*Pages 1--5 from Microsoft Word - 15516* Federal Communications Commission DA 99- 1816 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of the Application of ) ) PLAINCOM, INC. ) FCC File No: 9507123 ) to Provide 39 GHz Point- to- Point Microwave ) Service in Waco, TX ) ORDER ON RECONSIDERATION Adopted: October 29, 1999 Released: October 29, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. By letter dated September 22, 1998, the Licensing and Technical Analysis Branch (Branch) dismissed a February 6, 1998, amendment to the above- captioned application for a 39 GHz station authorization in the Point- to- Point Microwave Radio Service in the area of Waco, TX submitted by Plaincom, Inc. (Plaincom). 1 On October 29, 1998, Plaincom filed a Petition for Reconsideration (Petition) of the Branch's action. 2 For the reasons set forth below, we affirm the Branch's action and deny Plaincom's Petition. II. BACKGROUND 2. On July 26, 1995, we placed the above- referenced Plaincom application on public notice. 3 On November 13, 1995, the Wireless Telecommunications Bureau (Bureau) announced that 39 GHz applications would no longer be accepted for filing in the Common Carrier or Operational Fixed Point- to-Point Microwave Radio Services until the Commission acted upon a pending petition for rulemaking affecting these services. 4 On December 8, 1995, Plaincom filed an amendment to its application, reducing 1 Letter from Mary M. Shultz, Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division, to Mr. Ed Clinton, President, PLAINCOM, INC. (dated Sept. 22, 1998) (Shultz Letter); see also Public Notice, Wireless Telecommunications Bureau Weekly Receipts and Disposals, Report No. 2008 (released Sept. 29, 1998). 2 Plaincom Petition for Reconsideration (Oct. 29, 1998). 3 Public Notice, Wireless Telecommunications Bureau Part 21 Receipts and Disposals, Report No. 1145 (released July 26, 1995). 4 Petition for Amendment of the Commission's Rules Regarding the 37. 0- 38. 6 GHz and 38. 6- 40. 0 GHz Bands, RM-8553, Order, 11 FCC Rcd 1156 (Acting Chief, WTB, Nov. 13, 1995) (Freeze Order). 1 Federal Communications Commission DA 99- 1816 2 the proposed service area. 5 The amendment was accepted and applied to Plaincom's initial application. However, the amendment failed to resolve the mutual exclusivity as to an application filed by Astrolink Communications, Inc. (Astrolink) 6 and another application filed by Biztel, Inc. (Biztel). 7 3. On December 15, 1995, the Commission modified the Bureau's 39 GHz Freeze Order by distinguishing between those pending 39 GHz applications that would be processed and those applications that would be held in abeyance pending the outcome of the rulemaking proceeding. 8 On January 17, 1997, the Commission held that it would process all 39 GHz amendments- of- right filed on or after November 13, 1995, but before December 15, 1995. 9 On November 3, 1997, the Commission decided to dismiss, without prejudice, pending mutually exclusive applications, unless the mutual exclusivity was resolved by an amendment- of- right filed before December 15, 1995. 10 4. On February 6, 1998, Plaincom filed a second amendment (February Amendment) to its initial application to modify its coordinates to "reduce the size of its proposed service area." 11 On September 22, 1998, the Branch dismissed Plaincom's February Amendment in accordance with the interim processing procedures for the 39 GHz service. 12 The Branch found that the February Amendment was filed after December 15, 1995, when the freeze on the acceptance of amendments became effective. III. DISCUSSION 5. First, Plaincom argues that the coordinates revised in its December 8, 1995, amendment contained a clerical error and that the February Amendment served as a correction and was, therefore, an 5 Plaincom's original application specified the coordinates of the proposed Waco, TX service area as 30- 45- 00NLAT, 96- 00- 00WLONG/ 32- 00- 00NLAT, 98- 00- 00WLONG. On December 8, 1995 Plaincom amended its applications and specified the new coordinates as 30- 45- 00NLAT, 96- 20- 00WLONG/ 32- 00- 00NLAT, 98- 00- 00WLONG. 6 FCC File No 9506290 appeared on Public Notice, Wireless Telecommunications Bureau Part 21 Receipts and Disposals, Report No. 1141 (released June 28, 1995). 7 FCC File No. 9505595 appeared on Public Notice, Wireless Telecommunications Bureau Part 21 Receipts and Disposals, Report No. 1139 (released June 14, 1995). 8 Amendment of the Commission's Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, ET Docket No. 95- 183, Notice of Proposed Rulemaking and Order, 11 FCC Rcd 4930, 4988- 4989 (1995) (NPRM and Order). 9 Amendment of the Commission's Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, ET- Docket 95- 183, Memorandum Opinion and Order, 12 FCC Rcd 2910 (1997) (Jan. 17 MO& O). 10 Amendment of the Commission's Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, ET- Docket 95- 183, Report and Order and Second Notice of Proposed Rulemaking, 12 FCC Rcd 18600 (1997) (Report and Order and Second NPRM). 11 See FCC File No. 9506290. Plaincom's February Amendment requested that the coordinates be changed to 30- 50- 15NLAT, 92- 20- 00WLONG/ 32- 00- 00NLAT, 98- 00- 00WLONG. 12 Shultz Letter at 1. 2 Federal Communications Commission DA 99- 1816 3 amendment- of- right, which is effective upon filing. 13 Thus, Plaincom requests that the February Amendment be reinstated. Pursuant to the Commission's Rules, amendments merely correcting typographical, transcription, or similar clerical errors, which are clearly demonstrated to be mistakes by reference to other parts of the application, and whose discovery does not create any new frequency conflicts, are not considered to be newly filed applications. 