NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of the Applications of ) ) LAWRENCE N. BRANDT ) File No. 1708-CM-P-83, ) 51694-CM-P-92 For Authority To Construct and Operate) Multipoint Distribution ) Service Stations on the E Channels ) at Burlington, Vermont ) ORDER ON RECONSIDERATION Adopted: June 19, 1996 Released: June 25, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it two petitions for reconsideration concerning the grant of a conditional license to the above captioned applicant, Lawrence N. Brandt ("Brandt"), to operate Multipoint Distribution Service ("MDS") stations at Burlington, Vermont. Both petitions were filed by Vermont Wireless Cooperative ("Vermont Wireless"). Brandt filed an Opposition to Petition for Reconsideration in response to one of these Petitions for Reconsideration to which Vermont Wireless filed a Reply. 2. These petitions and pleadings raise related issues and will be considered in this single order, which has been referred by the staff to the Video Services Division pursuant to  1.106(a) of the Commission's rules, 47 C.F.R.  1.106(a). II. BACKGROUND 3. On September 9, 1983, Brandt filed an application for the E channel group at Burlington, Vermont. This application was chosen as a tentative selectee for qualification review as the result of a Commission lottery, pursuant to 47 C.F.R.  21.33. On December 5, 1991, Brandt filed a post lottery amendment to change his transmitter site. Vermont Wireless challenged Brandt's amendment by filing a Petition to Dismiss or Deny the change of location amendment. The Domestic Facilities Division granted Vermont Wireless' petition in part, finding that Brandt's amendment was a major amendment pursuant to 47 C.F.R.  21.23(c)(2)(iv), and that Brandt failed to file adequate interference analyses pursuant to 47 C.F.R.  21.902(c), denying Brandt's amendment request. In the Matter of Lawrence N. Brandt, 7 FCC Rcd 4511, 4512 (Dom. Fac. Div. 1992). The Division returned Brandt's application for the initially proposed transmitter site to the processing line for further qualification review. Id. 4. On August 17, 1992, Vermont Wireless filed a Petition for Reconsideration challenging the Division's decision to the extent that it returned Brandt's application to the processing line for further qualification review, arguing that the underlying application should have been dismissed when the amendment was denied. On September 1, 1992, Brandt filed an Opposition to Petition for Reconsideration, stating that nowhere in Vermont Wireless' original "Petition to Dismiss or Deny" did Vermont Wireless contend that Brandt's original application should be dismissed, and that Vermont Wireless is prohibited from presenting this argument on reconsideration. Brandt's Opposition Motion also distinguishes the cases cited by Vermont Wireless in its Petition for Reconsideration. On September 11, 1992, Vermont Wireless filed a Reply to Brandt's Opposition Motion, answering that it did argue for dismissal of Brandt's underlying application in its original "Petition to Dismiss or Deny" in that it contended that the amendment was a major amendment and that the application should be considered "newly filed" according to the Commission's rules. 5. Brandt's original application, 1708-CM-P-83, was granted on September 23, 1992, and assigned call sign WMI818. The authorization prompted Vermont Wireless to file another Petition for Reconsideration on October 9, 1992, arguing again that Brandt's original application should have been dismissed when the major amendment was denied and, that at a minimum, the grant of Brandt's application should have been set aside until the Commission had made a determination on its August 17, 1992, Petition for Reconsideration. III. DISCUSSION 6. Processing of Underlying Application. Each of these pleadings can be resolved with the determination of a single issue: was the Domestic Facilities Division obligated to dismiss Brandt's underlying application when it denied his amendment? We find that the Division was not obligated to do so. Section 21.23 governs the filing of amendments. Section 21.23(b) states that once an application is designated for comparative evaluation, as the Brandt application had been at the time the amendment was filed, the Commission or the presiding officer may grant the request to amend only if a written petition demonstrating good cause is submitted. 47 C.F.R.  21.23(b)(1991). The regulation is silent as to any obligation on the part of the Commission or presiding officer to dismiss the underlying application if the request to amend is denied. Furthermore, in this service, where the filing of certain amendments will result in the dismissal of the underlying application, as well as the amendment, the rulemaking establishing the regulation as well as the language of the regulation has explicitly notified applicants of that result. For example, a 1993 rulemaking established that amendments to change ownership or control of pending MDS stations, other than a pro forma change of ownership, will result in the dismissal of the application. In the Matter of the Amendment of Parts 1, 2 and 21 of the Commission's Rules Governing Use of the Frequencies in the 2.1 and 2.5 GHz Bands, 8 FCC Rcd 1444, 1447 n. 40 (1993). An explicit statement that the filing of an amendment would result in the dismissal of the underlying application has generally accompanied such a policy in other services regulated by the Commission as well, the so-called "suicide amendments" of the AM radio application area being one example. See AM Processing Procedure, 18 RR 1565, 1567 (1959) (amending AM radio processing procedure to provide that the filing of a major amendment would result in assignment of new file number and processing of application as though filed on day of amendment); 47 C.F.R.  73.3571(j)(1) (1990). 7. Vermont Wireless does not cite any case in which an underlying application was dismissed solely on the basis of the dismissal of an amendment. For example, while one case cited by Vermont Wireless does involve the dismissal of an application where the applicant sought to file an amendment changing his transmitter site, the underlying application was unacceptable for filing at the outset because the required interference analysis was incomplete and his request for waiver was not sufficiently justified. In re Applications of Ernest Enax, Jr., 5 FCC Rcd 5835, 5836 (Comm. Car. Bur. 1990). Since we find that Vermont Wireless has not justified its August 17, 1992, Petition for Reconsideration, the arguments presented in the October 9, 1992, Petition for Reconsideration are now moot. 8. Accordingly, IT IS ORDERED that, the petitions for reconsideration filed by Vermont Wireless ARE HEREBY DENIED. The Opposition Motion filed by Brandt IS HEREBY GRANTED. 9. IT IS FURTHER ORDERED that the staff of the Mass Media Bureau shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau