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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 ) ) SINTRA CAPITAL CORPORATION ) File Nos. 9508150 ) 9508154 to Provide 39 GHz Point-to-Point Microwave ) Radio Service in Sacramento, CA, and ) Youngstown-Warren, OH ) ORDER ON RECONSIDERATION Adopted: April 28, 1999 Released: April 29, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order on Reconsideration, we deny two petitions for reconsideration filed by Sintra Capital Corporation (Sintra). We find that Sintra's application to operate systems in the 38.6 to 40.0 GHz (39 GHz) band in the Sacramento, California, area was properly dismissed as defective because it was untimely filed with respect to other pending conflicting applications. We also find that Sintra's application to operate systems in the 39 GHz band in the Youngstown-Warren, Ohio, area was properly dismissed as defective because the requested service area overlaps the authorized service area of an existing 39 GHz licensee. II. BACKGROUND 2. On January 18, 1995, the Wireless Telecommunications Bureau (Bureau) placed an application submitted by Commco L.L.C. (Commco) for a 39 GHz station authorization to provide point- to-point microwave service in the Stockton, California, area on public notice. On July 25, 1995, Sintra applied for a 39 GHz authorization in the Sacramento, California, area. On May 5, 1997, Commco's application was granted. On August 20, 1997, the Licensing and Technical Analysis Branch (Branch) of the Bureau's Public Safety and Private Wireless Division, by letter ruling, dismissed Sintra's Sacramento Application in accordance with Sections 101.45 and 101.35 of the Commission's Rules. Section 101.45 provides that no application will be entitled to be included in a random selection process or 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. As a result, the Branch dismissed Sintra's Sacramento Application as defective because it was filed after the sixty-day cut-off period established by the public notice announcing Commco's application. The dismissal of Sintra's Sacramento Application was placed on public notice on September 2, 1997. On October 2, 1997, Sintra filed a petition for reconsideration of the Branch's dismissal of its Sacramento Application. 3. Sintra also applied for a 39 GHz authorization to provide point-to-point microwave service in the Youngstown-Warren, Ohio, area on July 25, 1995. On March 27, 1996, Sintra filed an amendment, pursuant to former Section 21.23 of the Commission's Rules, to reduce the service area requested by its Youngstown-Warren Application. On August 20, 1997, the Branch dismissed Sintra's Youngstown-Warren Application in accordance with Sections 101.103 and 101.35 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 Sintra's Youngstown-Warren Application was defective because the coordination submitted with the application failed to consider existing station WMT810, licensed to Advanced Radio Telecom Corporation. Therefore, the Branch dismissed Sintra's Youngstown-Warren Application as unacceptable for filing, in accordance with Section 101.35 of the Commission's Rules. The dismissal of Sintra's Youngstown-Warren Application was placed on public notice on September 2, 1997. On October 2, 1997, Sintra filed a petition for reconsideration of the Branch's dismissal of its Youngstown-Warren Application. III. DISCUSSION 4. Although its Sacramento Application was filed late, Sintra argues that after the sixty-day cut-off period established by public notice of Commco's application, Commco and Sintra entered into an "oral agreement to coordinate frequency use in the subject area to avoid harmful electrical interference," and that Commco had "no objection to Sintra's frequency selection or the subject filing with the Federal Communications Commission." Sintra reasons that the "agreement between the parties is analogous to a time sharing arrangement as permitted by Section 101.103(a) of the Commission's Rules." 5. In addition, Sintra references Beep Communications and ATS Mobile Telephone where such agreements to eliminate mutual exclusivity between two competing applications was permissible. We find that the situations presented in Beep Communications and ATS Mobile Telephone are inapposite to the facts surrounding Sintra's Sacramento Application. In those cases, the Common Carrier Bureau and the Commission, respectively, found that a subsequent amendment reflecting a channel sharing agreement did not fall within the purview of a major amendment, and thus, was not susceptible to the sixty-day cut-off rule. We disagree with Sintra's contentions that the oral agreement between Sintra and Commco is analogous to the time sharing arrangement permitted by Section 101.103(a) of the Commission's Rules. We believe that a prerequisite to such an arrangement is the filing of acceptable applications because no agreement is possible when the underlying application and basis for the time sharing is defective because it was not timely filed. In addition, Section 101.103(a) describes a situation unlike the instant setting, where the Commission may step in and specify a time sharing arrangement for the licensees of two or more radio systems who are unable, without Commission intervention, to resolve the problem of an occurrence or likely occurrence of harmful interference. 