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A. 1. a.(1)(a) i) a)#)a [ PcQ)P# ## b, oT9 !#)^ `> XidQ)X#Advanced Legal WordPerfect Learning Guide   u I. A. 1. a.(1)(a) i) a)#)a [ PeQ)P# ## b, oT9 !#)^ `> XifQ)X#   Copyright  Portola Systems, Inc. 1987, 1988`e%APage   I. A. 1. a.(1)(a) i) a)#)a [ PgQ)P# ## b, oT9 !#)^ `> XihQ)X#   Page ``e%)Copyright  Portola Systems, Inc. 1987, 1988 Style 87=@6FInitial Codes for BeginningF*'Ç.7=.EV IJ#)a [ PiQ)P# dn  ## b, oT9  [  I. A. 1. a.(1)(a) i) a)#)a [ PjQ)P# ## b, oT9 #)^ `> XikQ)X#`^e%)Beginning Legal WordPerfect Learning Guide   v I. A. 1. a.(1)(a) i) a)#)a [ PlQ)P# ## b, oT9 #)^ `> XimQ)X#Beginning Legal WordPerfect Learning Guide   v I. A. 1. a.(1)(a) i) a)#)a [ PnQ)P# ## b, oT9 #)^ `> XioQ)X#   Copyright  Portola Systems, Inc. 1987, 1988`e%APage   I. A. 1. a.(1)(a) i) a)#)a [ PpQ)P# ## b, oT9 #)^ `> XiqQ)X#   Page ``e%)Copyright  Portola Systems, Inc. 1987, 1988 2Q ~ * Style 97=@6FInitial Codes for Intermediate*'Ç.7=.ET KL#)a [ PrQ)P# dn  ## b, oT9 Њ [  I. A. 1. a.(1)(a) i) a)#)a [ PsQ)P# ## b, oT9 #)^ `> XitQ)X#`e%'Intermediate Legal WordPerfect Learning Guide   z I. A. 1. a.(1)(a) i) a)#)a [ PuQ)P# ## b, oT9 #)^ `> XivQ)X#Intermediate Legal WordPerfect Learning Guide   z I. A. 1. a.(1)(a) i) a)#)a [ PwQ)P# ## b, oT9 #)^ `> XixQ)X#   Copyright  Portola Systems, Inc.`e%APage   I. A. 1. a.(1)(a) i) a)#)a [ PyQ)P# ## b, oT9 Update7=@6FInitial Codes for Update Module*'Ç.7=.Ee MN#)a [ P{Q)P# dn  ##  [ b, oT9 ! I. A. 1. a.(1)(a) i) a)#)a [ P|Q)P# ## b, oT9 !#)^ `> Xi}Q)X#`Ye%%Legal WordPerfect 5.0 Update Class Learning Guide   } I. A. 1. a.(1)(a) i) a)#)a [ P~Q)P# ## b, oT9 !#)^ `> XiQ)X#Legal WordPerfect 5.0 Update Class Learning Guide   } I. A. 1. a.(1)(a) i) a)#)a [ PQ)P# ## b, oT9 !#)^ `> XiQ)X#   Copyright  Portola Systems, Inc. 1987, 1988`e%APage   I. 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 P6G;P y.\80,>\4  pG;2a=5,u&a\  P6G;&P2e=5,&e4  pG;&7jC:,ynXj\  P6G;XP7nC:,L ,|(|(,,"  S'  kdXX` ` Consistent with the new Part 1 rules governing applications for license renewal provided   kin 47 C.F.R.  1.949, 39 GHz licensees seeking renewal of station authorizations must file   kmapplications no later than the expiration date of the authorization for which renewal is sought, and no sooner than 90 days prior to the date of license expiration.(#`  S'  k\` ` Consistent with the Part 1 competitive bidding provision contained in 47 C.F.R.    kJ1.2111(e), unjust enrichment payments for 39 GHz licensees that obtain a bidding credit   kat auction, and subsequently partition or disaggregate to an entity that would not have  Sh'  kqualified for such a credit, will be calculated on a pro rata basis, using population to   kdetermine the relative value of the partitioned area, the amount of spectrum disaggregated   kFto determine the relative value of the disaggregated spectrum, and some combination thereof for combined partitioning and disaggregation. (#`  Sj ' II. BACKGROUND l  S '  k43.` ` On September 9, 1994, the Telecommunications Industry Association (TIA) filed a Petition  |$for Rulemaking proposing a modification of the rules governing the 39 GHz band in order to increase the  S ' |$variety of possible uses on the band. Q yO' G6! ԍTIA Petition for Rule Making, RM8553 (filed Sept. 9, 1994); TIA Amendment to Petition for Rulemaking, RM 8553 (filed May 4, 1995). On November 13, 1995, the Wireless Telecommunications Bureau  Sk' |$Q(Bureau) issued a Freeze Order, which froze acceptance of new 39 GHz applications.R\k Q yO+' G6! ԍPetition for Amendment of the Commission's Rules Regarding the 37.038.6 GHz and 38.640 GHz Bands,  {O' |$ RM8553, Order, 11 FCC Rcd 1156 (Acting Chief, Wireless Telecommunications Bureau, Nov. 13, 1995) (Freeze  {O'Order).R On December 15,  S9' |$1995, the Commission issued a Notice of Proposed Rule Making and Order, whereby it proposed to  |$_amend the rules for fixed, pointtopoint microwave service in the 39 GHz band, and to adopt a  |$conforming set of new rules for the virtually unused 37 GHz band in order to allow for the expansion of  S' |$x39 GHztype service.DQ yO' G6!< ԍAmendment of the Commission's Rules Regarding the 37.038.6 GHz and 38.640.0 GHz Bands, ET Docket  {OM'No. 95183, Notice of Proposed Rule Making and Order, 11 FCC Rcd 4930 (1995) (NPRM and Order). The NPRM and Order expanded upon the Freeze Order primarily by distinguishing  |$between those pending 39 GHz applications that would be processed and those that would be held in  S<' |$*abeyance pending the outcome of the rulemaking proceeding.F <Q {Oz'ԍId. at 498889.F It also stated that amendments to pending  |$D39 GHz applications, and certain modification applications and modification amendments, filed on or after  S'November 13, 1995, would be held in abeyance during the pendency of the instant proceeding.: 0 Q {O 'ԍId.: n!n!  Sp'  k4.` ` On January 17, 1997, the Commission released a Memorandum Opinion and Order which  |$lifted the processing freeze on amendments of right filed on or after November 13, 1995, but before  S ' |$ZDecember 15, 1995.O  Q {Om%'ԍSee note 1, supra.O This action authorized the processing of applications for licensing new 39 GHz  |$frequency assignments that had completed the 60day public notice period before November 13, 1995, and"T ,|(|(,,"  S' |$ghad been amended to resolve mutual exclusivity on or after that date, but before December 15, 1995.y Q {Oh'ԍJan. 17 MO&O, 12 FCC Rcd at 2918; see 47 C.F.R.  101.29.y  S' |$The Jan. 17 MO&O also clarified that applications to modify existing 39 GHz licenses and amendments  |$thereto would be processed regardless of when filed, provided they neither enlarge the service area nor  Sh'change the assigned frequency blocks, except to delete them.C hZQ {Ob'ԍId. at 2924.C The rest of the freeze was left in place.ChQ {O'ԍId. at 2911.C  S'  k45.` ` On November 3, 1997, the Commission released the Report and Order and Second NPRM,  |$gwhich amended Parts 1, 2 and 101 of our rules to facilitate more effective use of the 39 GHz band, by  |$implementing a number of improvements, such as licensing by Basic Trading Areas (BTAs) and  |$employing competitive bidding procedures as a means for choosing among mutually exclusive license  S7' |$applications.p7~Q {OU'ԍReport and Order and Second NPRM, 12 FCC Rcd at 1860306.p We concluded that our regulatory framework should be expanded to include service rules  S' |$for mobile operations in the 39 GHz band,GQ {O'ԍId. at 1861315.G and addressed the status of those 39 GHz applications held  S' |$in abeyance pursuant to the processing freeze imposed in the NPRM and Order, as modified in the Jan.  S ' |$17 MO&O.G Q {O'ԍId. at 1863745.G In the Second NPRM, we sought comment on: (a) the types of unjust enrichment  |$prequirements that should be placed on 39 GHz licensees receiving bidding credits as a condition for  |$"approval of partitioning and disaggregation arrangements; and (b) the method of calculating unjust  |$7enrichment payments for 39 GHz licensees that are awarded bidding credits and subsequently partition or  S 'disaggregate to a larger business or a business not entitled to the same level of bidding credits.G 4 Q {O'ԍId. at 1866970.G  Sn'  k 6.` ` On April 8, 1998, DCT filed an Emergency Request for Stay of our decision to dismiss  |$and return all 39 GHz applications that remained mutually exclusive as of December 15, 1995, and those  |$/applications that had not passed the 60day cutoff period as of November 13, 1995, pending final determination of all challenges to the subject applications.  So' III. DISCUSSION ă  S ' A.` ` RESOLUTION OF THE OUTSTANDING 39 GHZ APPLICATION MATTERS(#`  S'  X` ` 1. Reconsideration of the Commission's January 17, 1997 Memorandum  Sp'Opinion and Order (#  S '  k=7. ` ` Two parties, ELAR and BizTel, seek reconsideration of the interim filing and processing  S' |$freeze,] Q {O=&'ԍNPRM and Order, 11 FCC Rcd at 498889.] which was modified pursuant to the Jan. 17 MO&O.ZX Q {O'ԍJan. 17 MO&O, 12 FCC Rcd at 2918.Z This is the second time that"Z,|(|(,,"  S' |$reconsideration of the interim filing and processing freeze has been requested.$ZQ {O' G6! ԍSee Jan. 17 MO&O, 12 FCC Rcd at 2910. On January 16, 1996, Commco, L.L.C., PLAINCOM, INC.,  |$ and Sintra Capital Corporation filed a joint petition for reconsideration, and DCT Communications, Inc., filed a  {O' |$. partial petition for reconsideration, seeking reconsideration of that portion of the NPRM and Order that imposed an interim freeze on 39 GHz applications and amendments.  Section 1.429(i) of the Commission's Rules states:  GxXAny order disposing of a petition for reconsideration which modifies rules adopted by the  S4' Gxoriginal order is, to the extent of such modification, subject to reconsideration in the same  GxBmanner as the original order. Except in such circumstance, a second petition for  S'reconsideration may be dismissed by the staff as repetitious.ZFQ yO 'ԍ47 C.F.R.  1.429(i) (emphasis added).Z   Si'Thus, we will reconsider the Jan. 17 MO&O only to the extent that it modifies the NPRM and Order.^iQ {O' G6! ԍSee WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C.  {O' |$ Cir. 1965), cert. denied, 383 U.S. 967 (1966); see also Waivers of Section 90.621(b) of the Commission's Rules for  {Os'Applicants in the Specialized Mobile Radio Service, PR Docket No. 9034, Order, 8 FCC Rcd 7619, 7619 (1993).  S'  k#8. ` ` ELAR MO&O Petition. ELAR asks us to lift the processing freeze on applications that  |$were amended on or after December 15, 1995, based on four arguments: (1) because amendments of right  S ' |$are effective upon filing, the NPRM and Order and MO&O cannot prevent amendments submitted on or  Sm ' |$after December 15, 1995, from taking effect;@m Q yO 'ԍELAR MO&O at 5.@ (2) the NPRM and Order was a retroactive rulemaking;@m Q {O'ԍId. at 6.@  S; ' |$D(3) the MO&O's distinction between applications amended of right before December 15, 1995, and those  S ' |$sought to be amended on or after that date was arbitrary and capricious;@ Q {O'ԍId. at 7.@ and (4) the NPRM and Order  |$was not effective until notice of it was published in the Federal Register, or the Commission's Daily  |$Digest, or at least until it was available to the public, and any amendment of right submitted before such  Sq'notice must be accepted for filing and processed.@qQ {O'ԍId. at 8.@ "qB,|(|(,,"  S'  k09.` ` As noted above, the NPRM and Order itself is no longer subject to reconsideration,Q {Oh' G6! ԍSee Investigation of Special Access Tariffs of Local Exchange Carriers, CC Docket No. 85166, Order on  {O2'Further Reconsideration, 6 FCC Rcd 76 (CCB 1991). so  S' |$arguments that the freeze as a whole is invalid,&$Q {O' G6! ԍSee Amendment of Parts 0, 1, 2 and 95 of the Commission's Rules to Provide for Interactive Video Data  {O\' |$ Services, GEN Docket No. 912, Second Memorandum Opinion and Order, 8 FCC Rcd 2787, 2788 & n.23 (1993);  |$3 Amendment of Part 73 of the Commission's Rules to Permit ShortSpaced FM Station Assignments by Using  {O'Directional Antennas, MM Docket No. 87121, Order, 7 FCC Rcd 2954, 2954 (MMB 1992). and arguments going to aspects of the freeze that the Jan.  