**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Application of )

)

ADVANCED RADIO TECHNOLOGY LIMITED ) File No. 9507348

)

to Provide 39 GHz Point-to-Point )

Microwave Radio Service in Macon, GA )

**ORDER** **ON RECONSIDERATION**

**Adopted: January 26, 1999 Released: January 27, 1999**

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

**I. INTRODUCTION**

1\. In this Order on Reconsideration, we deny Advanced Radio Technology
Limited\'s (ART) Petition for Reconsideration of the decision by the
Licensing and Technical Analysis Branch (Branch) to dismiss the
above-captioned application to operate a new Point-to-Point Microwave
Radio Service system in the 38.6 to 40.0 GHz (39 GHz) band in Macon, GA.
For the reasons discussed below, we affirm the Branch\'s dismissal of
ART\'s application.

**II. BACKGROUND**

2\. American PCS LP (American) applied for a 39 GHz station
authorization in the Point-to-Point Microwave Service in Macon, GA.
American\'s application was placed on public notice on January 18,
1995.[^1] ART filed its 39 GHz application for Macon, GA, on July 14,
1995. On November 13, 1995, the Wireless Telecommunications Bureau
(Bureau) prohibited the filing of new applications in the Point-to-Point
Microwave Radio Services for the 39 GHz band.[^2] Thus, any new
applications received on or after November 13, 1995, would be returned
to the applicant as unacceptable for filing.[^3] The Commission extended
the freeze on December 15, 1995, when it suspended the processing of
pending 39 GHz applications that as of November 13, 1995, were mutually
exclusive with other applications or still within the 60-day cut-off
period for the filing of

mutually exclusive applications.[^4] On November 14, 1996, the Branch
dismissed American\'s application as defective because it failed to
demonstrate, in accordance with Section 101.147(u) of the Commission\'s
Rules, that its requested service area was as small as practical
consistent with the carrier\'s local service requirements.[^5]
Therefore, American\'s application was deemed defective in accordance
with Section 101.35(b).[^6]

3\. On August 20, 1997, the Branch dismissed the ART application as
untimely filed pursuant to the provisions of Sections 101.45(b) and
101.35(b)(7) of the Commission\'s Rules. Section 101.45(b) states that
no application will be entitled to be included in a random selection
process or 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.[^7] In this connection, American\'s application started a 60-day
cut-off period when it was placed on public notice on January 18, 1995.
Thus, the last day for filing competing applications with the American
application was on March 19, 1995. ART submitted its application after
that date and while American\'s application was still pending. The
Branch, therefore, dismissed the ART application as unacceptable for
filing in accordance with Section 101.35(b). On September 19, 1997, ART
submitted a petition for reconsideration of the Branch\'s dismissal of
the subject application.

**III. DISCUSSION**

4\. First, ART argues that American\'s application, \"deemed to be
defective and unacceptable for filing,\" should not be allowed to
\"establish a filing cut-off date for competing applications.\"[^8] ART
relies on the fact that the American application was dismissed nine
months prior to its application\'s dismissal on August 20, 1997 and
argues that the Bureau incorrectly considered its application to be
mutually exclusive with American\'s application after American\'s
application was dismissed as defective. ART reasons that after
American\'s application was dismissed, Section 101.45(b) no longer
applied to the ART application because the conflicting application
requirement was absent. According to ART, the date that controls is the
date that American\'s application was dismissed. We disagree with ART\'s
analysis.

5\. Under Section 101.45(b)(2) of the Commission\'s Rules, the 60-day
cut-off period to file mutually exclusive applications begins when the
first of the conflicting applications is \"accepted for filing.\"[^9]
Section 101.37(d) warns all competing applicants that \"the listing of
an application on public notice as accepted for filing does not indicate
that the application has been found by the Commission to be acceptable
for filing and does not preclude the subsequent return of the
application.\"[^10] Accordingly, an application that is accepted for
filing, may establish a filing cut-off date for competing applications,
even if it is later dismissed as defective.[^11] As a result, the
relevant and controlling date for Section 101.45(b) purposes in the
instant matter is January 18, 1995, the date that American\'s
application was placed on public notice. ART filed its competing
application on July 14, 1995, which was well beyond the 60-day period
that a competing application could be filed. Thus, the Branch properly
dismissed ART\'s application as untimely filed.

