Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of Applications    | * | FCC File Nos. 0000092593,    |
|                                  | * | 0000092594 0000092613,       |
| GTECH CORPORATION                | ) | 0000092619, 0000092632,      |
|                                  | * | 0000092653, 0000092670,      |
| For Authority to Operate         | * | 0000092689, 0000092708,      |
| Multiple Address System Stations |   | 0000092715, 0000133945,      |
|                                  | * | 0000133948, 0000133957,      |
|                                  | * | 0000133965, 0000133975,      |
|                                  | ) | 0000133985, 0000142081,      |
|                                  | * | 0000142117, 0000142122,      |
|                                  | * | 0000142127, 0000142133,      |
|                                  |   | 0000142138, 0000142160,      |
|                                  | * | 0000142164                   |
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+----------------------------------+---+------------------------------+
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+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: January 9, 2001 Released: January 12, 2001**

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

**I. Introduction**

1.  On July 20, 2000, GTECH Corporation (GTECH) filed a petition
    requesting reconsideration of the dismissal of the above-captioned
    applications by the Licensing and Technical Analysis Branch (Branch)
    of the Public Safety and Private Wireless Division (Division),
    Wireless Telecommunications Bureau (Bureau).[^1] GTECH requests that
    the Division reinstate the applications *nunc pro tunc* and allow it
    to amend its applications.[^2] For the reasons set forth herein, we
    deny in part and dismiss in part GTECH's petition for
    reconsideration.

**II. Background**

2.  On February 27, 1997, the Commission released a *Notice of Proposed
    Rule Making* (*Notice*) in which it initiated a comprehensive
    examination of its licensing approach for Multiple Address Systems
    (MAS).[^3] In the *Notice*, the Commission proposed to designate
    most of the spectrum in the 932/941 MHz bands and all of the
    spectrum in the 928/959 MHz bands for subscriber-based services, and
    to use competitive bidding to select between mutually exclusive
    applications in these bands.[^4] The Commission also proposed to
    designate the 928/952/956 MHz bands exclusively for private internal
    use.[^5] Additionally, the Commission temporarily suspended the
    acceptance and processing of MAS applications in the 928/959 MHz
    bands and 932/941 MHz bands, and applications to provide
    subscriber-based service in the 928/952/956 MHz bands, pending
    resolution of the *Notice*.[^6]

3.  On August 5, 1997, the Balanced Budget Act was enacted, which,
    *inter alia*, eliminated the Commission's authority to issue
    licenses by lottery and amended the Communications Act to require
    the Commission, with limited exceptions, to award mutually exclusive
    licenses using competitive bidding procedures.[^7] On March 6, 1998,
    the Bureau released a *Memorandum Opinion and Order* which concluded
    that certain users of MAS spectrum, including GTECH, do not provide
    subscriber-based service in the 928/952/956 MHz bands and can apply
    for spectrum in the 928/952/956 MHz MAS bands.[^8]

4.  On July 1, 1999, the Commission released the *Further Notice of
    Proposed Rule Making* (*Further Notice*) in the MAS proceeding.[^9]
    Among other things, the *Further Notice* examined the effect of the
    Balanced Budget Act on the proposals in the *Notice* to allocate the
    932/941 MHz and 928/959 MHz bands for subscriber-based services and
    to award initial licenses for these bands through competitive
    bidding;[^10] to reserve five channel pairs in the 932/941 MHz MAS
    bands for Federal Government/public safety use;[^11] and to reserve
    the 928/952/956 MHz bands exclusively for private internal use and
    to continue to issue licenses for these bands on a site-by-site
    basis.[^12] The *Further Notice* also extended the temporary
    suspension of the acceptance and processing of applications to
    include all MAS bands regardless of the type of services
    proposed.[^13]

