been
   designated for hearing, any such new application will be entitled to
   consolidation in the proceeding.

   (c) Except where a joint request is filed pursuant to paragraph (a) of
   this section, any applicant filing an amendment pursuant to §  73.3522
   (b)(1) and (c), or a request for dismissal pursuant to §  73.3568
   (b)(1) and (c), which would remove a conflict with another pending
   application; or a petition for leave to amend pursuant to
   §  73.3522(b)(2) which would permit a grant of the amended application
   or an application previously in conflict with the amended application;
   or a request for dismissal pursuant to §  73.3568(b)(2), shall file
   with it an affidavit as to whether or not consideration (including an
   agreement for merger of interests) has been promised to or received by
   such applicant, directly or indirectly, in connection with the
   amendment, petition or request.

   (d) Upon the filing of a petition for leave to amend or to dismiss an
   application for broadcast facilities which has been designated for
   hearing or upon the dismissal of such application on the FCC's own
   motion pursuant to §  73.3568, each applicant or party remaining in
   hearing, as to whom a conflict would be removed by the amendment or
   dismissal shall submit for inclusion in the record of that proceeding
   an affidavit stating whether or not he has directly or indirectly paid
   or promised consideration (including an agreement for merger of
   interests) in connection with the removal of such conflict.

   (e) Where an affidavit filed pursuant to paragraph (c) of this section
   states that consideration has been paid or promised, the affidavit
   shall set forth in full all relevant facts, including, but not limited
   to, the material listed in paragraph (a) of this section for inclusions
   in affidavits.

   (f) 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.

   (g) Requests and affidavits which relate to an application which has
   not been designated for hearing shall bear the file number of such
   application. If the affiant is also an applicant, the affidavit shall
   also bear the file number of affiant's pending application(s). Requests
   and affidavits which relate to an application which is designated for
   hearing shall bear the file number of that application and the hearing
   docket number and will be acted on by the presiding officer.

   (h) For the purposes of this section an application shall be deemed to
   be "pending" before the FCC and a party shall be considered to have the
   status of an "applicant" from the time an application is filed with the
   FCC until an order of the FCC granting or denying it is no longer
   subject to reconsideration by the FCC or to review by any court.

   (i) For purposes of this section, "legitimate and prudent expenses" are
   those expenses reasonably incurred by an applicant in preparing,
   filing, prosecuting, and settling its application for which
   reimbursement is being sought.

   (j) For purposes of this section, "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.

   (k) For purposes of this section, an "ancillary agreement" means any
   agreement relating to the dismissal of an application or settling of a
   proceeding, including any agreement on the part of an applicant or
   principal of an applicant to render consulting services to another
   party or principal of another party in the poroceeding.

   (l) The prohibition of collusion as set forth in § §  1.2105(c) and
   73.5002 of this section, which becomes effective upon the filing of
   short-form applications, shall apply to all broadcast services subject
   to competitive bidding.

   Note: Although §  74.780 of the Rules makes this section generally
   applicable to low power TV, TV translators, and TV booster stations,
   paragraph (b) of this section shall not be applicable to such stations.

   [ 56 FR 28097 , June 19, 1991, as amended at  63 FR 48624 , Sept. 11, 1998]

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