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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) ) ALTRON COMMUNICATIONS, L.C. ) FCC File No. 9502933 ) For A New Microwave Facility in the) 38.6 - 40.0 GHz Spectrum, ) Station WPNH528, Jacksonville, Florida) ORDER ON RECONSIDERATION Adopted: June 23, 1999 Released: June 23, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. DCT Communications, Inc. (DCT) has petitioned the Public Safety and Private Wireless Division (Division) of the Wireless Telecommunications Bureau (Bureau) to reconsider the grant of an application filed by Altron Communications, L.C. (Altron) for a new microwave facility in the 38.6 - 40.0 GHz spectrum (39 GHz band), in Jacksonville, Florida on the ground that DCT filed a mutually exclusive application. Altron filed an Opposition to the Petition arguing that DCT's application was filed too late to be mutually exclusive with Altron's application, and that Altron's application was therefore correctly granted. For the reasons set forth below, we find that DCT's application was not properly completed when it was originally submitted on June 2, 1995. Additionally, we find that it was not properly completed and filed until June 8, 1995, after the time period for filing competing applications to Altron's Jacksonville, Florida 39 GHz band application had expired. We therefore deny DCT's Petition. II. BACKGROUND 2. On March 17, 1995, Altron filed an application for a license to operate a new facility in the 39 GHz band at 38,850-38,900 MHz and 39,550-39,600 MHz (Channels 6A and 6B, respectively) in Jacksonville, Florida. Public Notice of Altron's application was released on April 5, 1995. 3. On June 2, 1995, DCT submitted to the Commission's lockbox at the Mellon Bank (Mellon) an application for a license to operate a new facility at Channels 6A and 6B and at 39,250-39,300 MHz and 39,950-40,000 MHz (Channels 14A and 14B, respectively) in Jacksonville, Florida (FCC File No. 9506008). Box 14(A) of the FCC Remittance Advice Form associated with the subject DCT application, labelled Payment Type Code, contained the payment type code letters of "CPJ." On the other hand, Box 2(a) of DCT's application, labelled Fee Type Code, contained the payment type code of "CJP." 4. As a general matter, applications submitted to the FCC lockbox are opened and the accompanying fees processed and recorded by personnel at Mellon. During the time period at issue, the applications (both those that were to be accepted and those that were to be dismissed because of defects found by Mellon personnel) were then sent to the FCC. Commission personnel processed the applications and reviewed the rejected applications to determine whether they were correctly rejected. Rejected applications were then returned to the applicants (without an explanation of any errors). 5. Consistent with these procedures, Mellon reviewed the subject DCT application and determined that it should be dismissed because the associated FCC Remittance Advice Form contained an incorrect payment type code. As a result, Mellon forwarded the application for processing and dismissal to Commission personnel. A Division examiner determined that Mellon had correctly rejected DCT's application because of an incorrect payment type code on the FCC Remittance Advice Form. Instead of returning the incorrect application to DCT, however, the examiner reconciled the discrepancy between the payment type code provided on the FCC Remittance Advice Form and that given on the application by changing the payment type code on the FCC Remittance Advice Form to correspond to the fee type code indicated on the application. It appears that the examiner then sent the application back to Mellon without returning the rejected application to the applicant, DCT. It further appears that Mellon received the corrected DCT application on June 8, 1995, and it was accepted for filing on that date. 6. The Division subsequently granted Altron's application and public notice of the grant was released on August 19, 1997. DCT timely filed its Petition on September 17, 1997. Altron filed its Opposition on October 1, 1997, and DCT filed a Reply on October 8, 1997. III. DISCUSSION 7. An application will be deemed mutually exclusive with an earlier-filed application if the two applications are (a) conflicting and (b) the second application was filed either within sixty days after the date of the public notice listing the earlier application or one business day before the Commission acts on the earlier application, whichever is earlier. As to the first requirement, both Altron's application and DCT's application sought licenses to operate on Channels 6A and 6B and the geographic areas proposed to be served in Jacksonville, Florida substantially overlap. The applications were therefore conflicting. As to the second requirement, a Public Notice listing Altron's application was released on April 5, 1995. Therefore, DCT's application had to be filed by Monday, June 5, 1995, in order to be considered mutually exclusive with Altron's earlier-filed Jacksonville, Florida 39 GHz application. As discussed in further detail below, we find, however, that DCT's application was not filed until June 8, 1995. 8. When an application is submitted to the FCC lockbox at Mellon, the application must be accompanied by a properly completed FCC Remittance Advice Form. If the Remittance Advice Form is incorrect, the application will be dismissed. As the Commission has explained, the submission of an error-free FCC Remittance Advice Form is essential to the efficient processing of fees. Therefore, forms that contain even minor, non-substantive defects will be dismissed. On the FCC Remittance Advice Form accompanying its application, it appears that DCT transposed the last two letters of the fee type code and incorrectly typed "CPJ". Given that DCT did not file a correct Remittance Advice Form, its application was properly not accepted for filing when it was initially submitted on June 2, 1995. 9. Instead of returning the rejected application to DCT for it to make any corrections and submit a properly completed application and FCC Remittance Advice Form, a Division examiner corrected the error and sent the corrected application to Mellon. The examiner's informal action, however, does not mean that the application was filed as of the day it was originally submitted. The Commission has specifically rejected allowing corrected remittance advice forms to be accepted nunc pro tunc. Rather, we conclude that the application was accepted for filing on the day it was received by Mellon with a completely correct FCC Remittance Advice Form, June 8, 1995, just as would have occurred had it been corrected and resubmitted by DCT. Because June 8, 1995 was after the time period provided by the Commission's Rules to file competing applications with Altron's application, we find that DCT's application is not mutually exclusive with Altron's application. 10. Moreover, we are convinced that DCT's application could not have been a timely-filed conflicting application with respect to Altron's application had the examiner returned it to DCT. In order to be timely, DCT's Application had to be filed by Monday, June 5, 1995, DCT's Application was originally submitted on June 2, 1995, the previous Friday. Given the time required for Mellon to process the application after it was filed, for the Division to review Mellon's determination, and for the United States Postal Service to deliver the rejected application to DCT, it would not have been possible for DCT to file a correctly completed application by June 5, 1995, only one business day after it was originally submitted. We therefore deny DCT's Petition and, because the application is untimely, dismiss without prejudice DCT's application with respect to its request for Channels 6A and 6B. Thus, we find that Altron's application was properly granted. IV. ORDERING CLAUSES 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, and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the Petition for Reconsideration of DCT Communications, Inc., filed on September 17, 1997, IS DENIED. 12. 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 Application of DCT Communications, Inc., filed June 8, 1995, for a new microwave facility in the 38.6 - 40.0 GHz spectrum, Jacksonville, Florida, IS DISMISSED WITHOUT PREJUDICE with respect to its request for Channels 6A and 6B. 13. 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