S' |$Z17 MO&O left unchanged,&Q {ON ' G6!y ԍSee Exchange Carrier Ass'n, CC Docket No. 7872, Memorandum Opinion and Order, 3 FCC Rcd 1717,  {O ' |$Z 1720 (1987); MTS and WATS Market Structure, Memorandum Opinion and Order, 99 FCC 2d 708, 712 (1984)  {O ' |$ (MTS/WATS II); MTS and WATS Market Structure, CC Docket No. 7872, Memorandum Opinion and Order, 97 FCC 2d 834, 879 (1984) (MTS/WATS I). may no longer be raised, regardless of whether they were raised earlier.& Q {O<' G6!R ԍSee, e.g., Amendment of Part 69 of the Commission's Rules Relating to the Creation of Access Charge  {O' |$ Settlements for Open Network Architecture, CC Docket No. 8979, Memorandum Opinion and Order on Third  {O' |$ Further Reconsideration, 10 FCC Rcd 1570, 1572 (1994) (dismissed as repetitious Pet. for Recon. that raised issues that had previously been considered and rejected).  Sj' |$We find that the argument that the NPRM and Order was a retroactive rulemaking addresses the NPRM  S8' |$&and Order rather than the Jan. 17 MO&O, and therefore is repetitious and untimely. The rule against  |$repetitive reconsideration petitions "bring[s] finality to our decision making process and eliminate[s]  S' |$uncertainty,"z Q {Oa'ԍMTS/WATS II, 99 FCC 2d at 711; accord MTS/WATS I, 97 FCC 2d at 879.z and may be waived only when "the arguments that petitioners proffer in support of their  S' |$requests [are] so compelling that they warrant departure from this policy."!\Q {O' G6! ԍMTS/WATS I, 97 F.C.C.2d at 879; accord MTS/WATS II, 99 FCC 2d at 712; see also MTS and WATS  {O' |$ Market Structure: Average Schedule Companies, CC Docket No. 7872, Memorandum Opinion and Order, 2 FCC Rcd 6642, 6642 (1987) (requiring "special circumstances that would warrant consideration of repetitive petitions"). The argument that the NPRM  Sn' |$@and Order was a retroactive rulemaking is not sufficiently compelling, and in fact was considered and  S<'rejected in the Jan. 17 MO&O.""<Q {O' G6! ԍSee Jan. 17 MO&O, 12 FCC Rcd at 2915. Specifically, the Commission reasoned that the freeze clearly  |$ did not have the effect of a retroactive rulemaking because it did not alter the past legal consequences of pending  |$< 39 GHz applications, and the Commission had not yet rendered a final disposition of the applications and amendments.  S'  k 10.` ` Our review of ELAR's petition is limited, therefore, to arguments challenging the  S ' |$modifications to the freeze adopted in the Jan. 17 MO&O, or questioning the scope of these modifications,  Sr ' |$i.e., issues pertaining to which amendments of right and which modifications should be accepted for filing  |$}and/or processed. Three of ELAR's arguments are reviewable under that standard. None of these,  S ' |$however, provides a basis for altering the policies adopted in the Jan. 17 MO&O. First, the argument that  S ' |$the modifications to the freeze adopted in the NPRM and Order and the Jan. 17 MO&O cannot prevent  |$amendments of right submitted on or after December 15, 1995, from taking effect overlooks the difference" ",|(|(,,"  S' |$between filed amendments and amendments tendered but not filed due to the freeze.#$Q {Oh' G6! ԍNPRM and Order, 11 FCC Rcd at 4990; see Kessler v. FCC, 326 F.2d 673, 684 (D.C. Cir. 1963) (holding  |$ that Section 309(a) and (e) of the Communications Act of 1934, as amended, 47 U.S.C. 309(a), (e), which provides  |$ for a hearing on certain applications "filed with" the Commission, does not apply to applications submitted but not  {O'accepted for filing because of a freeze) (Kessler).  As the Commission  |$thas previously stated, the fact that amendments of right are effective upon filing does not mean that all  |$xproffered amendments of right must be accepted for filing, or that amendments not accepted for filing are  Sg'effective upon submittal.$gQ {O'ԍSee Jan. 17 MO&O, 12 FCC Rcd at 2918 (citing DialAPage, Inc., 75 FCC 2d 432, 437 (1980)).  S'  k 11.` ` Second, ELAR's argument that processing amendments of right filed before the expanded  S' |$@Freeze Order portion of the NPRM and Ordertook effect, while refusing to accept such amendments  S' |$submitted thereafter, is arbitrary and capricious similarly misreads the Jan. 17 MO&O. The Jan. 17  Sj' |$MO&O concluded that amendments of right resolving mutual exclusivity that were filed after the initial  S8' |$MFreeze Order was released and before the modifications to the freeze adopted in the NPRM and Order  S' |$Zwas released should be processed, rather than held in abeyance as provided in the NPRM and Order.:%FQ {O'ԍId.:  S' |$DThe Commission reasoned in the Jan. 17 MO&O that, because those amendments took effect upon filing  S ' |$c(i.e., were not subject to the freeze), the amended applications were not "materially different" from  |$pending applications that were not mutually exclusive as of November 13, 1995, which the Commission  S= ' |$continued to process.:&= Q {O'ԍId.: ELAR contends that if there is no material difference between an application that  |$@was not mutually exclusive as of November 13 and one that was amended between November 13 and  |$MDecember 15 to resolve mutual exclusivity, then there is no material difference between an application  |$that was amended between November 13 and December 15 to resolve mutual exclusivity and an  |$application sought to be so amended on or after December 15. We disagree. The material difference  |$between these two situations, however, is that the latter amendment would have been unacceptable for  S ' |$filing because of the freeze as modified by the NPRM and Order.Z' j Q {O'ԍNPRM and Order, 11 FCC Rcd at 4990.Z Thus, this argument fails because it  |$disregards the difference between an amendment that is filed and one that is submitted but not accepted  |$Vfor filing. Moreover, in reaching its decision regarding the ability of parties to amend their pending  |$applications after December 15, 1995, the Commission noted that the applicants had ample opportunity  |$to file amendments prior to the commencement of this rule making and that applicants would have a  S 'reasonable avenue of relief under the rules and procedures adopted in the Report and Order.m(  Q {O 'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18642.m  S'  k  12.` ` Third, ELAR argues that any "amendment of right" submitted before the NPRM and Order  Sv' |$became effective must be processed. As previously noted, the Jan. 17 MO&O agreed with this argument,  |$and those applications filed between Nov. 13 and Dec. 15 and determined to be "ripe" were to be  S' |$processed.:) Q {O?&'ԍId.: ELAR further argues that the NPRM and Order was not effective until notice of it was  S' |$published in the Federal Register or the Commission's Daily Digest, or at least until it was available to" ),|(|(,,"  S' |$the public.I*Q yOh'ԍELAR MO&O Petition at 8.I The NPRM and Order provided that amendments to pending 39 GHz applications filed on  S' |$ or after December 15, 1995, would "not be accepted for filing."Z+XQ {O'ԍNPRM and Order, 11 FCC Rcd at 4990.Z It is well settled that an application  |$/freeze is the type of procedural action that may be adopted without notice and comment under the  Sh' |$QAdministrative Procedure Act.,hQ {O' G6! ԍ47 C.F.R.  1.102(b). See Committee to Save WEAM v. FCC, 808 F.2d 113, 119 (D.C. Cir. 1986)  {O' |$} (upholding Section 1.102(b)); see also Neighborhood TV Co. v. FCC, 742 F.2d 629, 63738 (D.C. Cir. 1984)  |$ (holding Commission's filing freeze is a procedural rule not subject to the notice and comment requirements of the  {ON ' |$ Administrative Procedures Act); Buckeye Cablevision, Inc. v. United States, 438 F.2d 948, 95253 (6th Cir. 1971)  {O '(same); Kessler v. FCC, 326 F.2d 673, 68082 (D.C. Cir. 1963) (same). We conclude, therefore, that the Freeze Order portion of the NPRM and  S6' |$kOrder was effective on December 15, 1995, when it was released. While ELAR contends that the NPRM  S' |$and Order was not in fact available to the press and public on December 15, 1995,I-Q yOF'ԍELAR MO&O Petition at 8.I our rules make no  S' |$provision for deeming a date other than the one "on the face of the document" to be its release date..2 Q {O' G6! ԍSee Addition of New Section 1.103 to the Commission's Rules of Practice and Procedures; Amendments  {On' |$* to Section 1.4(b) of Those Rules, GEN Docket No. 80488, Memorandum Opinion and Order, 85 FCC 2d 618, 619  |$ (1981) (noting contention that documents are not always available on their stated release date, but not adopting a  {O' |$ mechanism for establishing an alternate effective date). But see John S. Landes, Memorandum Opinion and Order,  |$& 86 FCC 2d 121, 123 n.6 (1981) (calculating deadline for reconsideration petition from date order was "publicly released," which differed from date on face of document).  |$/Even if the presumption that the document correctly reflects the release date is rebuttable, ELAR's  Sl'unsubstantiated allegation that the document was not available until the following day does not suffice./lQ {O' G6!I ԍUnited States v. Chemical Foundation, Inc., 272 U.S. 1, 1415 (1926) (Courts presume that public officials properly discharge their official duties).  S'  k 13.` ` ELAR also contends that it was exempted from the NPRM and Order's freeze on filing  S' |$amendments until ELAR, itself, had actual notice thereof,K0 Q yO~'ԍELAR MO&O Petition at 78.K because Section 0.445(e) of our Rules states,  |$Q"No person is expected to comply with any requirement or policy of the Commission unless he has actual  Sn ' |$xnotice of that requirement or policy or a document stating it has been published."I1n Q yO'ԍ47 C.F.R. 0.445(e).I The NPRM and Order  |$&did not require ELAR and the other parties with pending applications to "comply" with anything, for it  S ' |$required no action on their part.U2 *Q {O"' G6!c ԍSee Kessler, 326 F.2d at 690 (filing freeze did not violate Section 3(a) of the Administrative Procedure Act,  |$ 5 U.S.C. 1002(a), which states, "No person shall in any manner be required to resort to organization or procedure  |$! not [properly] published": "[T]he freeze order here did not require any procedural action on appellants' part. It was  |$ simply an announcement of a freeze on the further filing of applications pending completion of rulemaking proceedings.").U Thus, we find that Section 0.445(e) offers ELAR no basis for relief. We therefore deny ELAR's petition. " 2,|(|(,,E"Ԍ S'  k 14.` ` BizTel MO&O Petition.T3ZQ yOh' G6![ ԍDCT Communications, Inc., filed comments in support of the BizTel Petition, but did not make any  {O0' |$^ additional arguments. See Comments of DCT Communications, Inc. in Support of Petition for Reconsideration of BizTel, Inc. (filed May 27, 1997).T BizTel filed a Petition for Reconsideration asking us to process  |$all pending applications that are not mutually exclusive and to allow the filing of amendments of right at  S' |$kleast until this rulemaking proceeding is terminated.M4Q yO%'ԍBizTel MO&O Petition at 78.M BizTel's first two arguments, that the freeze violates  Sh' |$portions of Section 309(j)G5hzQ yO 'ԍ47 U.S.C. 309(j).G of the Communications Act of 1934, as amended (the "Act"),M6h Q yO 'ԍBizTel MO&O Petition at 78.M and that  |$pending applications that were not mutually exclusive as of November 13, 1995, should be processed  S' |$because they cannot become mutually exclusive,C7Q {O<'ԍId. at 917.C address the NPRM and Order rather than the Jan. 17  S' |$VMO&O. For the reasons outlined above with respect to ELAR's MO&O Petition, we dismiss these arguments as repetitious and untimely.  S8'  k'15.` ` BizTel next argues that we must continue to accept amendments of right for three reasons.  |$First, BizTel argues that Section 309(j)(6)(E) of the Communications Act requires us to resolve mutual  S' |$exclusivity among pending applications.D8, Q {O'ԍId. at 1719.D This argument, however, was previously held to be premature  S ' |$*in the Jan. 17 MO&O.9\ Q {O' G6! ԍJan. 17 MO&O, 12 FCC Rcd at 2918. "BizTel's argument that we are violating Section 309(j)(6)(E). . .  |$ is premature. There is as yet no final decision implementing service rules that would potentially result in mutually  {O'exclusive situations." Id. A final decision concerning this issue is discussed in paras. 3538 below.  That decision was correct and there are no grounds to reverse it here. We do  Sm ' |$note, however, the issue was addressed in the Report and Order and Second NPRM, and was raised in  S; ' |$petitions seeking reconsideration, which are discussed below.I:; Q {O'ԍSee infra  22.I Second, BizTel argues that the right to  S ' |$7amend cannot be revoked without notice and comment.A; tQ {O'ԍId. at 18.A This argument fails as well, because, as noted  S ' |$previously, a freeze is a procedural matter and thus may be initiated without prior notice and comment.< Q {O{ 'ԍJan. 17 MO&O, 12 FCC Rcd at 192223; NPRM and Order, 11 FCC Rcd at 498889.  |$Third, BizTel argues that the freeze on filing amendments of right is arbitrary and capricious because it  So' |$serves no purpose.D=oQ {O#'ԍId. at 1920.D This argument ignores the justifications for the freeze discussed in the NPRM and  S=' |$Order and Jan. 17 MO&O. As we have previously stated, accepting and processing such amendments  |$would burden Commission resources and could lead to results inconsistent with our intent in this  |$"proceeding to update the regulatory structure of the 39 GHz band in light of contemporary market" *=,|(|(,,"  S' |$^conditions.>Q {Oh'ԍJan. 17 MO&O, 12 FCC Rcd at 2917; NPRM and Order, 11 FCC Rcd at 498889. BizTel's view of the best way to proceed understandably is influenced by its desire to obtain  |$the licenses for which it has applied. We must, however, consider the interests not only of pending  S' |$applicants, but also of future applicants, consumers, and others.!?(ZQ {O' G6! ԍSee, e.g., 800 Data Base Access Tariffs and the 800 Service Management System Tariff, CC Docket No.  {O^' |$I 93129, Order on Reconsideration, 12 FCC Rcd 5188, 5193 (1997); Amendment to the Commission's Rules  {O(' |$ Regarding a Plan for Sharing the Costs of Microwave Relocation, WT Docket No. 95157, First Report and Order  {O'and Further Notice of Proposed Rule Making, 11 FCC Rcd 8825, 8883 (1996).! We thus adhere to the balance struck  Sg'in the Jan. 17 MO&O.  S'  k#16.` ` Finally, BizTel asserts that the Jan. 17 MO&O "mischaracterizes and fails to adequately  S' |$consider BizTel's legal challenge to the unlawful policies adopted in the [NPRM and Order]."O@JQ yO 'ԍBizTel MO&O Petition at 2 n.3.O It  S' |$specifies two arguments that it claims were raised earlier but not addressed. One is that the freeze violates  Sk' |$Section 309(j)(7)JAkQ yO'ԍ47 U.S.C. 309(j)(7).J of the Act, which prohibits the basing of a finding of the public interest, convenience  S8' |$and necessity on the expectation of Federal revenues from the use of a system of competitive bidding.FB8j Q yOB'ԍBizTel Petition at 7.F  S' |$Our review of the record reveals nothing on this topic in BizTel's comments3CZ Q {O' G6! ԍSee Supplemental Comments of BizTel, Inc. at 13, 17 (filed Oct. 17, 1996) (BizTel Supplemental  |$& Comments); Reply Comments of BizTel, Inc. at 1415 (filed Apr. 1, 1996); Comments of BizTel, Inc. at 24 (filed Mar. 4, 1996).3 that we did not address in  S'the Jan. 17 MO&O, and therefore we dismiss this argument as untimely.DQ {O' G6! ԍJan. 17 MO&O, 12 FCC Rcd at 291718. "The public interest reasons for undertaking this rulemaking  {OX' |$Q proceeding were delineated in the NPRM and Order e.g., to better accommodate pointtopoint services which  |$ support existing and emerging technologies, and to consider the benefits to the public, as specified in Section  |$ 309(j)(3)(B) of the Communications Act, of employing a competitive bidding system for assigning 39 GHz licenses."  {O'Id. The final disposition of this issue is discussed in para. 21 below.  Sm '  k17.` ` The other argument that BizTel says was raised but not addressed in the Jan. 17 MO&O  S; ' |$kis that McElroy Electronics Corp. v. FCCNE; Q yO'ԍ86 F.3d 248 (D.C. Cir. 1996).N compels the processing of all pending, nonmutually exclusive  S ' |$applications, whenever they were filed.OF bQ yO "'ԍBizTel MO&O Petition at 1213.O At issue in McElroy was whether the public notice announcing  |$@the appellant's application commenced a cutoff period for mutually exclusive applications pursuant to  S ' |$Section 22.131(b) of our rules.JG Q yO6%'ԍ47 C.F.R.  22.131(b).J The Commission concluded that it had not (because the notice did not  |$state that the application had been "accepted for filing," and the Commission had not specifically"q G,|(|(,,""  S' |$established a filing window), so the Commission established a oneday filing window for that market.^HQ {Oh'ԍMcElroy Elec. Corp., 86 F.3d at 25152.^  |$On appeal, the D.C. Circuit held that the notice did commence the cutoff period, and ordered the  S' |$applications received during the oneday filing window dismissed.EIZQ {O'ԍId. at 25558.E BizTel cites McElroy for the  Sh' |$proposition that a filing cutoff can be established even if we do not explicitly set out the cutoff date.sJhQ yO'ԍBizTel MO&O Petition at 1213; BizTel Supplemental Comments at 12.s  S5' |$According to Biztel, under Kessler, a freeze order forever forecloses the subsequent filing of applications  |$Dthat are mutually exclusive to pending applications. Therefore, BizTel asserts that the Commission, in the  S' |$Freeze Order portion of the NPRM and Order should have treated applications pending as of November  |$13, 1995, that were not mutually exclusive, yet had not completed the public notice period, the same as  |$pending applications that had completed the notice period, and should have ruled that these applications  S8'should be processed rather than held in abeyance.OK8|Q yOT'ԍBizTel MO&O Petition at 1213.O  S'  k918.` ` We believe that we sufficiently considered and rejected this argument, in the Jan. 17  S ' |$7MO&O, explaining that applications that were held in abeyance by the initial Freeze Order and the NPRM  Sn ' |$cand Order's modification of the initial Freeze Order were not permanently cut off from the filing of competing applications:  GxX[W]e have not yet completed the rulemaking process that is necessary to determine the  Gxvery question of what final action will be taken with regard to the 39 GHz applications  Gxheld in abeyance. Until we complete our consideration of the record, we will not be in  Gxa position to state whether further applications may be filed, or how the applications  Gxpresently held in abeyance will be treated. In contrast, the procedural status of the "ripe"  Gxapplications has already been determined under our current rules, competing  Gxapplications may no longer be filed. Thus, we have two distinct categories of "cutoff"  Gxapplications: those that have been temporarily cutoff from competition, subject to the  Gx,results of our noticeandcomment rulemaking proceeding here, and those that were  S 'permanently "cutoff" from competition by operation of our rules.L  Q {O'ԍJan. 17 MO&O, 12 FCC Rcd at 2920. The final disposition of this issue is discussed in paras. 4144, infra.Ĩ   S' |$We therefore reject Biztel's argument that McElroy compels processing of these applications, and deny Biztel's petition."s L,|(|(,,"  S'X 2.X` ` November 3, 1997 Report and Order Treatment of Pending 39 GHz Applications (#`   S'` ` a. Legality of License Processing Rules (#  S4'  k ` hp` p19.` ` Some parties claim that the new license processing policy adopted in the Report and Order  S' |$and Second NPRM violates certain sections of the Act.MR {Oj' G6! ԍSee, e.g., AA&T et al., Joint Petition at 1112; Commco et al., Joint Petition at 810; No Wire Petition at 14; DCT Petition at 48. On the contrary, as discussed below, we believe that the new processing policy comports with the Act and controlling case law.  Sj'  k~20.` ` A few petitioners argue that the "sole operative purpose" of the our new processing rules  S7' |$Iis to preserve spectrum in the "expectation of increased Federal Revenues"N7"R {O 'ԍSee, e.g., AA&T et al., Joint Petition at 11; Commco et al., Joint Petition at 12. in violation of Section  S' |$309(j)(7)(A) of the Act.MOR yOX'ԍ47 U.S.C.  309(j)(7)(A).M As stated above, the Commission has previously set forth clear public policy  S' |$ reasons for implementing this licensing scheme,bPDR yO' G6!& ԍThe reasons for implementing this proceeding are: (a) to better accommodate 39 GHz services which support  |$ existing and emerging technologies; and (b) to provide for competitive bidding which will (i) allow the spectrum  |$ to be acquired by those who value it most highly, and (ii) increase the likelihood that innovative, competitive services  {O ' |$k will be offered to consumers.  See Jan. 17 MO&O, 12 FCC Rcd at 2917; Report and Order and Second NPRM, 12 FCC Rcd at 18642. b and has thus rejected petitions for reconsideration  S 'concerning this issue.[Q R {O4'ԍJan. 17 MO&O, 12 FCC Rcd at 291718.[ Accordingly, these petitioners' arguments are rejected.  S8 '  k21.` ` Some parties also claim that the new licensing regime prevents the grant of licenses to  |$3applicants who contribute to the development of new telecommunications services and technology, in  S ' |$violation of Section 309(j)(6)(G) of the Act.R R {O'č47 U.S.C.  309(j)(6)(G); see, e.g., AA&T et al., Joint Petition at 12. To the contrary, under our rules, eligibility to participate  |$in the competitive bidding process for 39 GHz licenses is not restricted. In fact, the Commission has  Sl' |$structured the auction to encourage and promote participation by many different entities.pSlR {O&'ԍReport and Order and Second NPRM, 12 FCC Rcd at 1861720.p Additionally,  |$7we have found, after reviewing the record in this proceeding, that implementing the new licensing regime  |$3will expand the pool of potential 39 GHz applicants, which, in turn, will provide opportunities for new  S'entities to develop new and innovative services in this spectrum.KTR {O"'ԍSee Id. at 1864243.K " >T,|(|(,,b"  S' b.` ` Disposition of Pending Mutually Exclusive 39 GHz Applications  S'  k~22.` ` Some parties assert that the new licensing regime violates applicant "processing rights."UR {O' G6! ԍSee, e.g., AA&T et al., Joint Petition at 12; Commco et al. Joint Petition at 12 (citing Ashbacker v. FCC, 326 U.S. 327, 333 (1945)); No Wire Petition at 48.  |$They assert that a window of time should be provided to resolve pending mutually exclusive 39 GHz  S4' |$applications, and that those applications should be processed under the old rules.V4"R {O'ԍSee AA&T et al., Joint Petition at 711; Commco et al., Joint Petition at 1516; No Wire Petition at 48. One party also  |$*requested clarification of our processing policy concerning pending "partially mutually exclusive" 39 GHz  S' |$^applications.GWR yO" 'ԍCMC Petition at 1112.G We disagree that the new licensing policy violates processing rights. The Balanced Budget  S' |$7Act of 1997 requires us, with limited exceptions, to use competitive bidding to resolve mutually exclusive  Sh'applications.XhDR yOL'ԍ P.L. 10533, Sec. 3002; codified at 47 U.S.C.  309(j)(1) (Balanced Budget Act of 1997). Our new processing policy is pursuant to and consistent with that legislative mandate.Y$hR yO' G6!  ԍIn the Matter of Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as  |$ Amended; Promotion of Spectrum Efficient Technologies on Certain Part 90 Frequencies; Establishment of Public  {Ol' |$ Service Radio Pool in the Private Mobile Frequencies Below 800 MHz; Notice of Proposed Rule Making and Further  {O6'Notice of Proposed Rule Making, WT Docket No. 9781 (1999).  S'  k23. ` ` Section 309(j)(1) of the Communications Act requires the Commission, subject to certain  |$exceptions not pertinent to this proceeding, to use competitive bidding to resolve mutually exclusive  S ' |$applications for all categories of spectrum licenses.ZX R yO' G6! ԍ47 U.S.C.  390(j)(1). The three exceptions to the Commission's auction authority are public safety radio  |$ services, digital television service to be provided by existing terrestrial broadcast licensees as replacement for their analog television licenses, and noncommercial educational or public broadcast stations. 47 U.S.C.  309(j)(2).  Additionally, Section 309(j)(6)(E) of the  |$DCommunications Act states that, in determining the auctionability of applications, the Commission has the  |$"obligation in the public interest to continue to use engineering solutions, negotiation, threshold  |$^qualifications, service regulations, and other means to avoid mutual exclusivity in application and licensing  S 'proceedings."N[ R yOP'ԍ47 U.S.C.  309(j)(6)(E).N    Sj'  k24.` ` As we stated in our recent decision resolving petitions for reconsideration of our adoption  |$tof a geographic area licensing approach for paging services, the Commission has previously construed  |$MSection 309(j)(6)(E) to mean that it has an obligation to attempt to avoid mutual exclusivity by the "p[,|(|(,,k"  S' |$7methods prescribed therein only when it would further the public interest goals of Section 309(j)(3).\R {Oh' G6!V ԍSee Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging  |$ Systems, WT Docket No. 9618; Implementation of Section 309(j) of the Communications Act Competitive  {O' |$| Bidding, PR Docket No. 93253, Memorandum Opinion and Order on Reconsideration and Third Report and Order,  {O' |$ FCC 9998 (1999) (Paging MO&O). See also DIRECTV, Inc. v. FCC, 110 F.3d 816, 828 (D.C. Cir. 1997) ("Nothing  |$ in  309(j)(6)(E) requires the FCC to adhere to a policy that it deems outmoded `to avoid mutual exclusivity in ...  |$ licensing proceedings'"); Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of  {O' |$ SMR Systems in the 800 MHz Frequency Band, Second Report and Order, 12 FCC Rcd 19079, 19104, 19154   |$ 62, 230 (1997); Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems  {O' |$H in the 800 MHz Frequency Band, Memorandum Opinion and Order on Reconsideration, 12 FCC Rcd 9972, 1000910  |$  115 (1997) (Section 309(j)(6)(E) does not prohibit the Commission from conducting an auction without first attempting alternative licensing mechanisms to avoid mutual exclusivity). In  S' |$the Paging MO&O, we determined that the public interest would be better served by licensing all  |$remaining paging spectrum through a geographic licensing scheme rather than processing additional site Sh' |$7specific licenses.]^h2 R {O:' G6! ԍPaging MO&O at  11, citing Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate  {O' |$o Future Development of Paging Systems, Second Report and Order and Further Notice of Proposed Rulemaking, 12  {O'FCC Rcd 2732 (1997) (Second Report and Order and Further Notice). We reasoned that geographic area licensing "provides flexibility for licensees and ease  |$of administration for the Commission, facilitates buildout of widearea systems, and enables paging  S' |$7operators to act quickly to meet the needs of their customers.L^X R {O'ԍId., citing p. 2744.L We also determined that it would "not be  |$lin the public interest to implement other licensing schemes or other processes that avoid mutual  S' |$exclusivity, thus fulfilling the Commission's obligation under Section 309(j)(6)(E)."N_R {O&'ԍPaging MO&O at  11.N Moreover, we  |$Mexplained that "we have concluded in other proceedings that the Balanced Budget Act's revision of our  |$Iauction authority does not require us to reexamine determinations regarding the use of geographic  |$licensing and competitive bidding that were made under the auction authority provided by the 1993 Budget  S' |$Act.":`|R {O'ԍId.: Thus, in the Paging MO&O we affirmed our previous decision to dismiss all pending  S 'applications.:a R {OL'ԍId.:  S8 '  k25.` ` We believe that the same type of analysis supports the Commissions decisions in this  |$proceeding to adopt a geographic licensing approach and dismiss pending mutually exclusive 39 GHz  S ' |$applications. In the Report and Order and Second NPRM, the Commission addressed Section 309(j)(3)  S ' |$public interest goals vis a vis the Section 309(j)(6)(E) obligations and determined that the proposed change  Sn' |$Vin the 39 GHz licensing scheme comports with those objectives and obligations.pbnR {O#'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18647. p At that time, the  |$Commission considered comments from those who contended that because the thencurrent pointtopoint  |$rules were structured to avoid mutual exclusivity through frequency coordination, changing the rules to  S' |$license by larger service areas would encourage mutual exclusivity.Pc2R {O''ԍId. (citations omitted).P In rejecting that argument, the"c,|(|(,,k"  |$MCommission stated that, due to the significantly increased requests for large service areas and multiple  |$tchannels in the 39 GHz band, frequency coordination techniques that were suitable for a lower level of  S' |$739 GHz spectrum demand were no longer adequate.:dR {O'ԍId.: The Commission asserted that auctioning licenses  |$for predefined, larger service areas would serve the public interest by providing for a more orderly  |$kstructure for the licensing process; and, by placing 39 GHz licenses in the hands of those who value them  |$the most, encourage the creation and deployment of new services, which would foster efficient and  S' |$expeditious use of the 39 GHz spectrum.Ae\ZR {O' G6! ԍId. The Commission also addressed the requirements of Section 309(j)(3)(C) by promulgating the payment  {O ' |$x and unjust enrichment rules for the 39 GHz auction. Report and Order and Second NPRM at 1865518658, 1866667.A It further stated that continued use of applicantdefined service  |$Vareas would actually slow service to the public because the processing of each application requires  Sh' |$extensive analysis and review by Commission staff.fh~R {O ' G6!l ԍId. at 18647. The Commission also considered and rejected various proposals for alternative licensing  {OP'schemes. Id. at 1864748. The Commission also noted that, because we had  S5' |$xpreviously sought comments concerning the auctionability of the 39 GHz band in the NPRM and Order,+g 5R {O' G6!y ԍNPRM and Order, 11 FCC Rcd at 4945, 4978. Because the NPRM and Order was released prior to the  |$ Balanced Budget Act of 1997, some of the criteria used by the Commission in that item to determine the  |$ auctionability of the 39 GHz band have been superseded by the Balanced Budget Act of 1997. For example, the  |$Q Commission stated that pointtopoint microwave channels in the 39 GHz band used as part of subscriberbased  {O' |$ service offerings met the "principal use" requirement of the Communications Act. Id. at 4945, citing 47 U.S.C.   |$ 309(j)(2)(A) (1995). Under former Section 309(j)(2)(A), the Commission was required to determine, when  |$ considering the auctionability of a given band of spectrum, that the "principal use" of such spectrum was reasonably  |$ likely to involve the licensee receiving compensation from subscribers. 47 U.S.C.  309(j)(2)(A) (1995). As stated  {O' |$U in  97 supra,  the Balanced Budget Act expanded the Commission's auction authority by amending Section 309(j)(1)  |$ to require the Commission, subject to limited exceptions, to award all mutually exclusive applications for initial  |$ licenses or permits by competitive bidding. Consequently, the "principal use" requirement is no longer applicable.  |$ The Commission subsequently determined that the amendments to Section 309(j), promulgated by the Balanced  {O' |$ Budget Act of 1997, requires it to auction the 39 GHz band. Report and Order and Second NPRM, 12 FCC Rcd at 1864548. +  |$and because the Bureau regularly releases public notices announcing time frames for upcoming auctions,  |$we satisfied the requirements that notice and comment be permitted prior to issuing bidding rules, and that  |$Iinterested parties have time to develop business plans, assess market conditions, and determine the  Sj ' |$availability of suitable equipment, after the issuance of bidding rules.Dhj R {O'ԍId. at 18648.D As a result, consistent with our  S7 ' |$decision in the Paging MO&O, we conclude that the Commission effectively determined that it would  |$gnot be in the public interest to implement other licensing schemes or other processes that avoid mutual  S 'exclusivity, and thereby fulfilled the Commission's obligation under Section 309(j)(6)(E).Ni ,R {O#'ԍPaging MO&O at  11.N  S '  Sl'  k~26.` ` Additionally, we decline to resolve pending mutually exclusive 39 GHz applications under  |$the prior rules. Because the Balanced Budget Act of 1997 terminated the Commission's authority to use"9i,|(|(,,"  S' |$random selection for the issuance of licenses for most communications services,jR {Oh' G6!' ԍSee 47 U.S.C.  309(i)(5). See also Report and Order and Second NPRM, 12 FCC Rcd at 1864546 (Commission concluded that auctioning the 39 GHz band comports with the Balanced Budget Act of 1997).  the only method for  |$/resolving mutually exclusive applications in the 39 GHz band under the old rules would be through  S' |$comparative hearings.Tk"R {O\'ԍSee 47 C.F.R.  101.45(d).T The comparative hearing process involves a trialtype proceeding before an  |$Administrative Law Judge, which can prove burdensome to the parties and a strain our limited  S4' |$&resources.wl4R {O 'ԍSee Report and Order and Second NPRM, 12 FCC Rcd at 18642 n.178.w In the past, those burdens have proven manageable in processing applications for single  |$ pointtopoint links. Such applications were very easy to coordinate and have resulted in few, if any,  |$instances of mutual exclusivity. The rare case that could not be coordinated to avoid interference would  |$*be appropriate for comparative hearing. Now, however, applicants seek to serve geographic areas rather  |$than single pointtopoint links. This results in significant conflicts among entities seeking to acquire spectrum.  