Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of Applications of | * | File No. 0000138764          |
|                                  | * |                              |
| ADELPHIA BUSINESS SOLUTIONS LONG | ) | File No. 0000138777          |
| HAUL, L.P.                       | * |                              |
|                                  | * | File No. 0000138814          |
| AT&T WIRELESS PCS, LLC           |   |                              |
|                                  | * | File No. 0000138868          |
| ATLANTIS BIDDING CORP.           | * |                              |
|                                  | ) | File No. 0000137403          |
| BACHOW 39 GHZ, INC.              | * |                              |
|                                  | * | File No. 0000138902          |
| DCT SPIRIT, L.L.C.               |   |                              |
|                                  | * | File No. 0000134149          |
| MILKYWAY MULTIPOINT, LLC         | * |                              |
|                                  | ) | File No. 0000138929          |
| NEXTBAND COMMUNICATIONS, L.L.C.  | * |                              |
|                                  | * | File No. 0000138813          |
| PTPMS COMMUNICATIONS, LLC        |   |                              |
|                                  | * |                              |
| ZEPHYR WIRELESS, L.L.C.          | * |                              |
|                                  | ) |                              |
| For Authority to Construct and   | * |                              |
| Operate                          | * |                              |
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| Facilities in the 39 GHz Band    | * |                              |
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+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: September 25, 2000 Released: September 26, 2000**

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

1.  *Introduction.* On July 31, 2000, Broadband WirelessAccess Services
    (Broadband), Stevan A. Birnbaum (Birnbaum), Cambridge Partners, Inc.
    (Cambridge), Linda Chester (Chester), HiCap Networks, Inc. (HiCap),
    William R. Lonergan (Lonergan), PIW Development Corporation (PIW),
    Paul R. Likins (Likins), Cornelius T. Ryan (Ryan), Southfield
    Communications LLC (Southfield), SMC Associates (SMC), Video
    Communications Corporation (VideoCom), and Wireless Telco joined in
    various petitions to deny the above-captioned applications to the
    extent that these applications for authorization to operate in the
    38.6-40.0 GHz (39 GHz) band conflict with their previously dismissed
    39 GHz applications. These petitions are identical with regard to
    the issues. Accordingly, for the reasons that follow, we consolidate
    and dismiss these petitions to deny the applications of Adelphia
    Business Solutions Long Haul, L.P. (Adelphia),[^1] AT&T Wireless
    PCS, LLC (AT&T Wireless),[^2] Atlantis Bidding Corp. (Atlantis),[^3]
    Bachow 39 GHz, Inc. (Bachow),[^4] DCT Spirit, L.L.C. (DCT),[^5]
    Milkyway Multipoint, LLC (Milkyway),[^6] Nextband Communications,
    L.L.C. (Nextband),[^7] PTPMS Communications, LLC (PTPMS),[^8] and
    Zephyr Wireless, L.L.C. (Zephyr).[^9]

2.  *Background.* The petitioners have appealed the dismissal of their
    mutually exclusive 39 GHz applications that were filed prior to the
    adoption of competitive bidding rules for the 39 GHz band to the
    U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit).[^10] On
    January 21, 2000, the Commission placed potential bidders to the 39
    GHz band auction (Auction No. 30) on notice that certain decisions
    reached in the 39 GHz proceeding were being appealed and that
    resolution of this appeal could have an impact on the availability
    of spectrum in the 39 GHz band.[^11] On May 8, 2000, the
    Commission's Auction No. 30 concluded.[^12] On May 10, 2000, the
    Wireless Telecommunications Bureau (Bureau) announced the winning
    bidders in Auction No. 30.[^13] All winning bidders were required to
    electronically file a complete long-form application, FCC Form 601,
    no later than 6:00 p.m. Eastern Standard Time on May 24, 2000.[^14]
    Adelphia, AT&T Wireless, Atlantis, Bachow, DCT, Milkyway, Nextband,
    PTPMS, and Zephyr met this deadline. In the *Auction Closes* *Public
    Notice*, the Bureau stated that once the long-form applications
    appeared on a public notice as accepted for filing, interested
    parties would have ten days to file petitions to deny.[^15] The
    Bureau also stated that the Commission will be prepared to grant an
    application if it determines that an applicant is qualified and
    there is no substantial and material issue of fact concerning that
    determination.[^16] On July 21, 2000, the Bureau released a
    corrected version of a *Public Notice*, originally released on July
    19, 2000, that accepted for filing the above-captioned
    applications.[^17] On July 31, 2000, the subject petitions to deny
    were filed, in which the petitioners state their concerns that
    should they prevail before the D.C. Circuit, their reinstated
    applications will conflict with certain authorizations that were
    requested in the above-captioned applications.[^18]

