Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Applications of )

)

COMMCO, L.L.C. )

)

)

For Authority to Establish New Point-to-Point ) File Nos. 9601688,
9601689, 9601690,

Microwave Facilities in the 38.6-40.0 GHz ) 9601702, 9601718, 9601719,
9601720

Frequency Band at Reading/Eureka, CA; )

Atlantic City, NJ; Sioux Falls, SD; Ocala, FL; )

Vallejo, CA; Odessa, TX; San Luis Obispo, CA )

)

For Authority to Establish New Point-to-Point ) File Nos. 9409621,
9505522, 9505525,

Microwave Facilities in the 38.6-40.0 GHz ) 9505566, 9506938

Frequency Band at Albuquerque, NM; )

Salem, OR; Daytona Beach, FL; Melbourne, FL; )

Topeka, KS )

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 15, 1999 Released: November 19, 1999**

By the Commission:

# **I. INTRODUCTION AND EXECUTIVE SUMMARY**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. In this *Memorandum Opinion and Order*, we address two
Applications for Review filed by Commco, L.L.C. (Commco). In the first
Application for Review, Commco seeks review of the decision of the
Licensing Division of the Wireless Telecommunications Bureau (Bureau or
WTB) denying its petition for reconsideration of the dismissal of its
applications proposing construction of new facilities in the 38.6-40.0
GHz (39 GHz) band.[^1] Commco\'s applications were dismissed because of
a filing freeze enacted by the Bureau on the day the applications were
filed.[^2] As a result, Commco challenges the effective date of the
filing freeze. In the second Application for Review, Commco seeks review
of the decision of the Licensing Division of the Bureau denying its
petition for reconsideration of the return of minor amendments to
certain then-pending Commco 39 GHz applications.[^3] Commco\'s
amendments were returned and not accepted for filing because of the
filing freeze, as extended by the Commission.[^4] Commco challenges the
return of its tendered amendments, and contends that extending the
filing freeze to amendments to remove mutual exclusivity was illegal and
arbitrary and capricious. For the reasons discussed below, we deny
Commco\'s Applications for Review.[^5]

# **II. BACKGROUND**

2\. On September 9, 1994, the Telecommunications Industry Association
(TIA) filed a Petition for Rule Making seeking to increase the amount of
spectrum available for operations contemplated in the 39 GHz band.[^6]
TIA\'s proposal was inconsistent with the rules then in effect.

3\. On May 26, 1995, and July 6, 1995, Commco filed applications to
establish new facilities in the 39 GHz band at Salem, OR; Daytona Beach,
FL; Melbourne, FL; and Topeka, KS (the Pre-Freeze Applications). On
November 13, 1995, pursuant to delegated authority, the Bureau adopted
and released an *Order* (the *Freeze Order*) providing that, pending
Commission action on the TIA rule making petition and effective upon
release of the *Order*, no new 39 GHz applications would be accepted for
filing, and any such applications received on or after such date would
be returned as unacceptable for filing.[^7] In support of this action,
the Bureau stated that the increasing number of applications (over 2,100
filed from January to November 1995) constituted a burden on Commission
resources and processing the applications could limit the impact of any
new rules the Commission might adopt in response to TIA\'s pending rule
making petition.[^8]

4\. On that same day, Commco filed applications to establish new
facilities in the 39 GHz band at Reading/Eureka, CA; Atlantic City, NJ;
Sioux Falls, SD; Ocala, FL; Vallejo, CA; Odessa, TX; and San Luis
Obispo, CA (the November 13, 1995 Applications). Because of a
Government-wide furlough, the Commission was closed for regular business
on November 14, 1995, and did not re-open until Monday, November 20,
1995.

