Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Applications of | * | FCC File Nos. 9510295,       |
|                                  | * | 9510294,                     |
| DCT TRANSMISSION, LLC            | ) |                              |
|                                  | * | 9600073, and 9600054         |
| to Provide 39 GHz Point-to-Point | * |                              |
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| Microwave Radio Service in       | * |                              |
| Bakersfield, CA,                 | * |                              |
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| Spokane, WA, Kalamazoo, MI, and  | * |                              |
| Lancaster, PA                    | * |                              |
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**ORDER ON RECONSIDERATION**

**Adopted:** **February 23, 2000 Released: February 25, 2000**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

1\. On May 28, 1999, DCT Transmission, LLC (DCT) filed a petition for
partial reconsideration of the April 28, 1999, *Order*[^1] by the Public
Safety and Private Wireless Division (Division) dismissing the
above-captioned applications to operate new point-to-point microwave
radio systems in the 38.6 to 40.0 GHz (39 GHz) band.[^2] For the reasons
set forth below, DCT's petition is denied.

2.  *Background.* Milliwave Limited Partnership (Milliwave) filed a 39
    GHz application to serve Bakersfield, CA, which was placed on public
    notice on April 19, 1995.[^3] On September 21, 1995, DCT filed a
    conflicting application to serve Bakersfield, CA.[^4]

3.  On May 10, 1995, Milliwave's 39 GHz application to serve Spokane,
    WA, was placed on public notice.[^5] On September 21, 1995, DCT
    filed a conflicting application to serve Spokane, WA.[^6]

4.  On May 24, 1995, Milliwave's 39 GHz applications to serve Battle
    Creek, Grand Rapids, and Lansing, MI, were placed on public
    notice.[^7] On October 2, 1995, DCT filed a conflicting application
    to serve Kalamazoo, MI.[^8]

5.  On November 13, 1995, Milliwave filed a petition to deny the DCT
    applications.[^9] On November 28, 1995, DCT filed amendments to both
    its Spokane and Kalamazoo applications in order to resolve any
    mutual exclusivity that existed with Milliwave's first-filed
    applications.[^10]

6.  On April 28, 1999, the Division released an *Order* granting
    Milliwave's petition to deny and dismissing the DCT
    applications.[^11] The Division concluded that the DCT applications
    were untimely pursuant to Section 101.45(b) of the Commission's
    Rules,[^12] because they were filed more than sixty days after the
    Milliwave applications with which they conflicted were placed on
    public notice.[^13]

7.  *Discussion.* Section 101.45(b) states that no application will be
    entitled to comparative consideration with a previously filed
    application unless such application is substantially complete and
    tendered for filing within sixty days after the date of the public
    notice listing the first of the conflicting applications as accepted
    for filing.[^14] As indicated, DCT filed each of its applications
    well after the time permitted for filing mutually exclusive
    applications had lapsed.

8.  Nevertheless, DCT argues that its Spokane and Kalamazoo applications
    should not have been dismissed as untimely with respect to
    Milliwave's applications because the November 27, 1995, amendments
    eliminated any mutual exclusivity.[^15] We disagree. Untimely filing
    cannot be cured by subsequent amendment.[^16] Indeed, a timely filed
    application is a prerequisite to the processing of an amendment of
    right,[^17] so DCT's proffered amendments were of no effect.
    Therefore, we find that DCT's late-filed Spokane and Kalamazoo
    applications were properly dismissed.

9.  DCT also argues that its Bakersfield application should not have
    been dismissed because Milliwave withdrew its application to serve
    Bakersfield on April 6, 1998.[^18] DCT is incorrect. On April 6,
    1998, a different entity, Columbia Millimeter Communications, L.P.,
    withdrew a different 39 GHz application[^19] to serve
    Bakersfield.[^20] Milliwave's application, rather than being
    withdrawn, was granted on September 18, 1997.[^21] Thus, we conclude
    that the Division properly dismissed DCT's Bakersfield application
    as late-filed.

10. 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),
    405, and Sections 1.104(b) and 1.106(f) of the Commission's Rules,
    47 C.F.R. §§ 1.104(b), 1.106(f), the petition for reconsideration
    filed by DCT Transmissions, LLC, on May 28, 1999, IS DENIED.

11. 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

[^1]: DCT Communications, *Order*, 14 FCC Rcd 6847 (WTB PSPWD 1999)
    (*DCT Order*).

[^2]: DCT Transmission, LLC, Petition for Reconsideration of Application
    Dismissals (filed May 28, 1999) (DCT Petition). DCT does not request
    reconsideration of the Division's dismissal of its 39 GHz
    application to serve Lancaster, PA (FCC File No. 9600054). *Id.* at
    1 n.1.

[^3]: *DCT Order*, 14 FCC Rcd at 6847 ¶ 2.

[^4]: *Id.*

[^5]: *Id.*

[^6]: *Id.*

[^7]: *Id.* at 6847 ¶ 3.

[^8]: *Id.*

[^9]: Letter from E. Ashton Johnston, Bryan Cave LLP, to Michael B.
    Hayden, Chief, Microwave Branch, Licensing Division, Wireless
    Telecommunications Bureau, Federal Communications Commission (filed
    Nov. 13, 1995).

[^10]: Letter from James H. Wiesenberg, President, DCT Communications,
    Inc., to Michael B. Hayden, Chief, Microwave Branch, Wireless
    Telecommunications Bureau, Federal Communications Commission (filed
    Nov. 28, 1995).

[^11]: *DCT Order*, 14 FCC Rcd at 6849 ¶¶ 8-9.

[^12]: 47 C.F.R. § 101.45(b).

[^13]: *DCT Order*, 14 FCC Rcd at 6848-49 ¶¶ 6-7.

[^14]: 47 C.F.R. § 101.45(b).

[^15]: DCT Petition at 1-2.

[^16]: *See*, *e.g.*, Applications of Plaincom, Inc., to Provide 39 GHz
    Point-to-Point Microwave Service in West Palm Beach-Boca Raton, FL,
    *Order on Reconsideration*, 14 FCC Rcd 9689, 9691 ¶ 6 (WTB PSPWD
    1999).

[^17]: *See* DCT Communications, Inc., *Order on Reconsideration*, 14
    FCC Rcd 1076, 1078 ¶ 5 (WTB PSPWD 1999), *review pending* (filed
    Feb. 22, 1999). The placing of an application on public notice as
    accepted for filing does not preclude the subsequent dismissal of
    that as application as defective. 47 C.F.R. § 101.37(d) (1995) (now
    47 C.F.R. § 1.933(b)).

[^18]: DCT Petition at 2-3.

[^19]: FCC File No. 9507788 (filed July 19, 1995).

[^20]: *See* Letter from E. Ashton Johnston, Paul, Hastings, Janofsky &
    Walker LLP, to Magalie Roman Salas, Secretary, Federal
    Communications Commission (filed Apr. 6, 1998).

[^21]: The call sign for Milliwave's 39 GHz station in Bakersfield, CA,
    is WPNA369.