S'  k27.` ` Accordingly, we uphold our finding that comparative hearings would be slower and more  |$costly, both to the government and applicants, than competitive bidding, and that comparative hearings  |$&are not in the public interest where, as here, large numbers of applications and large protected service  S6 ' |$^areas are involved.:m6 FR {O'ԍId.: Thus, for pending mutually exclusive applications in the 39 GHz band, we conclude  |$tthat competitive bidding serves the public interest and is the best method for choosing among mutually  |$exclusive applicants. We also uphold our finding that those who believe that they should be afforded the  |$ opportunity to amend their applications to avoid mutual exclusivity had ample opportunity to file such  |$amendments prior to the commencement of this rulemaking, and further delay would not be in the public  S7' |$Minterest.Hn7R {O'ԍSee Id. at 18642.H Accordingly, we will not grant a window of time for pending 39 GHz applicants to resolve mutually exclusive applications.  S'  k28.` ` We also affirm our decision regarding the partially mutually exclusive applications, i.e.,  |$Rto process the nonmutually exclusive portion of them, while dismissing the remainder of those  S9' |$applications that cannot be granted due to mutual exclusivity.mo9j R {OC'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18645.m CMC argues that, by taking that action,  |$the Commission changed the course of the instant proceeding. CMC further argues that we should provide  |$a reason for distinguishing partially mutually exclusive applications from other mutually exclusive  S' |$applications.Gp R yO<"'ԍCMC Petition at 1112.G The Report and Order and Second NPRM previously explained that the frequency pairs  |$tin those applications were categorized as either mutually exclusive or nonmutually exclusive, pursuant  S;' |$to our findings in the instant rulemaking.mq; R {Og%'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18645.m Based on the record, the Commission reasonably determined  |$that the best course of action was to grant the uncontested frequency pairs requested in the partially  |$&mutually exclusive applications, while dismissing the applications with respect to contested frequency"q,|(|(,,"  S' |$xpairs.:rR {Oh'ԍId.: This decision parallels the Commission's approach regarding nonmutually exclusive applications,  |$which were processed, and mutually exclusive applications, which were dismissed. Consequently, our  |$^decision concerning the partially mutually exclusive applications did not "change the course" of the instant rulemaking, and we reject CMC's argument to the contrary.  S' c.` ` Disposition of Amendments to Pending 39 GHz Applications  S'  kd29.` ` In the Report and Order and Second NPRM, we stated that, in order to further the goals  Si' |$of the instant rulemaking e.g., updating the regulatory structure for the 39 GHz band amendments  |$^to pending 39 GHz applications intended to avoid mutual exclusivity, filed on or after December 15, 1995,  S' |$twould be dismissed.GsZR {O 'ԍId. at 1864144.G A few partiestR {O 'ԍSee, e.g., Commco et al., Joint Petition at 810; AA&T et al., Joint Petition at 89. argue that by dismissing those amendments, we revoked their  |$V"substantive" right to amend, and that all such amendments to 39 GHz applications filed on or after  S ' |$ZDecember 15, 1995 should be processed.uZ ~R yO' G6! ԍAt first blush, it would appear that the discussion of pending applications in this section duplicates the  {O' |$. discussion of pending applications contained in the discussion of the Commission's Jan. MO&O, supra at paras. 7 17. Although we reach the same result, the analysis differs because of the procedural timing of the arguments. Some parties also argue that our decision to dismiss those  Sk 'amendments violates Section 309(j)(6)(E) of the Act.vk R {O' G6!8 ԍSee, e.g., Commco et al., Joint Petition at 10; AA&T et al., Joint Petition at 12; CMC Petition at 1617; DCT Petition at 49; No Wire Petition at 14.  S '  k30.` ` It is well established that when an entity has notice that we might change our rules and/or  |$Mprocedures, the implementation of a new rule or procedure does not impair any substantive right upon  S ' |$which that entity is entitled to rely.w R {O9'ԍChadmoore Communications, Inc. v. FCC, 113 F.3d 235, 24142 (D.C. Cir. 1997) (Chadmoore). After being put on notice of our proposed rule and policy changes  Sl' |$by the NPRM and Order, the parties, as of that date, had no "substantive" right to amend their applications. The parties thus filed such amendments at their own risk.  S'  kW31.` ` In the Jan. 17 MO&O, the Commission announced that we would process amendments  S' |$tto pending 39 GHz applications, filed between the dates of the initial Freeze Order and the modification  Sp' |$to the freeze adopted in the NPRM and Order, that resolved mutual exclusivity and were otherwise in  S>' |$compliance with our rules.Xx> R {Oj!'ԍJan. 17 MO&O, 12 FCC Rcd at 2918.X It stated that such amendments were "as of right and were effective when  S ' |$Efiled" because the initial Freeze Order did not specify that those amendments were frozen.<y R {O#'ԍId. < It  S' |$specifically interpreted the subsequent modification of the freeze adopted   NPRM and Order as a freezing  S' |$Dof amendments and subsequently dismissed all those amendments filed on or after December   15, 1995.~zR {O&'ԍId. See also Report and Order and Second NPRM, 12 FCC Rcd at 1864244.~ "Bz,|(|(,,X"  |$DIt also reasoned that permitting existing 39 GHz applicants to amend their pending applications on or after  S' |$/December 15, 1995, would run contrary to the goals of the instant rulemaking proceeding.{y {O5'ԍ See Jan. 17 MO&O, 12 FCC Rcd at 2917; Report and Order and Second NPRM at 18642. The  |$Commission found, for example, that if existing applicants were allowed to resolve conflicts outside of  |$the competitive bidding process, other entities would be prevented from applying for 39 GHz spectrum  S4' |$under the new rules.m|4Zy {O.'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18642.m It also found that the resulting limited pool of applicants could "inhibit the  S' |$development of new and innovative services in this spectrum."F}y {O 'ԍId. at 186423.F Accordingly, the Commission determined  S'that dismissal of the pending amendments would serve the public interest.:~~y {O 'ԍId.:  Sh'  kd32.` ` Commco argues that by dismissing amendments to pending 39 GHz applications filed on  S5' |$or after December 15, 1995, the Commission "improperly amended" its finding in the NPRM and Order  S' |$that such amendments are "of right."]y {O'ԍCommco et al., Joint Petition at 810.] However, Commco's argument ignores the fact that the freeze  S' |$portion of the NPRM and Order provided notice that such amendments would no longer be accepted for  S ' |$processing. Consequently, although we found that amendments filed prior to the NPRM and Order should  |$be processed "of right," any former right to amend a pending 39 GHz application ended with the release  S9 'of the NPRM and Order.Y9 y {O{'ԍSee Chadmoore, 113 F.3d at 24142.Y  S '  k' 33.` ` Commco further argues that Sections 101.29(a)J 4 y yO'ԍ47 C.F.R.  101.29(a).J and 101.45(f)(2)M y yO8'ԍ47 C.F.R.  101.45(f)(2).M of the Commission's  |$Rules provide that an applicant may amend an application "as of right," and that the Commission violated  |$cthose rules when we dismissed amendments to 39 GHz applications filed on or after December 15,  S;'1995.];T y {O/'ԍCommco et al., Joint Petition at 810.] For the reasons set forth below, we disagree.  S'  k!34.` ` Section 101.29(a) generally states that pending applications that are not designated for the  S' |$Mrandom selection process may be amended "as a matter of right."Ky yO("'ԍ47 C.F.R.  101.29(a). K It is well established that the mere  So' |$filing of an FCC application vests no rights in an applicant.iovy {O$'ԍChadmoore, 113 F.3d at 24041 (citations omitted).i Moreover, as stated above, any right to  S<' |$amend a pending 39 GHz application ended with the release of the NPRM and Order.Y<y {O&'ԍSee Chadmoore, 113 F.3d at 24142.Y We stated in the"<,l(l(,,"  S' |$NPRM and Order that amendments to pending applications would not be accepted for filing on or after  S' |$kDecember 15, 1995.Xy {O6'ԍNPRM & Order, 11 FCC Rcd at 4990.X In addition, Section 101.45(f)(2) does not provide an applicant with a vested right  |$ to amend its application. Rather, it provides an exception to the general rule that pending applications  Sh'amended   by major amendments are considered "newlyfiled" and lose their place in the processing line.K"hZy yOb' G6!_ ԍ47 C.F.R.  101.45(f)(2). "For the purposes of this section, any application . . . will be considered to be  |$D a newly filed application if it is amended by a major amendment . . . except . . . . [when] [t]he amendment resolves  |$ frequency conflicts . . . . which would otherwise require resolution by hearing, by comparative evaluation . . . or by  {O'random selection . . . provided that the amendment does not create new or additional frequency conflicts. Id.K  S'  k"35.` ` Some parties argue that by dismissing amendments to pending 39 GHz applications  |$intended to resolve mutual exclusivity filed on or after December 15, 1995, the Commission violated  S' |$Section 309(j)(6)(E) of the Communications Act.Dy {O ' G6!8 ԍSee, e.g., AA&T et al., Joint Petition at 1112; CMC Petition at 1617; Commco et al., Joint Petition at 10; DCT Petition at 49; No Wire Petition at 24. Contrary to those assertions, by dismissing the subject  |$amendments and unripe applications, we did not violate our statutory mandate to "continue to use  |$engineering solutions, negotiation, threshold qualifications, service regulations, and other means in order  S' |$to avoid mutual exclusivity in application and licensing proceedings."Ny yOA'ԍ47 U.S.C.  309(j)(6)(E).N The Commission conducted the  |$instant proceeding in response to a petition for rulemaking where it considered implementing new  S ' |$7technical standards for the 39 GHz band, which would require new licensing procedures.X . y {Ok'ԍFreeze Order, 11 FCC Rcd at 1156.X It froze new  |$Dapplications for 39 GHz licenses because of its concern that applications filed under the former rules may  S7 ' |$not conform to the technical and service requirements being considered.:7 y {O'ԍId.: For the same reason, it froze  S ' |$Icertain amendments to pending 39 GHz applications, including those at issue.] R y {O'ԍNPRM and Order, 11 FCC Rcd at 498889.] After a notice and  S ' |$comment period, as required by the APA,F y yOU'ԍ5 U.S.C.  553(c).F the Commission determined that continuing to license the 39  |$GHz band under the former rules would run contrary to its proposed regulatory overhaul and decided to  Sk' |$implement competitive bidding for all future 39 GHz licensees.pkty {O 'ԍReport and Order and Second NPRM, 12 FCC Rcd at 1860304.p Accordingly, it dismissed "unripe"  |$pending mutually exclusive 39 GHz applications and certain amendments thereto, including amendments  |$which were filed on and after December 15, 1995, to avoid mutual exclusivity with other pending  S'applications.Gy {Ox$'ԍId. at 1864244.G  Sl'  k #36.