Federal Communications Commissionda 99-299

Federal Communications CommissionDA 99-299

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Application of )

)

COLUMBIA MILLIMETER COMMUNICATIONS, LP)File No. 9704031

)(formerly No. 9507742)

to Provide 39 GHz Point-to-Point)

Microwave Radio Service on )

Station WPNA659, Santa Cruz, California )

ORDER ON RECONSIDERATION

Adopted: February 5, 1999 Released: February 8, 1999

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

I. INTRODUCTION

1.1Columbia Millimeter Communications, LP (Columbia) has filed a petition for reconsideration asking the Public Safety and Private Wireless Division (Division) to reconsider the action of the Division's Licensing and Technical Analysis Branch (Branch) setting aside a 39 GHz Point-to-Point Microwave Radio Service license granted to Columbia.[1] For the reasons set forth below, we dismiss Columbia's Petition as untimely.

II. BACKGROUND

1.2On June 19, 1995, Columbia filed an application for a license to operate a new facility at 38,600-38,650 MHz and 39,300-39,350 MHz in Santa Cruz, California. On August 14, 1995, Spectrum Communications, L.C. (Spectrum) filed an application to operate a new facility at 39,300-39,350 MHz and 39,350-39,400 MHz in Monterey, California. The two applications were mutually exclusive with respect to the 39,300-39,350 MHz channel range.[2]

1.3On November 13, 1995, the Wireless Telecommunications Bureau (Bureau) released the 39 GHz Freeze Order declaring that until the Commission acted on a pending Petition for Rule Making concerning the 39GHz band, no additional applications for licensing 39 GHz frequencies would be accepted for filing.[3] On December 15, 1995, the Commission adopted the 39 GHz NPRM and Order which expanded the freeze to provide that applications that were pending and mutually exclusive as of November 13, 1995, would be held in abeyance pending the resolution of the rule making.[4]

1.4On November 15, 1996, however, during the pendency of the freeze, Spectrum's application for a license to operate at 39,350-39,400 MHz was granted and Spectrum's application to operate at 39,300-39,350 MHz, the channel range that was mutually exclusive with Columbia's application, was denied.[5] Effective April 1, 1997, Columbia was issued a license granting it authority to operate a new 39 GHz station at 38,600-38,650 MHz and at 39,300-39,350 MHz in Santa Cruz, California.[6]

1.5By letter dated October 9, 1997, the Branch set aside its April 1, 1997, action granting Columbia a license to operate Station WPNA659 at 38,600-38,650 MHz and at 39,300-39,350 MHz, and returned Columbia's application to pending status.[7] The Branch stated that it was setting aside its grant of Columbia's application because it was mutually exclusive with Spectrum's application for frequency 39,300-39,350 MHz.[8] Public notice of the Branch's action was released on October 14, 1997.[9]

1.6On November 13, 1997, Columbia submitted, to the Commission's lockbox at the Mellon Bank in Pittsburgh, Pennsylvania, the Petition seeking reconsideration of the Branch's action setting aside the grant of Columbia's license. Columbia submitted a copy of the Petition to the Secretary's Office in Washington, D.C. on November 14, 1997.

III. DISCUSSION

1.7Persons seeking reconsideration of a Commission action, including those taken by the Branch, must file a petition for reconsideration within thirty days of public notice of the action.[10] This deadline is statutory and may not be waived by the Commission.[11]

1.8The basis for determining the date of "public notice" is provided by the Commission's rules. Where, as is the case here, the full text of the action is not released, but a document entitled Public Notice describing the action is released, petitions for reconsideration must be filed within thirty days of the Public Notice's release date.[12] A Public Notice describing the Branch's action setting aside the grant of Columbia's license was released on October 14, 1997. Accordingly, Columbia's Petition had to be filed by November 13, 1997, to be timely. Therefore, the copy of the Petition that was filed at the Secretary's office on November 14, 1997, was late and may not be considered.[13] Thus, we must determine whether Columbia's filing of its Petition at the Commission's lockbox at the Mellon Bank on November 13, 1997, satisfies the filing requirement.

1.9A document is filed with the Commission upon its receipt at the location designated by the Commission.[14] The Rules provide that a petition for reconsideration shall be submitted to the Secretary, Federal Communications Commission, Washington, D.C., 20554.[15] Accordingly, based on the plain language of the Commission's Rules, petitions for reconsideration may not be filed at the Commission's lockbox at the Mellon Bank. While the Rules provide that license applications and other filings that require the payment of fees are to be filed at the lockbox,[16] the Rules are clear that petitions for reconsideration must be submitted to the Secretary in Washington, D.C. In addition to the explicit language contained in Section 1.106(i) of the Commission's Rules, the introduction to Section 0.401 of the Commission's Rules provides as follows:[17]

§ 0.401 Location of Commission offices.

The Commission maintains several offices and receipt locations. Applications and other filings not submitted in accordance with the addresses or locations set forth below will be returned to the applicant without processing. When an application or other filing does not involve the payment of a fee, the appropriate filing address or location is established elsewhere in the rules for the various types of submissions to the Commission. The public should identify the correct filing location by reference to these rules. Applications or submissions requiring fees must be submitted in accordance with §0.401(b) of the rules irrespective of the addresses that may be set out elsewhere in the rules for other submissions.

