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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#&a\  P6G;r&P##&J\  P6Qr&P#2jK/ Kz KZ"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMddddddddddddddddddddddddddddddddddddddddN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7 .y.X80,QwX\  P6G;P /2a=5,r&a\  P6G;&P 02e=5,d[&e4  pG;& 10_=5,%]&_*f9 xr G;&X 2P:% ,J:\  P6G;JP 3H5!,x,5\  P6G;,P {,W80,%~UW*f9 xr G;X22KK1w"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFddddddddddddddddddddddddddddddddddddddddN$<<$.2",2222`2 LL2 LL2L"",,2d""entities.ZzM yO* 8ԍAmendment of the Parts 1, 21, 22, 74, and 94 of the Commission's Rules to Establish Service and Technical  vRules for Government and nonGovernment Fixed Service Usage of the Frequency Bands 932935 MHz and 941944  {O~!*MHz, GN Docket No. 82243, Second Report and Order, 4 FCC Rcd 2012 (1989). By Public Notice, the Commission announced that it would open five twoday filing windows  S* vin early 1992 where all applications would be treated as if they were filed at the same time.M yO#* ԍRevised Filing Window for PointtoMultipoint Channels in the 900 MHz Government/nonGovernment Fixed Service, Public Notice, DA 911422, 6 FCC Rcd 7242 (rel. Nov. 27, 1991). The Public  Sp* vNotice provided that applications acceptable for filing would be assigned a number and that a random  vdrawing of the assigned numbers would be conducted for the purpose of "ranking" the applications in"> , * *,,T"  S* vLorder to determine channel assignment.& {Oh* NԍPublic Notice, 6 FCC Rcd at 7244; In the Matter of Amendment of Parts 1, 21, 22, 74, and 94 of the  vCommission's Rules to Establish Service and Technical Rules for Government and nonGovernment Fixed Service  {O* vVUsage of the Frequency Bands 932935 and 941944 MHz GN Docket No. 82243, Memorandum Opinion and Order,  {O*5 FCC Rcd 1624, 162526 (1990) (MAS MO&O).  If a channel could not be assigned to an applicant because of a  vprior assignment to a higher ranked applicant, the "lower ranked" application would be set aside to be  S* vdismissed.V {O*ԍPublic Notice, 12 FCC Rcd at 7244; MAS MO&O, 5 FCC Rcd at 1626.Ĉ The process was to continue until all the applications were either assigned a channel or  Sg* vdismissed.FgHV {OO *ԍId.F The applications at issue are, therefore, mutually exclusive.h\gV {O * JԍSee 47 C.F.R.  101.45(a). "The Commission will consider applications to be mutually exclusive if their  vconflicts are such that the grant of one application would effectively preclude . . . grant of one or more of the other  {Os *applications." Id.h In response to the series of filing windows, over 50,000 applications were submitted.   S* 3. On August 10, 1993, the Omnibus Budget Reconciliation Act of 1993  V yOl*ԍPub L. No. 10366, Title VI,  6002(a), 107 Stat. 312, 387 (1993) (1993 Budget Act). added Section 309(j)  S* vto the Communications Act of 1934, as amended.N  V yO*ԍ47 U.S.C.  309(j) (1993).N Under the 1993 Budget Act, Section 309(j) permitted  vthe Commission, for certain classes of radio licenses, to employ competitive bidding procedures to choose  v*among mutually exclusive applications for initial license grants or authorizations. As a result, the  vCommission commenced a proceeding to examine whether licenses for various radio services should be  S* v0distributed by competitive bidding.3 V {O* ԍSee In the Matter of Implementation of Section 309(j) of the Communications Act Competitive Bidding,  {OW*PP Docket No. 93253,  Notice of Proposed Rule Making, 8 FCC Rcd 7635 (1993) (Competitive Bidding NPRM).3 In that context, the Commission determined at that time that MAS,  S *part of the Private Operational Fixed Microwave (POFM) service,_  zV yO* ԍThe former Part 94 of the Commission's Rules had contained the rules for POFM service. Part 94 eligibles  v>were persons (individuals, partnerships, associations, joint stock companies, trusts, or corporations), governmental  v~entities, or agencies eligible to provide Private Operational Fixed Service under Parts 80, 87, or 90, or entities  {O* vproposing to provide such service to POFM eligibles, e.g. on a private carrier basis. The POFM service includes  vany use of microwave frequencies other than for common carrier purposes (which were governed by thenPart 21).  