` ` As noted in the preceding paragraphs, we have carefully considered our obligations under  |$Section 309(j)(6)(E) in making our decision to uphold the dismissal of "unripe" pending mutually"9,l(l(,,"  |$exclusive 39 GHz applications and amendments. We have also determined, after considering our Section  S' |$Q309(j)(6)(E) obligations, to process those 39 GHz applications that passed the 30day public notice period  S' |$as of the release date of the Freeze Order, November 13, 1995, and all associated amendments of right  Sh' |$tfiled before the release date of the Notice of Proposed Rule Making and Order, December 15, 1995.x\hy {O' G6! ԍSee para. 40, infra. The Commission had previously determined that pending 39 GHz applications would  |$ be processed only if the 60day period for filing mutually exclusive applications expired before November 13, 1995.  {Ob'NPRM and Order, 11 FCC Rcd at 4988. x  |$ Further, we will grant those pending applications that are not mutually exclusive with previouslyfiled  S'applications.Py {O 'ԍSee para. 40 infra.P  S'  k$37.` ` It has been established by case law that Section 309(j)(6)(E) does not require us to adhere  Sj' |$to an outmoded licensing policy in order to avoid mutual exclusivity.Pj~y {O 'ԍDIRECTV, 110 F.3d at 828.P Section 309(j)(6)(E) merely  S7' |$requires that we take certain measures to avoid mutual exclusivity "within the framework of existing  S' |$tpolicies."Ly {O'ԍId. (emphasis added).L The Commission's decision to adopt competitive bidding procedures for assignment of 39  |$GHz licenses arose from the changes it made to the service and licensing rules for the 39 GHz band,  |$^which were found, pursuant to notice and comment, to serve the public interest. Thus, we conclude that  |$Section 309(j)(6)(E) does not require us to process the petitioners' amendments, because they were  |$submitted under a regulatory regime that is no longer in effect. Accordingly, we affirm our decision to  |$dismiss all amendments, filed on or after December 15, 1995, including those intended to resolve mutual exclusivity among pending 39 GHz applications.  Sn'  k%38.` ` Similarly, we do not believe that Section 309(j)(6)(E) requires us to process unripe  |$pending mutually exclusive applications, nor are we required to foster settlement agreements among  |$applicants who submitted applications under the former processing rules and policies. Bachow claims that  S' |$it reduced its channel requests in compliance with the Commission's September 16, 1994, Public Notice,y {O'ԍPublic Notice, Mimeo No. 44787 (rel. Sept. 16, 1994) (Public Notice).  S' |$which contained a policy statement that, inter alia, imposed a spectrum cap on applicants for certain 39  Sq' |$GHz services.Fq4 y yOE'ԍBachow Petition at 8.F Bachow states that it was unable to reach agreements to resolve mutually exclusive  S>' |$psituations with noncomplying applicants before the unripe pending applications were dismissed.C> y {O 'ԍId. at 810.C   S ' |$Bachow argues that the Commission should insist that all pending applications conform to the Public  S' |$pNotice before dismissing unripe pending application.;V y {O#'ԍId. ; We disagree. The Public Notice was issued  |$pursuant to the former regulatory regime, and the fact that some pending applications may have been  St'subject to dismissal due to nonconformance with the Public Notice is inapposite. "B,l(l(,,"  S' ` ` d. Disposition of 39 GHz Applications Meeting the Public Notice Requirement  S'as of November 13, 1995 (#  Sg'  k&39.` ` In the NPRM and Order, the Commission expanded upon the Freeze Order by stating that  |$y39 GHz applications would be processed if they were not mutually exclusive with other 39 GHz  S' |$applications at the time of the Freeze Order, and if the 60day period for filing mutually exclusive  S' |$applications expired prior to November 13, 1995.Zy {O8'ԍNPRM and Order, 11 FCC Rcd at 4988.Z Some parties argue that a 30day cutoff period  S' |$not a 60day cutoff period is the correct requirement for processing eligibility.Zy {O 'ԍSee, e.g., AA&T et al., Joint Petition at 1315; Biztel Petition at 35; Commco et al., Joint Petition at 14. Section 309(b) of  Sj' |$the Communications ActGjy yO 'ԍ47 U.S.C.  309(b).G and Section 101.37(c) of the Commission's Rules (former Section 21.27(c))Mj|y yO 'ԍ47 C.F.R.  101.45(b)(2).M  |$state that we may process an application no earlier than 30 days after it has been placed on public notice.  |$Section 101.45(b)(2) (former Section 21.31(b)) allows competing applications to be filed up to 60 days  S' |$after the date of the public notice listing the first of the conflicting applications as accepted for filing.$ y {O}' G6!' ԍ47 C.F.R.  101.45(b)(2)(i); see 47 U.S.C.  309(j); McElroy at 255 (1996): "The thirtyday period in [Section] 309(b) . . . simply requires the Commission to wait thirty days before granting . . . applications."$ Subparts (i) and (ii) explain that the cutoff date is the earlier of two dates:  GxX (i) Sixty (60) days after the date of the public notice listing the first of the conflicting  Gxapplications as accepted for filing; or (ii) One (1) business day preceding the day on  Gxwhich the Commission takes final action on the previously filed application (should the  GxCommission act upon such application in the interval between thirty (30) and sixty (60)  S'days after the date of its public notice).Uf y yO'ԍ47 C.F.R.  101.45(b)(2)(i),(ii).U   SH'  kq'40.` ` We have determined, after further consideration, that those 39 GHz applications that met  |$Dthe 30day public notice requirement, but not the 60day period for which mutually exclusive applications  |$&may be filed, are not materially different than those applications for which the 60day period for filing  |$kmutually exclusive applications has passed. Specifically, we find that those 39 GHz applications that meet  |$the 30day public notice requirement are ripe for processing, in accordance with our rules. It is our  |$practice to process applications as soon after the close of the 30day public notice period as possible.  |$Even though the mounting number of 39 GHz applications created complexities that generally forestalled  |$Dour processing of those applications until after the 60day period for filing mutually exclusive applications  |$Mhad passed, we find that those applications became ripe for processing on day 31. Therefore, we will  |$process those 39 GHz applications that passed the 30day public notice period as of November 13, 1995  |$and all associated amendments of right filed before December 15, 1995, and grant those applications that  |$}are not mutually exclusive with previouslyfiled applications. We find this action to be in the public  |$interest because it best comports with the plain reading of our rules, and promotes regulatory certainty and consistency. " ,l(l(,,"Ԍ S' \` ` e. Disposition of 39 GHz Applications not Meeting the Public Notice  S'Requirement as of November 13, 1995 (#  S'  kv(41.` ` Some petitioners also argue, based on McElroy and Kessler, that the Freeze Order  |$announcing that the Commission would no longer accept for filing any applications for new 39 GHz  S:' |$licenses filed on or after November 13, 1995,X:y {O'ԍFreeze Order, 11 FCC Rcd at 1156.X constitutes an "accelerated cutoff" period requiring us  S' |$to process all 39 GHz applications on file as of that date.Zy {O 'ԍ See, e.g., AA&T et al., Joint Petition at 1318; Bachow Petition at 27; Biztel Petition at 37. As an initial matter, we note that the  |$Commission did not cutoff the processing of eligible, ripe applications, rather it froze application  |$processing in preparation for a rulemaking proceeding, and later dismissed applications not comporting  S' |$xwith our Rules as unacceptable for filing. Further, petitioners misconstrue McElroy and Kessler. At issue  St' |$in McElroy, was whether certain public notices prevented the 60day cutoff period for filing of competing  |$Qapplications from commencing because they failed to adequately notify competing applicants by including  S& ' |$the phrase "accepted for filing."O& y {O'ԍMcElroy, 86 F.3d at 255.O The Court found that the public notices gave adequate notice and did  S 'not prevent the 60day cutoff period from commencing.: ~y {O'ԍId.:  S '  k)42.` ` Petitioners also cite Kessler as a basis for their claim that the Freeze Order imposes an  S ' |$ accelerated cutoff date. y {O8'ԍ See, e.g., AA&T et al., Joint Petition at 1318; Bachow Petition at 27; Biztel Petition at 37. However, in Kessler, the pertinent issue was whether it was arbitrary and  |$gcapricious for the Commission to fail to give advance notice of a freeze, and the Court held that it was  S:' |$8not.P:y {O|'ԍKessler, 326 F.2d at 686.P Moreover, the application freeze imposed in Kessler is distinguishable from the 39 GHz  S' |$&application freeze. In the underlying proceeding in Kessler, the Commission decided that it was in the public interest to process pending applications for the following reason:  GxX[T]he total number of potential grants that could result from proposals on file . . . was not  Gxsufficiently great to frustrate the ends we sought to accomplish through our rulemaking.  GxWe decided, therefore, that we could continue to process those cases, without substantial  S&'sacrifice of our basic objectives.B&4 y {O 'ԍId. at 685.B   |$The Commission then amended its procedural rules "to establish, in effect, a new 'cutoff' date for most  S' |$&pending applications, this new date acting to supersede all previous cutoff lists.": y {O%'ԍId.: This "exceptional  |$treatment" was proposed in an effort "to speed up the disposition of applications where a contest had"X ,l(l(,,"  S' |$ceased to exist.":y {Oh'ԍId.: In the 39 GHz proceeding unlike the underlying proceeding in Kessler the  |$*Commission found the large volume of potential grants of licenses sufficiently great to frustrate the goals  S'of the 39 GHz rulemaking.eZy {O'ԍSee, e.g., NPRM and Order, 11 FCC Rcd at 4988.e  Sb'  k*43.` ` It is well settled that the Commission "is not bound to adhere to a procedure just because  S:' |$it was once adopted."P:y {O 'ԍKessler, 326 F.2d at 685.P If we find that it is in the public interest to hold in abeyance the acceptance of  |$applications, we may craft a freeze to fit the circumstances. For example, in one proceeding, the  |$}Commission suspended acceptance of all new paging applications in conjunction with a proposal to  S' |$convert from sitebysite licensing of paging channels to licensing on a geographic area basis,~y yO ' G6!8 ԍRevision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging  {O'Systems, Notice of Proposed Rule Making, 11 FCC Rcd 3158 (1996). and  |$ysubsequently modified the freeze to give incumbent licensees with operating paging systems the  Sr' |$opportunity to file primary site applications for sites that incrementally expand their services areas.ry yO' G6!8 ԍRevision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging  {O'Systems, WT Docket 9618, First Report and Order, 11 FCC Rcd 16570 (1996).  |$ZFurther, in the 220222 MHz band proceeding, the Commission imposed a freeze on the filing of initial  |$Qand modification applications due to the volume of applications, and later lifted the filing window for non |$nationwide 220 MHz licensees who sought to obtain modification of their authorizations to relocate base  S ' |$tstations.p\ 2 y yO' G6!/ ԍAmendment of Part 90 of the Commission's Rules to Provide for the Use of the 220222 MHz Band by the  {Ol' |$ Private Land Mobile Radio Service, GN Docket No. 93252, Third Report and Order; Fifth Notice of Proposed  {O6'Rulemaking, 12 FCC Rcd 10943, n.10 (1997).p These are but two examples of how the Commission has crafted procedural rules to fit the circumstances.  SZ'  k~+44.` ` Moreover, applications that do not comport with the 30day public notice requirement as  S2' |$kof the November 13, 1995 Freeze Order are, under our rules, unripe for processing. As discussed above,  |$tSection 101.37(c) (former Section 21.27(c)) of the Commission's rules states that we may process an  S' |$application no earlier than 30 days after it has been placed on public notice.JV y yO'ԍ47 C.F.R.  101.37(c).J Thus, those applications  S' |$tfor which the 30day public notice period was not completed by the November 13, 1995 Freeze Order  |$are permanently foreclosed from becoming ripe for processing. To find otherwise would defeat the  Sp' |$purpose of the processing freeze. In the Report and Order and Second NPRM, the Commission found  |$that because the 39 GHz band is subject to significantly different rules than the ones used previously, the  |$most fair and reasonable approach concerning pending unripe 39 GHz applications was to dismiss them,  |$7without prejudice, and allow those applicants to reapply under the new rules. We continue to believe that  |$tthis approach adequately balances the expectations of applicants with the need for a more efficient and effective system for licensing use of the 39 GHz band. ",l(l(,,"Ԍ S'` ` f. Emergency Request for Stay  S'  k0,45.` ` DCT filed an Emergency Request for Stay on April 8, 1998, requesting that we stay the  |$decision to dismiss those 39 GHz applications that were not resolved of their mutual exclusivity as of  |$December 15, 1995, and those 39 GHz applications that had not passed the 60day cutoff period as of  |$@November 13, 1995, pending final resolution of all challenges to the Commission's 39 GHz application  |$dismissal policy. Inasmuch as we have carefully reviewed the substance of DCT's request, and in light  |$of today's decision and the absence of prior dismissal of the pending 39 GHz applications subject to this  |$ proceeding, we conclude DCT has in fact received the relief it requested. Moreover, there will be no  |$&further delay in implementing the dismissal or further processing of the abovereferenced applications  |$Ebecause this Memorandum Opinion and Order resolves the issues addressed in the petitions for reconsideration. We therefore dismiss DCT's request for stay as moot.  S '  S ' B.` ` SERVICE AREAS  S '` `  S '  k -46. ` ` In the NPRM and Order, we proposed to license all channel blocks in the 39 GHz band  S ' |$using BTAs, and we solicited comments on that proposal.] y {O'ԍNPRM and Order, 11 FCC Rcd at 494143.] Based on the record as it existed at the time  SZ' |$of the release of the Report and Order and Second NPRM, we determined that BTAs were the most  S4' |$appropriate geographic areas for the types of services envisioned for the 39 GHz band.4$4Zy {O.' G6! ԍReport and Order and Second NPRM, 12 FCC Rcd at 1861012. In reaching the conclusion that BTAs  |$t would be the most appropriate service areas for anticipated 39 GHz services, we stated that the record did not  |$ indicate that the majority of 39 GHz licensees would seek to provide services over vast geographic areas. Hence,  {O'we noted that large service areas such as MTAs would be inappropriate for the 39 GHz band. See Id. at 18611.4 Explicit in this  |$Ddetermination was the Commission's expectation that 39 GHz licensees and Rand McNally would execute  S' |$3licensing agreements similar to those in other services.pFy {O'ԍReport and Order and Second NPRM, 12 FCC Rcd at 1861112.p Subsequent to the release of the Report and  S' |$^Order and Second NPRM, new developments concerning Rand McNally's copyright interest in BTAs lead  |$^us to conclude that using BTAs as service areas for 39 GHz authorizations could result in extended delays  Sp' |$&in the 39 GHz licensing process.H\py {O' G6!} ԍ Rand McNally is the copyright owner of the Basic Trading Area and Major Trading Area Listing, which  {O' |$U lists the counties contained in each BTA. Report and Order and Second NPRM, 12 FCC Rcd at 18610, n.32 (citation omitted).H Thus, on our own motion, after reviewing the current record, we  |$treconsider the service area definitions for the 39 GHz band and will license all channel blocks in the 39  S ' |$/GHz band using Economic Areas (EAs).  y yO!' G6!I ԍEAs are delineated by the Regional Analysis Division, Bureau of Economic Analysis, U.S. Department of  {O"'Commerce. See 47 C.F.R.  90.7. EAs are larger than BTAs and smaller than MTAs. We believe that licensing the 39 GHz band by EAs will  |$provide ample population coverage and allow licensees the flexibility to provide many different types of  |$services, which will promote an equitable distribution of licenses and services among geographic areas,  |$7encourage economic opportunities among a wide variety of applicants, and foster investment in and rapid"V ,l(l(,,"  S' |$^deployment of new technologies and services. $y {Oh' G6! ԍSee 47 U.S.C.  309(j)(4)(C). For entities desiring service areas smaller than EAs, we note that we are  {O2' |$ permitting partitioning and disaggregation in the 39 GHz band. See paras. 5762, infra. The availability of these  |$ options will enhance 39 GHz licensees' flexibility regarding system design and service offerings, which will promote the efficient and diverse use of the 39 GHz band.  In addition, by using EAs we will better serve the public  |$@by avoiding the potential delays in the continued licensing of the 39 GHz band under the new licensing  |$approach established in this proceeding. Accordingly, a total of 175 authorizations (172 EAs, and three  |$@EAlike areas, covering Guam and Northern Mariana Islands; Puerto Rico and the U.S. Virgin Islands;  S`'and American Samoa) will be issued for each 39 GHz channel block.O`y {O 'ԍSee 47 C.F.R.  90.7.O  S' C.` ` CHANNELIZATION PLAN  S'  k.47.` ` In the Report and Order and Second NPRM, we determined that the 39 GHz spectrum  S' |$could be used to offer a variety of terrestrial services.mFy {O'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18607.m TRW, Inc. (TRW) asks that we ensure that some  |$tof the global spectrum allocation for fixed satellite services (FSS) on the 39 GHz band remain available  |$}for nextgeneration satellite networks. Specifically, TRW entreats us to limit our 39 GHz spectrum  |$}channelization plan for terrestrial wireless services to those frequencies below 39.5 GHz in order to  S ' |$provide a segment of the spectrum above 39.5 GHz for FSS. y {Or' G6!c ԍTRW Petition at 58. The 39.540.0 GHz band is currently allocated for fixed and satellite services. Report  {O<'and Order and Second NPRM, 12 FCC Rcd at 18608. TRW requests that, at a minimum, we  |$clarify that fixed and mobile service authorizations in the 39 GHz band "will not confer exclusive  |$spectrum rights, and that fixed and mobile licensees should be required to coordinate with satellite  S ' |$operators to facilitate spectrum sharing to the extent feasible."F 4 y yOV'ԍTRW Petition at 2, 8.F TRW also suggests that a limitation on  |$Ielevation angles of terrestrial transmitting equipment would "assist spectrum sharing in the 39 GHz  S2'band."A2 y {O'ԍId. at 10.A  S'  k/48.` ` Several parties oppose the TRW Petition, and request that we affirm the current  S' |$Mchannelization plan and decline to reserve the 39.540.0 GHz band for satellite operators.V y {O ' G6! ԍAlcatel et al. Joint Opposition at 13; ART Opposition at 24; Biztel Opposition at 13; CMC Reply at 4; WinStar Opposition at 13. Both ART  |$and WinStar correctly assert that we have already addressed the issue of reserving the 39.540.0 GHz band  Sj' |$for satellite operators.jy {O$' G6!I ԍART Opposition at 23; WinStar Opposition at 13; Report and Order and Second NPRM, 12 FCC Rcd at 18609. In addition, several parties maintain that sharing between terrestrial and satellite"j ,l(l(,,"  S' |$services in this segment of the 39 GHz band is not feasible.y {Oh' G6! ԍSee Alcatel et al. Joint Opposition at 13; ART Opposition at 24; Biztel Opposition at 13; CMC Reply at 4; WinStar Opposition at 13. WinStar, for example, argues that  |$xinterference concerns would freeze fixed terrestrial services out of significant areas surrounding proposed  |$ satellite earth stations and that terrestrial services would find it impossible to operate under the severe  |$power density and automatic transmission power control sought by satellite operators if TRW's proposal  S`' |$is adopted.I`"y yO"'ԍWinStar Opposition at 2.I These parties, therefore, request that we not revisit our earlier decision to maintain terrestrial primacy in the 39.540.0 GHz band.  S'  k 049.` ` We find that TRW has not provided a convincing basis for altering our rules for this band.  |$Further, we affirm the conclusion that altering the service designation in the 39.540.0 GHz segment of  |$"the band is not in the public interest. As we stated in reaching our initial decision rejecting TRW's  |$request, we believe that it would be too burdensome to "repack" terrestrial users in a portion of the band  |$below 39.5 GHz, because, among other things, existing licensees could be required to purchase new  S ' |$kequipment or change frequencies.m y {Or'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18609.m In addition, we explained that a new terrestrial frequency plan would  |$be required, based on a different transmit/receiving separation, which would be costly to equipment  S ' |$manufacturers and licensees.: Dy {O'ԍId.: Furthermore, due to the potential for interference between contemplated  |$ubiquitous satellite and the inplace high density operating terrestrial systems, altering the current  |$allocation of the 39 GHz band, at the present time, would not serve the public interest and would be  SX' |$*inconsistent with the outstanding proposals in the March 24, 1997, Notice of Proposed Rulemaking in IB  S2' |$DDocket No. 9795. 2y yO' G6! ԍAllocation and Designation of Spectrum for FixedSatellite Services in the 37.538.5 GHz , 40.541.5 GHz,  {Op' |$ and the 48.250.2 GHz Frequency Bands, IB Docket No. 9795, Notice of Proposed Rulemaking, 12 FCC Rcd 10130  |$ (1997). On December 23, 1998, the International Bureau subsequently released the following item: Allocation and  |$c Designation of Spectrum for FixedSatellite Services in the 37.538.5 GHz, 40.541.5 GHz, and 48.250.2 GHz  |$. Frequency Bands; Allocation of Spectrum to Upgrade Fixed and Mobile Allocations in the 40.542.5 GHz Frequency  |$  Band; Allocation of Spectrum in the 46.947.0 GHz Frequency Band for Wireless Services; and Allocation of  {OZ' |$ Spectrum in the 37.038.0 GHz and 40.040.5 GHz for Government Operations, Report and Order, IB Docket No.  yO$'9795, 13 FCC Rcd 24649 (1998).pp"  Thus, we conclude that it would not be practical to implement TRW's request, and  |$git is therefore denied. However, we reiterate that our current allocation for the 39 GHz segment of the  S' |$band contains both fixed and satellite services and, as noted in the Report and Order and Second NPRM,  S' |$our action here does not constrain our ability to make modifications to the Table of Allocations at a later ",l(l(,,!"  