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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 ) ) SPECTRUM COMMUNICATIONS, L.C. ) File No. 9508921 ) to Provide 39 GHz Point-to-Point ) Microwave Radio Service on ) Station WPNA387, Monterey, California ) 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. On November 26, 1996, the Wireless Telecommunications Bureau (Bureau) released a public notice announcing that the above-captioned application filed on behalf of Spectrum Communications, L.C. (SCLC), requesting authorization for 100 MHz of spectrum in the 38.6 to 40.0 GHz band (39 GHz band) in the Monterey, California service area, had been partially granted under call sign WPNA387 for fifty (50) MHz of spectrum. By memorandum dated April 11, 1997, SCLC requested reprocessing of its application. A letter was issued by the Bureau on May 13, 1997, denying SCLC's April 11, 1997, reprocessing request as untimely filed. On May 29, 1997, SCLC filed the instant Petition for Further Reconsideration, requesting reinstatement of the dismissed portion of its application, on the basis that a Petition for Partial Reconsideration and waiver had been filed on behalf of SCLC on April 3, 1997, relating to the subject application, but had never been acted upon by the Bureau. For the reasons set forth below, SCLC's Petition for Partial Reconsideration is dismissed and its Petition for Further Reconsideration is denied. II. BACKGROUND 2. On July 19, 1995, Columbia Millimeter Communications, L.P. (Columbia) filed Application No. 9507742, requesting authorization to operate a new facility using 100 MHz of spectrum in the 39 GHz band, in the Santa Cruz, California service area . On August 2, 1995, the Bureau released a public notice listing Columbia's Application No. 9507742 as accepted for filing. On August 14, 1995, SCLC filed Application No. 9508921, requesting authorization to operate a new facility using 100 MHz of contiguous spectrum in the 39 GHz band in the Monterey, California service area. On August 30, 1995, the Bureau released a public notice listing SCLC's Application No. 9508921 as accepted for filing. Upon staff review of the two applications, it was determined that SCLC's application filed on August 14, 1995, was mutually exclusive with SCLC's application filed on July 19, 1995, with respect to 50 MHz of spectrum -- namely, 39.300-39.350 GHz. 3. On November 13, 1995, the Bureau released the 39 GHz Freeze Order, declaring that until the Commission acted on a pending Petition for Rule Making concerning the 39 GHz band, no additional applications for licensing 39 GHz frequencies would be accepted for filing. On December 15, 1995, the Commission adopted the 39 GHz NPRM and Order, which expanded the freeze to provide that applications that were pending and mutually exclusive as of November 13, 1995, would be held in abeyance pending the resolution of the rule making proceeding. 4. By letter dated November 15, 1996, during the pendency of the freeze, SCLC was notified by the Bureau's Microwave Branch (Branch), that the portion of its Application No. 9508921 requesting authorization to operate at 39.350-39.400 GHz had been granted, but the portion of its application requesting authorization to operate at 39.300-39.350 GHz (the spectrum which was mutually exclusive with Columbia's Application No. 9507742) had been denied. The letter explained that only 50 MHz of spectrum had been granted to SCLC, due to its failure to demonstrate a compelling need or provide sufficient justification for an additional 50 MHz of spectrum. The November 15, 1996, action appeared on Public Notice on November 26, 1996. Effective April 1, 1997, Columbia was issued an authorization to operate a new 39 GHz facility at 38.600-38.650 GHz and 39.300-39.350 GHz, in Santa Cruz, California, under call sign WPNA659. 5. By letter dated October 9, 1997, the Branch set aside its April 1, 1997, action authorizing Columbia to operate Station WPNA659 at 38.600-38.650 GHz and 39.300-39.350 GHz, and returned Columbia's application to pending status under newly assigned Application No. 9704031. The Branch stated that it was setting aside its April 1, 1997, grant of Columbia's application because it was mutually exclusive with SCLC's application for frequency 39.300-39.350 GHz. The Bureau released a public notice regarding the Branch's October 9, 1997, action on October 14, 1997, when it announced the receipt of Columbia's Application No. 9704031. 6. On November 14, 1997, thirty-one (31) days after the release of the October 14, 1997, public notice, Columbia filed a petition for reconsideration of the Branch's action setting aside its April 1, 1997, authorization. By Order released on February 8, 1999, Columbia's November 14, 1997, petition for reconsideration was dismissed as untimely filed by one day. 7. A Petition for Partial Reconsideration relating to the partial dismissal of SCLC's Application No. 9508921 was filed on behalf of SCLC on April 3, 1997. On reconsideration, SCLC reiterated its need for an additional 50 MHz of spectrum, and requested waiver of the thirty-day filing deadline required by the Commission's Rules, since it had filed its Petition for Partial Reconsideration outside the filing deadline. Additionally, SCLC filed a memorandum with the Branch on April 11, 1997, requesting reprocessing of Application No. 9508921, on the basis that reprocessing the application would enable Spectrum to immediately implement its business plan. 8. By letter dated May 13, 1997, the Bureau denied SCLC's April 11, 1997, reprocessing request. At the time of release of the May 13, 1997, letter, the issuing office was unaware of the April 3, 1997, Petition for Partial Reconsideration, or the request for waiver of the thirty-day deadline in which to seek reconsideration that was included therein. On May 29, 1997, SCLC filed a Petition for Further Reconsideration, appealing the Bureau's May 13, 1997, action, and requesting reinstatement of the dismissed portion of its application. SCLC argued in its Petition for Further Reconsideration that the Bureau's May 13, 1997, action failed to consider the Petition for Partial Reconsideration filed on behalf of Spectrum on April 3, 1997, and failed to consider SCLC's need for an additional 50 MHz of spectrum. III. DISCUSSION 9. Persons seeking reconsideration of a Commission action, including those taken on delegated authority, must file a petition for reconsideration within thirty days of public notice of the action. This deadline is statutory and may not be waived by the Commission. The basis for determining the date of "public notice" is provided by the Commission's rules. Where, as here, the full text of the action is not released, but a document entitled Public Notice describing the action is released, any petition for reconsideration must be filed within thirty days of the release date of the public notice. A public notice describing the Branch's action authorizing SCLC to operate on only 50 MHz of spectrum in the Monterey area was released on November 26, 1996. Accordingly, SCLC's petition for reconsideration (referred to by SCLC as a "Petition for Partial Reconsideration") had to be filed no later than December 26, 1996. SCLC's Petition for Partial Reconsideration was filed on April 3, 1997, ninety-eight (98) days past the filing deadline. Therefore, the Petition for Partial Reconsideration may not be considered, and must be dismissed. 10. The Petition for Further Reconsideration, having been filed within thirty days of the Bureau's May 13, 1997, action, was timely filed. To the extent it seeks reconsideration of the Bureau's non-consideration of the Petition for Partial Reconsideration, however, it must be denied for the same reasons that the Petition for Partial Reconsideration must be dismissed. To the extent it seeks reconsideration of the November 26, 1996, partial denial, it must be denied as untimely, and repetitive of the April 11, 1997, memorandum addressed in the Bureau's May 13, 1997, action. IV. CONCLUSION AND 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 Sections 1.104(b) and 1.106(f) of the Commission's Rules, 47 C.F.R.  1.104 (b), 1.106(f), the Petition for Partial Reconsideration filed by Spectrum Communications, L.C. on April 3, 1997, IS DISMISSED AS UNTIMELY, and the Petition for Further Reconsideration filed by Spectrum Communications, L.C. on May 29, 1997, IS DISMISSED IN PART and DENIED IN PART, as set forth above. 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