Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of the Application of) ) DCT COMMUNICATIONS, INC. ) FCC File No. 9506000 ) to Provide 39 GHz Point-to-Point Microwave) Radio Service in St. Louis, Missouri) ORDER ON RECONSIDERATION Adopted: October 22, 1999 Released: October 22, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. DCT Communications, Inc. (DCT) has filed Petitions for Reconsideration (Petitions) of the dismissal of the above-captioned application to use channels 3, 6 and 14 of the 38.6-40.0 GHz (39 GHz) band. For the reasons set forth below, we deny DCT's Petitions. II. BACKGROUND 2. On September 16, 1993, Avant-Garde Telecommunications, Inc. (Avant-Garde), the predecessor in interest of WinStar Wireless Fiber Corp. (WinStar), was authorized to operate on channels 5, 7, 9 and 11 on Call Sign WMN344, a 39 GHz facility in St. Louis, Missouri. On March 4, 1994, Avant-Garde applied to add channels 2, 3 and 14 to the authorization for Call Sign WMN344. 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. 3. On March 22, 1995, Video Multipoint, Inc. (Video Multipoint) filed an application for a license to operate a new 39 GHz facility in St. Louis on Channels 6. Video Multipoint's application was placed on public notice on April 5, 1995, establishing a June 5, 1995 cut-off date for filing competing applications. 4. On April 11, 1995, Avant-Garde filed an application for consent to transfer control of Call Sign WMN344 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. 5. On June 2, 1995, DCT submitted the subject application for authorization to use channels 3, 6 and 14 in St. Louis. DCT's application overlapped the proposed service area of Avant-Garde's St. Louis application for channels 3 and 14, and the proposed service area of Video Multipoint's application for channel 6. 6. Box 2(a) of DCT's application, Fee Type Code, contained the code of "CJP." On the other hand, Box 14(A) of the FCC Remittance Advice Form, Payment Type Code, submitted to the Commission's lockbox at the Mellon Bank (Mellon), contained the code of "CPJ." Mellon reviewed the application and determined that it should be dismissed because the DCT Remittance Form contained an incorrect payment type code. As a result, Mellon forwarded the application to Commission personnel for processing and dismissal. An examiner in the former Microwave Branch (Branch) determined that Mellon had correctly rejected DCT's application because of an incorrect payment type code on the DCT Remittance Form. Instead of returning the incorrect application to DCT, however, the examiner reconciled the discrepancy between the payment type code provided on the DCT Remittance Form and that given on the application by changing the payment type code on the DCT Remittance Form to correspond to the fee type code indicated on the application. It appears that the examiner then sent the application back to Mellon without returning the rejected application to DCT. Mellon received the corrected DCT application on June 8, 1995, and it was accepted for filing on that date. 7. 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 August 4, 1995, WinStar, pursuant to the Avant-Garde/WinStar merger, notified the FCC that Avant-Garde's St. Louis application should be amended to specify WinStar as the applicant. WinStar's amendment to the pending application appeared on public notice on August 16, 1995. 8. On August 2, 1995, the Branch dismissed DCT's St. Louis application for channels 3 and 14 because it was untimely filed. On August 31, 1995, DCT filed its Petition seeking reconsideration of the Branch's decision to dismiss its St. Louis application for channels 3 and 14. 9. On September 11, 1997, the Branch dismissed DCT's application for channel 6 as not timely filed in light of Video Multipoint's application. On October 1, 1997, DCT filed its Petition seeking reconsideration of the Branch's decision to dismiss its St. Louis application for channel 6. III. DISCUSSION A. Channel 3 and Channel 14 10. DCT argues that we should waive the 60-day cut-off established by former Section 21.31(b) of the Commission's Rules and restore its late-filed St. Louis application to pending status. Notably, DCT did not request this relief as a part of its original application. Section 1.106(c) of the Commission's Rules provides that new issues cannot be raised on reconsideration unless the petition relies on facts unknown to petitioner until after its last opportunity to present such matters which could not, through the exercise of ordinary diligence, have been learned prior to such opportunity. Alternatively, new facts may be offered by the petitioner if the public interest requires consideration of the new facts. DCT has not offered any argument to show that it satisfies either criteria for consideration of new facts. 11. Moreover, even if we were to consider it, we find DCT's argument for a waiver of the 60-day cut-off rule to be without merit. The Commission may exercise its discretion to waive a rule if (a) the underlying purpose of the rule would not be served or would be frustrated by application to the instant case, and a waiver would be in the public interest; or (b) in view of unique or unusual circumstances, application of the rule would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no other reasonable alternative. DCT argues that it satisfies the second prong because 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 WMN344. However, 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 noting that WinStar has four licensed channels and is requesting authorization for additional channels. We find that DCT's subjective assessments of WinStar do not form a sufficient basis for granting the requested waiver. Therefore, DCT has not established the existence of the circumstances that it argues justify a waiver. 12. 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 St. Louis application and thus opened a new 60-day filing window for competing applications. DCT contends that its St. Louis application therefore was timely filed on June 8, 1995, and should be restored to pending status. We disagree. The transfer of an application for a legitimate business purpose other than the application's acquisition is a minor amendment and opens no new filing window. The Transfer Application requested consent to the transfer of control of Station WMN344 to reflect the change in ownership associated with the consummation of the FCC-approved Avant-Garde/WinStar merger. Thus, as we have previously decided in a similar matter, we conclude that the FCC's acceptance of amendments reflecting disposition of the Transfer Application did not trigger a new 60-day filing window during which competing applications could be filed. Thus, competing applications were due July 6, 1994, and DCT's application for channels 3 and 14 in St. Louis was correctly dismissed as untimely. We therefore deny DCT's Petition I. B. Channel 6 13. As provided by the Commission's Rules, an application will be deemed mutually exclusive with an earlier-filed application if the two applications are (a) conflicting and (b) the second application was filed either within sixty days after the date of the public notice listing the earlier application or one business day before the Commission acts on the earlier application, whichever is earlier. As to the first requirement, both Video Multipoint's application and DCT's application sought licenses to operate on channel 6, and the geographic areas proposed to be served substantially overlap. The applications were therefore conflicting. As to the second requirement, a Public Notice listing Video Multipoint's application was released on April 5, 1995. Therefore, DCT's application was to be filed by Monday, June 5, 1995 in order to be considered mutually exclusive with Video Multipoint's earlier-filed application. As we recently determined with respect to another DCT application submitted with its St. Louis application, however, we find that DCT's application was not filed until June 8, 1995. 14. When an application is submitted to the FCC lockbox at Mellon, the application must be accompanied by a properly completed FCC Remittance Advice Form. As a general matter, applications submitted to the FCC lockbox are opened and the accompanying fees processed and recorded by Mellon. FCC Remittance Advice Forms that contain even minor, non-substantive defects will be dismissed. On the form accompanying DCT's application, DCT erred in listing the appropriate fee type code as "CPJ." 15. During the time period at issue, the applications (both those that were to be accepted and those that were to be dismissed because of defects found by Mellon personnel) were then sent to the FCC. Commission personnel processed the applications and reviewed the rejected applications to determine whether they were correctly rejected. Rejected applications were then returned to the applicants (without explanation of any errors). In this case, however, instead of returning the rejected application to DCT for it to make any corrections and submit a properly completed application and FCC Remittance Advice Form, a Branch examiner corrected the error and sent the corrected application to Mellon. 16. Given that DCT initially did not file a correct FCC Remittance Advice Form, its application was properly not accepted for filing when it was initially submitted on June 2, 1995. We conclude that the application was accepted for filing on the day it was received by Mellon with a completely correct FCC Remittance Advice Form, June 8, 1995. Because June 8, 1995 was after the time period provided by the Commission's Rules to file competing applications with Video Multipoint's application, we find that DCT's application was correctly dismissed as untimely. Therefore, we deny DCT's Petition II. IV. ORDERING CLAUSES 17. 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), 405, and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the Petitions for Reconsideration filed by DCT Communications, Inc. on August 31, 1995 and October 1, 1997 ARE DENIED. 18. IT IS FURTHER 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. 19. 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