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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 the Application of ) ) ALTRON COMMUNICATIONS, L.C. ) FCC File No. 9502933 ) For A New Microwave Facility in the ) 38.6 40.0 GHz Spectrum, ) Station WPNH528, Jacksonville, Florida ) ORDER ON RECONSIDERATION Adopted: January 28, 2000 Released: February 2, 2000 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. DCT Communications, Inc. (DCT) has filed a petition seeking further reconsideration (Further Petition) of an Order on Reconsideration (Order) denying DCT's initial petition for reconsideration (Petition) of the grant of the above-captioned application of Altron Communications, L.C. (Altron). For the reasons set forth below, we grant DCT's Further Petition. II. BACKGROUND 2. On March 17, 1995, Altron filed an application for a license to operate a new facility in the 38.6-40.0 GHz (39 GHz) band at 38,850-38,900 MHz and 39,550-39,600 MHz (Channels 6A and 6B, respectively in) Jacksonville, Florida (FCC File No. 9502933). Public notice of Altron's application was given on April 5, 1995. 3. On June 2, 1995, DCT submitted to the Commission's lockbox at the Mellon Bank (Mellon) an application for a license to operate a new facility at Channels 6A and 6B and at 39,250-39,300 MHz and 39,950-40,000 MHz (Channels 14A and 14B, respectively) in Jacksonville, Florida (FCC File No. 9506008). Box 2(a) of DCT's application, labeled Fee Type Code, contained the payment type code of "CJP," but Box 14(A) of the FCC Remittance Advice Form (FCC Form 159) associated with the application, labeled Payment Type Code, contained the payment type code letters of "CPJ." 4. As a general matter, applications submitted to the FCC lockbox are opened and the accompanying fees processed and recorded by personnel at Mellon. During the time period at issue, the applications (both those that were to be accepted and those that were to be dismissed because of defects found by Mellon personnel) were then sent to the FCC. Commission personnel processed the applications and reviewed the rejected applications to determine whether they were correctly rejected. Rejected applications were then returned to the applicants (without an explanation of any errors). 5. Consistent with these procedures, Mellon reviewed the subject DCT application and determined that it should be dismissed because the associated FCC Remittance Advice Form contained an incorrect payment type code. As a result, Mellon forwarded the application for processing and dismissal to Commission personnel. An FCC examiner determined that Mellon had correctly rejected DCT's application because of an incorrect payment type code on the FCC Remittance Advice Form. Instead of returning the incorrect application to DCT, however, the examiner reconciled the discrepancy between the payment type code provided on the FCC Remittance Advice Form and that given on the application by changing the payment type code on the FCC Remittance Advice Form to correspond to the fee type code indicated on the application. It appears that the examiner then sent the application back to Mellon without returning the rejected application to the applicant, DCT. It further appears that Mellon received the corrected DCT application on June 8, 1995, and it was accepted for filing on that date. 6. Subsequently, Altron's application was granted, and public notice of the grant was given on August 19, 1997. DCT filed its Petition on September 17, 1997 contending that the grant to Altron was improper due to the fact that DCT had a mutually exclusive application on file. 7. On June 23, 1999, the Public Safety and Private Wireless Division denied the Petition and dismissed DCT's application. The Order held that DCT's application was not mutually exclusive with Altron's earlier-filed application because DCT's application was not filed within sixty days after the date of the public notice listing the Altron application, i.e., by Monday, June 5, 1995. In finding that DCT's application was not filed until June 8, 1995, the Order relied on the Fees II decision for the conclusion that an improperly completed Remittance Advice Form renders the underlying application unacceptable for filing. As a result, the Order denied DCT's Petition. DCT states that it did not know the precise reason why its application was given the June 8, 1995 filing date until the Order was released and requests that we reconsider our findings regarding the applicability of Fees II. III. DISCUSSION 8. DCT makes five main points in support of its position that its application was timely filed and mutually exclusive with the Altron application, and therefore improperly dismissed. First, DCT states that the Fees II decision should not apply to "such a small error" when FCC staff is easily able to identify and correct the deficiency. Second, DCT states that although it provided the incorrect fee type code on the Remittance Advice Form, the filing of that form was voluntary, and consequently, the error contained therein should have "no legal effect." Third, DCT argues that its application should be deemed filed on June 2, 1995 rather than June 8, 1995, because the Commission has "generally abandoned the letter-perfect filing standard." Fourth, DCT states that the Commission's failure to contact it to inform it of the filing fee error "caused DCT to miss any meaningful chance it may have had to maintain a viable application for the Jacksonville market." Finally, DCT argues that the dismissal of the DCT application violated the Commission's Rules under Part 21 and was not in accord with applicable case law. 9. We find that DCT's second contention that the submission of FCC Form 159 was voluntary warrants our granting its Further Petition. We agree with DCT that the Commission's Rules did not require the filing of FCC Form 159 with applications for new microwave facilities (FCC Form 494). Consequently, we conclude that the form's inclusion with DCT's application was superfluous and is not a sufficient basis upon which to dismiss an otherwise complete application. Moreover, our action here is consistent with cases where the FCC has permitted the reinstatement of an application nunc pro tunc after dismissal of the application due to typographical errors in the fee code. 10. Therefore, we grant DCT's Further Petition, and reinstate its dismissed application nunc pro tunc. DCT's application is mutually exclusive with Altron's application, because DCT's application was filed within the sixty-day cut-off window established by Altron's filing and it conflicts with Altron's application. As a result, we rescind the grant of Altron's application, return the Altron application to pending status, and dismiss both applications as required by the Commission's decision to dismiss without prejudice all pending mutually exclusive 39 GHz applications where mutual exclusivity was not resolved by December 15, 1995. IV. CONCLUSION 11. We grant DCT's Further Petition. We find that DCT's application was submitted in a complete, timely fashion on June 5, 1998. Thus, DCT's application should have been considered mutually exclusive with Altron's application. V. ORDERING CLAUSES 12. 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 Further Reconsideration filed by DCT Communications, Inc. on July 23, 1999 IS GRANTED. 13. IT IS FURTHER ORDERED that the Motion for Extension of Time, filed on August 5, 1999, and the Further Motion for Extension of Time, filed on August 19, 1999, both by Altron Communications, L.C. ARE GRANTED. 14. IT IS FURTHER 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 license application of DCT Communications, Inc. (FCC File No. 9506008) IS REINSTATED. 15. IT IS FURTHER 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 grant of the license application of Altron Communications, L.C (FCC File No. 9502933) IS RESCINDED, and the application IS RETURNED TO PENDING STATUS. 16. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309(j)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(j)(1), the license applications of Altron Communications, L.C. (FCC File No. 9502933) and DCT Communications, Inc. (FCC File No. 9506008) ARE DISMISSED. 17. 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