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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 ) File Nos. 9510295 ) 9510294 to Provide Service in the 39 GHz Point-to-Point ) 9600073 Microwave Radio Service in Various ) 9600054 Locations in the United States ) ORDER Adopted: April 27, 1999 Released: April 28, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. In this Order, we grant the petition to deny (Petition), filed on November 13, 1995, by Thomas Domencich and Milliwave Limited Partnership (Milliwave). Accordingly, the applications filed by DCT Communications (DCT), requesting authorization to operate new point-to-point microwave radio systems in the 38.6 to 40.0 GHz (39 GHz) band in Bakersfield, CA, Spokane, WA, and Kalamazoo, MI, respectively, are dismissed because they were untimely filed with respect to applications that were filed by Milliwave. In addition, the application filed by DCT on October 2, 1995, requesting an authorization to operate a new 39 GHz point-to-point microwave radio system in Lancaster, PA, is dismissed because it was untimely filed with respect to certain applications filed by Biztel, Inc. (Biztel). 2. Background. On April 19, 1995, Milliwave's application for a 39 GHz authorization in Bakersfield, CA, was placed on public notice. On May 10, 1995, its application for a 39 GHz authorization in Spokane, WA, was placed on public notice. On September 21, 1995, DCT filed competing applications to serve Bakersfield, CA, and Spokane, WA. 3. Milliwave also applied for 39 GHz authorizations in Battle Creek, Grand Rapids and Lansing, MI. These applications were placed on public notice on May 24, 1995. On October 2, 1995, DCT filed a competing application to serve Kalamazoo, MI. 4. Biztel filed applications for 39 GHz authorizations in West Chester, PA, and Wilmington, DE. These applications were placed on public notice on March 15, 1995. On October 2, 1995, DCT filed a competing application to serve Lancaster, PA. 5. Discussion. Milliwave, in its Petition, argues that the above-referenced DCT applications were untimely filed. In this connection, Milliwave relies on Section 101.45(b) (former Section 21.31(b)) of the Commission's Rules, which states that no application will be entitled to comparative consideration with a previously filed application unless such application is substantially complete and tendered for filing within sixty days after the date of the public notice listing the first of the conflicting applications as accepted for filing. 6. We agree that an application requiring comparative consideration with an earlier-filed application is defective as untimely when it is filed more than sixty days after public notice of the earlier- filed application is given. On April 19, 1995, Milliwave's Bakersfield application was placed on public notice as accepted for filing. Thus, it established a cut-off date of June 19, 1995, for the filing of conflicting applications. DCT submitted its conflicting Bakersfield application on September 21, 1995. Thus, it was untimely filed. Milliwave's Spokane application established a cut-off date of July 9, 1995. DCT submitted its conflicting Spokane application on September 21, 1995. Consequently, it was also untimely filed. Finally, Milliwave's Battle Creek, Grand Rapids, and Lansing, MI, applications established a cut-off date of July 23, 1995. DCT submitted its conflicting Kalamazoo application on October 2, 1995. Similar to the two applications filed in Bakersfield and Spokane, the Kalamazoo application was also untimely filed. Thus, we conclude that DCT's Bakersfield, Spokane, and Kalamazoo applications were defective in that they were untimely filed with respect to Milliwave's first-filed applications. Therefore, we concur with Milliwave and dismiss these applications pursuant to Section 1.934(f) of the Commission's Rules. 7. On May 15, 1995, Milliwave was granted a 39 GHz license in Baltimore, MD. Milliwave contends that DCT's Lancaster application is untimely filed with respect to this authorization. This argument is premised on there being mutual exclusivity between Milliwave's Baltimore 39 GHz authorization and DCT's 39 GHz Lancaster application. We do not find it necessary to address the mutual exclusivity argument raised by Milliwave because of the other 39 GHz applications pending at the time DCT's Lancaster application was filed. Specifically, we find that Biztel's West Chester and Wilmington applications established the cut-off date that is relevant to DCT's Lancaster application. These Biztel applications, which were placed on public notice on March 15, 1995, established a cut-off date of June 14, 1995. DCT submitted its Lancaster application after June 14, 1995. Accordingly, we conclude that DCT's Lancaster application is defective in that it is untimely filed with respect to Biztel's first-filed applications. Therefore, we dismiss DCT's Lancaster application pursuant to Section 1.934(f) of the Commission's Rules. 8. IT IS ORDERED that pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i); 309 and Section 1.939 of the Commission's Rules, 47 C.F.R.  1.939, the petition to deny filed by Thomas Domencich and Milliwave Limited Partnership on November 13, 1995, IS GRANTED to the extent stated herein. 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 and Section 1.934(f) of the Commission's Rules, 47 C.F.R.  1.934(f), the applications filed by DCT Communications on September 21, 1995, are DISMISSED. 10. 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 and Section 1.934(f) of the Commission's Rules, 47 C.F.R.  1.934(f), the applications filed by DCT Communications on October 2, 1995, are DISMISSED. 11. 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