NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** FCC 96-177 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 In the Matter of Interactive Video and Data Service Lottery of September 15, 1993 Genesis Perpetual Trust L.E. Smith, Trustee Applications for Interactive Video and Data Services Systems in Nine Markets MEMORANDUM OPINION AND ORDER Adopted: April 17, 1996 Released: May 23, 1996 Introduction By the Commission: 1. Genesis Perpetual Trust, L.E. Smith, Trustee ("Genesis") has filed two Applications for Review and a Petition for Reconsideration seeking Commission review of staff actions. All three pleadings arise from the same central facts involving Genesis' applications to participate in the Interactive Video and Data Service ("IVDS") lottery held on September 15, 1993. As discussed below, the staff of the former Private Radio Bureau (now the Wireless Telecommunications Bureau) dismissed Genesis' applications as untimely filed. Genesis challenges this dismissal arguing that trusts were added to the list of entities eligible for IVDS licenses after the close of the lottery filing windows. The staff also denied Genesis' petition to invalidate the lottery for IVDS licenses held on September 15, 1993, and denied Genesis' petition to deny the license applications of each of the lottery winners. For the reasons discussed below, the two Applications for Review and the Petition For Reconsideration filed by Genesis are denied. Background 2. The Commission established filing windows for the nine IVDS markets at issue which occurred on August 18-20, September 1-3, and September 15-17, 1992. A year later, Genesis filed nine IVDS applications with Mellon Bank in Pittsburgh, Pennsylvania on September 13, 1993, two days before the Commission conducted the lottery. Thus Genesis' IVDS applications were not timely filed and, therefore, were not included in the lottery. Following the lottery, the former Private Radio Bureau dismissed Genesis' applications by letter dated September 30, 1993. 3. Genesis, which is organized as a trust, argues that it was denied the opportunity to file because no filing window was established for trusts to file IVDS applications for the nine markets at issue. Genesis asserts that its applications were timely because trusts only became eligible for IVDS licenses on June 1, 1993. In support of its argument, Genesis submits a staff letter which states that trusts will be eligible in future filing periods. Genesis fails to note that the staff letter also stated that no new filing period would be opened for trusts for the first nine IVDS markets. Moreover, more than a week prior to Genesis' filing, the Commission explained that it would not reopen the lottery filing windows to allow trusts to apply for the first nine markets. 4. On October 18, 1993, Genesis filed an Application for Review challenging the dismissal of its late filed IVDS applications. On March 25, 1994, Genesis filed another Application for Review challenging a February 25, 1994 Licensing Division Order that denied both its petition seeking to invalidate the September 15, 1993 lottery and its petition to deny the applications of the lottery winners because Genesis' applications were not included in the lottery. On May 4, 1994, Genesis also filed a Petition for Reconsideration of the grant of licenses to the lottery winners asserting that license grants in these markets should have been delayed pending the resolution of its March 25, 1994 Application for Review. Discussion 5. The rules governing eligibility for IVDS were developed in a rule making proceeding conducted over a period of a year and a half. Genesis did not participate in the rule making that resulted in the IVDS eligibility requirements. Nor did Genesis file a timely lottery application seeking to participate as a trust (by requesting a waiver of the eligibility requirements) or in any other capacity during the filing periods. For example, Genesis could have participated in the lottery by creating a wholly-owned corporate subsidiary; alternatively, Genesis could have filed an application as a trust and sought a waiver of the Commission's rules. Genesis did neither. The filing of a timely application is a prerequisite for an applicant seeking to challenge a licensing action. Parties aggrieved by licensing decisions must avail themselves of the earliest available corrective step. 6. Further, despite filing numerous pleadings, Genesis has failed to raise any substantive challenge to the validity of the procedural rules being enforced against it. Accordingly, we conclude that Genesis has failed to avail itself in a timely manner of the appropriate procedural remedies. In addition, it has failed to articulate sufficient substantive grounds warranting acceptance of its applications, and thus its applications were properly excluded from the IVDS lottery. 7. In its October 18, 1994 Application for Review, Genesis also argues in a footnote that aliens should not be allowed to participate in any new lottery for these markets, citing the Omnibus Budget Reconciliation Act of 1993 codified in pertinent part at 47 U.S.C.  310(b). Further, in light of the result we reach today, no new lottery is necessary which renders moot Genesis' argument concerning alien ownership. In any event, we recently addressed this issue in Cristina Del Valle, et. a., FCC 96-57, FCC Rcd , (released March 6, 1996). In that case, we concluded that aliens were not precluded from obtaining licenses in the IVDS service. 8. For the above reasons, IT IS ORDERED THAT the applications for review filed by Genesis Perpetual Trust ARE DENIED. IT IS ALSO ORDERED THAT Genesis' Petition for Reconsideration IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary