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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 ) ) DCT COMMUNICATIONS, INC. ) File No. 9506002 ) to Provide 39 GHz Point-to-Point Microwave ) Service in Washington, D.C. ) ) ORDER ON RECONSIDERATION Adopted: July 19, 1999 Released: July 20, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order on Reconsideration, we deny DCT Communications, Inc.'s, (DCT), Petition for Reconsideration of the decision by the Licensing and Technical Analysis Branch (Branch) to dismiss the above captioned application requesting authorization to operate systems in the 38.6-40.0 GHz band (39 GHz band) in Washington, D.C. For the reasons discussed below, we affirm the Branch's dismissal of DCT's application. II. BACKGROUND 2. On March 4, 1994, WinStar Wireless Fiber Corp. (WinStar) applied for a 39 GHz authorization in the Point-to-Point Microwave Service, in the Washington, D.C. area. WinStar's applications were placed on public notice on July 6, 1994. On June 8, 1995, DCT filed a competing 39 GHz application for the Washington, D.C. area. DCT's application was placed on public notice on June 21, 1995. 3. On August 2, 1995, the Branch dismissed DCT's Washington, D.C. application because it was untimely filed with respect to the previously filed WinStar applications, in accordance with Section 101.45(b) and 1.934 (previously Sections 21.31(b) and 21.20, respectively) of the Commission's Rules. On August 31, 1995, DCT re-submitted the returned Washington, D.C. application and filed a petition for reconsideration (Petition) of its dismissal by the Branch. III. DISCUSSION 4. We agree with the Branch's decision to dismiss DCT's application filed on June 8, 1995. Section 101.45(b) of the Commission's Rules 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 60-day filing window for DCT to file a competing application with WinStar's application closed in September of 1994, nine months prior to DCT's filing of the subject application. Hence, DCT's application was defective because it was filed after the cut-off date established by WinStar's previously filed applications. 5. Additionally, we find that the arguments made in DCT's Petition are without merit. In its Petition, DCT first contends that we should waive Section 101.45(b) of the Commission's Rules and accept its application as mutually exclusive with WinStar's application. Section 1.925 of the Commission's Rules states that a waiver may be granted if the applicant shows that: (a) the underlying purpose of the rule will not be served in a particular situation and that granting the waiver request is in the public interest; or (b) in view of the unique or unusual factual circumstances of the instant case, application of the rule would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative. In addition, we may exercise our discretion to waive Section 101.45(b) where "special circumstances warrant a deviation from the general rule and such deviation will serve the public interest." 6. We find that, in its Petition, DCT fails to provide any support for granting its waiver request and asks that we consider the arguments in its Opposition to WinStar's Motion to File Out of Time and Petition to Deny (DCT Opposition). In its Opposition, DCT contends that such a waiver is warranted to ensure that WinStar has less of a chance to obtain unnecessary frequencies. Upon review, we find that DCT fails to explain how a waiver of Section 101.45(b) of the Commission's Rules would in this instance serve the public interest. Furthermore, we find that DCT fails to adequately describe circumstances beyond its control that would justify granting a waiver of the Commission's cut-off rules. Therefore, we conclude that a waiver of Section 101.45(b) of the Commission's Rules is not in the public interest because it would undermine the integrity, fairness and efficiency of the application process. 7. In the alternative, DCT cites to an argument originally submitted by BizTel, Inc. (BizTel) in the context of another proceeding that the Avant Garde/WinStar merger and resulting amendment to Avant Garde's Application opened a new filing window for competing applicants to file with the Commission. We disagree. On June 26, 1995, the Commission granted the Avant Garde/WinStar Transfer Application. On August 4, 1995, WinStar filed letters (Notification Letters) informing the Commission that, pursuant to the Avant-Garde/WinStar merger, the subject applications should be amended to specify WinStar as the applicant. WinStar also requested that the Commission either categorize the Notification Letters as minor amendments or exempt them from the "cut-off" provisions of Section 21.31 of the Commission's Rules. The Commission found that the Notification Letters would be deemed minor amendments, pursuant to former Section 21.23(c)(6), since the transfer of control was determined to be in the public interest and concerned a legitimate business purpose. As a result, the Notification Letters did not open a new window for filing competing applications. 8. Thus, for the foregoing reasons, we affirm the Branch's decision to dismiss DCT's late-filed competing application, and deny DCT's Petition requesting us to reconsider the dismissal of its application. Accordingly, we conclude that there is no basis to reinstate DCT's returned application. IV. ORDERING CLAUSES 9. 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) and 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the Petition for Reconsideration filed by DCT Communications, Inc. on August 31, 1995, is DENIED. 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) and 308 and Section 1.934 of the Commission's Rules, 47 C.F.R.  1.934, DCT Communications, Inc. Application No. 9506002, filed on August 31, 1995, is DISMISSED as untimely filed. 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 j:\sblake\39ghz\39ord4 cc: S. Blakeney