5.  On January 19, 2000, the Commission released the *Report and Order*
    (*R&O*) in the MAS proceeding.[^14] In addition to streamlining the
    MAS licensing procedures, the *R&O* designated the 928/952/956 MHz
    and a portion of the 932/941 MHz bands for private internal service
    and lifted the application freeze for these frequencies.[^15] The
    *R&O* also defined "private internal service" as "a service where
    licensees use their authorized frequencies purely for internal
    business purposes or public safety communications and not on a
    for-hire or for-profit basis,"[^16] and established that applicants
    for MAS licenses in these bands must submit a certification with
    their application, stating why the proposed operation satisfies the
    definition of private internal use.[^17]

6.  Between March 7, 2000 and June 2, 2000, GTECH filed thirty-four
    applications for authorization for MAS frequencies. However, GTECH
    failed to include the required certifications, stating why the
    proposed operations satisfied the definition of private internal
    use, with these applications.[^18] Due to the absence of such
    certifications, the Branch determined that the communications GTECH
    intended to provide did not satisfy the definition of "private
    internal use" and, thus, dismissed the subject applications as
    defective between June 16, 2000 and June 23, 2000.[^19] On July 20,
    2000, GTECH filed the subject petition requesting reconsideration of
    the dismissal of its twenty-four applications.[^20]

7.  Between July 25, 2000 and July 27, 2000, GTECH filed twenty-four new
    applications to replace the twenty-four applications that were
    dismissed by the Branch.[^21] For each of the replacement
    applications, GTECH attached the required certifications stating why
    the application satisfied the Commission's definition of private
    internal use. Twenty-one of the twenty-four replacement applications
    have been granted,[^22] one replacement application is pending[^23]
    and two replacement applications were dismissed.[^24]

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III. **Discussion**

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8.  Although GTECH requests reconsideration of the dismissal of each of
    the subject twenty-four applications, we need only discuss the
    merits of GTECH's Petition for Reconsideration with respect to its
    application to operate in Nogales, Arizona.[^25] As stated above,
    GTECH subsequently was authorized to operate in twenty-one of the
    twenty-four service areas it originally requested. Because GTECH was
    ultimately authorized to operate in twenty-one of the twenty-four
    areas for which it originally applied, we will dismiss the Petition
    for Reconsideration with respect to those twenty-one
    applications[^26] as moot. In addition, as explained below, we note
    that the Petition for Reconsideration is untimely with respect to
    two of the three remaining subject applications, specifically
    GTECH's applications to operate in Mesa, Arizona[^27] and Phoenix,
    Arizona.[^28] Therefore, GTECH's Petition for Reconsideration will
    only be addressed on the merits with respect to its Nogales
    application.

9.  *Mesa and Phoenix Applications*. Section 405 of the Communications
    Act, as amended, sets forth the requirements that a petitioner must
    satisfy before we may consider the petitioner's pleadings on
    reconsideration.[^29] Section 405, as implemented by Section
    1.106(f) of the Commission's Rules, requires a petition for
    reconsideration to be filed within thirty days from the release date
    of the Commission's action.[^30] GTECH failed to file it Petition
    for Reconsideration within thirty days from the release date of the
    dismissal letter for its Phoenix and Mesa applications. Both the
    Phoenix and Mesa applications were dismissed by letters dated June
    16, 2000.[^31] GTECH did not file the subject Petition for
    Reconsideration until July 20, 2000.[^32] We conclude that, with
    respect to the Mesa and Phoenix applications, GTECH failed to
    satisfy the filing requirements in accordance with Section 1.106 of
    the Commission's Rules when it filed the subject Petition for
    Reconsideration more than thirty days after the Mesa and Phoenix
    applications were dismissed. The filing requirement applies even if
    the petition for reconsideration is filed only one day late.[^33]
    Therefore, we conclude that the Petition for Reconsideration should
    be dismissed as untimely with respect to the Phoenix and Mesa
    applications.

10. *Nogales Application*. GTECH's Petition for Reconsideration was
    timely with respect to the dismissal of its Nogales application. We
    also note that GTECH has not since been authorized to operate in
    this area as a result of filing a replacement application, because
    the relevant replacement application is still pending.[^34]
    Therefore, we will address the Petition for Reconsideration on the
    merits, with respect to the Nogales application.

