§  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]