3.  *Discussion.* As noted, the Commission will be prepared to grant an
    application if it determines that an applicant is qualified and
    there is no substantial and material issue of fact concerning that
    determination.[^19] The petitioners, in this instance, do not allege
    any deficiencies in the applicants' qualifications.[^20] The
    petitioners, despite the caption of the subject petitions, do not in
    fact oppose or request denial of the above-captioned
    applications.[^21] Rather, they seek imposition of an express
    condition on the grant of the applications.[^22] Thus, the petitions
    would be most appropriately characterized as an informal request for
    Commission action.[^23] We find that the petitioners' requested
    action is unnecessary under the circumstances. In this regard, we
    note that Section 402(h) of the Communications Act, as amended,
    requires that in the event the D.C. Circuit should render a
    favorable decision involving the petitioners' applications, the
    Commission must carry out the judgement of the court.[^24] Thus, we
    conclude that no further action regarding the petitioners' claims is
    required or warranted in the instant matter.

4.  Accordingly, IT IS ORDERED pursuant to Sections 4(i), 309 and 402(h)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000138764, filed by
    Broadband WirelessAccess Services, Cambridge Partners, Inc., Linda
    Chester, HiCap Networks, Inc., William R. Lonergan, PIW Development
    Corporation, Paul R. Likins, Cornelius T. Ryan, Southfield
    Communications LLC, and SMC Associates on July 31, 2000 IS
    DISMISSED.

5.  IT IS FURTHER ORDERED pursuant to Sections 4(i), 309 and 402(h) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000138777 filed by
    Cambridge Partners, Inc., Paul R. Likins, and Cornelius T. Ryan on
    July 31, 2000, IS DISMISSED.

6.  IT IS FURTHER ORDERED pursuant to Sections 4(i), 309 and 402(h) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000138814 filed by
    Broadband WirelessAccess Services, Stevan A. Birnbaum, Cambridge
    Partners, Inc., Linda Chester, HiCap Networks, Inc., PIW Development
    Corporation, Paul R. Likins, Southfield Communications LLC, SMC
    Associates, Video Communications Corporation, and Wireless Telco on
    July 31, 2000, IS DISMISSED.

7.  IT IS FURTHER ORDERED pursuant to Sections 4(i), 309 and 402(h) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000138868 filed by
    Cambridge Partners, Inc., Linda Chester, PIW Development
    Corporation, Paul R. Likins, Southfield Communications LLC, and
    Video Communications Corporation on July 31, 2000, IS DISMISSED.

8.  IT IS FURTHER ORDERED pursuant to Sections 4(i), 309 and 402(h) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000137403 filed by
    Broadband WirelessAccess Services and Wireless Telco on July 31,
    2000, IS DISMISSED.

9.  IT IS FURTHER ORDERED pursuant to Sections 4(i), 309 and 402(h) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000138902 filed by
    Cambridge Partners, Inc., Paul R. Likins, and Southfield
    Communications LLC on July 31, 2000, IS DISMISSED.

10. IT IS FURTHER ORDERED pursuant to Sections 4(i), 309 and 402(h) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000134149 filed by
    Cambridge Partners, Inc., Cornelius T. Ryan, and SMC Associates on
    July 31, 2000, IS DISMISSED.

11. IT IS FURTHER ORDERED pursuant to Sections 4(i), 309 and 402(h) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000138929 filed by PIW
    Development Corporation on July 31, 2000, IS DISMISSED.

12. IT IS FURTHER ORDERED pursuant to Sections 4(i), 309 and 402(h) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309, 402(h), and Section 1.2108 of the Commission's Rules, 47 C.F.R.
    § 1.2108, the petition to deny File No. 0000138813 filed by
    Broadband WirelessAccess Services, Cambridge Partners, Inc., HiCap
    Networks, Inc., PIW Development Corporation, Paul R. Likins,
    Southfield Communications LLC, SMC Associates, Video Communications
    Corporation, and Wireless Telco on July 31, 2000, IS DISMISSED.