5\. On December 15, 1995, the Commission adopted and released a *Notice
of Proposed Rule Making and Order* initiating the rule making proceeding
requested by TIA.[^9] The *NPRM and Order* affirmed and extended the
*Freeze Order*. It provided, *inter alia*, that the following would be
held in abeyance during the pendency of the rule making proceeding: (a)
applications pending as of November 13, 1995, that were either mutually
exclusive or still within the 60-day period for filing mutually
exclusive applications;[^10] (b) amendments to pending applications
filed on or after November 13, 1995; and (c) applications for
modifications of existing licenses filed on or after November 13,
1995.[^11] It also provided that no additional modification applications
or amendments thereto, except those that neither enlarged the
licensee\'s service area nor changed (other than to delete) its
frequency block(s), would be accepted for filing.[^12] Several parties,
including Commco, sought reconsideration.

6\. By letter dated January 25, 1996, the Microwave Branch of the
Bureau\'s Licensing Division dismissed Commco\'s November 13, 1995
Applications, citing the Bureau\'s *Freeze Order*.[^13] On February 12,
1996, Commco filed a petition for reconsideration of the dismissal.[^14]
Commco stated that \"\[a\]lthough the text of the *Freeze Order* had a
release date of November 13, 1995, it is not clear if the document was
actually made available to the public on that date, and the Commission
was closed the following day.\"[^15] Commco argued that the public was
not widely afforded notice of the *Freeze Order* until November 20, 1995
\-- the day the Commission re-opened.[^16] In addition, Commco stated
that it was incorporating by reference the Petition for Reconsideration
and the Emergency Request for Stay it had filed in the rule making
proceeding.[^17]

7\. On March 7 and 8, 1996, after the *NPRM and Order* affirmed and
extended the filing freeze described above, Commco tendered minor
amendments to the Pre-Freeze Applications. Although those amendments
proposed to resolve mutually exclusive situations with other pending
applications, the amendments did not comply with the exceptions listed
in the *NPRM and Order* for modification applications or amendments
thereto that neither enlarged the licensee\'s service area nor changed
(other than to delete) its frequency block(s). This is because Commco\'s
amendments were not amendments to \"modification applications\" \--
*i.e.*, applications to modify existing licenses \-- but were rather
amendments to applications for new licenses. Commco claims that these
amendments were amendments of right and should therefore have been
accepted for filing.[^18] By letter dated March 19, 1996, the Microwave
Branch returned the proffered amendments pursuant to the filing freeze
ordered in the *NPRM and Order*.[^19] On April 17, 1996, Commco sought
reconsideration.[^20]

8\. On January 17, 1997, the Commission issued a *Memorandum Opinion and
Order* (*January 17 MO&O)* responding to the petitions for
reconsideration and request for stay in the rule making proceeding.[^21]
With regard to the *Freeze Order*, the Commission found that it was
validly released and effective as of November 13, 1995.[^22] The
Commission noted that the date on the *Order* was November 13, 1995, and
on that same day the *Order* was made available to the public in the
Office of Public Affairs by placing copies on the counter in the usual
manner for access by the public.[^23] With regard to the scope of the
freeze set forth in the *NPRM and Order*, the Commission granted the
reconsideration petitions in part by lifting the processing freeze on
amendments of right[^24] filed on or after November 13, 1995, but before
December 15, 1995, the date of the *NPRM and Order*.[^25] This partial
lifting of the freeze allowed the processing of applications for
licensing new 39 GHz frequency assignments that had completed the 60-day
period for filing mutually exclusive applications before November 13,
1995, and that were amended to resolve mutual exclusivity on or after
that date but before December 15, 1995.[^26] The *January 17 MO&O* also
clarified that modifications of existing licenses that neither enlarged
the licensee\'s service area nor changed (other than to delete) its
frequency block(s) would be processed regardless of when filed.[^27] The
rest of the freeze conditions were retained.[^28]

9\. By letter dated April 29, 1997, the Bureau\'s Licensing Division
(Division) denied Commco\'s Petition for Reconsideration of the
dismissal of its November 13, 1995, applications.[^29] The Division
cited the Commission\'s *January 17 MO&O* and affirmed that the *Freeze
Order* was made available to the public on November 13, 1995, and thus
became fully effective on November 13, 1995.[^30] Commco filed an
Application for Review of the decision on May 29, 1997. By letter of May
7, 1997, the Division denied Commco\'s Petition for Reconsideration of
the return of its minor amendments.[^31] The Division again cited the
*January 17 MO&O*, reiterated that the Commission could order a freeze
on the processing of applications, and held that while Commco\'s
amendments resolved mutual exclusivity, because they were not tendered
prior to December 15, 1995, they were properly returned as unacceptable
for filing.[^32] Commco filed an Application for Review of the decision
on June 6, 1997.

10\. On November 3, 1997, we released a *Report and Order and Second
Notice of Proposed Rule Making* adopting, *inter alia*, new licensing
and technical rules governing the use of the 39 GHz band.[^33] We
reiterated our prior determination that the *Freeze Order* was effective
on the date of its release.[^34] On July 29, 1999, we released a
*Memorandum Opinion and Order* generally affirming the decisions made in
the *Report and Order and Second Notice of Proposed Rule Making* with
regard to the further processing of pending 39 GHz applications.[^35] We
affirmed our decision to dismiss without prejudice (1) all pending
mutually exclusive applications, unless the mutual exclusivity was
resolved by an amendment of right filed before December 15, 1995; (2)
all major modification applications and amendments filed on or after
November 13, 1995; and (3) all amendments to resolve mutual exclusivity
filed on or after December 15, 1995.[^36] We further determined that we
would process all 39 GHz applications that were not mutually exclusive
as of December 15, 1995, that conform in all respects to the
Commission\'s Rules, and all associated amendments of right filed before
December 15, 1995, where such applications filed satisfied the 30-day
public notice requirement.[^37] We also affirmed our decision to
dismiss, without prejudice, all applications that did not meet the
30-day public notice requirement as of November 13, 1995.[^38] Finally,
we affirmed our rejection of the suggestion that license applicants
should be given a specific time frame to resolve mutual
exclusivity.[^39] As we stated in the *Report and Order and Second
NPRM*, the applicants may reapply under the new geographic area
licensing rules established in the proceeding.[^40]

# **III. DISCUSSION**

**Commco\'s November 13, 1995 Applications**

11\. Commco argues in its Application for Review that its applications
to establish new facilities in the 39 GHz band should be accepted for
filing as of November 13, 1995, because the *Freeze Order* was not
effective as of November 13, 1995. We have held that the *Freeze Order*
was properly released and effective as of November 13, 1995, and we have
previously rejected most of the arguments Commco makes here.[^41]
Accordingly, these arguments are repetitious and will not be considered
further.[^42] Commco raises one new argument. Commco states that
although the *Freeze Order* had a release date of November 13, 1995,
Commco believes that the *Freeze Order* was not in fact released on that
date.[^43] It states that based on the Commission practice of posting
late releases on a bulletin board outside the Commission\'s Public
Affairs Office, its counsel\'s practice is to have paralegals check the
bulletin board late each day. Commco further argues that its counsel has
questioned its paralegals and has reported that to the best of
counsel\'s information and belief, the *Freeze Order* was not listed on
the Commission\'s bulletin board \"late in the afternoon\" on November
13, 1995.[^44] We find that even if the presumption that a Commission
document correctly reflects its release date is rebuttable, this
somewhat vague contention is insufficient to overcome it.[^45]
Accordingly, we conclude that Commco has failed to demonstrate that the
*Freeze Order* was not released on November 13, 1995.

12\. Commco also appears to argue that the *Freeze Order* is not
effective as to Commco until it received actual notice of the
freeze.[^46] Commco argues that Section 0.445(e) of the Commission\'s
Rules[^47] provides that no person is expected to comply with a
requirement or policy of the Commission without actual notice. This
argument is misplaced. As we held in the *July 1999 MO&O* with respect
to the *NPRM and Order*, the *Freeze Order* was not a requirement or
policy with which Commco was expected to \"comply.\"[^48] Rather, the
*Freeze Order* simply gave notice to the public that the Commission had
suspended acceptance of applications for licensing new facilities in the
39 GHz band and would return any such applications received on or after
November 13, 1995. Thus, Section 0.445(e) provides Commco no basis for
relief.[^49]

**Commco\'s Amendments to its Pre-Freeze Applications**

13\. In its second Application for Review, Commco argues that the Bureau
should not have returned the March 7 and 8, 1996 amendments to Commco\'s
applications but instead should have retained the amendments and held
them in abeyance.[^50] Otherwise, argues Commco, the Commission would
have been changing its rules without notice or comment and altering the
past legal consequences of amendments filed as of right.[^51] First, as
the Commission held in the *January 17 MO&O*, which Commco cites, by
imposing the freeze the Commission did not alter its rules without
opportunity for comment because it had not yet decided the final outcome
of any of the applications subject to the freeze and because, in fact,
it asked for comment on the very question of how to treat the subject
applications.[^52] Second, insofar as Commco is arguing that its
proposed amendments should have been accepted for filing and then held
in abeyance, the short answer is that the *NPRM and Order* explicitly
states that amendments to pending 39 GHz applications shall not be
accepted for filing until further notice.[^53] Finally, the question
whether minor amendments to license applications should have been
returned or instead retained and held in abeyance (but not processed) is
moot. Since Commco filed its petitions, we have ordered that all pending
39 GHz applications where mutual exclusivity was not resolved by
December 15, 1995, and all amendments thereto to resolve mutual
exclusivity that were filed after December 15, 1995, are to be dismissed
without prejudice.[^54] Thus, had the amendments been retained as Commco
requests, they would have been subject to our *Order* dismissing them
and their underlying applications.

14\. Commco apparently believes that the retention of the amendments
would have had a substantive effect on their processing. There is,
however, a difference between amendments that are accepted for filing
and those that are tendered but not accepted for filing due to a
freeze.[^55] The fact that amendments of right are effective upon filing
does not mean that tendered amendments of right are effective upon
submittal, particularly if such amendments are tendered after imposition
of a filing freeze.[^56] The fact that Commco tendered the amendments
does not mean that they automatically became effective; rather, they
remained ineffective because of the freeze. Since we did not resume
processing all pending applications, but rather ordered that
applications that were still mutually exclusive as of December 15, 1995,
be returned, along with any amendments submitted after December 15,
1995, the retention *vel non* of Commco\'s amendments is irrelevant.

15\. Commco next argues that under the Commission\'s Rules[^57] and
Section 309(j)(6)(E) of the Communications Act of 1934, as amended, its
right to amend an application to remove mutual exclusivity is unfettered
and not affected by a processing freeze.[^58] Commco raised these same
arguments in its Petition for Reconsideration in the rulemaking
proceeding, where they were carefully considered and rejected.[^59]

16\. Commco also claims it was arbitrary and capricious for the
Commission to accept for filing and process those applications to modify
licensed facilities that do not enlarge the service area or change
frequency blocks except to delete them, but not to accept for filing and
process amendments of right to license applications that would remove
mutual exclusivity.[^60] Contrary to Commco\'s suggestion, the two
situations are not similar, and the Commission made a reasoned choice to
treat them differently.

17\. At the beginning of the rule making proceeding, in order not to
undermine the goals of any new rules the Commission might adopt, as well
as to conserve Commission resources, the Commission decided to freeze
the processing of all applications that were mutually exclusive or that
were \"unripe,\" *i.e.*, had not passed the 60-day notice period for
filing mutually exclusive applications.[^61] In that regard, it also
held in abeyance all amendments to mutually exclusive applications and
most modification applications for existing licenses.[^62] For example,
the Commission rejected a proposal by one commenter to accept
modification applications that would allow current licensees to serve
new areas adjacent to their existing service areas so long as mutual
exclusivity did not result. It reasoned that accepting such modification
applications would be analogous to granting new applications, which it
had frozen.[^63] Thus, in the most closely analogous situation, both
existing licensees and applicants were treated similarly: neither was
permitted to seek to acquire new licenses or to serve new areas after
December 15, 1995, even if there was no mutual exclusivity.

18\. The Commission created a limited exception to the freeze, however,
for modification applications to existing licenses that neither enlarged
service areas nor changed frequency blocks (except to delete them). As
explained in the *January 17 MO&O*, granting such applications did not
undermine the goals of any of the proposals the Commission was
considering (and ultimately adopted).[^64] Moreover, if the Commission
had held such modification applications in abeyance, it would have
precluded existing licensees from upgrading equipment or making minor
adjustments to their systems in order to better serve the public.[^65]
Providing this limited exception to the otherwise general freeze on new
applications and amendments was a rational choice and in the public
interest.

19\. Commco also claims that by imposing the freeze the Commission has
modified the amendment of right rule without a rule making.[^66] As the
Commission has previously held, this argument is incorrect.[^67] The
freeze did no more than maintain the status quo while the Commission
considered new rules for processing applications for the 39 GHz band.
While we have has now modified the rules for processing those
applications, we have done so only after proper notice and rule making.

# **IV. CONCLUSION**

20\. For the above stated reasons, Commco\'s first Application for
Review is denied because the *Freeze Order* applicable to the filing of
new 39 GHz applications was properly released on November 13, 1995.
Further, the freeze became effective on such date, which was the same
day that Commco filed the subject applications. By the terms of the
*Freeze Order*, Commco\'s applications were subject to dismissal and
thus the Microwave Branch properly dismissed and returned Commco\'s
applications. In addition, Commco\'s second Application for Review is
denied because pursuant to the freeze as extended in the *NPRM and
Order*, the Microwave Branch properly returned Commco\'s minor
amendments to certain of its license applications as unacceptable for
filing given that those amendments were not tendered until after
December 15, 1995, the date of the *NPRM and Order*. Further, the freeze
did not contravene the Commission\'s regulations or the Communications
Act of 1934 and was not arbitrary or capricious.

# **V. ORDERING CLAUSES**

21\. Accordingly, IT IS ORDERED that, pursuant to the authority of
Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.
§ 154(i), and Section 1.115 of the Commission\'s Rules, 47 C.F.R.
§ 1.115, the Applications for Review filed on May 29, 1997 and June 6,
1997, respectively, by Commco, L.L.C. ARE DENIED.

22\. IT IS FURTHER ORDERED that pursuant to the authority of Sections
4(i) and 308 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 308, the dismissals of the applications designated by FCC
File Nos. 9601688, 9601689, 9601690, 9601702, 9601718, 9601719, 9601720,
9505522, 9505525, 9505566, and 9506938 ARE AFFIRMED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: ^?^Commco, L.L.C. Application for Review (filed May 29, 1997);
    Commco, L.L.C. Supplement to Application for Review (filed June 11,
    1997) (FCC File Nos. 9601688, 9601689, 9601690, 9601702, 9601718,
    9601719, 9601720).

[^2]: ^?^Petition for Amendment of the Commission\'s Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands, RM-8553, *Order*, 11 FCC Rcd
    1156, 1156 (WTB 1995) (*Freeze Order*).

[^3]: ^?^Commco, L.L.C. Application for Review (filed June 6, 1997) (FCC
    File Nos. 9409621, 9505522, 9505525, 9505566, 9506938).

[^4]: ^?^Amendment of the Commission\'s Rules Regarding the 37.0-38.6
    GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Notice of
    Proposed Rule Making and Order*, 11 FCC Rcd 4930, 4988-89 (1995)
    (*NPRM and Order*), as modified by *Memorandum Opinion and Order*,
    12 FCC Rcd 2910, 2915-24 (1997) (*Jan. 17 MO&O*).

[^5]: ^?^Effective August 13, 1997, subsequent to the filing of its
    second Application for Review, Commco\'s application for a license
    at Albuquerque, New Mexico in File No. 9409621 was granted. This
    *Memorandum Opinion and Order* does not affect that grant.

[^6]: ^?^Telecommunications Industry Association, Fixed Point-to-Point
    Microwave Section, Petition for Rulemaking (Sept. 9, 1994); *see
    also* *Public Notice*, Report No. 2044 (Dec. 1, 1994).

[^7]: ^?^*Freeze Order*, 11 FCC Rcd at 1156.

[^8]: ^?^*Id.*

[^9]: ^?^*NPRM and Order*, 11 FCC Rcd 4930 (1995).

[^10]: ^?^*See* 47 C.F.R. § 21.31(b)(2)(i) (1995). An application will
    be deemed mutually exclusive of an earlier-filed application if the
    two applications are mutually exclusive and 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. 47 C.F.R. § 21.31(b)(2) (1995).

[^11]: ^?^*NPRM and Order*, 11 FCC Rcd at 4989 & n.197.

[^12]: ^?^*Id.* at 4989.

[^13]: ^?^Letter from Michael B. Hayden, Chief, Microwave Branch,
    Licensing Division, WTB, Federal Communications Commission (FCC) to
    Commco, L.L.C. (Jan. 25, 1996). Pursuant to an internal
    reorganization of the Bureau, the Microwave Branch is now part of
    the Licensing and Technical Analysis Branch of the Bureau\'s Public
    Safety and Private Wireless Division.

[^14]: ^?^Commco Petition for Reconsideration (filed Feb. 12, 1996).

[^15]: ^?^*Id.* at 2.

[^16]: ^?^*Id.* at 2-4.

[^17]: ^?^*Id.*

[^18]: ^?^Commco Application for Review (filed June 6, 1997) at 5-7;
    s*ee also* 47 C.F.R. § 21.23(a)(1) (1995); 47 C.F.R. § 101.29
    (1997).

[^19]: ^?^Letter from Michael B. Hayden, Chief, Microwave Branch,
    Licensing Division, WTB, FCC to Commco, L.L.C. (Mar. 19, 1996).

[^20]: ^?^Commco Petition for Reconsideration (filed Apr. 17, 1996).

[^21]: ^?^*Jan. 17 MO&O*, 12 FCC Rcd 2910 (1997).

[^22]: ^?^*Id.* at 2922-23.

[^23]: ^?^*Id.*

[^24]: ^?^*See* 47 C.F.R. § 101.29.

[^25]: ^?^*Jan. 17 MO&O*, 12 FCC Rcd at 2918.

[^26]: ^?^*Id*.

[^27]: ^?^*Id*. at 2924.

[^28]: ^?^*Id*. at 2911.

[^29]: ^?^Letter from Walter G. Boswell, Chief, Licensing Division, WTB,
    FCC to Andrea S. Miano, Gurman, Blask & Freedman, counsel to Commco
    (April 29, 1997).

[^30]: ^?^*Id*. at 1-3.

[^31]: ^?^Letter from Walter G. Boswell, Chief, Licensing Division, WTB,
    FCC to Andrea S. Miano, Gurman, Blask & Freedman, counsel to Commco
    (May 7, 1997).

[^32]: ^?^*Id*. at 2-3.

[^33]: ^?^Amendment of the Commission\'s Rules Regarding the 37.0-38.6
    GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Report and Order
    and Second Notice of Proposed Rule Making*, 12 FCC Rcd 18600 (1997)
    (*Report and Order and Second NPRM*).

[^34]: ^?^*Id.* at 18639.

