Before the
                        Federal Communications Commission
                            Washington, D.C. 20554
  
  
  In the Matter of                     )
                                       )
                                  ASIA SKYLINK, INC.     )    FCC Files Nos. 730216, 730217, 
                                     )    736359, and 736414
                                       )       
  Petition for Revocation and for Other       )     
  Appropriate Relief filed by Western          )    
  Tele-Communications, Inc.           )
                                       )
  Petition to Deny Applications to Modify          )
  Stations WPJC996, Aurora, CO         )
  and WPJC997, Denver, CO             )
                                       
                         MEMORANDUM OPINION AND ORDER
  
  
       Adopted:  December 20, 1999        Released:  December 23, 1999
  
  By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:
  
                               I.  INTRODUCTION
  
       1.  Before us are the following pleadings submitted by Western Tele-Communications, Inc.
  (WTCI):  (1) a request that the Commission initiate a proceeding to revoke the licenses of Asia
  Skylink, Inc. (ASI) for Private Operational Fixed Microwave Radio Stations WPJC996, Aurora,
  Colorado, and WPJC997, Denver, Colorado; (2) a petition to deny the above-captioned ASI
  applications to modify Stations WPJC996 and WPJC997; and (3) a complaint that ASI engaged in a
  prohibited ex parte contact with Commission personnel regarding the petition to deny.  For the
  reasons stated herein, we deny all of WTCI's requests, and will grant the above-captioned
  applications.
  
                               II.  BACKGROUND
  
       2.  On November 17, 1995, Comsearch, which has provided frequency coordinator services
  for both WTCI and ASI, initiated frequency coordination on behalf of ASI for new 6 GHz paths
  between Aurora and Denver, Colorado; Aurora and Englewood, Colorado; and Denver and Eldorado
  Mountain, Colorado.  WTCI was among the carriers notified in connection with this frequency
  coordination, because it operates a 6 GHz point-to-point microwave radio system that includes a link
  between Denver and Russelville (near Aurora), Colorado.  Of the eight pairs of 30 MHz channels in
  the 6 MHz band allocated by the Commission for both private operational-fixed and common carrier
  point-to-point microwave service, WTCI's Denver-Russelville link is licensed for six pairs and
  WTCI has coordinated the other two as growth channels.
  
       3.  On November 28, 1995, Comsearch informed WTCI that there was a possibility that ASI's
  proposed operations would cause interference to WTCI's growth channels.  By letter dated November
  30, 1995, ASI requested that WTCI relinquish its growth channels.  By letter dated December 19,
  1995, WTCI's coordinator at Comsearch advised ASI's frequency coordinator at Comsearch that
  WTCI "has future need for [its] growth channels and do[es] not wish to relinquish them at this time. 
  Therefore, we consider the potential interference cases contained in our letter dated November 28,
  1995 to be unresolved."
  
       4.  On January 19, 1996, ASI filed applications for new 6 GHz point-to-point microwave
  radio facilities in the Denver area. The applications included a statement from Comsearch that there
  were no unresolved interference objections.  No objections were received, and the applications
  were granted on March 12, 1996.  Paths between the Aurora (Station WPJC996) and Denver
  (Station WPJC997) facilities are in both directions.  In addition, the Aurora facility has a path to
  another ASI facility at Englewood, Colorado, and the Denver facility has a path to an ASI facility at
  Eldorado Mountain, Colorado.  
  
       5.  On October 7, 1996, ASI filed applications to modify the licenses for Stations WPJC996
  and WPJC997 to change the antenna gains, centerline heights, and signal strengths.  The
  applications included a statement from Comsearch that there were no unresolved interference
  objections.  On November 14, 1996, WTCI filed a pleading captioned "Petition for Revocation and
  Other Appropriate Relief," requesting that the Commission initiate proceedings to revoke the licenses
  for Stations WPJC996 and WPJC997 because ASI's applications for those stations did not comply
  with the Commission's rules regarding prior frequency coordination.
  
