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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 Applications of) ) NO WIRE, L.L.C. ) File No. 9508158 ) File No. 9508165 to Provide 39 GHz Point-to-Point Microwave) File No. 9508167 Radio Service in Orlando, FL, Harrisburg,) PA and Knoxville, TN ) ) WINSTAR WIRELESS, INC. ) File No. 9504877 ) to Provide 39 Ghz Point-to-Point Microwave) Radio Service in Orlando, FL ) ) COMMCO, L.L.C. ) File No. 9505566 ) to Provide 39 GHz Point-to-Point Microwave) Radio Service in Orlando, FL ) ) TCO NETWORK SERVICES ) File No. 9506013 ) to Provide 39 GHz Point-to-Point Microwave) Radio Service in Harrisburg, PA ) ) and ) ) HICAP NETWORKS, INC. ) File No. 9507932 ) to Provide 39 GHz Point-to-Point Microwave) Radio Service in Harrisburg, PA ) ORDER ON RECONSIDERATION Adopted: September 7, 1999 Released: September 8, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. On April 24, 1997, No Wire L.L.C. (No Wire) filed a Petition for Reconsideration (Petition) asking the Wireless Telecommunications Bureau (Bureau) to reinstate three applications to operate systems in the 38.6 to 40.0 GHz (39 GHz) band. No Wire sought to provide service on Channel 3 A-B in the area of Orlando, FL, Channel 7 A-B in the area of Harrisburg, PA, and Channel 8 A-B in the area of Knoxville, TN. For the following reasons, we grant the Petition, and dismiss the Orlando and Harrisburg applications on other grounds. We also reinstate the Knoxville application, and will discuss its ultimate disposition in a subsequent order. 2. On May 24, 1995, the Bureau placed on Public Notice, Winstar Wireless, Inc. (Winstar) applications for 39 GHz station authorization in the Point-to-Point Microwave Service in the areas of Orlando and Harrisburg. An Advanced Radio Technologies Corp. (ART) application for 39 GHz station authorization in the Point-to-Point Microwave Service in the area of Knoxville was also included on this Public Notice. Consequently, this Public Notice established a July 24, 1995, cut-off date for the receipt of competing applications. On July 25, 1995, No Wire filed competing applications for all three service areas. 3. On November 13, 1995, the Bureau announced 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 November 3, 1997, the Commission released a Report and Order and Second NPRM, announcing, inter alia, that it would dismiss, without prejudice, all pending mutually exclusive applications, unless those applications were 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. 4. On November 18, 1996, the Licensing and Technical Analysis Branch (Branch) dismissed the Orlando, Harrisburg and Knoxville No Wire applications. The Branch dismissed these applications as untimely. 5. On January 9, 1997, No Wire filed a Petition for Reconsideration, which was denied by the Branch. On April 24, 1997, No Wire filed a subsequent Petition for Reconsideration requesting reconsideration as to Channel 3 in Orlando, Channel 7 in Harrisburg, and Channel 8 in Knoxville. No Wire argued that its applications were timely filed because the Commission allows licensees an extra business day to file feeable common carrier applications. In a May 1990 Public Notice, the Commission implemented, as part its Fee Collection Program, a requirement that all time critical (i.e., applications subject to a cut-off date or filing window), feeable common carrier and broadcast applications, previously filed in Washington, D.C., were to be filed with a lockbox financial institution in Pittsburgh, PA. At that time, the Commission addressed concerns that the new procedure might disturb the filing routine of Washington-based entities. Specifically, the Commission recognized that once an application is handed over to an express carrier or courier the filer relinquishes control over the application and that this loss of control could result in untimely filed applications. In order to alleviate these concerns, the Commission granted filers a one additional day grace period for transportation and held that the Commission would accept, as timely filed, those applications stamped in by the lockbox bank before midnight on the next business day following the official deadline or cut-off date established by the Commission (extra business day policy). The Commission placed no other limitation on this time extension and stated that no other action needed to be taken for a party to avail itself of this option. 6. In its Petition, No Wire argues that pursuant to the extra business day policy, applicants filing time critical, feeable applications receive one additional day to file. Thus, No Wire claims its applications were timely filed on July 25, 1995, and that all three applications should be reinstated. On reconsideration, we concur, and accordingly grant No Wire's Petition and reinstate the Orlando, Harrisburg and Knoxville applications as to Channels 3, 7 and 8, respectively. However, on November 13, 1995, the date of the release of the Freeze Order, No Wire's Orlando application for Channel 3 was mutually exclusive with respect to the applications of WinStar and Commco. Similarly, No Wire's Harrisburg application for Channel 7 was mutually exclusive with respect to the applications of WinStar, TCO Network Services (TCO), and Hicap Networks (Hicap). Thus, in accordance with the 39 GHz Report and Order and Second NPRM, No Wire's Orlando and Harrisburg applications are dismissed. Further, the portions of the Winstar, Hicap, TCO and Commco applications that are mutually exclusive with respect to No Wire's application will also be dismissed. No Wire's Knoxville application presents a different situation, which will be discussed in a separate order. Therefore, although we are reinstating the Knoxville application, it will remain pending subject to further review and processing. 7. 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) and 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the Petition for Reconsideration filed by No Wire, L.L.C. on April 24, 1997 IS GRANTED. 8. 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) and 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, No Wire, LLC Applications, FCC File Nos. 9508158 and 9508165 ARE HEREBY DISMISSED for the reasons set forth herein. 9. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the Communications Act, 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 No Wire Application, FCC File No. 9508167 (frequencies 38950-39000/39650-39700) IS HEREBY REINSTATED AND ACCEPTED FOR FILING. 10. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.939 of the Commission's Rules, 47 C.F.R.  1.939, Winstar Wireless, Inc. Application, FCC File No. 9504877, TCO Network Services Application, FCC File No. 9506013, Hicap Network Application, FCC File No. 9507932 and Commco L.L.C. Application, FCC File No. 9505566 (frequencies 38700-38750/39400-39450) ARE HEREBY DISMISSED. 11. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the Communications Act, 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 portion of the Commco L.L.C. Application, FCC File No. 9505566 (frequencies 38650- 38700/39350-39400) that is not mutually exclusive with respect to No Wire's application for Channel 3 A- B in Orlando WILL BE SUBJECT TO FURTHER REVIEW AND PROCESSING. 12. 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 Division