6\. Second, ART argues that even if the Branch was correct and the ART
application was filed in an untimely fashion, Section 101.45(e) prevents
the Branch from dismissing the application. ART states that under
Section 101.45(e), the Branch was required to return the application to
ART without prejudice, thereby maintaining ART\'s eligibility to refile
the application after the Branch had taken

final action with respect to American\'s application.[^12] ART says that
the Branch never returned its application while American\'s application
was under review, rather the Branch retained its application and then
later dismissed it. ART requests that its application be treated as
\"returned\" rather than \"dismissed\" and that the Branch allow it to
refile its application now that final action, in the form of a
dismissal, has been taken with respect to American\'s application. While
ART might have been eligible to refile its application had it been
returned prior to November 13, 1995, we do not believe that this
ultimately is of decisional significance given the *39 GHz Freeze Order*
and its effect on an applicant\'s eligibility to refile its application
after November 12, 1995. When the Branch took final action on
American\'s application on November 14, 1996, the *39 GHz Freeze Order*
precluded the acceptance of new 39 GHz applications.[^13] Thus, on
November 14, 1996, any new 39 GHz applications submitted by ART would
have been subject to the *39 GHz Freeze Order* and, therefore, would
have been returned as unacceptable for filing.

7\. Finally, ART submits that a grant of its petition for
reconsideration is in the public interest because it will \"promote
effective use\" of the 39 GHz spectrum.[^14] We are not persuaded by
ART\'s public interest argument. We believe that the public interest is
served when applicants adhere to the Commission\'s filing requirements.
The cut-off rule is important because it establishes a deadline by which
applications must be filed in order to maintain eligibility.[^15] The
purpose of this rule is \"to attract all competitive applications for a
particular (frequency) within a fixed and reasonably short time frame,\"
so that the Commission can comparatively consider such applications in
an efficient manner.[^16] Further, we note that one of the underlying
purposes of the Commission\'s 39 GHz rule making proceeding has been to
promote effective use of the 39 GHz spectrum.[^17] Therefore, based on
the facts and circumstances described herein, we find that a dismissal
of ART\'s Petition for Reconsideration is in the public interest because
it is consistent with the specific requirements, spirit, and integrity
of the Commission\'s 39 GHz licensing rules and processes.

**IV. ORDERING CLAUSE**

8\. 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 reconsideration filed by Advanced Radio Technology Limited
on September

19, 1997 IS DENIED.

9\. 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]:     ^?^ Public Notice, Report No. 1118 (rel. January 18, 1995)
    (FCC file number 9409900).

[^2]:     ^?^ Petition for Amendment of the Commission\'s Rules
    Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, *Order*, 11 FCC
    Rcd 1156 (WTB, 1995) (*39 GHz Freeze Order*).

[^3]:     ^?^ *Id.*

[^4]:     ^?^ Amendment of the Commission\'s Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands, *Notice of Proposed Rule
    Making and Order*, 11 FCC Rcd 4930, 4988-89 (1995); *see also*
    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*, 12 FCC Rcd 18600, 18641 (1997) (*Report and Order and
    Second NPRM*) (The Commission dismissed the pending 39 GHz
    applications that were held in abeyance since December 15, 1995.).

[^5]:     ^?^ 47 C.F.R. § 101.147(u) (1996), provides that channel pairs
    in the 39 GHz band are assigned for use within a rectangular service
    area. Such service area must be small as practical consistent with
    the local service requirements of the carrier. *See* Letter from
    Gary L. Stanford, Associate Bureau Chief - Operations, Licensing and
    Technical Analysis Branch, Wireless Telecommunications Bureau, to J.
    Barclay Jones, American PCS, L.P. (Nov. 14, 1996).

[^6]:     ^?^ 47 C.F.R. § 101.35(b) states that applications are deemed
    to be defective and are returned to the applicant, *inter alia*,
    when the application fails to meet statutory requirements, special
    requirements applicable to the radio service involved, or any other
    Commission requirements.

