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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of Application of    )
                                )
ADVANCED RADIO TECHNOLOGY LIMITED  )                   File No. 9507348
                                )
to Provide 39 GHz Point-to-Point        )
Microwave Radio Service in Macon, GA    )
                                 


                    ORDER ON RECONSIDERATION


   Adopted:  January 26, 1999           Released:  January 27, 1999

By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:

                        I.  INTRODUCTION

      1.  In this Order on Reconsideration, we deny Advanced Radio Technology Limited's (ART)
Petition for Reconsideration of the decision by the Licensing and Technical Analysis Branch (Branch) to
dismiss the above-captioned application to operate a new Point-to-Point Microwave Radio Service system
in the 38.6 to 40.0 GHz (39 GHz) band in Macon, GA.  For the reasons discussed below, we affirm the
Branch's dismissal of ART's application.

                        II.  BACKGROUND

     2.  American PCS LP (American) applied for a 39 GHz station authorization in the Point-to-Point
Microwave Service in Macon, GA.  American's application was placed on public notice on January 18,
1995.  ART filed its 39 GHz application for Macon, GA, on July 14, 1995.  On November 13, 1995, the
Wireless Telecommunications Bureau (Bureau) prohibited the filing of new applications in the Point-to-
Point Microwave Radio Services for the 39 GHz band.  Thus, any new applications received on or after
November 13, 1995, would be returned to the applicant as unacceptable for filing.  The Commission
extended the freeze on December 15, 1995, when it suspended the processing of pending 39 GHz
applications that as of November 13, 1995, were mutually exclusive with other applications or still within
the 60-day cut-off period for the filing of 

mutually exclusive applications.  On November 14, 1996, the Branch dismissed American's application as
defective because it failed to demonstrate, in accordance with Section 101.147(u) of the Commission's
Rules, that its requested service area was as small as practical consistent with the carrier's local service
requirements.  Therefore, American's application was deemed defective in accordance with Section
101.35(b).  

     3.  On August 20, 1997, the Branch dismissed the ART application as untimely filed pursuant to
the provisions of Sections 101.45(b) and 101.35(b)(7) of the Commission's Rules.  Section 101.45(b) states
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.  In this connection, American's application started a 60-day cut-off
period when it was placed on public notice on January 18, 1995.  Thus, the last day for filing competing
applications with the American application was on March 19, 1995.  ART submitted its application after
that date and while American's application was still pending.  The Branch, therefore, dismissed the ART
application as unacceptable for filing in accordance with Section 101.35(b).  On September 19, 1997, ART
submitted a petition for reconsideration of the Branch's dismissal of the subject application.
     
                        III.  DISCUSSION

     4.  First, ART argues that American's application, "deemed to be defective and unacceptable for
filing," should not be allowed to "establish a filing cut-off date for competing applications."  ART relies on
the fact that the American application was dismissed nine months prior to its application's dismissal on
August 20, 1997 and argues that the Bureau incorrectly considered its application to be mutually exclusive
with American's application after American's application was dismissed as defective.  ART reasons that
after American's application was dismissed, Section 101.45(b) no longer applied to the ART application
because the conflicting application requirement was absent.  According to ART, the date that controls is the
date that American's application was dismissed.  We disagree with ART's analysis. 

     5.  Under Section 101.45(b)(2) of the Commission's Rules, the 60-day cut-off period to file
mutually exclusive applications begins when the first of the conflicting applications is "accepted for
filing."  Section 101.37(d) warns all competing applicants that "the listing of an application on public
notice as accepted for filing does not indicate that the application has been found by the Commission to be
acceptable for filing and does not preclude the subsequent return of the application."  Accordingly, an
application that is accepted for filing, may establish a filing cut-off date for competing applications, even if
it is later dismissed as defective.  As a result, the relevant and controlling date for Section 101.45(b)
purposes in the instant matter is January 18, 1995, the date that American's application was placed on
public notice.  ART filed its competing application on July 14, 1995, which was well beyond the 60-day
period that a competing application could be filed.  Thus, the Branch properly dismissed ART's application
as untimely filed.  

     6.  Second, ART argues that even if the Branch was correct and the ART application was filed in
an untimely fashion, Section 101.45(e) prevents the Branch from dismissing the application.  ART states
that under Section 101.45(e), the Branch was required to return the application to ART without prejudice,
thereby maintaining ART's eligibility to refile the application after the Branch had taken 

final action with respect to American's application.  ART says that the Branch never returned its
application while American's application was under review, rather the Branch retained its application and
then later dismissed it.  ART requests that its application be treated as "returned" rather than "dismissed"
and that the Branch allow it to refile its application now that final action, in the form of a dismissal, has
been taken with respect to American's application.  While ART might have been eligible to refile its
application had it been returned prior to November 13, 1995, we do not believe that this ultimately is of
decisional significance given the 39 GHz Freeze Order and its effect on an applicant's eligibility to refile its
application after November 12, 1995.  When the Branch took final action on American's application on
November 14, 1996, the 39 GHz Freeze Order precluded the acceptance of new 39 GHz applications. 
Thus, on November 14, 1996, any new 39 GHz applications submitted by ART would have been subject to
the 39 GHz Freeze Order and, therefore, would have been returned as unacceptable for filing.

     7.  Finally, ART submits that a grant of its petition for reconsideration is in the public interest
because it will "promote effective use" of the 39 GHz spectrum.  We are not persuaded by ART's public
interest argument.  We believe that the public interest is served when applicants adhere to the Commission's
filing requirements.  The cut-off rule is important because it establishes a deadline by which applications
must be filed in order to maintain eligibility.  The purpose of this rule is "to attract all competitive
applications for a particular (frequency) within a fixed and reasonably short time frame," so that the
Commission can comparatively consider such applications in an efficient manner.  Further, we note that
one of the underlying purposes of the Commission's 39 GHz rule making proceeding has been to promote
effective use of the 39 GHz spectrum.  Therefore, based on the facts and circumstances described herein,
we find that a dismissal of ART's Petition for Reconsideration is in the public interest because it is
consistent with the specific requirements, spirit, and integrity of the Commission's 39 GHz licensing rules
and processes.

                      IV.  ORDERING CLAUSE

     8.  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); 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106,
the petition for reconsideration filed by Advanced Radio Technology Limited on September 
19, 1997 IS DENIED.

     9.  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