11. First, GTECH argues that the dismissal was improper because the
    rules cited in the dismissal notice, Sections 101.1305 of the
    Commission's Rules[^35] (which provides the definition of private
    internal use) and Section 101.1309 of the Commission's Rules[^36]
    (which, requires that the applicants certify why the application
    satisfies the definition of private internal use), were not
    effective until June 3, 2000 and all of the subject applications
    were filed on or before June 2, 2000.[^37] We disagree. The *R&O*
    clearly provides that "*effective upon the release of the \[R&O\]*,
    applications to use MAS frequencies in the 928-928.85/952-952.85 MHz
    bands and 956.25-956.45 MHz bands will be accepted for filing
    *provided that these applications are in compliance with the
    policies set forth \[therein\]*."[^38] Therefore, the *R&O* lifted
    the suspension of the acceptance of MAS applications only with
    respect to applications meeting the requirements set forth in the
    *R&O*. The requirement that applicants for 928/952/956 MHz bands
    must provide a certification stating why the applications satisfied
    the Commission's definition of private internal use was a policy set
    forth in the *R&O*.[^39] Accordingly, we conclude that GTECH was
    required to file the certificate when it filed the subject
    application.

12. Second, GTECH argues that the application was valid on its face
    because it clearly stated that it was for private internal use.[^40]
    Even if we were to agree that the Nogales application stated that
    the proposed station was for private internal use, the Nogales
    application was nevertheless defective because GTECH did not file
    the required certification stating why the application satisfied the
    Commission's definition of private internal use.[^41] Therefore, we
    find that the application was properly dismissed.[^42]

**IV. Conclusion**

13. Accordingly, we conclude that the Petition for Reconsideration filed
    by GTECH on July 20, 2000, should be dismissed in part as moot,
    dismissed in part as untimely and denied in part, for the reasons
    discussed herein.

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V.  **Ordering Clauses**

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14. 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 1.106 of the Commission's Rules, 47 C.F.R. §
    1.106, the Petition for Reconsideration filed by GTECH Corporation
    on July 20, 2000 is DISMISSED AS MOOT with respect to FCC File Nos.
    0000092593, 0000092613, 0000092619, 0000092632, 0000092653,
    0000092670, 0000092689, 0000092715, 0000133945, 0000133948,
    0000133957, 0000133965, 0000133985, 0000142081, 0000142117,
    0000142122, 0000142127, 0000142133, 0000142138, 0000142160 and
    0000142164; DISMISSED AS UNTIMELY with respect to FCC File Nos.
    0000092594 and 0000092708; and denied with respect to FCC File No.
    0000133975.

15. 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]: *See* Petition for Reconsideration.

[^2]: *Id.* at 1.

[^3]: Amendment of the Commission's Rules Regarding Multiple Address
    Systems, *Notice of Proposed Rule Making and Order*, WT Docket
    97-81, 12 FCC 7973 (1997).

[^4]: *Id.* at 7997 ¶¶ 50-51.

[^5]: *Id.* at 7980 ¶ 13.

[^6]: *Id.* at 8003-04 ¶ 68.

[^7]: Pub. L. 105-33, Title III, 111 Stat. 251 (1997). *See generally*
    Implementation of Section 309(j) and 337 of the Communications Act
    of 1934 as Amended, *Report and Order and Further Notice of Proposed
    Rule Making*, WT Docket No. 99-87, FCC 00-403 (rel. Nov. 20, 2000).

[^8]: GTECH Corporation, *Memorandum Opinion and Order*, 13 FCC Rcd 4290
    (WTB 1998).

[^9]: Amendment of the Commission's Rules Regarding Multiple Address
    Systems, *Further Notice of Proposed Rule Making and Order*, WT
    Docket 97-81, 14 FCC Rcd 10744, 107446 ¶ 2 (1997).

[^10]: *Id.*

[^11]: *Id.*

[^12]: *Id.*

[^13]: *Id.* at 10761 ¶ 28.

