Sec. 73.3525  Agreements for removing application conflicts.

    (a) Except as provided in Sec. 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 Sec. 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

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    (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 Sec. 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

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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 
Sec. 73.3522(a) or a request for dismissal pursuant to Sec. 73.3568(a) 
which would remove a conflict with another pending application; or a 
petition for leave to amend pursuant to Sec. 73.3522 (b) or (c) which 
would permit a grant of the amended applcation or an application 
previously in conflict with the amended application; or a request for 
dismissal pursuant to Sec. 73.3568(c), 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 Sec. 73.3568(b), 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.

    Note: Although Sec. 74.780 of the Rules makes this section generally 
applicable to low power TV, TV translators, and TV booster

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stations, paragraph (b) of this section shall not be applicable to such 
stations.


[ 56 FR 28097 , June 19, 1991]