Sec.  21.29   Ownership changes and agreements to amend or to dismiss
applications or pleadings.

   

   (a) Except as provided in paragraph (b) of this section, applicants or
   any other parties in interest to pending applications shall comply
   with the provisions of this section whenever:

   (1) They participate in any agreement (or understanding) which
   involves any consideration promised or received, directly or
   indirectly, including any agreement (or understanding) for merger of
   interests or the reciprocal withdrawal of applications; and

   (2) The agreement (or understanding) may result in either:

   (i) A proposed substantial change in beneficial ownership or control
   (de jure or de facto) of an applicant such that the change would
   require, in the case of an authorized station, the filing of a prior
   assignment or transfer of control application under section 310(d) of
   the Communications Act of 1934 [47 U.S.C. 310(d)], or

   (ii) Proposed withdrawal, amendment or dismissal of any
   application(s), amendment(s), petition(s), pleading(s), or any
   combination thereof, which would thereby permit the grant without
   hearing, comparative evaluation under of Sec. 21.35, or random selection
   of an application previously in contested status.

   (b) The provisions of this section shall not be applicable to any
   engineering agreement (or understanding) which:

   (1) Resolves frequency conflicts with authorized stations or other
   pending applications without the creation of new or increased
   frequency conflicts; and

   (2) Does not involve any consideration promised or received, directly
   or indirectly (including any merger of interests or reciprocal
   withdrawal of applications), other than the mutual benefit of
   resolving the engineering conflict.

   (c) For any agreement subject to this section, the applicant of an
   application which would remain pending pursuant to such an agreement
   will be considered responsible for the compliance by all parties with
   the procedures of this section. Failure of the parties to comply with
   the procedures of this section shall constitute a defect in those
   applications which are involved in the agreement and remain in a
   pending status.

   (d) The principals to any agreement or understanding subject to this
   section shall comply with the standards of paragraph (e) of this
   section in accordance with the following procedure:

   (1) Within ten (10) days after entering into the agreement, the
   parties thereto shall jointly notify the Commission in writing of the
   existence and general terms of such agreement, the identity of all of
   the participants and the applications involved;

   (2) Within thirty (30) days after entering into the agreement, the
   parties thereto shall file any proposed application amendments,
   motions, or requests together with a copy of the agreement which
   clearly sets forth all terms and provisions, and such other facts and
   information as necessary to satisfy the standards of paragraph (e) of
   this section. Such submission shall be accompanied by the
   certification by affidavit of each principal to the agreement
   declaring that the statements made are true, complete, and correct to
   the best of their knowledge and belief, and are made in good faith.

   (3) The Commission may request any further information which in its
   judgment it believes is necessary for a determination under paragraph
   (e) of this section.

   (e) The Commission will grant an application (or applications)
   involved in the agreement (or understanding) only if it finds upon
   examination of the information submitted, and upon consideration of
   such other matters as may be officially noticed, that the agreement is
   consistent with the public interest, and the amount of any monetary
   consideration and the cash value of any other consideration promised
   or received is not in excess of those legitimate and prudent costs
   directly assignable to the engineering, preparation, filing and
   advocacy of the withdrawn, dismissed, or amended application(s),
   amendment(s), petition(s), pleading(s), or any combination thereof.
   Where such costs represent the applicant's in-house efforts, these
   costs shall include only directly assignable costs and shall exclude
   general overhead expenses. [The treatment to be accorded such
   consideration for interstate rate making purposes will be determined
   at such time as the question may arise in an appropriate rate
   proceeding.] An itemized accounting shall be submitted to support the
   amount of consideration involved except where such consideration
   (including the fair market value of any non-cash consideration)
   promised or received does not exceed one thousand dollars ($1,000.00).
   Where consideration involves a sale of facilities or merger of
   interests, the accounting shall clearly identify that portion of the
   consideration allocated for such facilities or interests and a
   detailed description thereof, including estimated fair market value.
   The Commission will not presume an agreement (or understanding) to be
   prima facie contrary to the public interest solely because it
   incorporates a mutual agreement to withdraw pending application(s),
   amendment(s), petition(s), pleading(s), or any combination thereof.

   (f) Notwithstanding Sec. 21.29(e), amendments will not be granted that
   seek more than a pro forma change of ownership or control (bankruptcy,
   death, or legal disability) of a pending Multipoint Distribution
   Service application, and any Multipoint Distribution Service
   application will be dismissed that seeks more than a pro forma change
   of ownership or control.

   [ 44 FR 60534 , Oct. 19, 1979, as amended at  50 FR 5993 , Feb. 13, 1985;
    58 FR 11797 , Mar. 1, 1993]