§ 73.3523   Dismissal of applications in renewal proceedings.

   (a) An applicant for construction permit, that has filed an application that
   is mutually exclusive with an application for renewal of a license of an AM,
   FM or television station (hereinafter competing applicant”) filed on or
   before May 1, 1995, and seeks to dismiss or withdraw its application and
   thereby  remove  a  conflict  between  applications pending before the
   Commission, must obtain the approval of the Commission.

   (b) If a competing applicant seeks to dismiss or withdraw 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 or
   withdrawal of its application, a copy of any written agreement related to
   the dismissal or withdrawal of its application, and an affidavit setting
   forth:

   (1)  A certification that neither the applicant nor its principals has
   received or will receive any money or other consideration in exchange for
   dismissing or withdrawing its application;

   (2)  A statement that its application was not filed for the purpose of
   reaching or carrying out an agreement with any other applicant regarding the
   dismissal or withdrawal of its application; and

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

   In addition, within 5 days of the applicant's request for approval, each
   remaining competing applicant and the renewal applicant must submit an
   affidavit setting forth:

   (4) A certification that neither the applicant nor its principals has paid
   or will pay any money or other consideration in exchange for the dismissal
   or withdrawal of the application; and

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

   (c) If a competing applicant seeks to dismiss or withdraw its application
   after the Initial Decision stage of the hearing on its application, it must
   submit  to  the  Commission a request for approval of the dismissal or
   withdrawal of its application, a copy of the any written agreement related
   to the dismissal or withdrawal, and an affidavit setting forth:

   (1)  A certification that neither the applicant nor its principals has
   received or will receive any money or other consideration in excess of the
   legitimate and prudent expenses of the applicant;

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

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

   (4)  A statement that its application was not filed for the purpose of
   reaching or carrying out an agreement with any other applicant regarding the
   dismissal or withdrawal of its application; and

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

   In addition, within 5 days of the applicant's request for approval, each
   remaining party to any written or oral agreement must submit an affidavit
   setting forth:

   (6) 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 withdrawing applicant in exchange for the dismissal
   or withdrawal of the application; and

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

   (d) For the purpose of this section:

   (1) 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.

   (2) An application shall be deemed to be pending before the Commission from
   the time an application is filed with Commission until an order of the
   Commission granting or denying the application 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 an applicant in preparing, filing, and prosecuting its application.

   (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 nonfinancial concessions that confer any type of benefit
   on the recipient.

   [ 54 FR 22598 , May 25, 1989, as amended at  61 FR 18291 , Apr. 25, 1996]

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