As the rule states, the Commission maintains different offices for different purposes, and persons filing documents with the Commission must take care to ensure that their documents are filed at the correct location as specified in the Commission's rules. Further, it is clear that no payment of fees is required for submission of petitions for reconsideration. Because the Commission's lockbox at the Mellon Bank is not the correct location for filing pleadings such as petitions for reconsideration, we conclude that Columbia did not satisfy the filing requirement under Section 1.106 of the Commission's Rules when it submitted the Petition to the Commission's lockbox at the Mellon Bank.[18]

1.10Thus, the official filing of Columbia's Petition did not occur when it was submitted to the Commission's lockbox but when it was received at the Commission's Office of the Secretary. Therefore, Columbia's Petition was not filed until November 14, 1997. Consequently, we find that Columbia's Petition for Reconsideration is untimely and must be dismissed.[19]

IV. ORDERING CLAUSES

1.11ACCORDINGLY, 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) and 405, and Sections 1.104(b) and 1.106(f) of the Commission's Rules, 47 C.F.R. §§ 1.104(b), 1.106(f), the Petition for Reconsideration of Columbia Millimeter Communications, LP filed on November 14, 1997, IS DISMISSED AS UNTIMELY.

1.12This 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] Columbia Millimeter Communications LP Petition for Reconsideration (filed November 14, 1997) (Petition).

[2] See 47 C.F.R. §21.31(b)(2)(i) (1995); 47 C.F.R. § 101.45(b)(2)(i). An application will be deemed mutually exclusive of an earlier-filed application if the two applications are mutually exclusive and the second application was filed either within sixty days after the date of the public notice listing the earlier application or one business day before the Commission acts on the earlier application, whichever is earlier.

[3] 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, 1156 (WTB 1995) (39 GHz Freeze Order).

[4] Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, Implementation of Section 309(j) of the Communications Act -- Competitive Bidding, 37.0 GHz-38.6 GHz and 38.6-40.0 GHz, Notice of Proposed Rule Making and Order, 11 FCC Rcd 4930, 4988-89 (1995) (39 GHz NPRM and Order). On November 3, 1997, the Commission issued the 39 GHz R&O providing that applications that were mutually exclusive in part as of November 13, 1995, would be granted with respect to the part that was not mutually exclusive and would be dismissed with respect to the part that was mutually exclusive. Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, Implementation of Section 309(j) of the Communications Act -- Competitive Bidding, 37.0 GHz-38.6 GHz and 38.6-40.0 GHz, Report and Order and Second Notice of Proposed Rule Making, 12 FCC Rcd 18600, 18641-45 (1997) (39 GHz R&O).

[5] Public Notice, Report No. 1913, Wireless Telecommunications Bureau Weekly Receipts and Disposals (released Nov. 26, 1996).

[6] Public Notice, Report No. 1932, Wireless Telecommunications Bureau Weekly Receipts and Disposals (released April 8, 1997). Spectrum did not request reconsideration of the grant of Columbia's license.

[7] Letter to Columbia Millimeter Communications, LP from Michael J. Regiec, Acting Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau (Oct. 9, 1997).

[8] Id.

[9] Public Notice, Report No. 1958, Wireless Telecommunications Bureau Weekly Receipts and Disposals (released Oct. 14, 1997).

[10] 47 U.S.C. § 405(a); 47 C.F.R. §§ 1.104(b), 1.106(f).

[11] Stephen E. Powell, Memorandum Opinion and Order, 11 FCC Rcd 11925, 11926 (1996) (citingReuters Ltd. v. FCC, 781 F.2d 946, 952 (D.C. Cir. 1986)).

[12] 47 C.F.R. § 1.4(b)(4); Eight Applications for Authority to Construct and Operate Multipoint Distribution Service Stations on the Channel 1 and 2, E, F and H Group Channels at Various Transmitter Sites, Order on Reconsideration, 11 FCC Rcd 7008, 7008-10 (Video Services Div., 1996).

[13] SeeMetromedia, Inc., 56 FCC 2d 909, 909-10 (1975) (dismissing as untimely petition for reconsideration filed one day late); Eight Applications for Authority to Construct and Operate Multipoint Distribution Service Stations on the Channel 1 and 2, E, F and H Group Channels at Various Transmitter Sites, Order on Reconsideration, 11 FCC Rcd 7008, 7009-10 (Video Services Div., 1996) (same).

[14] 47 C.F.R. § 1.7; First Auction of Interactive Video and Data (IVDS) Licenses, Request for Waiver of Applications Deadline, Memorandum Opinion and Order, 11 FCC Rcd 1134, , 1135 (1996); Complaints Regarding Cable Programming Service Prices, Amended Order on Reconsideration, 10 FCC Rcd 12778, 12780 n.14 (CSB 1995).

[15] 47 C.F.R. § 1.106(i).

[16] 47 C.F.R. § 0.401(b).

[17] 47 C.F.R. § 0.401.

[18] 47 C.F.R. § 1.106.

[19] See 62 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at 24 Transmitter Sites, Memorandum Opinion and Order on Reconsideration, 10 FCC Rcd 11178, 11205-07 & n.170 (1995) (dismissing as untimely petitions for reconsideration filed one day late); Metromedia, Inc., 56 FCC 2d at 90910 (same).