Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of the Application | * | File No. 9704031             |
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| COLUMBIA MILLIMETER              | * |                              |
| COMMUNICATIONS, LP               | * |                              |
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| to Provide 39 GHz Point-to-Point | * |                              |
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| Microwave Radio Service on       | ) |                              |
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| Station WPNA659, Santa Cruz,     | * |                              |
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ORDER ON RECONSIDERATION

**Adopted: April 10, 2000 Released: April 11, 2000**

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

# Introduction

1.  Columbia Millimeter Communications, LP (Columbia) seeks
    reconsideration of an *Order*[^1] of the Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau (Division)
    dismissing Columbia's previously filed petition for reconsideration
    as untimely.[^2] For the reasons set forth below, we affirm our
    original decision.

# background

2.  On June 19, 1995, Columbia filed an application for a license to
    operate a new facility in the 39 GHz band in Santa Cruz,
    California.[^3] On August 14, 1995, Spectrum Communications, L.C.
    (Spectrum) filed a partially mutually exclusive application to
    operate a new 39 GHz facility in Monterey, California.[^4] On
    December 15, 1995, the Commission decided that all pending 39 GHz
    applications that were mutually exclusive (or partially mutually
    exclusive) would be held in abeyance pending the resolution of a
    rulemaking proceeding.[^5] On November 15, 1996, Spectrum's
    application was granted in part and denied in part, and effective
    April 1, 1997, Columbia Millimeter's application was granted.[^6]
    Subsequently, the Division's Licensing and Technical Analysis Branch
    set aside its April 1, 1997, action granting Columbia a license and
    returned Columbia\'s application to pending status.[^7] Public
    notice of the action was released on October 14, 1997.[^8]

3.  On November 13, 1997, Columbia submitted to the Commission\'s
    lockbox at the Mellon Bank in Pittsburgh, Pennsylvania, its petition
    seeking reconsideration of the action setting aside the grant of its
    license.[^9] Columbia submitted a copy of the Petition to the
    Secretary\'s Office in Washington, D.C. on November 14, 1997.[^10]
    On February 8, 1999, we dismissed Columbia's Petition as
    untimely.[^11] We stated that Columbia had thirty days in which to
    seek reconsideration and that the thirty-day period ended on
    November 13, 1997.[^12] We also noted that the Commission's Rules
    require reconsideration petitions to be filed at the Secretary's
    Office in Washington, D.C.[^13] We concluded that because Columbia's
    petition was not received at the Secretary's Office until November
    14, 1997, it was untimely.[^14] On March 10, 1999, Columbia timely
    filed its Further Petition seeking reconsideration of our *Order*.

# discussion

4.  Columbia first argues that the thirty-day period in which to file
    petitions for reconsideration ended not on November 13, 1997, but on
    November 14, 1997, and thus its petition was timely.[^15] Columbia
    argues that although the notice had a release date of October 14,
    1997, "existence of the notice was not announced in the
    \[Commission's\] Daily Digest until October 15, 1997."[^16] It
    further states that it "understand\[s\]" that public notices are
    "often" not available to the public until they are announced in the
    Daily Digest, despite the notices' release date.[^17] It therefore
    argues that the thirty-day period ran from October 15, 1997 until
    November 14, 1997.[^18]

5.  In effect, Columbia argues that the period for seeking
    reconsideration did not commence until the October 14 Public Notice
    was included in a daily listing of Commission actions. We disagree.
    Section 1.4 of the Commission's Rules provides that if an action is
    summarized in a document entitled "Public Notice," the date of
    "public notice" of the action \-- the date from which the thirty-day
    period begins to run \-- is the date the document is released.[^19]
    Section 1.4 further provides that a document's release date appears
    on the face of the document and that a document is released by
    making the full text available to the public in the Office of Public
    Affairs.[^20] We therefore reject Columbia's argument that the
    thirty-day period began to run on October 15, 1997, the day after
    the Public Notice was released.[^21] We also find Columbia's
    suggestion that the public notice was not released until October 15,
    1997, unavailing, particularly because it is based on Columbia's
    "understand\[ing\]" of what it alleges is\
    "often" the case, and not on specific facts about events on October
    14, 1997.[^22]

