Fixed Point-to-Point Microwave Service

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exclusive or potentially mutually exclusive applications under outdated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