       6.  On July 14, 1997, ASI requested dismissal of its application to modify the license for
  Station WPJC997, and filed another application to modify that station to change the antenna polarity
  and attenuate the transmitter power in order to reduce interference to WTCI.  The coordination study
  included in this application states, "Western Telecommunications Inc. has not agreed to relinquish
  this growth channel.  No other channels are assignable in accordance with FCC interference
  criteria."  On August 28, 1997, WTCI timely filed a petition to deny this application, alleging that
  frequency coordination was incomplete and the conflicts still were not resolved.
  
       7.  On September 9, 1997, counsel for ASI spoke via telephone to the Chief of the Private
  Wireless Division, Wireless Telecommunication Bureau, regarding ASI's modification applications
  and WTCI's petition to deny.  He requested expedited action on the applications on the grounds that
  the petition to deny merely repeated arguments WTCI made in previous filings, which in counsel's
  view the Commission resolved when it granted ASI's original applications.  He also stated that delay
  by the Commission in processing the applications furthered WTCI's apparent goal of keeping
  competitors out of the Denver market.  On September 22, 1997, WTCI submitted a letter objecting
  to these statements and requesting sanctions pursuant to Section 1.1216 of the Commission's Rules.
  
                               III.  DISCUSSION
  
       8.  As an initial matter, ASI contends that WTCI's Petition for Revocation, based as it is on
  information in ASI's original applications, is in effect an untimely petition to deny those applications
  or a petition for reconsideration of the grant of those applications, because it was filed more than
  thirty days after public notice of the filing and grant of those applications.  WTCI replies that the
  Petition for Revocation is proper because Section 312(a) of the Communications Act empowers the
  Commission to revoke a license in two circumstances relevant to ASI's conduct:  for false statements
  knowingly made by an applicant, and because of conditions coming to the Commission's attention
  that would warrant refusal to grant an initial license or permit.  We need not resolve this dispute for
  we have reviewed the contentions in the Petition for Revocation and the Petition to Deny (which
  raises the same issues), and we find them to be without merit.  
       
       9.  Section 101.103(d)(1) of the Commission's Rules provides in pertinent part, that
  
            Proposed frequency usage must be prior coordinated with existing licensees,
       permittees and applicants in the area, and other applicants with previously filed
       applications, whose facilities could affect or be affected by the new proposal in terms
       of frequency interference on active channels, applied-for channels, or channels
       coordinated for future growth.  Coordination must be completed prior to filing an
       application for regular authorization, or an amendment to a pending application, or
       any major modification to a license. . . . All applicants and licensees must cooperate
       fully and make reasonable efforts to resolve technical problems and conflicts that
       may inhibit the most effective and efficient use of the radio spectrum; however, the
       party being coordinated with is not obligated to suggest changes or re-engineer a
       proposal in cases involving conflicts.  Applicants should make every reasonable
       effort to avoid blocking the growth of systems as prior coordinated. . . . In the event
       that technical problems are not resolved, an explanation must be submitted with the
       application.
  
  WTCI claims that ASI did not complete coordination prior to filing its applications because WTCI's
  interference cases were left unresolved, and that ASI failed to include in its applications an
  explanation of the unresolved technical problems.  WTCI also claims that ASI made no reasonable
  efforts to resolve the conflicts and that ASI failed to make every reasonable effort to avoid blocking
  the growth of WTCI's systems as prior coordinated.  Further, WTCI asserts that ASI did not make
  the showing required by Section 101.103(d)(2)(xii), which states, "Any frequency reserved by a
  licensee for future use . . . must be released for use by another licensee, permittee or applicant upon a
  showing by the latter that it requires an additional frequency and cannot coordinate one that is not
  reserved for future use."  Finally, WTCI argues that ASI did not satisfy former Section 94.15(c) of
  the Commission's Rules, to which ASI's initial applications were subject, which required an
  applicant to select a frequency band with the assignable bandwidth most consistent with the proposed
  communications requirements, and to provide a supplemental showing of the basis for the frequency
  band selection and bandwidth requested, and the proposed schedule for implementation of bandwidth
  utilization.  
  