6. Sintra next argues in its Sacramento Petition that the oral agreement it reached with Commco promotes 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 the Commission's filing requirements. As discussed above, Sintra's Sacramento Application was filed after the sixty-day cut-off period had lapsed. Consequently, because Sintra's Sacramento Application was defective, we conclude that mutual exclusivity does not exist between the Sintra and Commco applications. Thus, the provisions of Section 309(j)(6)(E) of the Communications Act would not seem to apply here. As a result, Sintra's Sacramento Petition, filed on October 2, 1997, is hereby denied. 7. In the Youngstown-Warren Petition, Sintra argues that its Youngstown-Warren Application cannot be dismissed for failure to comply with Section 101.103(d) of the Commission's Rules because at the time of the filing of the application Sintra coordinated its proposed frequency usage with Commco. Specifically, Sintra points out that Exhibit P to its Youngstown-Warren Application provides that Sintra and Commco have "reached an oral agreement to dual license the 39 GHz channels that are the subject of this application," and that "the parties have agreed to coordinate frequency use in the subject service area to avoid harmful electrical interference." Sintra also argues that even if there was a defect in Sintra's Youngstown-Warren Application when it was filed, such defect was cured by an amendment filed on March 27, 1996, by which Sintra "resolved even the appearance of mutual exclusivity." Sintra argues that the Branch's failure to include the amendment in its analysis violates the Communications Act of 1934, as amended. Consequently, Sintra contends the Branch must reinstate its Youngstown-Warren Application nunc pro tunc as of the original filing date, or at a minimum, reinstate the application and continue to hold it in abeyance pending the outcome of the 39 GHz rule making proceeding. 8. We disagree. Section 101.103(a) of the Commission's Rules provides that "assignment of frequencies will be made only in such a manner as to facilitate the rendition of communication service on an interference-free basis in each service area." Section 101.103(a) also provides that each frequency available will be assigned exclusively to a single applicant in any service area. Thus, under the Commission's Rules, we cannot grant overlapping licenses. In this instance, the service area requested by the Youngstown-Warren Application overlaps the service area licensed to Advanced Radio Telecom Corp. Moreover, Sintra's representation that it had an oral agreement with the existing licensee to coordinate frequency use in the subject service area, without any written documentation from the licensee, does not cure this defect. 9. Sintra also argues that the Branch should have considered its amendment before dismissing its application. However, the amendment to Sintra's Youngstown-Warren Application was filed after the Commission implemented a freeze on the processing of 39 GHz applications. On January 17, 1997, the Commission reconsidered certain aspects of the processing freeze and decided to lift the freeze on those amendments of right filed before December 15, 1995, that resolved mutually exclusive situations among pending applications. Thus, we find that the Branch did not err in failing to address the amendment at the time it dismissed the Youngstown-Warren Application given the Commission's freeze on the acceptance of such amendment. 10. Sintra also argues in the Youngstown-Warren Petition that the Commission has held that coordination agreements to eliminate mutual exclusivity between two competing applications are permissible. However, as discussed previously herein, Sintra's Youngstown-Warren Application was not mutually exclusive with another pending application. Sintra's application, if granted, would have caused interference to a station already provided exclusive use of its channels. Thus, Sintra was required to choose a frequency that would not cause interference to other licensed stations assigned exclusive use of frequencies over a service area. Accordingly, Sintra's Youngstown-Warren Petition is hereby denied. IV. ORDERING CLAUSE 11. 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, the petitions for reconsideration filed by Sintra Capital Corporation on October 2, 1997 are DENIED. 12. 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