Sec.  1.934   Defective applications and dismissal.

   (a) Dismissal of applications. The Commission may dismiss any application in
   the Wireless Radio Services at the request of the applicant; if the
   application is mutually exclusive with another application that is selected
   or granted in accordance with the rules in this part; for failure to
   prosecute or if the application is found to be defective; if the requested
   spectrum is not available; or if the application is untimely filed. Such
   dismissal may be “without prejudice,” meaning that the Commission may accept
   from the applicant another application for the same purpose at a later time,
   provided that the application is otherwise timely. Dismissal “with
   prejudice” means that the Commission will not accept another application
   from the applicant for the same purpose for a period of one year. Unless
   otherwise provided in this part, a dismissed application will not be
   returned to the applicant.

   (1) Dismissal at request of applicant. Any applicant may request that its
   application be withdrawn or dismissed. A request for the withdrawal of an
   application after it has been listed on Public Notice as tentatively
   accepted for filing is considered to be a request for dismissal of that
   application without prejudice.

   (i) If the applicant requests dismissal of its application with prejudice,
   the Commission will dismiss that application with prejudice.

   (ii) If the applicant requests dismissal of its application without
   prejudice, the Commission will dismiss that application without prejudice,
   unless:

   (A) It has been designated for comparative hearing; or

   (B) It is an application for which the applicant submitted the winning bid
   in a competitive bidding process.

   (2) If an applicant who is a winning bidder for a license in a competitive
   bidding process requests dismissal of its short-form or long-form
   application, the Commission will dismiss that application with prejudice.
   The applicant will also be subject to default payments under Subpart Q of
   this part.

   (3) An applicant who requests dismissal of its application after that
   application has been designated for comparative hearing may submit a written
   petition requesting that the dismissal be without prejudice. Such petition
   must demonstrate good cause and be served upon all parties of record. The
   Commission may grant such petition and dismiss the application without
   prejudice or deny the petition and dismiss the application with prejudice.

   (b) Dismissal of mutually exclusive applications not granted. The Commission
   may dismiss mutually exclusive applications:

   (1) For which the applicant did not submit the winning bid in a competitive
   bidding process; or

   (2) That receive comparative consideration in a hearing but are not granted
   by order of the presiding officer.

   (c) Dismissal for failure to prosecute. The Commission may dismiss
   applications for failure of the applicant to prosecute or for failure of the
   applicant to respond substantially within a specified time period to
   official correspondence or requests for additional information. Such
   dismissal will generally be without prejudice if the failure to prosecute or
   respond occurred prior to designation of the application for comparative
   hearing, but may be with prejudice in cases of non-compliance with  Sec. 1.945 of
   this part. Dismissal will generally be with prejudice if the failure to
   prosecute or respond occurred after designation of the application for
   comparative hearing. The Commission may dismiss applications with prejudice
   for failure of the applicant to comply with requirements related to a
   competitive bidding process.

   (d) Dismissal as defective. The Commission may dismiss without prejudice an
   application that it finds to be defective. An application is defective if:

   (1) It is unsigned or incomplete with respect to required answers to
   questions, informational showings, or other matters of a formal character;

   (2) It requests an authorization that would not comply with one or more of
   the Commission's rules and does not contain a request for waiver of these
   rule(s), or in the event the Commission denies such a waiver request, does
   not contain an alternative proposal that fully complies with the rules;

   (3) The appropriate filing fee has not been paid; or

   (4) The FCC Registration Number (FRN) has not been provided.

   (e) Dismissal because spectrum not available. The Commission may dismiss
   applications that request spectrum which is unavailable because:

   (1) It is not allocated for assignment in the specific service requested;

   (2) It was previously assigned to another licensee on an exclusive basis or
   cannot be assigned to the applicant without causing harmful interference; or

   (3) Reasonable efforts have been made to coordinate the proposed facility
   with foreign administrations under applicable international agreements, and
   an unfavorable response (harmful interference anticipated) has been
   received.

   (f) Dismissal as untimely. The Commission may dismiss without prejudice
   applications that are premature or late filed, including applications filed
   prior to the opening date or after the closing date of a filing window, or
   after the cut-off date for a mutually exclusive application filing group.

   [ 63 FR 68930 , Dec. 14, 1998, as amended at  66 FR 47895 , Sept. 14, 2001]