[^14]: Amendment of the Commission's Rules Regarding Multiple Address
    Systems, *Report and Order*, WT Docket 97-81, 15 FCC Rcd 11956
    (2000) (*R&O*).

[^15]: *Id.* at 11957 ¶ 2.

[^16]: *Id.* at 11965 ¶ 20.

[^17]: *Id.* at 11965 n.39. *See* 47 C.F.R. § 101.1309.

[^18]: Ten of the thirty-four applications were granted after they were
    amended to include the required certification: FCC File Nos.
    0000144429, 0000144436, 0000144473, 0000144487, 0000144503,
    0000144523, 0000144526, 0000144527, 0000165117 and 0000165134.

[^19]: *See* Branch's Dismissal Letters to GTECH Corporation (dated June
    16, 2000 -- June 20, 2000). Because GTECH failed to file the
    required certification, the applications were defective. We need not
    address GTECH's contention that its proposed use is in fact private
    internal use.

[^20]: *See* Petition for Reconsideration. On October 13, 2000, GTECH
    filed its Supplement to Petition for Reconsideration. *See* GTECH
    Corporation Supplement to Petition for Reconsideration (filed Oct.
    13, 2000) (Supplement). The Supplement was provided in response to a
    request by the Division to provide more information about its
    network and a further explanation as to how it meets the definition
    of \"private internal use.\" Because the Supplement does not provide
    arguments regarding GTECH's failure to file the required
    certifications, we need not address the arguments presented in the
    Supplement.

[^21]: *See* FCC File Nos. 0000193645, 0000193646, 0000193647,
    0000193648, 0000193649, 0000193704, 0000193705, 0000193706,
    0000193707, 0000193708, 0000193709, 0000194927, 0000194928,
    0000194929, 0000194930, 0000194931, 0000194932, 0000194933,
    0000195048, 0000195049, 0000195050, 0000195051, 0000195561,
    0000195774.

[^22]: FCC File Nos. 0000193646, 0000193647, 0000193648, 0000193649,
    0000193705, 0000193706, 0000193707, 0000193708, 0000193709,
    0000194927, 0000194928, 0000194929, 0000194930, 0000194931,
    0000194932, 0000194933, 0000195048, 0000195049, 0000195050,
    0000195051 and 0000195774.

[^23]: FCC File No. 0000193704.

[^24]: FCC File Nos. 0000195561 and 0000193645. The Branch dismissed FCC
    File No. 0000195561 because the frequency engineering analysis
    submitted with the application failed to show interference
    protection to existing Station WPQP274, Phoenix, Arizona, licensed
    to Salt River Project Agricultural & Power District (d.b.a SRP) on
    frequencies 952/928.43750 MHz. The proposed station was short-spaced
    with respect to SRP's existing station and the application lacked
    the required short-spacing agreement. Therefore, the application was
    defective pursuant to Section 1.934 of the Commission's Rules. 47
    C.F.R. § 1.934. *See* Branch's Dismissal Letter to GTECH Corporation
    regarding FCC File No. 0000195561 (dated Nov. 16, 2000). The Branch
    dismissed FCC File No. 0000193645 because it was untimely filed with
    respect to FCC File No. 0000216989, filed by SRP on Septemeber 14,
    2000. GTECH filed FCC File No. 0000193645 on July 25, 2000. However,
    GTECH filed a major amendment to its application on November 21,
    2000, which changed the proposed coordinates. The effect of the
    major amendment was to change the receipt date used in the cut-off
    determination from July 25, 2000 to November 21, 2000. Section 1.227
    of the Commission's Rules provides that no application will be
    consolidated for hearing with a previously filed application unless
    such application is substantially complete and tendered for filing
    by the close of business of the same day. 47 C.F.R. § 1.227.
    Therefore, the amended application was received after the cut-off
    date established by SRP's application and dismissed by the Branch.
    *See* Branch's Dismissal Letter to GTECH Corporation regarding FCC
    File No. 0000193645 (dated Dec. 15, 2000).

