§ 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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