14 While we don't doubt Plaincom's claim of clerical error, we are, nevertheless, required to abide by the requirements set out in Section 101.45( f)( 5) of the Commission's Rules. Upon further reexamination of Plaincom's application, we find that there was no evidence within the four corners of the application, either in the form of service area maps or conflicting coordinates, such that the Branch would have been alerted to a clerical error. Specifically, the December amendment requested a change in the proposed site's longitude, while the February Amendment reflected a change in latitude. Furthermore, even if we accept the change in latitude coordinates found in Plaincom's February Amendment, Plaincom's service area would remain mutually exclusive with Biztel's application. 15 6. Plaincom also contends that the Commission is "without authority to dismiss Plaincom's amendment which took effect when filed." 16 This argument does not distinguish between amendments that are accepted for filing and amendments that are not accepted for filing because of a freeze. 17 In the Jan 17 MO& O, the Commission addressed this issue and concluded that the NPRM and Order suspended acceptance of all amendments- of- right filed after December 15, 1995. 18 13 Plaincom Petition at 1- 2. 14 47 C. F. R. § 101.45( f)( 5). See Mobil Oil Telecom LTD, File No. 730428, Order, 13 FCC Rcd 5169, 5174 (1998) (applicant miscalculated ground elevation and center line height figures, but staff was aware that figures were incorrect when it returned application and specifically requested revised information). See also Porta- Phone Paging Licensee Corporation, File No. 29086- CD- P/ ML- 96, Order on Reconsideration, 13 FCC Rcd 5229, 5230- 5231 (1998) (applicant entered incorrect site coordinates, but the application was reinstated because the correct data was supplied multiple times in the description of the proposed antenna site). 15 See supra n. 7. Although, Biztel's application was subsequently dismissed on March 11, 1997, this application was mutually exclusive with the Plaincom application at the time Plaincom's December amendment was filed. 16 Plaincom Petition 2- 7. 17 See Kessler v. FCC, 326 F. 2d 673, 684 (D. C. Cir. 1963) (holding that Section 309( a) and (e) of the Communications Act of 1934, as amended, 47 U. S. C. § 309( a), (e), which provide for a hearing on certain applications "filed with" the Commission, does not apply to applications submitted but not accepted for filing because of a freeze) (Kessler). 18 Jan. 17 MO& O, 12 FCC Rcd at 2918; see also Amendment of the Commission's Rules Regarding 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, ET- Docket 95- 183, Memorandum Opinion and Order, FCC 99- 179, ¶ 31- 34 (rel. July 29, 1999). 3 Federal Communications Commission DA 99- 1816 4 7. Plaincom next argues that the Commission's failure to process its amendment violates Section 309( j)( 7)( B) of the Communications Act, which prohibits the Commission from holding an auction solely for the purpose of raising funds for the federal treasury. 19 The Commission has previously addressed this argument. 20 Thus, Plaincom's argument is dismissed here as repetitious. 21 8. Finally, Plaincom asserts that the Commission's freeze on amendments- of- right violates Congress's directive to the Commission to "continue to use engineering solutions, negotiation, threshold qualifications, service regulations and other means in order to avoid mutual exclusivity in application and licensing proceedings." 22 We believe that this directive, at a minimum, pertains to applications that meet Commission filing requirements. As discussed above, Plaincom filed its second amendment after the December 15, 1995, cut- off date for filing amendments- of- right. Consequently, because Plaincom's amendment was not an amendment- of- right filed before December 15, 1995, it was not acceptable for filing. Thus, we do not believe that the provisions of Section 309( j)( 6)( E) of the Communications Act apply to the subject application and amendment. As a result, Plaincom's Petition for Reconsideration, filed on November 2, 1998, is hereby denied. IV. ORDERING CLAUSES 9. 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 Section 1.106 of the Commission's Rules, 47 C. F. R. § 1.106, the Petition for Reconsideration filed by Plaincom, Inc. on November 2, 1998 IS DENIED. 19 47 U. S. C. § 309( j)( 7)( B); Plaincom Petition at 7- 8. 20 The Commission has previously explained that the new licensing procedures implemented in this proceeding will: (a) better accommodate 39 GHz services which support existing and emerging technologies; and (b) provide for competitive bidding which will allow spectrum to be acquired by those who value it most highly, and increase the likelihood that innovative, competitive services will be offered to consumers. See Jan 17 MO& O, 12 FCC Rcd at 2917; see also Report and Order and Second NPRM, 12 FCC Rcd at 18642. 21 Any order disposing of a petition for reconsideration which modifies rules adopted by the original order is, to the extent of such modification, subject to reconsideration in the same manner as the original order. Except in such circumstances, a second petition for reconsideration may be dismissed by the staff as repetitious. 47 C. F. R. § 1.429( i). See, e. g., Amendment of Parts 13 and 80 of the Commission's Rules to Implement the Global Maritime Distress and Safety System (GMDSS) to Improve the Safety of Life at Sea, PR Docket No. 90- 480, Memorandum Opinion and Order, 13 FCC Rcd 15786, 15790, 15796 (1998); Amendment of Part 69 of the Commission's Rules Relating to the Creation of Access Charge Settlements for Open Network Architecture, CC Docket No. 89- 79, Memorandum Opinion and Order on Third Further Reconsideration, 10 FCC Rcd 1570, 1572 (1994); Waivers of Section 90.621( b) of the Commission's Rules for Applicants in the Specialized Mobile Radio Service, PR Docket No. 90- 34, Order, 8 FCC Rcd 7619 (1993) . 22 47 U. S. C. § 309( j)( 6)( E); Plaincom Petition at 4, 7- 8. 4 Federal Communications Commission DA 99- 1816 5 10. 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 5