13. IT IS FURTHER ORDERED pursuant to Sections 4(i) and 303(r) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r),
    and Sections 1.45(a) and 1.2108 of the Commission's Rules, 47 C.F.R.
    §§ 1.45(a), 1.2108, the Consolidated Motion to Accept Late-Filed
    Pleading and Opposition filed by PTPMS Communications, LLC, on
    August 18, 2000, IS DENIED.

14. 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]: The petitioners filing against the Adelphia application, File No.
    0000138764, are Broadband, Cambridge, Chester, HiCap, Lonergan, PIW,
    Likins, Ryan, Southfield, and SMC. Petition to Deny Application of
    Adelphia Business Solutions Long Haul, L.P. (dated July 31, 2000)
    (Petition to Deny Adelphia).

[^2]: The petitioners filing against the AT&T Wireless application, File
    No. 0000138777, are Cambridge, Likins and Ryan. Petition to Deny
    Application of AT&T Wireless PCS, LLC (dated July 31, 2000)
    (Petition to Deny AT&T Wireless).

[^3]: The petitioners filing against the Atlantis application, File No.
    0000138814, are Broadband, Birnbaum, Cambridge, Chester, HiCap, PIW,
    Likins, Southfield, SMC, VideoCom, and Wireless Telco. Petition to
    Deny Application of Atlantis Bidding Corp. (dated July 31, 2000)
    (Petition to Deny Atlantis).

[^4]: The petitioners filing against the Bachow application, File No.
    0000138868, are Cambridge, Chester, PIW, Likins, Southfield, and
    VideoCom. Petition to Deny Application of Bachow 39 GHz, Inc. (dated
    July 31, 2000) (Petition to Deny Bachow).

[^5]: The petitioners filing against the DCT application, File No.
    0000137403, are Broadband and Wireless Telco. Petition to Deny
    Application of DCT Spirit, L.L.C. (dated July 31, 2000) (Petition to
    Deny DCT).

[^6]: The petitioners filing against the Milkyway application, File No.
    0000138902, are Cambridge, Likins, and Southfield. Petition to Deny
    Application of Milkyway Multipoint, LLC (dated July 31, 2000)
    (Petition to Deny Milkyway).

[^7]: The petitioners filing against the Nextband application, File No.
    0000134149, are Cambridge, Ryan, and SMC. Petition to Deny
    Application of Nextband Communications, L.L.C. (dated July 31, 2000)
    (Petition to Deny Nextband).

[^8]: The petitioner filing against the PTPMS application, File No.
    0000138929, is PIW. Petition to Deny Application of PTPMS
    Communications, LLC (dated July 31, 2000) (Petition to Deny PTPMS).

[^9]: The petitioners filing against the Zephyr application, File No.
    0000138813, are Broadband, Cambridge, HiCap, PIW, Likins,
    Southfield, SMC, VideoCom, and Wireless Telco. Petition to Deny
    Application of Zephyr Wireless, L.L.C. (dated July 31, 2000)
    (Petition to Deny Zephyr).

[^10]: *Bachow Communications, Inc. v. FCC*, No. 99-1346; *Bachow
    Communications, Inc. v. FCC & USA*, No. 99-1347; *DCT Transmission
    L.L.C. v. FCC & USA*, No. 99-1360; *Cambridge Partners, Inc., et.
    Al. v. FCC*, No. 99-1361; *Cambridge Partners, Inc., et. al. v. FCC
    & USA*, No. 99-1362; *Commco, L.L.C., Plaincom, Inc., and Sintra
    Capital Corporation v. FCC*, No. 99-1363; *Commco, L.L.C., Plaincom,
    Inc., and Sintra Capital Corporation v. FCC & USA*, No. 99-1364; and
    *DCT Transmission L.L.C. v. FCC*, No. 99-1365 (D.C. Cir. filed
    1999).

[^11]: Auction of Licenses for Fixed Point-to-Point Microwave Services
    in the 38.6 to 40.0 GHz (39 GHz) Band, *Public Notice*, 15 FCC Rcd
    850, 857 (2000).

