[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2452-2453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1246]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 21 and 94

[FCC 95-500]


Fixed Point-to-Point Microwave Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: By this Order portion of the Notice of Proposed Rule Making 
and Order, the Commission generally holds in abeyance and will not 
process pending applications for frequency assignments in the 38.6-40.0 
GHz (39 GHz) band that are mutually exclusive with other applications 
or that were still within the 60-day period for filing mutually 
exclusive applications as of November 13, 1995. Further, the Commission 
holds in abeyance and will not process modification applications for 39 
GHz licenses filed on or after November 13, 1995, unless the 
application meets certain requirements as discussed in the summary 
below. The Commission takes this action to stop processing mutually 
exclusive or potentially mutually exclusive applications under outdated 
licensing rules in anticipation of the adoption of new licensing rules.

EFFECTIVE DATE: December 15, 1995.

FOR FURTHER INFORMATION CONTACT: Tom Mooring, Office of Engineering and 
Technology, (202) 418-2450.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, 
adopted and released December 15, 1995. The complete Notice of Proposed 
Rule Making and Order is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room 239), 1919 M 
Street, N.W., Washington, D.C., and also may be purchased from the 
Commission's duplication contractor, International Transcription 
Service, (202) 857-3800, 2100 M Street, N.W., Suite 140, Washington 
D.C. 20037.

Summary of Order

    1. In the companion Notice of Proposed Rule Making (``Notice'') in 
this proceeding, the Commission proposed to amend the licensing and 
technical rules for fixed point-to-point microwave operations in the 39 
GHz band. On November 13, 1995, pursuant to delegated authority, the 
Wireless Telecommunications Bureau (Bureau) ordered that no additional 
applications for 39 GHz frequency assignments would be accepted for 
filing as of the date of the Bureau's order pending the outcome of this 
proceeding.1 The Bureau observed that over 2,100 applications for 
39 GHz licenses had been filed since January 1995, and noted that the 
increasing number of applications filed pursuant to the existing rules 
was a burden on Commission resources and could inhibit the Commission's 
ability to update the regulatory structure of this service in light of 
today's marketplace conditions. The Bureau also stated that the freeze 
does not apply to applications for assignment or transfer of control of 
license. Likewise, the Commission stresses that the interim policy 
described below will not apply to assignment or transfer of control 
applications, which will continue to be processed under existing 
procedures.

    \1\ Order, RM-8553, DA 95-2341, released November 13, 1995.
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    2. With respect to previously filed 39 GHz applications now pending 
before the Commission, the Commission took the following action. 
Pending applications will be processed if (1) they were not mutually 
exclusive with other applications at the time of the Bureau's Order, 
and (2) the 60-day period for filing mutually exclusive applications 
expired prior to November 13, 1995. The Commission concluded that 
processing pending applications against which no competing application 
has been timely filed will not impede the goals of this proceeding and 
can be accomplished without significant burden on Commission resources. 
The Commission also proposed to apply to all licenses granted under 
this procedure the same revised construction threshold and 
grandfathering requirements that it proposed to apply to incumbent 39 
GHz licensees who received license grants prior to this Notice.
    3. With respect to all other pending applications (i.e., those that 
were subject to mutual exclusivity or still within the 60-day period as 
of November 13), the Commission concluded that processing and 
disposition should be held in abeyance during the pendency of this 
proceeding.2 First, resolving mutually exclusive applications 
requires greater expenditure of Commission resources than processing 
uncontested applications. Second, the Commission is concerned that 
attempting to award licenses in mutually exclusive situations under its 
current rules could lead to results that are inconsistent with the 
objectives of this proceeding. Therefore, the Commission will not 
process these applications (or any amendments thereto filed on or after 
November 13, 1995) at this time, but intends to determine whether to 
process or return them, as appropriate, at the conclusion of this 
proceeding. The Commission solicits comment on how these applications 
that will be held in abeyance should later be treated if new licensing 
and service rules are ultimately adopted in this proceeding.

    \2\ Whenever the 60-day ``cut-off'' date for an application 
occurs on or after the processing ``freeze'' date of November 13, 
1995, we will hold the application in abeyance. This will assure 
fairness to potential applicants who were precluded by the freeze 
from filing competing applications in time to be entitled to 
comparative consideration. Accordingly, all 39 GHz applications 
placed on public notice on or after September 14, 1995, will be 
treated for purposes of interim processing as if they were mutually 
exclusive. See 47 C.F.R. Secs. 21.27, 21.31(b).
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    4. Also in regard to pending applications for 39 GHz licenses, 
amendments received on or after November 13, 1995 will be held in 
abeyance during the pendency of this proceeding. The Commission will 
similarly hold in abeyance those applications for modification of 
existing 39 GHz licenses filed on or after November 13, 1995, or 
modification 

[[Page 2453]]
application amendments filed on or after that date, and will not accept 
for filing any additional such modification applications and 
amendments, but for the following limited exception which will afford 
existing licensees alternative means of meeting the threshold 
construction requirement. To be acceptable for filing, modification 
applications or amendments to them must meet both of the following 
criteria:
     Do not involve any enlargement in any portion of the 
proposed area of operation; and
     Do not change frequency blocks, other than to delete a 
frequency block(s).
    5. Accordingly, it is ordered, That pending applications for new 39 
GHz frequency assignments or for modification to 39 GHz licenses shall 
be held in abeyance and not processed until further notice, except as 
otherwise indicated in paragraphs 1 through 4 above. It is further 
ordered, That applications for modification of 39 GHz licenses or 
amendments to pending 39 GHz applications shall not be accepted for 
filing until further notice, except as indicated in paragraphs 1 
through 4 above. The imposition of these changes in application 
processing is procedural in nature and, therefore, is not subject to 
the notice and comment and effective date requirements of the 
Administrative Procedure Act.3 In any event, good cause exists for 
imposing immediately the processing changes without following these 
requirements because the changes are necessary to avoid impeding the 
purpose of any new rules adopted in this proceeding.

    \3\ See Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629 (D.C. 
Cir. 1984); Buckeye Cablevision, Inc. v. United States, 438 F.2d 948 
(6th Cir. 1971); Kessler v. FCC, 326 F.2d 673 (D.C. Cir. 1963).
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List of Subjects

47 CFR Part 21

    Communications common carriers, Radio.

47 CFR Part 94

    Communications equipment, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-1246 Filed 1-25-96; 8:45 am]
BILLING CODE 6712-01-P