**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of the Application of )

)

ALTRON COMMUNICATIONS, L.C. ) FCC File No. 9502933

)

For A New Microwave Facility in the )

38.6 -- 40.0 GHz Spectrum, )

Station WPNH528, Jacksonville, Florida )

#########  ORDER ON RECONSIDERATION

**Adopted:** January 28, 2000 **Released:** February 2, 2000

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

**I. INTRODUCTION**

1.  DCT Communications, Inc. (DCT) has filed a petition seeking further
    reconsideration (Further Petition)[^1] of an *Order on
    Reconsideration* (*Order*)[^2] denying DCT's initial petition for
    reconsideration (Petition)[^3] of the grant of the above-captioned
    application of Altron Communications, L.C. (Altron). For the reasons
    set forth below, we grant DCT\'s Further Petition.

#########  II. BACKGROUND

2.  On March 17, 1995, Altron filed an application for a license to
    operate a new facility in the 38.6-40.0 GHz (39 GHz) band at
    38,850-38,900 MHz and 39,550-39,600 MHz (Channels 6A and 6B,
    respectively in) Jacksonville, Florida (FCC File No. 9502933).[^4]
    Public notice of Altron\'s application was given on April 5,
    1995.[^5]

3.  On June 2, 1995, DCT submitted to the Commission\'s lockbox at the
    Mellon Bank (Mellon) an application for a license to operate a new
    facility at Channels 6A and 6B and at 39,250-39,300 MHz and
    39,950-40,000 MHz (Channels 14A and 14B, respectively) in
    Jacksonville, Florida (FCC File No. 9506008).[^6] Box 2(a) of DCT\'s
    application, labeled Fee Type Code, contained the payment type code
    of "CJP,"[^7] but Box 14(A) of the FCC Remittance Advice Form (FCC
    Form 159) associated with the application, labeled Payment Type
    Code, contained the payment type code letters of \"CPJ.\"[^8]

4.  As a general matter, applications submitted to the FCC lockbox are
    opened and the accompanying fees processed and recorded by personnel
    at Mellon.[^9] 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.[^10] Rejected applications were then returned to
    the applicants (without an explanation of any errors).[^11]

5.  Consistent with these procedures, Mellon reviewed the subject DCT
    application and determined that it should be dismissed because the
    associated FCC Remittance Advice Form contained an incorrect payment
    type code.[^12] As a result, Mellon forwarded the application for
    processing and dismissal to Commission personnel. An FCC examiner
    determined that Mellon had correctly rejected DCT\'s application
    because of an incorrect payment type code on the FCC Remittance
    Advice Form.[^13] Instead of returning the incorrect application to
    DCT, however, the examiner reconciled the discrepancy between the
    payment type code provided on the FCC Remittance Advice Form and
    that given on the application by changing the payment type code on
    the FCC Remittance Advice Form to correspond to the fee type code
    indicated on the application.[^14] It appears that the examiner then
    sent the application back to Mellon without returning the rejected
    application to the applicant, DCT.[^15] It further appears that
    Mellon received the corrected DCT application on June 8, 1995, and
    it was accepted for filing on that date.[^16]

6.  Subsequently, Altron's application was granted, and public notice of
    the grant was given on August 19, 1997.[^17] DCT filed its Petition
    on September 17, 1997 contending that the grant to Altron was
    improper due to the fact that DCT had a mutually exclusive
    application on file.[^18]

7.  On June 23, 1999, the Public Safety and Private Wireless Division
    denied the Petition and dismissed DCT's application.[^19] The Order
    held that DCT's application was not mutually exclusive with Altron's
    earlier-filed application because DCT's application was not filed
    within sixty days after the date of the public notice listing the
    Altron application, i.e., by Monday, June 5, 1995.[^20] In finding
    that DCT's application was not filed until June 8, 1995, the *Order*
    relied on the *Fees II* decision for the conclusion that an
    improperly completed Remittance Advice Form renders the underlying
    application unacceptable for filing.[^21] As a result, the *Order*
    denied DCT's Petition. DCT states that it did not know the precise
    reason why its application was given the June 8, 1995 filing date
    until the *Order* was released and requests that we reconsider our
    findings regarding the applicability of *Fees II*.[^22]