[^35]: ^?^Amendment of the Commission\'s Rules Regarding the 37.0-38.6
    GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Memorandum
    Opinion and Order*, FCC 99-179 (rel. July 29, 1999) (*July 1999
    MO&O*).

[^36]: ^?^*July 1999 MO&O*, ¶¶ 2, 7-38; *see* *Report and Order and
    Second NPRM*, 12 FCC Rcd at 18605, 18641-45.

[^37]: ^?^*July 1999 MO&O*, ¶¶ 2, 39-40.

[^38]: ^?^*July 1999 MO&O*, ¶¶ 2, 41-44; *see* *Report and Order and
    Second NPRM*, 12 FCC Rcd at 18605, 18641-45.

[^39]: ^?^*July 1999 MO&O*, ¶ 27; *Report and Order and Second NPRM*, 12
    FCC Rcd at 18642-43.

[^40]: ^?^*Report and Order and Second NPRM*, 12 FCC Rcd at 18642-44.

[^41]: ^?^*See* *Jan. 17 MO&O,* 12 FCC Rcd at 2922-23; *Report and Order
    and Second NPRM*, 12 FCC Rcd at 18639. *Cf*. *Jan. 17 MO&O,* 12 FCC
    Rcd at 2915 (rejecting argument that *NPRM and Order* was an
    impermissible retroactive rulemaking); *July 1999 MO&O*, ¶¶ 9, 12,
    15 (rejecting identical arguments made with respect to effectiveness
    of *NPRM and Order* on December 15, 1995).

[^42]: ^?^*See* *July 199 MO&O*, ¶ 9; Global Cellular Communications,
    Inc., *Order*, 13 FCC Rcd 2708, 2708 (WTB CWD 1998).

[^43]: ^?^Commco Application for Review (filed May 29, 1997) at 2-3.

[^44]: ^?^*Id*. at 3.

[^45]: ^?^*See* *July 1999 MO&O*, ¶ 12 & n.47 (*citing* *United States
    v. Chemical Foundations, Inc.*, 272 U.S. 1, 14-15 (1926)) (courts
    presume that public officials properly discharge their official
    duties); *see also* *Alaska Airlines, Inc. v. Johnson*, 8 F.3d 791,
    795 (Fed. Cir. 1993) (citing *Torncello v. United States*, 681 F.2d
    756, 770 (Ct. Cl. 1982)) (presumption stands unless there is
    \"irrefragable proof to the contrary\").

[^46]: ^?^Commco Application for Review (filed May 29, 1997) at 3.
    Commco states that it received a copy of the *Order* on November 20,
    1995.

[^47]: ^?^47 C.F.R. § 0.445(e).

[^48]: ^?^*July 1999 MO&O*, ¶ 12 (*citing* *Kessler v. FCC*, 326 F.2d
    673, 690 (D.C. Cir. 1963), where the court held the Commission\'s
    filing freeze was not a \"procedure\" under a similar provision of
    the Administrative Procedures Act (APA) which provides that a party
    is not compelled to resort to any procedure not published in
    accordance with the Act, noting that the freeze did not require any
    action on the appellants\' part; and where the court further held
    that the APA does not provide that any procedural rule is
    ineffective until published). By contrast, the Commission\'s Rules
    specifically provide that an order may be effective before it is
    published, and even before it is released. *See* 47 C.F.R. §§
    1.102(b), 1.103(a).).

[^49]: ^?^The purpose of 47 C.F.R. § 0.445(e) is to prevent parties from
    being punished for not complying with requirements of which they had
    no notice. *See Kessler v. FCC*, 326 F.2d at 690. Thus, in a case
    cited by Commco in its Supplement to Application for Review, *Algreg
    Cellular Engineering*, 12 FCC Rcd. 8148 (1997), the Commission held
    that while the parties\' agreements came within the rationale of a
    Commission rule prohibiting certain agreements, they did not fall
    within the rule\'s plain meaning, and particularly where the penalty
    for a violation was dismissal of the applications, the rule did not
    provide sufficient notice to the parties that their actions were
    prohibited. *Id.* at 8160-65. Had the parties had notice, of course,
    they could have complied. This reasoning is simply inapplicable to
    the situation before us. Moreover, as we have previously stated,
    providing advance notice of the *Freeze Order* could have thwarted
    the very purposes underlying the action.

