§ 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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