FCC 73.3525 Revised as of October 1, 2014
Goto Year:2013 |
§ 73.3525 Agreements for removing application conflicts.
(a) Except as provided in § 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 § 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
(1) The reasons why it is considered that such agreement is in the
(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
(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 § 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facilities specified in the application or applications to be withdrawn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
(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 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 § 73.3522
(b)(1) and (c), or a request for dismissal pursuant to § 73.3568 (b)(1)
and (c), which would remove a conflict with another pending
application; or a petition for leave to amend pursuant to
§ 73.3522(b)(2) which would permit a grant of the amended application
or an application previously in conflict with the amended application;
or a request for dismissal pursuant to § 73.3568(b)(2), 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 § 73.3568, 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
(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
(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.
(l) The prohibition of collusion as set forth in § § 1.2105(c) and
73.5002 of this section, which becomes effective upon the filing of
short-form applications, shall apply to all broadcast services subject
to competitive bidding.
Note: Although § 74.780 of the Rules makes this section generally
applicable to low power TV, TV translators, and TV booster stations,
paragraph (b) of this section shall not be applicable to such stations.
[ 56 FR 28097 , June 19, 1991, as amended at 63 FR 48624 , Sept. 11, 1998]
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