6.  Columbia next argues that the submission of its petition at the
    Commission's lockbox at the Mellon Bank on November 13, 1997, was
    sufficient to make it timely.[^23] Though Columbia recognizes that
    the Commission's Rules provide that documents are considered filed
    at their receipt at the location designated by the Commission[^24]
    and that the Rules require petitions for reconsideration be filed
    with the Secretary's Office,[^25] it argues that given that the
    Communications Act does not provide where petitions for
    reconsideration must be filed, these are not the *only* methods by
    which documents may be filed.[^26] We reject this argument as
    specious. Contrary to Columbia's argument, the lack of the word
    "only" in Section 1.7 of the Commission's Rules, which provides that
    documents are considered filed upon their receipt at the location
    designated by the Commission,[^27] does not render the rule unclear.
    Moreover, Columbia ignores Section 0.401 of the Commission's Rules,
    which admonishes persons filing documents with the Commission to
    ensure that their documents are filed at the correct location as the
    Commission maintains different offices for different purposes, and
    warns that filings submitted to the wrong location will not be
    processed.[^28] We therefore reject Columbia's argument that
    reconsideration petitions may be filed at locations other than the
    one designated by the Commission. Accordingly, we affirm our
    original holding that Columbia's petition was not filed until
    November 14, 1997, when it was received at the Secretary's Office.

7.  Columbia asks that, in the event that we find its petition to be
    untimely, we waive the rule requiring reconsideration petitions to
    be filed with the Secretary and consider Columbia's petition on the
    merits.[^29] We may grant a request for waiver when (i) the
    underlying purpose of the rule(s) would not be served or would be
    frustrated by application to the instant case and a grant of the
    requested waiver would be in the public interest, or (ii) in view of
    the unique or unusual circumstances of the case, application of the
    rule would be inequitable, unduly burdensome or contrary to the
    public interest, or the applicant has no reasonable
    alternative.[^30] We find that Columbia has not met either of these
    standards.

8.  Regarding the first standard for granting a waiver, we note that
    Columbia does not argue that the underlying purpose of the Sections
    1.7 and 1.106 of the Commission's Rules would not be served or would
    be frustrated by applying the rules to this case. Indeed, the
    purpose of these rules is to ensure that petitions for
    reconsideration arrive at the proper location within the required
    time. That did not happen in this case. Accordingly, we find that
    Columbia has not met the first standard for granting a waiver.[^31]

9.  Turning to the second standard, Columbia argues that the unique
    circumstances of this case are the underlying issues and the public
    importance of those issues. Citing two broadcast license cases,
    Columbia argues that even where there is no good cause for a waiver,
    the Commission has heard untimely petitions if they raise
    substantial public interest questions.[^32] In those cases, however,
    the petitions were filed within the time that the Commission could
    proceed on its own motion.[^33] That is not true here. Columbia
    similarly argues that the Commission has discretion to hear
    petitions filed outside the thirty-day time statutory period in
    which to file petitions for reconsideration, and that the underlying
    issue here merits exercise of that discretion.[^34] Columbia is
    incorrect. While under certain circumstances, such as lack of proper
    notice, the Commission may waive the thirty-day period,[^35] the
    courts have made clear that such circumstances are extremely
    unusual.[^36] We find no such unusual circumstances surrounding the
    filing of Columbia's petition.

10. As a final matter, Columbia argues throughout its Further Petition
    that general principles of equity and procedural fairness require us
    to waive the filing location rules and consider its petition on the
    merits. We disagree. First, Columbia's argument amounts to no more
    than an argument that because it will win on the merits, we should
    consider its case on the merits. Such an argument, of course, can be
    made in any case and, if accepted, would undercut all of the
    Commission's procedural rules. Second, we conclude that the equities
    do not favor hearing Columbia's petition, in which Columbia asked us
    to reconsider the action setting aside the grant of its license, and
    restore the license. Columbia's application should not have been
    granted in the first instance because the application was mutually
    exclusive with Spectrum's application as of December 15, 1995, so
    pursuant to the Commission's orders, it should have been held in
    abeyance until the 39 GHz rulemaking was concluded.[^37] Further,
    the Commission has since decided in the 39 GHz rulemaking that
    mutually exclusive 39 GHz applications should be dismissed and
    partially mutually exclusive applications dismissed with respect to
    the part that is mutually exclusive.[^38] Therefore, we are not
    persuaded that the general notions of equity do not favor granting
    Columbia's Further Petition in this case.

11. In conclusion, we affirm the conclusion in our prior *Order* that
    Columbia was required to file its petition for reconsideration at
    the Secretary's Office by November 13, 1997, in order for the
    petition to be timely. We also affirm our prior finding that
    Columbia failed to do so and that its petition was untimely. We
    reject Columbia's request for a waiver of the rules requiring
    petitions for reconsideration to be filed at the Secretary's Office
    because we find that Columbia has not shown that grant of such a
    waiver is warranted. We also reject Columbia's other arguments as to
    why we should consider its petition on the merits.

# ORDERING CLAUSES

12. ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i) and 405 of
    the Communications Act of 1934, 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 Reconsideration filed by Columbia Millimeter
    Communications LP on March 10, 1999, IS DENIED.

