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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Applications of ) ) DCT COMMUNICATIONS, INC. ) File No. 9505299 ) to Provide 39 GHz Point-to-Point Microwave ) Radio Service in West Palm Beach, Florida ) ) and ) ) WINSTAR WIRELESS, INC. ) File No. 9504862 ) to Provide 39 GHz Point-to-Point Microwave ) Radio Service in Miami, Florida. ) ORDER ON RECONSIDERATION Adopted: January 20, 1999 Released: January 21, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order on Reconsideration, we deny two Petitions for Reconsideration filed by DCT Communications, Inc. (DCT). First, DCT's application to operate systems in the 38.6 to 40.0 GHz (39 GHz) band in the area of West Palm Beach, Florida, was dismissed as defective because it was untimely filed. Second, WinStar Wireless, Inc.'s (WinStar) application to operate systems in the 39 GHz band in the area of Fort Lauderdale, Florida, was properly granted because it was a non-mutually exclusive application that was ripe as of November 13, 1995 in accordance with the 39 GHz Memorandum Opinion and Order. II. BACKGROUND 2. WinStar applied for a 39 GHz authorization in the Point-to-Point Microwave Service in the Miami, Florida, area on March 4, 1994. WinStar's Miami Application was placed on public notice on July 6, 1994. DCT applied for a 39 GHz authorization in the West Palm Beach, Florida, area on May 18, 1995. On August 7, 1995, DCT filed an amendment to its West Palm Beach Application to reduce the requested service area and eliminate the geographic overlap with WinStar's Miami Application. On September 11, 1997, the Licensing and Technical Analysis Branch (Branch) dismissed DCT's application in accordance with Sections 101.45 and 101.35 of the Commission's Rules, 47 C.F.R.  101.45 and 101.35. Section 101.45 provides that no application will be entitled to be included in a random selection process or to comparative consideration with a previously filed application unless such application is substantially complete and tendered for filing within sixty days after the date of the public notice listing the first of the conflicting applications as accepted for filing. As a result, the Branch dismissed DCT's West Palm Beach Application as defective because it conflicted with the Miami Application and was filed more than sixty days after public notice of acceptance for filing of such application. On October 10, 1997, DCT filed a Petition for Reconsideration (Miami Petition) of the Branch's dismissal of its 39 GHz Point-to- Point Microwave Radio Service application. The Miami Application was granted by the Division on February 2, 1998. 3. WinStar also applied for a 39 GHz authorization in the Point-to-Point Microwave Service in the Fort Lauderdale, Florida, area on May 10, 1995. WinStar's Fort Lauderdale Application was placed on public notice on May 24, 1995. The application was granted by the Branch on September 15, 1997. On October 23, 1997, DCT filed a Petition for Reconsideration (Fort Lauderdale Petition) seeking revocation of WinStar's Fort Lauderdale license. III. DISCUSSION 4. In its Miami Petition, DCT argues that its August 7, 1995 amendment to its West Palm Beach Application resolving the mutual exclusivity with the WinStar Miami Application rendered Section 101.45 inapplicable because the amendment eliminated the need to use Section 101.45 as a basis for examining the filing date of DCT's application. DCT further argues that such amendment was an "amendment of right," pursuant to Section 101.29 of the Commission's Rules. DCT states that the Division must therefore "give immediate effect" to this amendment reducing the service area outlined in DCT's West Palm Beach Application. DCT argues that the amendment eliminated the geographic overlap shared by DCT and WinStar and, therefore, DCT's application filing date need not be compared with the date that WinStar's Miami Application appeared on public notice. 5. We disagree. DCT filed its West Palm Beach Application on May 18, 1995, well after the 60- day cut-off period for filing mutually exclusive applications had lapsed. The fact that DCT subsequently filed an amendment to eliminate the geographic overlap with WinStar's Miami Application cannot and does not cure the untimeliness of DCT's application. Therefore, DCT's application and subsequent amendment were properly dismissed pursuant to Section 101.35. For the foregoing reasons, DCT's Miami Petition is hereby denied. 6. In its Fort Lauderdale Petition, DCT argues that the Branch improperly dismissed its application because it failed to take into account the amendment filed on August 7, 1995 to the West Palm Beach Application. DCT argues that its application is "likely to be reinstated nunc pro tunc," and that absent revocation of WinStar's Fort Lauderdale license, DCT is "deprived of its right to seek reconsideration of the dismissal of its application." DCT also argues that grant of WinStar's Fort Lauderdale Application violated the Commission's interim application processing procedures for the 39 GHz service. Specifically, DCT argues that WinStar's Fort Lauderdale Application was mutually exclusive with DCT's application and, therefore, it should have been held in abeyance pending the Commission's ultimate decision in the 39 GHz rule making proceeding. 7. DCT's Fort Lauderdale Petition is based on the assumption that the Division will reinstate its West Palm Beach Application. This assumption is incorrect. As discussed previously herein, an application filed after the 60-day cut-off period established by an earlier filed application, notwithstanding a subsequent attempt to amend the second filed application, is defective. In addition, grant of WinStar's Fort Lauderdale Application has not deprived DCT of its right to seek reconsideration of the dismissal of its application. This Order on Reconsideration gives full consideration to DCT's Fort Lauderdale Petition. 8. Furthermore, and contrary to DCT's assertion, grant of WinStar's Fort Lauderdale Application did not violate the Commission's interim application processing procedures for the 39 GHz service. The Commission held in its Memorandum Opinion and Order released on January 17, 1997, that it would process all non-mutually exclusive applications, provided they were ripe as of November 13, 1995. The Commission defined "ripe" as those applications that (1) were not mutually exclusive with other applications at the time of the Bureau's November 13, 1995 Freeze Order, and (2) the 60-day period for filing mutually exclusive applications had expired prior to November 13, 1995. In this instance, WinStar's Fort Lauderdale Application was not mutually exclusive with DCT's West Palm Beach Application because DCT's application was untimely filed. Furthermore, the 60-day public notice period for the filing of competing applications against WinStar's Fort Lauderdale Application had passed as of November 13, 1995. Therefore, the Fort Lauderdale Application was a non-mutually exclusive ripe application under the 39 GHz Memorandum Opinion and Order. Accordingly, the Branch properly granted WinStar's Fort Lauderdale Application. For the foregoing reasons, DCT's Fort Lauderdale Petition is hereby denied. IV. ORDERING CLAUSE 9. IT IS ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the Petitions for Reconsideration filed by DCT Communications, Inc. on October 10, 1997 and October 23, 1997 are DENIED. 10. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau