*Pages 1--3 from Microsoft Word - 807.doc* Federal Communications Commission DA 00- 826 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Applications of COMMCO, L. L. C. For Licenses for 39 GHz Point- to- Point Microwave Stations in Various Locations Throughout the United States ERIC STERMAN For Licenses for 39 GHz Point- to- Point Microwave Stations in various locations throughout the United States WINSTAR WIRELESS FIBER CORP. For Licenses for 39 GHz Point- to- Point Microwave Radio Stations in Baltimore, MD, New York, NY, Philadelphia, PA, Washington, D. C. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) FCC File Nos. 9600712, 9600713, 9600719, 9600720 FCC File Nos. 9600663, 9600664, 9600669, 9600690, FCC File Nos. 9404193, 9404166 9404181, 9404182 9404184 ORDER ON RECONSIDERATION Adopted: April 10, 2000 Released: April 12, 2000 Before the Deputy Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. The Public Safety and Private Wireless Division (Division) has before it two petitions for reconsideration (Petition) filed by Eric Sterman (Sterman) on October 14, 1999 and Commco, L. L. C. (Commco) on November 19, 1999. 1 Commco and Sterman request reconsideration of Division orders dismissing the above- captioned applications for authorization to provide service in the 38. 6 to 40. 0 GHz (39 GHz) band. Additionally, Commco, Plaincom, Inc. (Plaincom) and Sterman (collectively Petitioners) request reconsideration of the partial grant of the above- captioned WinStar Wireless Fiber Corp. (WinStar) applications. 2 2. We have analyzed the Petitions and find that the Commission staff properly decided the 1 Commco Petition for Reconsideration (filed Nov. 19, 1999) (Commco Petition); Sterman Petition for Reconsideration (filed October 14, 1999)( Sterman Petition). 2 Commco, Plaincom and Sterman Petition for Reconsideration (filed Jan. 24, 2000) 1 Federal Communications Commission DA 00- 826 2 matters raised. Therefore, we uphold the staff decisions for the reasons stated therein. There is no reason to disturb them. 3. Petitioners argue that the Division orders warrant review on reconsideration because the orders were contrary to Ashbacker. 3 Commco states that the Ashbacker 4 doctrine establishes that mutually exclusive applications are entitled to simultaneous consideration. 5 However, Petitioners do not have Ashbacker rights because their applications are not mutually exclusive with WinStar’s applications. 6 As discussed in the Division orders and affirmed herein, Petitioners’ applications were filed in response to a minor amendment, which did not open a new filing window, so their applications were therefore untimely. 4. In the 39 GHz point- to- point microwave service, competing applications were to be reviewed comparatively only if they were filed within "[ s] ixty days after the date of the public notice listing the first of the conflicting applications as accepted for filing." 7 "The purpose of these rules is to attract all competitive applications for a particular [frequency] within a fixed and reasonably short time frame, allowing the Commission to satisfy its Ashbacker obligations with a single, fairly prompt comparative hearing." 8 Consequently, timely filers "have a legitimate expectation that the cut- off rules will be enforced." 9 Thus, in the 39 GHz context, the Ashbacker doctrine requiring equal treatment of competing applications only applies if the applications were submitted within the applicable filing window. As affirmed above, no new filing window opened under the instant circumstances. Thus, Petitioners’ applications were untimely and there was no mutual exclusivity. As a result, Petitioners have no Ashbacker rights, and the Division properly dismissed these applications. 5. With regard to the Commco applications, Commco asserts that the Division failed to comply with its obligations under Section 309( j)( 6)( E) of the Communications Act of 1934, as amended 10 to avoid mutually exclusivity in application and licensing proceeding. As noted above, mutually exclusivity did not exist between WinStar’s and Commco’s applications. Thus, this argument is without merit. Accordingly, the grants in part of the above- captioned WinStar applications are affirmed. 6. 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 Commco, L. L. C. on November 19, 1999 IS DENIED. 3 Commco Petition at 21- 23; Sterman Petition at 22- 23. 4 Ashbacker Radio Corp. v. FCC, 326 U. S. 327 (1945). 5 Commco Petition at 21; Sterman Petition at 22. 6 Reuters Limited v. FCC, 781 F. 2d 946, 951 (D. C. Cir. 1986). 7 47 C. F. R. § 21.31( b)( 2)( i) (1994. 8 See McElroy Electronics Corp. v. FCC, 86 F. 3d 248, 253 (D. C. Cir. 1996) citing Florida Inst. of Tech. v. FCC, 952 F. 2d 549, 550 (D. C. Cir. 1992). 9 See Florida Inst. of Tech. v. FCC, 952 F. 2d 548, 554 (D. C. Cir. 1992). 10 Commco Petition at 24. 2 Federal Communications Commission DA 00- 826 3 7. IT IS FURTHER 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 Joint Petition for Reconsideration filed by Plaincom, Inc., Eric Sterman and Commco, L. L. C. on January 24, 2000 IS DENIED. 8. IT IS FURTHER 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 Eric Sterman on October 14, 1999 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 Ramona E. Melson Deputy Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau 3