********************************************************    
                         NOTICE
********************************************************

This document was converted from
WordPerfect to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

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                )  
                                )  
COMMCO L.L.C.                   )  
                                )  
Petition for Reconsideration of )  
Wireless Telecommunications Bureau)               
Waives Limitations on Payments In) 
Settlement Agreements Among Parties)    )
In Contested Licensing Cases,   )
Public Notice, DA 99-745 (WTB Released) 
April 16, 1999)                 )  


                             ORDER


Adopted:  September 28, 1999            Released:  September 29, 1999

By the Deputy Bureau Chief, Wireless Telecommunications Bureau:

     1.  On May 17, 1999, Commco L.L.C. (Commco) filed a Petition for Partial Reconsideration
(Petition).  Commco requests reconsideration of an April 16, 1999, Public Notice (Settlement Window
Public Notice or Notice) in which applicants for licenses in the 38.6-40.0 GHz (39 GHz) frequency band
were excluded from a settlement opportunity afforded to other wireless services.  For the reasons discussed
below, we deny the Petition.

     2.  In the Settlement Window Public Notice, the Wireless Telecommunications Bureau (Bureau)
provided for a limited waiver of Sections 1.935(a) and 1.935(b) of the Commission's Rules, allowing
parties to resolve certain contested licensing proceedings by settlement without limiting the consideration
promised, paid, or received.  Specifically, the Notice excluded, inter alia, "greenmail" limitations on
settlements of pending matters, but did not include settlements involving mutually exclusive applications
that were previously dismissed, such as in the paging proceeding, WT Docket No. 96-18, and the 39 GHz
proceeding, ET Docket No. 95-183.  The Bureau stated that the Commission had decided in those
proceedings to dismiss, rather than allow the possible settlement of, mutually exclusive applications before
moving forward to implement transitions to auctions and geographic area licensing.

     3.  In the 39 GHz Report and Order, the Commission dismissed (1) all applications for which the
60-day filing window was not completed as of November 13, 1995; (2) all major amendments filed on or
after that date; and (3) all mutually exclusive applications that were not cured by an amendment of right
filed on or before December 15, 1995, the date the 39 GHz Order was released.  
Commco argues that the Bureau's decision to exclude 39 GHz applicants from the settlement window is not
supported by the 39 GHz Report and Order, because the Commission had no rational basis for refusing to
give effect to amendments of right that resolve mutual exclusivity in pending applications.  We believe that
such an argument is an impermissible collateral attack on the 39 GHz Report and Order.

     4.  Moreover, contrary to Commco's contentions, we believe that the Commission has provided
ample reasons for its processing policy.  For example, the Commission previously found that if existing
applicants were allowed to resolve conflicts outside of the competitive bidding process, then other entities
would be prevented from applying for 39 GHz spectrum under the new rules, which could "inhibit the
development of new and innovative services in this spectrum."  Subsequently, in a Memorandum Opinion
and Order released on July 29, 1999, the Commission reiterated its approach in response to petitions for
reconsideration, and explained that amendments of right filed on or after December 15, 1995 were
dismissed in order to further the goals of the rule making proceeding, e.g., updating the regulatory structure
for the 39 GHz band.  Thus, we reject Commco's argument that the 39 GHz Report and Order contains
no rational basis for not giving effect to amendments filed after December 15, 1995.

     5.  Commco also argues that the exclusion of 39 GHz applicants from the settlement window is
inconsistent with several provisions of the Communications Act of 1934, as amended ("the Act").  First, it
contends that the exclusion violates Section 309(j)(6)(E) of the Act, which requires the FCC to use
methods such as negotiation and its own service rules to resolve mutual exclusivity before it holds an
auction.  In the July 29 MO&O, the Commission explained that Section 309(j)(1) of the Act requires the
use of competitive bidding to resolve mutually exclusive applications for all categories of spectrum
licenses, and Section 309(j)(6)(E) obligates the Commission to attempt to avoid mutual exclusivity by the
methods prescribed therein only when doing so would further the public interest goals of Section
309(j)(3).  Thus, the Commission already has decided, that the dismissal of pending39 GHz applications without the possibility of settlement does not violate Section 309(j)(6)(E), because it
would not be in the public interest to implement other licensing schemes or other processes for this service
at this time.

     6.  In addition, Commco argues that the exclusion of 39 GHz applicants from the settlement period
is inconsistent with Section 706 of the Telecommunications Act of 1996, which requires the Commission
to expedite the deployment of advanced telecommunications services.  In fact, we believe that excluding
the previously-dismissed 39 GHz applicants from the settlement period fully complies with the mandate of
Section 706.  One of the main goals of the 39 GHz proceeding has been to modify the existing technical
and application processing standards, in order to facilitate the seamless rapid deployment of advanced
telecommunications services throughout the 37.0-38.6 GHz band and the 39 GHz band.  In this
connection, the Commission has undertaken a rule making proceeding guided by the notice and comment
requirements of the Administrative Procedure Act.  The July 29 MO&O resolved the issues raised in the
petitions for reconsideration of the 39 GHz Report and Order and the Jan. 17 MO&O, and the
Commission is now poised to commence with implementation of the new 39 GHz band licensing rules once
they become effective.     7.  Commco also maintains that the settlement period must apply to all competing
telecommunications services uniformly, in accordance with Sections 160 and 161 of the Act.  Thus,
Commco argues that the exclusion of 39 GHz applicants from the settlement period is inconsistent with the
requirement that the agency provide regulatory parity to competing telecommunications services.  As an
initial matter, we are treating all similarly situated applicants equally by excluding from the Notice all
applications which were previously dismissed.  Moreover, critical to the promotion of competition and
regulatory parity for microwave services is the development of consistent technical and licensing rules,
which lies at the heart of the 39 GHz proceeding.  For example, the Commission has promoted flexible use
of the 39 GHz band by providing for point-to-point, point-to-multipoint, and mobile services on a
common carrier or private carrier basis.  The Commission has also refrained from setting eligibility
restrictions, spectrum aggregation or disaggregation limits, or restrictive technical rules.  Thus, we do
not believe exclusion of 39 GHz applications from the settlement period is inconsistent with any provisions
of the Act.

     8.  As a final matter, applications that are no longer pending may not be included in settlement
agreements.  The Commission has already dismissed certain applications in the 39 GHz Report and Order,
and subsequently dismissed as moot an Emergency Request for Stay of the dismissal of these
applications.     9.  In sum, we conclude that Commco has not demonstrated that the exclusion of 39 GHz
applicants from the Settlement Window Public Notice was improper.  Accordingly, IT IS ORDERED that
pursuant to 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 Partial Reconsideration filed
May 17, 1999, by Commco L.L.C. IS DENIED.

     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
     



                                 Kathleen O'Brien Ham
                                 Deputy Bureau Chief,
                                 Wireless Telecommunications Bureau