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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. ) FCC File No. 9405457 ) Request for Deletion of Channel ) and Superseded Authorization ) in Wilmington, DE ) ) MILLIWAVE LIMITED PARTNERSHIP ) FCC File No. 9504370 ) to Provide 39 GHz Point-to-Point ) Radio Service in the 38.6-40 GHz band in ) Wilmington, DE ) ) WINSTAR WIRELESS, INC. ) FCC File No. 9504852 ) to Provide 39 GHz Point-to-Point ) Radio Service in the 38.6-40 GHz band in ) Atlantic City, NJ ) ORDER Adopted: January 18, 2000 Released: January 20, 2000 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. Introduction. We have before us a letter from DCT Communications, Inc. (DCT), filed on November 7, 1997, requesting the deletion of Channel 4A/B (Channel 4) from its authorization to operate in the 38.6-40.0 GHz (39GHz) band Point-to-Point Microwave Radio Service in Wilmington, DE. For the reasons set forth below, we grant DCT's request as indicated herein. 2. Background. On April 12, 1994, DCT filed a 39 GHz application for authorization to operate on Channels 2, 3, 4 and 5 at Wilmington, DE. On October 18, 1994, DCT filed an amendment to that same application, deleting its request for Channels 2, 4 and 5. DCT's amended application, seeking only Channel 3, was placed on public notice on January 11, 1995. On February 24, 1995, BizTel, Inc. (BizTel) filed a 39 GHz application for Channel 4 in the same geographic area. On April 27, 1995, and May 10, 1995, respectively, Milliwave Limited Partnership (Milliwave) and WinStar Wireless filed 39 GHz applications for Channel 5, also in the same geographic area. On May 12, 1995, the Licensing and Technical Analysis Branch (Branch) granted DCT's amended application for Channel 3, which appeared on public notice on May 24, 1995. DCT's authorization was issued on May 12, 1995, and included Channels 2, 3, 4 and 5. On September 25, 1995, the Branch granted BizTel's authorization to operate on Channel 4. On November 7, 1997, DCT submitted the above-referenced letter requesting that we supersede its authorization by deleting Channel 4 from its authorization. In this regard, DCT indicated that it was authorized this channel as a result of an "administrative error." 3. Discussion. As an initial matter, we note that the Commission may correct an authorization that is the result of a clerical error on the part of the Commission staff. As set forth above, DCT filed a 39 GHz application requesting Channels 2, 3, 4 and 5 in Wilmington, DE, and subsequently amended that same application to request only Channel 3. On May 12, 1995, the Branch granted DCT's amended application for Channel 3. Due to a clerical error, the face of DCT's license inadvertently included three additional channels: 2, 4 and 5. However, the clerical error does not change the fact that the Commission grant corresponds to the request in DCT's amended application. Thus, DCT is authorized to operate on Channel 3, but not on Channels 2, 4 and 5. 4. Although we will grant DCT's request to delete Channel 4 from its authorization, our review of the records indicates that DCT was not authorized to operate on Channel 4. DCT's authorization includes Channel 4 as a result of a ministerial error on the part of Commission staff. Specifically, as set out above, DCT filed an amendment to its application to delete Channels 2, 4 and 5 from its application. This amendment was granted. Accordingly, only Channel 3 remained as part of its application to operate in the 39 GHz band in Wilmington, DE. We find that due to a ministerial error the authorization was issued with all four channels listed instead of the sole remaining channel. We further find that the ministerial error was the insertion of Channels 2, 4 and 5 on the DCT authorization for Wilmington, DE. Thus, consistent with case precedent permitting administrative agencies to correct inadvertent ministerial errors, we will re-issue DCT's authorization to accurately reflect the licensing action namely, to permit DCT to operate on Channel 3 in the 39 GHz band at Wilmington, DE. 5. With regard to the Milliwave and WinStar Wireless applications for Channel 5, an application will be deemed mutually exclusive with an earlier-filed application if the two applications (a) are conflicting and (b) the second application was filed either within sixty days after the date of the public notice listing the earlier application or one business day before the Commission acts on the earlier application, whichever is earlier. As to the first requirement, both Milliwave and WinStar Wireless propose to provide service on Channel 5, and the proposed service areas overlap. The two applications are therefore conflicting. As to the second requirement, a public notice listing Milliwave's application was released on May 10, 1995. WinStar Wireless's application was filed on May 10, 1995, within sixty days after the date of the public notice listing Milliwave's application. Accordingly, the Milliwave and WinStar Wireless applications as to Channel 5 are subject to dismissal on the basis of mutual exclusivity. 6. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), DCT's request filed on November 7, 1997, to delete Channel 4 from its authorization to operate in the 39 GHz band Point-to-Point Microwave Radio Service in Wilmington, DE, IS GRANTED. 7. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), Channels 2 and 5 will be deleted from the authorization of DCT Communications, Inc. for Station WMV969 in Wilmington, DE and the authorization will be reissued for Channel 3 only. 8. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 308 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 308, the 39 GHz application filed by Milliwave Limited Partnership on April 27, 1995, IS DISMISSED. 9. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 308 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 308, the 39 GHz application filed by WinStar Wireless on May 10, 1995, IS DISMISSED. 10. This action is taken under the 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