**III. DISCUSSION**

8.  DCT makes five main points in support of its position that its
    application was timely filed and mutually exclusive with the Altron
    application, and therefore improperly dismissed. First, DCT states
    that the *Fees II* decision should not apply to "such a small error"
    when FCC staff is easily able to identify and correct the
    deficiency.[^23] Second, DCT states that although it provided the
    incorrect fee type code on the Remittance Advice Form, the filing of
    that form was voluntary, and consequently, the error contained
    therein should have "no legal effect."[^24] Third, DCT argues that
    its application should be deemed filed on June 2, 1995 rather than
    June 8, 1995, because the Commission has "generally abandoned the
    letter-perfect filing standard."[^25] Fourth, DCT states that the
    Commission's failure to contact it to inform it of the filing fee
    error "caused DCT to miss any meaningful chance it may have had to
    maintain a viable application for the Jacksonville market."[^26]
    Finally, DCT argues that the dismissal of the DCT application
    violated the Commission's Rules under Part 21 and was not in accord
    with applicable case law.[^27]

9.  We find that DCT's second contention that the submission of FCC Form
    159 was voluntary warrants our granting its Further Petition. We
    agree with DCT that the Commission's Rules did not require the
    filing of FCC Form 159 with applications for new microwave
    facilities (FCC Form 494).[^28] Consequently, we conclude that the
    form's inclusion with DCT's application was superfluous and is not a
    sufficient basis upon which to dismiss an otherwise complete
    application. Moreover, our action here is consistent with cases
    where the FCC has permitted the reinstatement of an application
    *nunc pro tunc* after dismissal of the application due to
    typographical errors in the fee code.[^29]

10. Therefore, we grant DCT's Further Petition, and reinstate its
    dismissed application *nunc pro tunc*. DCT's application is mutually
    exclusive with Altron's application, because DCT's application was
    filed within the sixty-day cut-off window established by Altron's
    filing and it conflicts with Altron's application.[^30] As a result,
    we rescind the grant of Altron's application, return the Altron
    application to pending status, and dismiss both applications as
    required by the Commission's decision to dismiss without prejudice
    all pending mutually exclusive 39 GHz applications where mutual
    exclusivity was not resolved by December 15, 1995.[^31]

**IV. CONCLUSION**

11. We grant DCT's Further Petition. We find that DCT's application was
    submitted in a complete, timely fashion on June 5, 1998. Thus, DCT's
    application should have been considered mutually exclusive with
    Altron's application.

**V. ORDERING CLAUSES**

12. 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 Section 1.106 of the Commission\'s Rules, 47 C.F.R. § 1.106, the
    Petition for Further Reconsideration filed by DCT Communications,
    Inc. on July 23, 1999 IS GRANTED.

13. IT IS FURTHER ORDERED that the Motion for Extension of Time, filed
    on August 5, 1999, and the Further Motion for Extension of Time,
    filed on August 19, 1999, both by Altron Communications, L.C. ARE
    GRANTED.

14. 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
    license application of DCT Communications, Inc. (FCC File
    No. 9506008) IS REINSTATED.

15. 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
    grant of the license application of Altron Communications, L.C (FCC
    File No. 9502933) IS RESCINDED, and the application IS RETURNED TO
    PENDING STATUS.

16. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309(j)(1)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309(j)(1), the license applications of Altron Communications, L.C.
    (FCC File No. 9502933) and DCT Communications, Inc. (FCC File
    No. 9506008) ARE DISMISSED.

