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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) ) PLAINCOM, INC. ) File No. 9508117 ) to Provide 39 GHz Point-to-Point Microwave ) Service in West Palm Beach-Boca Raton, FL) ORDER ON RECONSIDERATION Adopted: June 18, 1999 Released: June 22, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order on Reconsideration, we dismiss in part and grant in part Plaincom, Inc.'s (Plaincom) petition for reconsideration (Petition) of the decision by the Licensing and Technical Analysis Branch (Branch) to dismiss the above-captioned application to operate systems in the 38.6 to 40.0 GHz (39 GHz) band in the area of West Palm Beach-Boca Raton, FL. For the reasons set forth below, we affirm the Branch's dismissal of Plaincom's application in relation to Channel 8-A, and reinstate Plaincom's application concerning its request for Channel 8-B. II. BACKGROUND 2. On March 22, 1995, Ronna L. Sauro (Sauro) applied for a 39 GHz station authorization on Channels 7-A and 8-A in the Point-to-Point Microwave Service in the area of Fort Meyers, FL. On April 5, 1995, Sauro's application was placed on public notice establishing a filing window for competing applications, which ended on June 5, 1995. On July 25, 1995, Plaincom filed the above-captioned competing application requesting Channels 8-A and 8-B. 3. On November 13, 1995, the Wireless Telecommunications Bureau (Bureau) made a determination that 39 GHz applications would no longer 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. 4. On March 25, 1996, Plaincom filed an amendment to its July 25, 1995 application in an attempt to resolve the mutual exclusivity with the Sauro application. On August 20, 1997, the Branch dismissed the July 25, 1995 Plaincom application in accordance with former Section 101.35 and 101.45 of the Commission's Rules. Section 101.45 states that no application will be consolidated for hearing 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 competing applications as accepted for filing. The Branch found that the Plaincom application was filed after the sixty-day cut-off date of June 5, 1995, established by the April 5, 1995 Public Notice announcing the Sauro application for Fort Meyers. As a result, the Branch dismissed the Plaincom application as unacceptable for filing, in accordance with former Section 101.35 of the Commission's Rules. On October 2, 1997, Plaincom filed the subject Petition concerning the Branch's dismissal of its application. 5. On November 3, 1997, the Commission released a Report and Order and Second NPRM, announcing, inter alia, that it would dismiss, without prejudice, pending mutually exclusive applications, unless the mutual exclusivity issue was resolved by an amendment-of-right filed before December 15, 1995. The Report and Order and Second NPRM also explained that where applications contained multiple channel requests, the Commission would process the non-mutually exclusive portions, and dismiss the mutually exclusive portions. III. DISCUSSION 6. Channel 8-A. In its Petition, Plaincom argues that the March 25, 1996, amendment cured the application defect by eliminating the mutual exclusivity with Sauro's request for Channel 8-A and asks that we reinstate the application nunc pro tunc as of the original filing date. Plaincom contends that the amendment was an "amendment-of-right" pursuant to former Section 101.29 of the Commission's Rules. Specifically, Plaincom contends that where the Commission has not returned a defective mutually exclusive application and the applicant cures the defect, post cut-off, then the amendment is effective upon filing. We disagree. Plaincom filed its original competing application on July 25, 1995, well after the sixty-day cut-off period for filing mutually exclusive applications had lapsed. A timely filed competing application is a prerequisite to the processing of an amendment-of-right. Furthermore, "the listing of an application on public notice as accepted for filing does not indicate that the application has been found by the Commission to be acceptable for filing and does not preclude the subsequent return of the application." Thus, because Plaincom's initial competing application was not timely filed, the amendment to that application is unacceptable for processing. 7. Finally, Plaincom argues that the Commission's failure to process its application, in light of the amendment-of-right, 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 applications and licensing proceedings." We believe that this directive, at a minimum, pertains to applications that meet Commission filing requirements. As discussed above, Plaincom's initial competing application was filed after the sixty-day cut-off period had lapsed and was dismissed as defective. Consequently, we conclude that no mutual exclusivity exists as to Sauro's application for Channel 8-A, and thus, we believe that the provisions of Section 309(j)(6)(E) of the Communications Act do not require a different result under these circumstances. As a result, for the aforementioned reasons, Plaincom's Petition requesting reinstatement of its application is denied as to Channel 8-A. 8. Channel 8-B. The Sauro application, as discussed above, requested two half pairs (Channel 7-A and Channel 8-A) rather than a complete channel pair. We find that Plaincom's request for Channel 8-B in West Palm Beach-Boca Raton, FL is not mutually exclusive with the Sauro application. Therefore, we reinstate the portion of Plaincom's application concerning authorization for Channel 8-B as of its original filing date of July 25, 1995, and direct the Branch to further review and process this portion of Plaincom's application consistent with the Commission's decisions in the Report and Order and Second NPRM. IV. ORDERING CLAUSES 9. 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 Plaincom, Inc. on October 2, 1997 Application No. 9508117 (frequencies 38950-39000) IS DENIED IN PART. 10. IT IS FURTHER 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 Plaincom, Inc. on October 2, 1997 Application No. 9508117 (frequencies 39650-39700) IS GRANTED IN PART. 11. This action is taken under the 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