vEffective August 1, 1996, however, the Commission consolidated the service rules for fixed microwave operations,  {Oh * ve.g., Parts 21 and 94 of the rules, into a single Part 101. See In the Matter of Reorganization and Revision of Parts  vz1, 2, 21 and 94 of the Rules to Establish a New Part 101 Governing Terrestrial Microwave Fixed Radio Services,  vzWT Docket No. 94148; Amendment of Part 21 of the Commission's Rules for the Domestic Public Fixed Radio  {O"*Services, CC Docket No. 932, Report and Order, 11 FCC Rcd 13,499 (1996). _ did not qualify as primarily subscriber "6  ,l(l(,,@ "Ԍ S* vhbased, and therefore should not be subject to competitive bidding.C V {Oh* ԍSee Competitive Bidding NPRM, 8 FCC Rcd at 765960. The Commission stated that, pursuant to 47 U.S.C.  v 309(j)(2)(A), in order for a license to be subject to competitive bidding, "the licensee must receive compensation  v^for providing transmission or reception capabilities to subscribers." In the Matter of Implementation of Section  {O* v309(j) of the Communications Act Competitive Bidding, PP Docket No. 93253,  Second Report ant Order, 9 FCC  {O* vRcd 2348, 2352 (1994) (Competitive Bidding Second Report and Order). Consequently, the Commission excluded  {OV*"nonsubscriberbased" services from competitive bidding. Id. C Thus, the Commission decided that  v>it would not be appropriate to use competitive bidding for the award of the POFM licenses for which the  S* v50,000plus applications were pending, even in the event of mutual exclusivity.HV {O * tԍCompetitive Bidding NPRM, 8 FCC Rcd at 7660 n.156; Competitive Bidding Second Report and Order, 9 FCC Rcd at 2354 n.25. Subsequently, the  vCommission undertook a preliminary examination of the pending applications and ascertained that the vast  vmajority (apparently over 95 percent) were filed by applicants seemingly proposing to use their licenses  S*principally to provide subscriberbased services.V {OC* ԍAmendment of the Commission's Rules Regarding Multiple Address Systems, WT Docket No. 9781, Notice  {O *of Proposed Rule Making, 12 FCC Rcd 7973, 7978 (1997) (MAS Notice).   4. Because of the overwhelming interest in commercial operations of MAS facilities and the  vsubstantial number of applications filed for the 932/941 MHz band, the Commission was concerned that  vBthe analysis made in the Competitive Bidding proceeding might have been inaccurate. As a result, in  S* v^February 1997, the Commission adopted the MAS Notice to reexamine current and future uses of, and  S* v demand for, MAS spectrum.F V {On*ԍId. at 797475.F In the MAS Notice, the Commission proposed to streamline the MAS  vservice rules, increase technical and operational flexibility for MAS licensees, license most MAS channels  Sk * vby geographic area, and award mutually exclusive licenses by competitive bidding.Mk V {O*ԍSee Id. at 7975.M To effectuate its new  vLlicensing approach effectively, the Commission also proposed to dismiss the pending MAS applications  v0for the 932/941 MHz band without prejudice to refiling under whatever new licensing rules are ultimately  S *adopted.F "V {O*ԍId. at 799798.F  S *l  Sl*3III. DISCUSSION ĐlV  S* f5.In the MAS Notice, the Commission proposed to dismiss the pending MAS applications for  S* v"the 932/941 MHz band as a result of its proposed changes to the MAS service rules._V {O("*ԍMAS Notice, 12 FCC Rcd at 799798._ Notwithstanding  S* vthe Commission's proposal, when the MAS Notice was adopted, the Commission's use of lotteries was still  vpermissible. Consequently, the Communications Act, at that time, did not preclude the possibility of a  vfinal decision in this docket that random selection procedures be used to select among the pending 50,000  vMAS applications for the 932/941 MHz band. Subsequently, the 1997 Balanced Budget Act eliminated  vthat possibility by terminating the Commission's statutory authority to use lotteries. Section 3002(a) of  vLthe 1997 Balanced Budget Act states that, with limited exceptions not applicable to this proceeding, "the"F,l(l(,,"  vCommission shall not issue any license or permit using a system of random selection under this subsection  S* vafter July 1, 1997."V {O5*ԍBalanced Budget Act  3002(a)(2)(B)(5), codified at 47 U.S.C.  309(i)(5) (1997). As discussed supra, the processing rules for these MAS applications are predicated  von conducting random selection to determine the order in which we would process the applications.  