[^25]: FCC File Number 0000133945.

[^26]: FCC File Nos. 0000092593, 0000092613, 0000092619, 0000092632,
    0000092653, 0000092619, 0000092632, 0000092653, 0000092670,
    0000092689, 0000092715, 0000133948, 0000133957, 0000133965,
    0000133985, 0000142081, 0000142117, 0000142122, 0000142127,
    0000142133, 0000142138, 0000142160 and 0000142164.

[^27]: FCC File No. 0000092594.

[^28]: FCC File No. 0000092708. Because GTECH sought authority to
    operate in multiple locations in Phoenix, we further specify that
    the transmit location of this application is 11328 West Buckeye
    Road, Phoenix, Arizona.

[^29]: 47 U.S.C. § 405.

[^30]: 47 U.S.C. § 405; 47 C.F.R. § 1.106(f).

[^31]: *See* Branch's Dismissal Letter to GTECH Corporation regarding
    FCC File No. 0000092594 (dated June 16, 2000); Branch's Dismissal
    Letter to GTECH Corporation regarding FCC File No. 0000092708 (dated
    June 16, 2000).

[^32]: *See* Petition for Reconsideration.

[^33]: *See*, *e.g.*, Panola Broadcasting Co., *Memorandum Opinion and
    Order*, 68 FCC 2d 533 (1978); Metromedia, Inc., *Memorandum Opinion
    and Order*, 56 FCC 2d 909 (1975); In the Matter of Memorandum of
    Agreement Between the Federal Communications Commission and Elkins
    Institute, Inc., *Order on Reconsideration*, 14 FCC Rcd 2782,
    2784-85 ¶ 9 (WTB PSPWD 1999), *aff'd*, *Order on Reconsideration*,
    15 FCC Rcd 10251 (WTB PSPWD 2000). *See generally* Petition for
    Reconsideration Filing Requirements, *Public Notice*, 15 FCC Rcd
    19472 (WTB 2000).

[^34]: *See* FCC File No. 0000193704 (Nogales, Arizona).

[^35]: 47 C.F.R. § 101.1305.

[^36]: 47 C.F.R. § 101.1309.

[^37]: Petition for Reconsideration at 3.

[^38]: *R&O*, 15 FCC Rcd at 12011 ¶ 136 (emphasis added).

[^39]: *Id.* at 11965 n.39.

[^40]: Petition for Reconsideration at 3.

[^41]: *See R&O*, 15 FCC Rcd at 11965 n.39.

[^42]: GTECH also contends that it is the Commission's custom and
    practice to return MAS applications missing the required information
    about the use of frequencies and allow the applicant the opportunity
    to resubmit the application without losing its place in line. GTECH
    concedes that the Commission adopted a unified policy for dismissing
    applications for MAS applications on April 29, 2000, but states that
    the policy still affords the Commission staff discretion to return
    the applications in lieu of dismissing, allowing the applicant sixty
    days to amend the application. *See* Wireless Telecommunications
    Bureau Revises and Begins Phased Implementation of Its Unified
    Policy for Reviewing License Applications and Pleadings, *Public
    Notice*, 14 FCC Rcd 11182 (WTB 1999); Wireless Telecommunications
    Bureau (WTB) Extends Mandatory Electronic Filing Date for Microwave
    Licensees to Coincide with Availability of Electronic Filing via the
    Internet, *Public Notice*, DA 00-317 (rel. Feb 18, 2000). Thus,
    GTECH argues that, because it had been the Commission's custom and
    practice to return applications with defects similar to the subject
    applications, it would be discriminatory and inconsistent with the
    public interest to dismiss its applications. We note, however, that
    the certification was a new requirement established by the *R&O*.
    *See R&O*, 15 FCC Rcd at 11956 n.39. Therefore, we do not believe
    that any Commission custom or practice of returning applications
    when an applicant fails to file the required certification exists.
    Furthermore, because there is no custom or practice with respect to
    MAS applications that fail to include the required certification, we
    believe the GTECH's Nogales application was properly dismissed.