[^50]: ^?^Commco Application for Review (filed June 6, 1997) at 5-7.

[^51]: ^?^*Id*. at 6.

[^52]: ^?^*Jan. 17 MO&O*, 12 FCC Rcd at 2915.

[^53]: ^?^*NPRM and Order*, 11 FCC Rcd at 4990.

[^54]: ^?^*Report and Order and Second NPRM*, 12 FCC Rcd at 18641-45;
    *July 1999 MO&O*, ¶¶ 2, 22-38.

[^55]: ^?^*July 1999 MO&O*, ¶ 10; *see* *Kessler v. FCC*, 326 F.2d at
    684 (holding that 47 U.S.C. § 309(a), (e), which provides for a
    hearing on certain applications \"filed with\" the Commission, does
    not apply to applications submitted but not accepted for filing
    because of a freeze).

[^56]: ^?^*July 1999 MO&O*, ¶ 10. *Compare Jan. 17 MO&O*, 12 FCC Rcd at
    2918 (amendments of right tendered before freeze were effective upon
    filing).

[^57]: ^?^47 C.F.R. §§ 21.23, 21.29, 21.31, 21.100 (1995).

[^58]: ^?^Commco Application for Review (filed June 6, 1997) at 7-9.

[^59]: ^?^*July 1999 MO&O*, ¶¶ 32-38, where we rejected Commco\'s
    arguments regarding 47 C.F.R. §§ 101.29(a), 101.45(f)(2), the
    sections that replaced 47 C.F.R. §§ 21.23(a), 21.31(e)(2) with
    regard to fixed microwave services. We generally dismiss and do not
    consider petitions that raise arguments that have previously been
    considered and rejected. *See* *id*., ¶ 9. The other rules cited by
    Commco, 47 C.F.R. §§ 21.29 and 21.100, do not provide applicants
    with any additional rights, but merely harmonize the rules with the
    Commission\'s general policy of encouraging parties voluntarily to
    resolve mutual exclusivity problems: 47 C.F.R. § 21.29(b)(1)
    provides that the provisions of the section do not apply to
    engineering agreements which resolve frequency conflicts without the
    creation of new conflicts, and 47 C.F.R. § 21.100(d)(1) encourages
    applicants to cooperate in coordinating frequency usage.

[^60]: ^?^Commco Application for Review (filed June 6, 1997) at 8-9.

[^61]: ^?^*See* *supra* note 10. In the *July 1999 MO&O*, we modified
    our definition of ripeness, agreeing with some of the commenters
    that an application was ripe once it met the 30-day public notice
    period after which the Commission was permitted to act on license
    applications, not the 60-day period during which other parties had
    the right to file competing applications. *July 1999 MO&O*, ¶ 40.

[^62]: ^?^*NPRM and Order*, 11 FCC Rcd at 4988-89; *Jan. 17 MO&O*, 12
    FCC Rcd at 2915-24 (1997).

[^63]: ^?^*Jan. 17 MO&O*, 12 FCC Rcd at 2924.

[^64]: ^?^*Id.* at 2924. By contrast, as just stated above, processing
    pending mutually exclusive applications or permitting mutually
    exclusive applicants to resolve their conflicts outside the new
    rules, could have inhibited the development of new and innovative
    services in the 39 GHz spectrum.

[^65]: ^?^*Id*.

[^66]: ^?^Commco Application for Review (filed June 6, 1997) at 6, 9-10.

[^67]: ^?^*Jan. 17 MO&O*, 12 FCC Rcd at 2915; *see also* *July 1999
    MO&O*, ¶ 9.