       10.  Having reviewed the entire record in this matter, we conclude that ASI's applications
  were not deficient.  As described above, ASI and WTCI came to an impasse over the latter's refusal
  to relinquish its growth channels.  Several of WTCI's arguments are based on the premise that the
  impasse constituted an unresolved technical problem under the Commission's Rules that left ASI's
  coordination incomplete and should have been explained in ASI's applications.  We concur with
  ASI's contention, however, that WTCI's unwillingness to release its growth channels was not an
  unresolved "technical problem."  Thus, we disagree with WTCI's assertions that ASI's coordination
  or applications were incomplete.
  
       11.  Moreover, it is not clear what further efforts ASI could have made to resolve the conflict. 
  ASI states that it purposely designed its system to use only one of WTCI's growth channels,
  notwithstanding the fact that this design was to ASI's detriment.  ASI claims that it used the same
  frequency at its Eldorado Mountain and Aurora sites, at the risk of increased interference into its own
  system due to reflection, solely to avoid using WTCI's other growth channels.  ASI further states
  that it also chose high-performance antennas to improve the interference characteristics of its
  system.
       
       12.  Notably, WTCI does not refute ASI's contentions and instead contends that ASI could
  have made greater efforts to avoid blocking the growth of WTCI's systems by changing the polarity
  of the signal from Denver to Aurora or by choosing a frequency in the 11 GHz band.  ASI argues
  that WTCI's suggestions are not realistic solutions.  It cites an engineering analysis performed by
  Comsearch to determine ASI's alternative frequency options.  ASI asserts that this letter recognizes
  that whether or not ASI changed the polarity of the Aurora receive channel, ASI's Denver and Aurora
  receivers would incur "major" interference from WTCI's stations, and that ASI could not change the
  polarity of the Aurora transmit signal because "it [is] already crosspole (best scenario) to [another of]
  WTCI's growth frequenc[ies]."  ASI asserts that if it implemented WTCI's suggestion, its system
  would be inoperable should WTCI ever decide to activate one of the growth channels it has claimed
  for the Russelville station.  ASI further claims that Comsearch was able to find only one clear 11
  GHz frequency pair that conceivably could meet ASI's needs, and even that channel pair was subject
  to potential interference from yet another WTCI transmitter located only 0.1 mile away.  Upon
  reviewing the record in this matter, we are not persuaded that WTCI's suggestions would constitute
  reasonable efforts to avoid blocking the growth of its systems.
  
       13.  In addition, we agree with ASI that Section 101.103(d)(2)(xii) of the Rules required
  WTCI to relinquish the channel pair requested by ASI.  WTCI contends that ASI has shown neither
  that it requires WTCI's growth channel nor that no other channel is available that is not reserved for
  future use.  ASI's applications indicate, based on expected customer demand, an initial baseband
  loading of 2400 channels and a 10-year projected baseband channel load of 2400 channels.  ASI, like
  all licensees, is required to meet the efficiency standards of Section 101.141 of the Commission's
  Rules.  Under the circumstances presented, we do not have sufficient reason to doubt that ASI will
  meet the standards.  In addition, we already have rejected WTCI's suggestion that ASI should have
  used an available 11 GHz channel, instead.  The Commission's "policy is to protect the future
  expansion of existing growth routes to the extent practicable."  We find that it is not practicable for
  WTCI to hold all of its growth channels in light of ASI's more current requirements.
  
       14.  Moreover, when it enacted Section 101.103(d), the Commission contemplated that
  growth channels would be for "months," not years.   The Commission specifically stated that, under
  this rule, "any party needing to hold growth channels for longer than six months must demonstrate a
  need for them in the event that another entity is unable to clear another channel."  When ASI filed
  its applications, WTCI had been holding its growth channels at its Denver and Russelville stations for
  more than six years without offering a justification for its need for them, other than the statement that
  it "does not wish to relinquish [them]."  
  
       15.  Finally, we reject WTCI's argument that ASI did not indicate how selection of 6 GHz
  channels with 30 MHz assignable bandwidth is consistent with its communications requirements, as
  required by former Section 94.15(c).  WTCI presumes that ASI's services are provided over
  equivalent 4 kHz, voice-grade channels based on a single 30 MHz analog radio channel ordinarily
  accommodating up to 2400 voice-grade channels.  WTCI then states that ASI's need for such
  expansive bandwidth over its proposed system has not been established.  We reject WTCI's
  argument that ASI did not make the showing required by former Section 94.15(c) for the same
  reasons we rejected WTCI's argument that ASI did not make the showing required by Section
  101.103(d)(2)(xii).
  
       16.  Therefore, we conclude that WTCI's Petitions should be denied.  While we are not
  persuaded by WTCI's arguments, we nonetheless note that ASI should have cooperated more fully in
  its endeavors to satisfy its frequency coordination obligations and we caution it to do so in the future. 
  It appears that ASI overly relied on its frequency coordinator and failed to directly provide WTCI
  with the showing that no other frequencies were available in the 6 GHz band and state its reasons for
  why it needed one of those channels.  We also disapprove of WTCI's apparent attempts to prior-
  coordinate and reserve all the wider channels in the 6 GHz band as its growth channels.  In the
  competitive environment which exists today, frequency spectrum is becoming more scarce, especially
  in the lower frequency bands where longer microwave routes are possible. 
  
       17.  Ex Parte Complaint.  WTCI also argues that the statements of ASI's counsel on
  September 9, 1997, to the Chief of the Private Wireless Division were an impermissible ex parte
  presentation.  We disagree.  Ex parte presentations are communications directed to the merits or
  outcome of a proceeding which, if written, are not served on the parties to the proceeding or, if oral,
  are not preceded by notice to the parties and an opportunity for the parties to be present.  An oral
  presentation giving reasons, other than the need to resolve administrative delay, why the proceeding
  should be resolved is not treated as an ex parte presentation if a summary is promptly filed in the
  record and served on the other parties.  While the substance of ASI's counsel's statements -- that the
  matter was deserving of expedited action because the Commission had already addressed the issues,
  and a delay could have the affect of keeping competitors out of the Denver market -- were reasons
  other than the need to resolve administrative delay why the proceeding should be resolved, ASI's
  counsel promptly filed a summary with the Commission and served a copy on WTCI's counsel, so the
  contact is not considered an ex parte presentation under the Commission's Rules.  Further, contrary to
  WTCI's suggestion, the fact that ASI made the same points in some of its pleadings in this proceeding
  does not convert the statements into discussions of the merits of the case.  Thus, we find that the
  statements of ASI's counsel did not constitute a violation of the Commission's ex parte rules.
                                       
                       IV.  CONCLUSION
  
       18.  For the reasons stated above, WTCI's Petitions are denied.  Specifically, we conclude that
  ASI met the fundamental requirements of Section 101.103 of the Commission's Rules pertaining to
  frequency coordination, and that WTCI does not have a sufficient basis under these circumstances to
  retain reservation of all of its prior-coordinated growth channels.
  
                             V.  ORDERING CLAUSES
  
       19.  Accordingly, IT IS ORDERED that pursuant to Sections 4(i), 309, and 312 of the
  Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and 312, and Section 1.939 of
  the Commission's Rules, 47 C.F.R.  1.939, WTCI's Petition for Revocation and for Other
  Appropriate Relief, filed on November 14, 1996, and Petition to Deny, filed on August 28, 1997,
  ARE DENIED, and FCC File Nos. 730217, 736359, and 736414 filed by Asia Skylink, Inc. will be
  granted.
  
       20.  IT IF FURTHER ORDERED that, pursuant to Section 1.934 of the Commission's Rules,
  47 C.F.R.  1.934, FCC File No. 730216, filed by ASI on October 7, 1996, SHALL BE DISMISSED.
  
       21.  This action is taken pursuant to the authority delegated by 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