[^7]:     ^?^ 47 C.F.R. § 101.45(b) (1996); *see also McElroy
    Electronics Corp. v. FCC*, 86 F.3d 248, 248 (D.C. Cir. 1996) (Held
    that \". . . public notices of applications filed with Commission .
    . . started 60 day cut-off period for filing of competing
    applications and, thus, files of competing applications more than 60
    days following notices were not entitled to compete for subject
    licenses.\"); *State of Oregon v. FCC*, 102 F.3d 583, 584 (D.C. Cir.
    1996) (Held that \"if the Commission accepts an application for
    filing, then the agency must issue a public notice, known as the
    \"A\" cut-off list, naming the applicant accepted for filing and
    announcing a date . . . by which all mutually exclusive applications
    must be filed.\").

[^8]:     ^?^ ART Petition for Reconsideration at 5.

[^9]:     ^?^ 47 C.F.R. § 101.45(b)(2)(i) (1996); *see also The Florida
    Institute of Technology v. FCC*, 952 F.2d 549, 550 (D.C. Cir. 1991)
    (Held that \"if this lead application is accepted for filing, the
    FCC issues a public notice . . . that includes an \"A\" cut-off
    date. The \"A\" cut-off date is the deadline for the filing of any
    additional applications that are mutually exclusive.); *Satellite
    Broadcasting Co. v. FCC*, 824 F.2d 1, 3 (D.C. Cir. 1987) (Held that
    \"the Commission\'s rules allowed competing applications . . . to be
    consolidated for hearing with prior applications if the competing
    applications were tendered for filing within 60 days after the date
    of the public notice listing the first prior application as having
    been accepted for filing.\").

[^10]:     ^?^ 47 C.F.R. § 101.37(d) (1996); *see also McElroy
    Electronics Corp. v. FCC*, 990 F.2d 1351, 1362 (D.C. Cir. 1993)
    (*citing* Cellular Applications for Unserved Areas in MSAs/NECMAs,
    *Order*, 4 FCC Rcd 3636, 3637, n. 5 (1989)) (Held that the placement
    of \"an application on public notice is not an indication that the
    application ultimately will be found acceptable for filing.\");
    Application of Digital Paging Systems of Philadelphia, Inc.,
    *Order*, 2 FCC Rcd 5320 (1987) (Held that \"acceptance of an
    application for filing merely means that it has been the subject of
    preliminary review as to completeness.\" This action will not
    preclude \"the subsequent . . . dismissal of the application if it
    is found to be defective.\").

[^11]:     ^?^ *See also* Applications of William G. Bowles, Jr. dba,
    Mid-Missouri Mobilfone, *Memorandum Opinion and Order on
    Reconsideration*, 61 Rad. Reg. 2d 20, 24 (1986) (Held that \"the
    cut-off period established by the first-filed mutually exclusive
    application applies to all mutually exclusive filings. The
    subsequent dismissal of the first-filed application does not alter
    the applicable cut-off period.\").

[^12]:     ^?^ 47 C.F.R. § 101.45(e) (1996), provides that an
    application which is mutually exclusive with a previously filed
    application, but filed after the filing window has lapsed, is
    \"eligible for refiling only after final action is taken by the
    Commission with respect to the previously filed application;\" *see
    also* Application of U.S. Central, Inc., *Memorandum Opinion and
    Order*, 5 FCC Rcd 4808 (1990) (Held that reinstatement of U.S.
    Central\'s late filed application was denied because final action
    had not been taken on the first filed mutually exclusive
    application.).

[^13]:     ^?^ *39 GHz Freeze Order*, 11 FCC Rcd 1156 (WTB, 1995).

[^14]:     ^?^ ART Petition for Reconsideration at 7.

[^15]:     ^?^ *McElroy Electronics Corp. v. FCC*, 86 F.3d 248, 253
    (D.C. Cir. 1996).

[^16]:     ^?^ *Id.* (*citing Florida Institute of Technology v. FCC*,
    952 F.2d 549, 550 (D.C. Cir. 1992)).

[^17]:     ^?^ *See Report and Order and Second NPRM*, 12 FCC Rcd at
    18607.