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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 Application of ) ) DCT COMMUNICATIONS, INC. ) File No. 9505999 ) to Provide 39 GHz Point-to-Point Microwave) Radio Service in Cincinnati, Ohio) ORDER ON RECONSIDERATION Adopted: August 12, 1999 Released: August 16, 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) August 31, 1995, Petition for Reconsideration (Petition) of the decision by the former Microwave Branch (Branch) of the Licensing Division to dismiss the above-captioned application to operate a new Point-to-Point Microwave Radio Service system in the 38.6 to 40.0 GHz (39 GHz) band in Cincinnati, Ohio. For the reasons discussed below, we affirm the Branch's dismissal of DCT's application. II. BACKGROUND 2. On March 4, 1994, Avant-Garde Telecommunications, Inc. (Avant-Garde), WinStar Wireless Fiber Corp.'s (WinStar) predecessor in interest, applied for additional channels at Station WMN324, a licensed 39 GHz facility in Cincinnati, Ohio. Avant-Garde's application was placed on public notice on July 6, 1994, establishing a September 4, 1994, cut-off date for filing competing applications. On April 11, 1995, Avant-Garde filed an application for consent to transfer control of Station WMN324 to WinCom Corp., a subsidiary of WinStar Communications, Inc. (WSC) (Transfer Application). On May 1, 1995, the Transfer Application appeared on public notice as accepted for filing. On June 8, 1995, nine months after the cut-off date for filing competing applications, DCT filed the above-captioned application, which overlapped the proposed service area of Avant-Garde's Cincinnati application. On June 26, 1995, the Branch granted the Transfer Application. WSC filed a letter on July 18, 1995, notifying the FCC that the subject merger had been consummated and that the name of the surviving corporation was WinStar Wireless Fiber Corp. On July 24, 1995, WinStar's motion to accept a late filed petition to deny, and the petition to deny DCT's Cincinnati application were filed. 3. On August 2, 1995, the Branch dismissed DCT's Cincinnati application because it was untimely filed. Under former Section 21.31(b) of the Commission's Rules (the substance of which is currently contained in Section 101.45(b) of the Commission's Rules), 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 conflicting applications as accepted for filing. If an application is filed after the 60-day cut-off date, the Commission's Rules provide that such application will be dismissed. On August 3, 1995, one day after the Branch dismissed its application, DCT filed an opposition to WinStar's July 24, 1995, petition to deny. 4. On August 4, 1995, WinStar, pursuant to the Avant-Garde/WinStar merger, notified the FCC that Avant-Garde's Cincinnati application should be amended to specify WinStar as the applicant. On August 11, 1995, WinStar filed a reply to DCT's Opposition. WinStar's amendment to the pending application appeared on public notice on August 16, 1995. On August 31, 1995, DCT filed its Petition seeking reconsideration of the Branch's decision to dismiss its Cincinnati application. III. DISCUSSION 5. DCT argues that we should waive former Section 21.31(b) of the Commission's Rules, and then restore its late-filed Cincinnati application to pending status. The Commission may exercise its discretion to waive this rule if there are "unique or unusual factual circumstances," which make application of the rule "contrary to the public interest." DCT argues that such circumstances exist in this case. It contends that WinStar is an "unqualified applicant" that is attempting to warehouse spectrum by seeking authorization for additional channels at Station WMN324, WinStar's licensed 39 GHz facility in Cincinnati. DCT offers no objective, documented evidence to support its claim that WinStar is an unqualified applicant. Moreover, DCT offers no firm evidence to support its claim that WinStar's application was filed for the purpose of warehousing spectrum, other than pointing out that WinStar has four licensed channels and is requesting authorization for additional channels. We find that DCT's subjective assessments of WinStar cannot form the basis for deciding a waiver request. Therefore, we conclude that a waiver of former Section 21.31(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. 6. In the alternative, DCT asserts that the Transfer Application, which appeared on public notice on May 1, 1995, constituted a major amendment to Avant-Garde's pending Cincinnati application and thus, opened a new 60-day filing window for competing applications. Thus, DCT contends that its Cincinnati application was timely filed on June 8, 1995, and should be restored to pending status. We disagree. The transfer of Avant-Garde's Cincinnati application to WinStar constituted a minor amendment and thus, opened no new filing window. In accordance with former Section 21.23(c) of the Commission's Rules (currently Section 1.927 of the Commission's Rules), the transfer of the application was done for a legitimate business purpose other than the application's acquisition, i.e., to reflect the change in ownership caused by the FCC-approved Avant-Garde/WinStar merger. The Transfer Application merely requested consent to the transfer of control of Station WMN324, the Cincinnati facility that was licensed to Avant- Garde. It did not amend Avant-Garde's Cincinnati application for additional channels. Thus, we conclude that the FCC's acceptance of the Transfer Application did not trigger a new 60-day filing window during which competing applications could be filed. 7. We conclude that WinStar's July 24, 1995, petition to deny was rendered moot by the Branch's August 2, 1995, dismissal of DCT's Cincinnati application. Therefore, pursuant to Section 1.939(g) of the Commission's Rules, we dismiss WinStar's petition to deny. . IV. ORDERING CLAUSES 8. 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 DCT Communications, Inc. on August 31, 1995, IS DENIED. 9. 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 WinStar Wireless Fiber Corp. on July 24, 1995, IS DISMISSED. 10. 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