Sec. 22.128  Dismissal of applications.

    The FCC may dismiss any application for authorization, assignment of 
authorization, or consent to transfer of control in the Public Mobile 
Services, upon request by the applicant, or if the application is 
untimely filed, or if the application is mutually exclusive with another 
application that is selected or granted in accordance with the rules in 
this part, or for failure to prosecute, or if the requested spectrum is 
not available, or if the application is found to be defective. Such 
dismissal may be ``without prejudice,'' meaning that the FCC may accept 
from the applicant another application for the same purpose at any later 
time, or ``with prejudice,'' meaning that the FCC will not accept from 
the applicant another application 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.
    (a) Dismissal at request of applicant. Any applicant may request 
that its application be returned or dismissed. A request for the return 
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.
    (1) If the applicant requests dismissal of its application with 
prejudice, the FCC will dismiss that application with prejudice.
    (2) If the applicant requests dismissal of its application without 
prejudice, the FCC will dismiss that application without prejudice, 
unless:
    (i) It has been designated for comparative hearing;
    (ii) It has been selected in a random selection process; or,
    (iii) It is an application for which the applicant submitted the 
winning bid in a competitive bidding process.
    (3) If the applicant requests dismissal of its application for which 
it submitted the winning bid in a competitive bidding process, the FCC 
will dismiss that application with prejudice. If the applicant requests 
dismissal of its application after that application has been designated 
for comparative hearing or selected in a random selection process, it 
may submit a written petition requesting that the dismissal be without 
prejudice. Such petition must demonstrate good cause and comply with 
Sec. 22.129 and be served upon all parties of record. The FCC 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 
FCC may dismiss mutually exclusive applications:
    (1) For which the applicant did not submit the winning bid in a 
competitive bidding process;
    (2) That are included in a random selection process but are not 
granted; or,

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    (3) That receive comparative consideration in a hearing but are not 
granted by order of the presiding officer.
    (c) Dismissal for failure to prosecute. The FCC 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 or prior to selection of the application in a 
random selection process, but may be with prejudice in cases of non-
compliance with Sec. 22.129. Dismissal will generally be with prejudice 
if the failure to prosecute or respond occurred after designation of the 
application for comparative hearing or after selection of the 
application in a random selection process. The FCC 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 FCC may dismiss without prejudice 
applications that it finds to be defective. Applications for 
authorization or assignment of authorization are defective if:
    (1) They are unsigned or incomplete with respect to required answers 
to questions, informational showings, or other matters of a formal 
character; or,
    (2) They request an authorization that would not comply with one or 
more of the FCC rules and do not contain a request for waiver of these 
rule(s), or in the event that the FCC denies such a waiver request, do 
not contain an alternative proposal that fully complies with the rules;
    (e) Dismissal because spectrum not available. The FCC may dismiss 
applications that request spectrum which is unavailable because:
    (1) It is not allocated for assignment in the Public Mobile Services 
(see part 2 of this chapter);
    (2) It was previously assigned to another licensee on an exclusive 
basis or cannot be assigned to the applicant without causing 
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 FCC may dismiss without prejudice 
applications that are prematurely 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.