17. 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, Inc. Petition for Further Reconsideration
    (filed July 23, 1999) (Further Petition). Altron filed an Opposition
    to the Further Petition and DCT filed a Contingent Reply. The Reply
    was contingent because DCT opposed Altron's Further Motion for
    Extension of Time. We find it in the public interest, however, to
    grant both of Altron's extension requests, and will therefore
    consider the merits of its Opposition.

[^2]: ^?^Altron Communications, *Order on Reconsideration*, DA 99-1237
    (WTB PSPWD rel. June 23, 1999) (*Order)*.

[^3]: ^?^DCT Communications, Inc. Petition for Reconsideration (filed
    Sept. 17, 1997) (Petition).

[^4]: ^?^*Order* at ¶ 2.

[^5]: ^?^*Id.*

[^6]: ^?^*Id*. at ¶ 3.

[^7]: ^?^*Id*.

[^8]: ^?^*Id*. There does not exist a payment type code of "CPJ."

[^9]: ^?^Establishment of a Fee Collection Program to Implement the
    Provisions of the Omnibus Budget Reconciliation Act of 1989,
    *Memorandum Opinion and Order*, 5 FCC Rcd 3558, 3566 ¶ 16 (1990)
    (*Fees II*).

[^10]: ^?^*Id*. at 3567 ¶ 18.

[^11]: ^?^*See* Establishment of a Fee Collection Program to Implement
    the Provisions of the Omnibus Budget Reconciliation Act of 1989,
    *Memorandum Opinion and Order*, 6 FCC Rcd 5919, 5923 ¶ 26 (1991)
    (*Fees II Reconsideration*).

[^12]: ^?^*Order* at ¶ 5.

[^13]: ^?^*Id*.

[^14]: ^?^*Id*.

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

[^16]: ^?^*Id*.

[^17]: ^?^*Id*. at ¶ 6.

[^18]: ^?^*See* Petition at 2.

[^19]: ^?^ *Order* at ¶¶ 11-12.

[^20]: ^?^ *Id.* at ¶ 9.

[^21]: ^?^ *Id.* at ¶ 8 (citing *Fees II*, 5 FCC Rcd at 5922-23 ¶¶
    25-26).

[^22]: ^?^DCT Communications. Inc. Contingent Reply to Opposition to
    Further Petition for Reconsideration (filed Sept. 26, 1999) (Reply).

[^23]: ^?^Further Petition at 3-4.

[^24]: ^?^*Id*. at 4-5.

[^25]: ^?^*Id.* at 5.

[^26]: ^?^*Id.* at 8.

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

[^28]: ^?^*See* 47 C.F.R. § 1.1102 (1994) (FCC Form 159 not listed as
    required when filing FCC Form 494); 47 C.F.R. § 1.1108(b) (1994).
    Altron's arguments to the contrary mischaracterize DCT's position
    and therefore are without merit. Specifically, Altron states that
    "DCT does not dispute that the remittance advice form was still
    required at the time that DCT filed its application." Opposition at
    7. As noted above, however, DCT specifically disputed that
    conclusion.

[^29]: ^?^*See, e.g.,* Letter from Marilyn J. McDermett, Associate
    Managing Director, FCC, to Jerrold D. Miller, Esq., 8 FCC Rcd 8817
    (Nov. 23, 1993); Letter from Marilyn J. McDermett, Associate
    Managing Director, FCC, to Robert Ladd, 6 FCC Rcd 7066 (Oct. 8,
    1991).

[^30]: ^?^S*ee* 47 C.F.R. § 21.31(b)(2)(i) (1995); 47 C.F.R. §
    101.45(b)(2)(i).

[^31]: ^?^Amendment of the Commission's Rules Regarding the 37.0-38.6
    GHz and 38.6-40.0 GHz Bands, *Report and Order and Second Notice of
    Proposed Rule Making*, ET Docket No. 95-183, 12 FCC Rcd 18600, 18642
    ¶ 90 (1997), *aff'd*, *Memorandum Opinion and Order*, 14 FCC Rcd
    12428, 12442-43 ¶ 25 (1999).