vClearly, we no longer have statutory authority to proceed with this random selection. Additionally,  vlSection 309(j) of the 1997 Balanced Budget Act expanded the Commission's authority and statutory  vLmandate to use competitive bidding to select licensees from among mutually exclusive applications for  S*any initial license.ZV {O*ԍBalanced Budget Act  3002(a)(1)(A)(1)(2), amending 47 U.S.C.  309(j) (1997). There are no exemptions for pending mutually exclusive applications."V {O[ * ԍSection 3002(a) "repeals the Commission's lottery authority for all applications other than for licenses for  vZnoncommercial educational and public broadcast stations as defined in section 397(6) of the Communications Act."  v^Conference Report on H.R. 2015, Balanced Budget Act of 1997, H.R. Conf. Rep. No. 105217, 143 Cong. Rec., H6173 (daily ed. July 29, 1997) (emphasis added).  6. Because the Commission is without authority to process these pending mutually exclusive  vapplications pursuant to the rules and requirements under which they were filed, namely, random selection  vprocedures, we conclude that the applications must be dismissed. Further, because we conclude that this  vresult is unambiguously compelled by statute, this decision may be made pursuant to delegated authority,  S * v^with no further notice and comment. V yO* ԍWe have determined that the directives of Congress and the public interest will be served by the dismissal  vof the subject applications. The due and timely execution of the Commission's responsibilities would be unnecessarily  v0impeded by a time consuming notice and comment period. Accordingly, we will not conduct a notice and comment  {Ok* vproceeding regarding dismissal of the subject applications. See National Customs Brokers and Forwarders  {O5*Association of America, Inc. v. U.S., 59 F.3d 1219, 1223 (Fed. Cir. 1995).  Rather than wait for the adoption of final MAS service rules in  vthis docket, we believe that it is in the public interest to dismiss the applications at this time. The 1997  vpBalanced Budget Act has terminated our statutory authority to use lotteries, with no provision for  vvgrandfathering, and as a result, maintaining these applications in a pending status would only delay their  vinevitable dismissal. The applicants will have the opportunity to refile applications for MAS service under  S * vlnew service rules that are fully compliant with the 1997 Balanced Budget Act. V yO* ԍApplicants can apply to the Office of Managing Director of the Federal Communications Commission for  {O* v"the refund of filing fees. See 47 C.F.R.  1.1113. Section 1.1113(a) of the Commission's rules provides, in relevant part, as follows  Z ` ` The full amount of any fee submitted will be returned or refunded, as appropriate, in the following circumstances: (#` ` ` (1) When no fee is required for the application or other filing.(#`  Z ` ` (2) When the fee processing staff or bureau/office determines that an insufficient fee has been  Z submitted within 30 calendar days of receipt of the application or filing and the application or filing is dismissed.(#` ` ` (3) When the application is filled by an applicant who cannot fulfill a prescribed age requirement.(#`  Z |XX` ` (4) When the Commission adopts new rules that nullify applications already accepted for filing, or new law or treaty would render useless a grant or other positive disposition of the application.(#` ` ` (5) When a waiver is granted in accordance with this subpart. . . .(#`  Z 6` ` (6) When an application for new or modified facilities is not timely filed in accordance with the  Z filing window as established by the Commission in a public notice specifying the earliest and latest  yO'*dates for filing such applications.W (#` Ɣ Thus, we believe that" ,l(l(,,F"  vthe public interest would be best served by not subjecting these applicants to any further delay in the final  vdisposition of their applications, particularly when Congress already has acted on the broader issue of the Commission's use of lotteries.  S4*w IV. ORDERING CLAUSES ĐlV  S* 7. Accordingly, IT IS ORDERED that, as of the adopted date of this Order, pursuant to Section  v309(i)(5) of the Communications Act of 1934, 47 U.S.C.  309(i)(5), as amended by the Balanced Budget  v4Act of 1997, Pub. L. No. 10533, 111 Stat. 251 (1997), all pending MAS applications for use of the 932 S6*932.5/941941.5 MHz bands (File Nos. A00001A50772) ARE DISMISSED without prejudice.  S* 8. IT IS FURTHER ORDERED that no new applications for use of the 932/941 MHz bands  vwill be accepted for filing until the Commission or the Wireless Telecommunications Bureau, acting under delegated authority, announces new filing procedures.  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. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,D'wana R. Terry ` `  hh,Chief, Public Safety and Private Wireless Division ` `  hh,Wireless Telecommunications Bureau"9,l(l(,,"  S* j:\mas\order.812