§ 22.936   Dismissal of applications in cellular renewal proceedings.

   Any applicant that has filed an application in the Cellular Radiotelephone
   Service that is mutually exclusive with an application for renewal of a
   cellular authorization (competing application), and seeks to resolve the
   mutual exclusivity by requesting dismissal of its application, must obtain
   the approval of the FCC.

   (a) If a competing applicant seeks to dismiss 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 of its application.
   This  request for approval of the dismissal of its application must be
   submitted and must also include a copy of any agreement related to the
   withdrawal or dismissal, and an affidavit setting forth:

   (1) A certification that neither the petitioner nor its principals has
   received or will receive any money or other consideration in excess of
   legitimate and prudent expenses in exchange for the withdrawal or dismissal
   of the application, 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.

   (b)  In addition, within 5 days of the filing date of the applicant 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; and

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

   (c) 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) Applications are deemed to be pending before the FCC from the time the
   application is filed with the FCC until such time as an order of the FCC
   granting, denying or dismissing the application is no longer subject to
   reconsideration by the FCC 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 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.

   [ 59 FR 59507 , Nov. 17, 1994, as amended at  63 FR 68951 , Dec. 14, 1998]

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