[^12]: 39 GHz Band Auction Closes, *Public Notice*, 15 FCC Rcd 13648,
    13648 (WTB 2000) (*Auction Closes Public Notice*).

[^13]: *See id.*

[^14]: *Id.* at 13649.

[^15]: *Id.* at 13648, 13654.

[^16]: *Auction Closes Public Notice*, 15 FCC Rcd at 13648, 13654; *see*
    47 C.F.R. § 1.2108(d).

[^17]: Wireless Telecommunications Bureau Announces that Certain
    Applications for the Authority to Operate in the 39 GHz Band Are
    Accepted for Filing, *Public Notice*, 15 FCC Rcd 12668 (WTB 2000)
    (*Accepted for Filing Public Notice*).

[^18]: Petition to Deny Adelphia at 2; Petition to Deny AT&T Wireless at
    2; Petition to Deny Atlantis at 2; Petition to Deny Bachow at 2;
    Petition to Deny DCT at 2; Petition to Deny Milkyway at 2; Petition
    to Deny Nextband at 2; Petition to Deny PTPMS at 2; Petition to Deny
    Zephyr at 2. On August 10, 2000, five oppositions were filed by
    Adelphia, AT&T Wireless, Atlantis, Nextband, and Zephyr. In the
    *Accepted for Filing Public Notice*, 15 FCC Rcd at 12668, we stated
    that oppositions must be filed no later than five days after the
    date on which the petition to deny is filed. Nevertheless,
    oppositions that were filed by August 10, 2000, were timely because
    under 47 C.F.R. § 1.4(g), weekend days are not counted toward the
    filing period when the filing period is less than seven days.
    Additionally, pursuant to 47 C.F.R. § 1.4(h), where service of the
    petition to deny is done by mail, as in this instance, and the
    period to file a response is less than ten days long, an additional
    three days will be allowed for filing such response. On August 18,
    2000, PTPMS filed a motion to accept a late-filed opposition. This
    motion is denied.

[^19]: *See Auction Closes Public Notice*, 15 FCC Rcd at 13648, 13654;
    *see also* 47 C.F.R. § 1.2108(d).

[^20]: *See* Opposition to Petition to Deny Adelphia at 2 ("In the
    present case, no substantial or material questions exist as to ABS'
    qualifications to hold the subject licenses."); Opposition to
    Petition to Deny AT&T Wireless at 3 ("The petition fails to
    demonstrate that AWP is unqualified to be a licensee."); Opposition
    to Petition to Deny Nextband at 3 ("The petition fails to
    demonstrate that Nextband is unqualified to be a licensee.").

[^21]: Petition to Deny Adelphia at 2; Petition to Deny AT&T Wireless at
    2; Petition to Deny Atlantis at 2; Petition to Deny Bachow at 2;
    Petition to Deny DCT at 2; Petition to Deny Milkyway at 2; Petition
    to Deny Nextband at 2; Petition to Deny PTPMS at 2; Petition to Deny
    Zephyr at 2.

[^22]: Petition to Deny Adelphia at 3; Petition to Deny AT&T Wireless at
    3; Petition to Deny Atlantis at 3; Petition to Deny Bachow at 3;
    Petition to Deny DCT at 3; Petition to Deny Milkyway at 3; Petition
    to Deny Nextband at 3; Petition to Deny PTPMS at 3; Petition to Deny
    Zephyr at 3.

[^23]: *See* 47 C.F.R. § 1.41.

[^24]: *See* 47 U.S.C. § 402(h); Applications of Cambridge Partners,
    Inc., *Memorandum Opinion and Order*, FCC 00-322, ¶ 6 (rel. Sept.
    15, 2000); Qualcomm Incorporated, Petition for Declaratory Ruling
    Giving Effect to the Mandate of the District of Columbia Circuit
    Court of Appeals, *Order*, FCC 00-219, ¶ 11 (rel. June 8, 2000).
    Application of Pinelands, Inc. (Transferor) and BHC Communications,
    Inc. (Transferee) for Transfer of Control of WWOR-TV, Inc.,
    *Memorandum Opinion and Order*, 7 FCC Rcd 6058, 6061 ¶ 13 (1992).