Sec. 90.161  Amendment or dismissal of applications.

    (a) Amendment. Pending applications concerning facilities for 
providing commercial mobile radio services may be amended as a matter of 
right if such applications have not been designated for hearing or 
listed in a Public Notice for a random selection or competitive bidding 
process, except as provided in paragraphs (a)(1) and (a)(2) of this 
section. If a petition to deny or other formal objection has been filed, 
a copy of any amendment (or other filing) must be served on the 
petitioner. If the Commission has issued a Public Notice stating that 
the application appears to be mutually exclusive with another 
application (or applications), a copy of any amendment (or other filing) 
must be served on any such mutually exclusive applicant (or applicants).
    (1) Amendments to applications that resolve mutual exclusivity may 
be filed at any time, subject to the requirements of Sec. 90.162.
    (2) Amendments to applications designated for hearing may be allowed 
by the presiding officer and amendments to applications selected in a 
random selection process may be allowed by the Commission for good cause 
shown. In such instances, a written petition demonstrating good cause 
must be submitted and served upon the parties of record.
    (b) Dismissal. The Commission may dismiss any application for 
authorization, assignment of authorization, or

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consent to transfer of control of a commercial mobile radio facility.
    (1) Upon request by the 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.
    (i) If the applicant requests dismissal of its application with 
prejudice, the Commission will dismiss the application with prejudice.
    (ii) If the applicant requests dismissal of its application without 
prejudice, the Commission will dismiss that application without 
prejudice, unless
    (A) The application has been designated for comparative hearing;
    (B) It has been selected in a random selection process; or
    (C) It is an application for which the applicant submitted the 
winning bid in a competitive bidding process. If the applicant requests 
dismissal of its application for which it submitted the winning bid in a 
competitive bidding process, the Commission 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, comply with Sec. 90.162 of 
this part, 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.
    (2) If the application is untimely filed; The Commission may dismiss 
without prejudice any application that is prematurely or filed late, 
including any application 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.
    (3) If the application is mutually exclusive with another 
application that is selected or granted in accordance with the rules in 
this part; The Commission may dismiss any mutually exclusive 
application:
    (i) For which the applicant did not submit the winning bid in a 
competitive bidding process;
    (ii) That is included in a random selection process but is not 
granted; or
    (iii) That receives comparative consideration in a hearing but is 
not granted by order of the presiding officer.
    (4) 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 or prior to selection of the application in a 
random selection process, but may be with prejudice in cases of non-
compliance with Sec. 90.162. 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 Commission may dismiss 
applications with prejudice for failure of the applicant to comply with 
requirements related to a competitive bidding process.
    (5) If the requested spectrum is not available; The Commission may 
dismiss any application that requests spectrum which is unavailable 
because:
    (i) It was previously assigned to another licensee on an exclusive 
basis or cannot be assigned to the applicant without causing 
interference; or
    (ii) 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.
    (6) If the application is found to be defective. Such dismissal may 
be ``without prejudice,'' meaning that the Commission may accept from 
the applicant another application for the same purpose at any later 
time, or ``with prejudice,'' meaning that the Commission will not accept 
from the applicant another application for the same purpose for a period 
of one year

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following the date of the dismissal action taken by the Commission. 
Unless otherwise provided in this part, a dismissed application will not 
be returned to the applicant. The Commission may dismiss without 
prejudice applications that it finds to be defective. An application for 
authorization or assignment of authorization is defective if:
    (i) It is unsigned or incomplete with respect to required answers to 
questions, informational showings, or other matters of a formal 
character; or
    (ii) It requests an authorization that would not comply with the 
Commission's Rules and does not contain a request for waiver of these 
rule(s), or in the event that the Commission denies such a waiver 
request, does not contain an alternative proposal that fully complies 
with the rules.