13. 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]: Columbia Millimeter Communications LP, *Order on Reconsideration*,
    14 FCC Rcd 2782 (WTB PSPWD 1999) (*Order*).

[^2]: Columbia Millimeter Communications LP Petition for Reconsideration
    (filed Mar. 10, 1999) (Further Petition).

[^3]: *Order*, 14 FCC Rcd at 2782 ¶ 2.

[^4]: *Id*.

[^5]: Amendment of the Commission\'s Rules Regarding the 37.0-38.6 GHz
    and 38.6-40.0 GHz Bands, Implementation of Section 309(j) of the
    Communications Act \-- Competitive Bidding, 37.0 GHz-38.6 GHz and
    38.6-40.0 GHz, *Notice of Proposed Rule Making and Order*, 11 FCC
    Rcd 4930, 4988-89 ¶¶ 122-24 (1995).

[^6]: *Order*, 14 FCC Rcd at 2783 ¶ 4.

[^7]: *Id*. at 2783 ¶ 5.

[^8]: *Id*.

[^9]: *Id*. at 2783 ¶ 6.

[^10]: *Id*.

[^11]: *Order*.

[^12]: *Id*. at 2784 ¶¶ 7-8 (*citing* 47 U.S.C. § 405(a); 47 C.F.R.
    §§1.4(b)(4), 1.104(b), 1.106(f)).

[^13]: *Id*. at 2784 ¶ 9.

[^14]: *Id*.

[^15]: Further Petition at 2-4.

[^16]: *Id*. at 3.

[^17]: *Id*.

[^18]: *Id*. at 4.

[^19]: 47 C.F.R. § 1.4(b)(4); *see also*, *e.g.*, Eight Applications for
    Authority to Construct and Operate Multipoint Distribution Service
    Stations on the Channel 1 and 2, E, F and H Group Channels at
    Various Transmitter Sites, *Order on Reconsideration*, 11 FCC Rcd
    7008, 7009-10 ¶ 5 (MMB Video Services Div. 1996).

[^20]: 47 C.F.R. § 1.4(b)(2).

[^21]: Further, assuming *arguendo* that the presumption that a
    Commission document correctly reflects its release date is
    rebuttable, Columbia has presented insufficient evidence to overcome
    it. *Cf*. Commco, LLC, *Memorandum Opinion and Order*, FCC 99-347, ¶
    11 (rel. Nov. 19, 1999).

[^22]: *See* Amendment of the Commission's Rules Regarding the 37.0-38.6
    GHz and 38.6-40.0 GHz Bands, *Memorandum Opinion and Order*, ET
    Docket No. 95-183, 14 FCC Rcd 12428, 12437 ¶ 12 (1999).

[^23]: Further Petition at 4-5.

[^24]: *See* 47 C.F.R. § 1.7.

[^25]: *See* 47 C.F.R. § 1.106(i).

[^26]: Further Petition at 4-5.

[^27]: 47 C.F.R. § 1.7.

[^28]: 47 C.F.R. § 0.401.

[^29]: Further Petition at 6-8.

[^30]: 47 C.F.R. § 1.925(b)(3).

[^31]: Moreover, there are substantial reasons to apply the rules. While
    the Secretary's Office currently stops accepting filings at 7 p.m.,
    filings may be submitted to the Commission's lockbox at the Mellon
    Bank until midnight. Granting a waiver to allow a reconsideration
    petition to be filed at the Commission's lockbox would therefore
    permit a petitioner to avoid the filing deadline.

[^32]: Further Petition at 6-7 (citing Gross Telecasting, *Memorandum
    Opinion and Order*, 55 FCC 2d 295, 295 n.1 (1975); Franklin D. R.
    McClure, et al., *Memorandum Opinion and Order*, 5 FCC 2d 148, 149
    n.3 (Review Board 1966)).

[^33]: For example, in Franklin D. R. McClure, a petition to enlarge the
    issues was filed after the close of the record, and was therefore
    untimely, but before the initial decision was released, therefore
    allowing the Review Board to proceed. Franklin D. McClure, 5 FCC 2d
    at 148, 149 n.3.

[^34]: *Id*. at 7.

[^35]: *See* *Gardner v. FCC*, 530 F.2d 1086 (D.C. Cir. 1976).

[^36]: *Virgin Island Tel. Corp. v. FCC*, 989 F.2d 1231, 1237 (D.C. Cir.
    1993); *Reuters Ltd. v. FCC*, 781 F.2d 946, 952 (D.C. Cir. 1986).

[^37]: *See* *supra* para. 2.

[^38]: 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, 18605 ¶3,
    18641-45 ¶¶ 87-97 (1997); *Memorandum Opinion and Order*, FCC 14 FCC
    Rcd 12428, 12430 ¶ 2, 12430-48 ¶¶ 7-38 (1999).