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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) ) SINTRA CAPITAL CORPORATION ) File No. 9507361 ) to Provide 39 GHz Point-to-Point Microwave ) Service in Waco, Texas ) ORDER ON RECONSIDERATION Adopted: March 1, 1999 Released: March 2, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. Introduction. By letter dated August 20, 1997, the Licensing and Technical Analysis Branch (Branch) dismissed the above-captioned application submitted by Sintra Capital Corporation (Sintra) as defective. On November 25, 1997, the Branch released a Public Notice describing its dismissal of the subject application. On December 29, 1997, Sintra filed a petition for reconsideration (Petition) of the dismissal of its application requesting authorization to operate systems in the 38.6 to 40.0 GHz (39 GHz) band in the area of Waco, Texas. For the reasons set forth below, Sintra's Petition is denied. 2. Background. Sintra filed its application on July 14, 1995. Sintra, in its application, failed to account for existing Station WMT872, licensed to Biztel, Inc. (Biztel). Specifically, Sintra's proposed operations presented an overlap between Sintra's proposed service area and Biztel's authorized service area. On March 27, 1996, Sintra filed an amendment to its initial application reducing its proposed service area in an attempt to resolve the overlap issue with Biztel. On August 20, 1997, the Branch dismissed Sintra's application as unacceptable for filing, in accordance with former Section 101.35 and Section 101.103 of the Commission's Rules. Section 101.103 requires applicants to choose frequencies that will not cause interference to other licensed stations assigned exclusive use of frequencies over a service area. The Branch found that the service area requested in the Sintra application overlapped with the service area authorized for Biztel's Station WMT872. Therefore, the Branch dismissed the Sintra application as unacceptable for filing, in accordance with former Section 101.35 of the Commission's Rules. 3. Discussion. In its Petition, Sintra argues that the March 27, 1996, amendment cured the application defect by reducing its service area to eliminate any overlap with Station WMT872. Sintra requests that the application be reinstated nunc pro tunc as of the original filing date. Sintra contends that the amendment was a minor "amendment of right" pursuant to former Section 101.29 and Section 101.45 and that where the Commission has not returned a defective application and the applicant cures the defect, post cut-off, then that amendment should be effective upon filing. We disagree. On November 13, 1995, the Wireless Telecommunications Bureau (Bureau) announced that no 39 GHz applications would be accepted for filing in the Common Carrier or Operational Fixed Point-to-Point Microwave Radio Services until the Commission acted upon a pending petition for rulemaking affecting these services. On December 15, 1995, the Commission modified the Bureau's 39 GHz Freeze Order by distinguishing between those pending 39 GHz applications that would be processed and those that would be held in abeyance pending the outcome of the rulemaking proceeding. On January 17, 1997, the Commission held that it would process all 39 GHz amendments of right filed on or after November 13, 1995, but before December 15, 1995. Sintra's amendment was filed on March 27, 1996, well after the December 15, 1995 deadline for the acceptance of amendments established in the Memorandum Opinion and Order. Because Sintra failed to amend the application within this established time frame, the Branch deemed the application to be defective and dismissed it. We conclude that the Branch properly did not accept Sintra's March 27, 1996, amendment in accordance with the applicable Commission precedent regarding processing of 39 GHz applications and amendments. We further conclude that the Branch properly dismissed Sintra's application pursuant to the Commission's Part 101 rules. 4. Finally, Sintra argues that the Commission's failure to process its application, in light of the amendment, violates Congress's directive to the Commission to "continue to use engineering solutions, negotiation, threshold qualifications, service regulations and other means in order to avoid mutual exclusivity in application and licensing proceedings." We believe, however, that this directive, at a minimum, pertains to applications that meet Commission filing requirements. As discussed above, the Sintra application was dismissed for failure to coordinate its application with an existing Biztel station. Consequently, because the Sintra application was defective, mutual exclusivity does not exist between Sintra and Biztel. Thus, the provisions of Section 309(j)(6)(E) of the Communication's Act would not seem to apply here. As a result, for the aforementioned reasons, Sintra's petition for reconsideration, filed on December 29, 1997, is hereby denied. 5. Accordingly, 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 Sintra Capital Corporation on December 29, 1997 IS DISMISSED. 6. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 Commission 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