S' |$ptime.ty {Oh'ԍSee Report and Order and Second NPRM, 12 FCC Rcd at 1860809.t Nor is our action here in any way intended to constrain wireless licensees' ability to deploy  S'satellite earth stations in the 39.540.0 GHz band.XZy yO' G6! ԍ It may be possible and desirable for a licensee to deploy both terrestrial and satellite facilities. For  |$@ example, terrestrial facilities may be deployed in more densely populated urban areas, while satellite facilities, particularly "gateway" type facilities, may be deployed in sparsely populated rural areas.  S' D.` ` PERFORMANCE REQUIREMENTS: RENEWAL AND BUILDOUT  S8'  k=150.` ` Prior to the Report and Order and Second NPRM, 39 GHz licensees were subject to the  |$Part 101 buildout rules, which required station construction within 18 months of the date of license  S' |$grant.Gzy yO 'ԍ47 C.F.R.  101.63.G Licensees authorized before August 1, 1996, received a fiveyear, fixed license termR y yO'ԍFormer Rule 47 C.F.R.  21.45.R and  S' |$Zlicensees authorized after August 1, 1996, received a tenyear, fixed license term.Gy yO'ԍ47 C.F.R.  101.67.G Moreover, at that  |$time, neither the Part 21 rules nor the Part 101 rules directly provided for a renewal expectancy at the time  Sr' |$Dof license expiration. However, in the Report and Order and Second NPRM, the Commission determined  |$}that, in order to promote flexibility in system design and market development, it would combine the  |$performance standards required at buildout with the requirements for a renewal expectancy into one  S ' |$*showing of substantial service at the time of license renewal, in accordance with Section 101.17(a). * y yO' G6!} ԍ47 C.F.R.  101.17(a), as amended, requires 39 GHz licensees to demonstrate substantial service at the time of license renewal. It  |$further determined, at that time, that the substantial service showing be made 18 months prior to the  S 'license expiration date in accordance with Section 101.15(c). y yO' G6!4 ԍFormer Rule 47 C.F.R.  101.15(c), as amended, required a 39 GHz licensee to file a renewal form 18 months prior to the expiration date of the license sought to be renewed.  S\'  k251.` ` In pleadings responsive to the Report and Order and Second NPRM, many petitioners ask  |$us to reconsider our decision concerning the incumbent renewal deadline, arguing that the new renewal  S' |$^requirement will promote inequity between the incumbents and new licensees.y {O ' G6! ԍART Petition at 47; Biztel Petition at 1011; CMC Petition at 36; AA&T et al., Joint Petition 2122; see,  {OR!'supra para. 24 for a discussion of license terms. These parties assert that  |$incumbent 39 GHz licensees will be placed at a disadvantage due to a shorter period of time in which to "6,l(l(,,x"  S' |$meet the performance requirements.y {Oh'ԍSee, e.g., AA&T et al., Joint Petition at 2122; ART Petition at 47. ART, for example, contends that the renewal deadline is  |$"antithetical" to our policy of ensuring that licensees have flexibility and time to acquire necessary capital  S'and to buildout their systems."Zy yO' G6!" ԍART Opposition at 5. ART also contends that the renewal deadline would be disadvantageous to those  |$ licensees who intend to utilize pointtomultipoint technology. It contends that the necessary equipment is still in  {O:' |$; the beta testing stage and won't be commercially viable until very close to the first substantial showing deadline. Id.  yO'at 6.   S`'  k0352.` ` We disagree that the renewal requirements adopted in the Report and Order and Second  S:' |$NPRM cause inequity among licensees or are inconsistent with the Commission's stated goals in this  |$proceeding. Due to recent developments, however, we are reconsidering our decision regarding renewal  S' |$requirements on different grounds. Subsequent to the adoption of the Second Report and Order and  S' |$NPRM, the Commission streamlined its wireless license application process by implementing an automated  S' |$3licensing system and integrated database for the wireless services.4$Dy yO' G6! ԍIn the Matter of the Biennial Regulatory Review Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87,  |$ 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the Universal Licensing  {O' |$D System in the Wireless System in the Wireless Telecommunications Services, WT Docket No. 9820, Report and  {O'Order, FCC 9823 (adopted September 17, 1998, released, October 21, 1998) (ULS Report and Order).4 The result of this effort was the  |$Universal Licensing System (ULS). With the deployment of ULS, the Commission intends to "improve  |$the consistency of the Commission's rules across wireless services and provide a single point of reference  |$for applicants" by consolidating the procedural rules governing the filing and processing of wireless  S ' |$applications, including the procedures for license renewal, into Part 1 of the Commission's Rules.F 0 y {O'ԍId at para. 56.F In  |$this connection, Section 101.15, which required 39 GHz licensees to file for renewal 18 months prior to  S ' |$the licenses expiration date, was removed and replaced by Section 1.949 of the Commission's Rules.q y yO'ԍFormer Rule 47 C.F.R.  101.15; 47 C.F.R.  1.949 [added].q  |$Section 1.949 requires all applications for renewal of station authorization to be filed no later than the  S`' |$Qlicense expiration date and no earlier than 90 days prior to the expiration date.$`R y yOR' G6!u  47 C.F.R.  1.949; Licensees should also be aware that 47 C.F.R.  101.65(b) was revised in order to  |$ discontinue the reinstatement procedures for expired licenses. License authorizations will automatically terminate  {O' |$ on the specified expiration date, unless a timely application for renewal is filed. 47 C.F.R.  1.955; see also ULS  {O'Report and Order, FCC 98234 at para. 95101. A showing of substantial  |$service must also be made at that time that an application for renewal of station authorization is filed.  |$@We believe that this approach better comports with our goal in this proceeding of promoting flexibility  |$in system design and market development. Further, this approach conforms to the Commission's intention  |$pto promote consistency across the wireless services. Thus, under the new ULS guidelines 39 GHz  |$licensees are not required to comply with the 18 month filing requirement in former Section 101.15, but">,l(l(,,."  S' |$rather should refer to Section 1.949 for license renewal requirements.$y yOh' G6! ԍIn the Matter of the Biennial Regulatory Review Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87,  |$ 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the Universal Licensing  {O' |$ System in the Wireless System in the Wireless Telecommunications Services, WT Docket No. 9820, Memorandum  {O'Opinion and Order, FCC 99139 ( rel. June 28, 1999). We clarify, however, that the  |$substantial service performance requirement under Section 101.17(a) remains the performance standard  S'for the 39 GHz band and must be demonstrated upon license renewal.Ty {O'ԍSee 47 C.F.R.  101.17(a).T  S`'  k453.` ` Biztel asks that we amend Section 101.63(a) to reflect that 39 GHz licensees are exempted  |$from compliance with Section 101.63(a)'s buildout requirement of mandatory operation within 18 months  S' |$Dfrom the initial date of license grant, in light of the new performance standard under Section 101.17(a).JFy yO 'ԍBizTel Petition at 1011.J  S' |$We find that this clarification comports with our determination in the Report and Order and Second  S'NPRM,sy {O8'ԍReport and Order and Second NPRM, 12 FCC Rcd at 1862218626.s and, thus, we amend Section 101.63(a) to read as follows:  GxmXEach Station, except in Local Multipoint Distribution Services and the 38.640.0 GHz  Gxband, authorized under this part must be in operation within 18 months from the initial  S$ 'date of grant.J$ h y yO,'ԍ47 C.F.R.  101.63(a).J   S '  k554.` ` Finally, AA&T et al., Joint Petitioners, seek clarification that incumbent service areas, and  |$Vnot just individual links, will be protected from the operations of those who obtain their licenses by  S ' |$competitive bidding. y {O'ԍAA&T et. al. Joint Petition at 2123; see also Winstar Opposition at 67 in support of AA&T et. al. Accordingly, we clarify that Section 101.147(u)(2) which compels applicants  |$tto be aware of any grandfathered links within their EA protects all incumbent service areas from the  S6' |$Qoperations of licensees who receive their licenses by competitive bidding.N6 y yO`'ԍ47 C.F.R.  101.147(u)(2).N Thus, Section 101.147(u)(2) will be modified to read:  G6!XApplications filed pursuant to Section 101.1206 shall identify any preexisting rectangular service  G6!area authorizations that are located within, or are overlapping with, the EA for which the license  G6!is sought, and the provisions of Section 101.103 shall apply for purposes of frequency  G6!_coordination between any authorized rectangular service area(s) and EA service area(s) that are  S'geographically adjoining and overlapping.:y {O$'ԍId.:(#",l(l(,,"  S'X E.` ` LICENSING RULES (#  S'` ` 1. Antenna Requirements  S`'  k655.` ` The Commission requires fixed stations operating at 932.5 MHz or higher to utilize  |$transmitting and receiving antennas meeting or exceeding the appropriate performance standards in order  S' |$to avoid frequency interference.Ky yOx'ԍ47 C.F.R.  101.115(c).K Thus, it generally requires the use of either Category A antennas, or,  S' |$in areas not subject to frequency congestion, Category B antennas.VXXy yO ' G6![ ԍ47 C.F.R.  101.115(c) defines the performance standards required for Category A and B antennas.  |$Q Category A antennas have a higher performance standard, for example they radiate less energy in the side lobes, thereby lessening the chance for interference. V However, in the Report and Order  S' |$cand Second NPRM, the Commission did not require utilization of Category A antennas and, in fact,  |$advocated the use of a variety of antennas, including omnidirectional and sectored antennas, in order to  |$promote the entry of pointtomultipoint users in the 39 GHz band and to allow those users more  SL ' |$flexibility in meeting service demands.mL xy {Od'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18632.m It stated, however, that if a licensee utilizing an antenna other  |$than a Category A antenna causes interference which cannot be resolved among the licensees involved that  |$@licensee must resolve the interference by replacing its antenna with a Category A antenna, or one with  S ' |$better performance.; y {O~'ԍId. ; One petitioner asks that we exclude omnidirectional or sectored antennas from  |$Mdirectional Category A or B radiation pattern requirements, reasoning that the interference replacement  S 'requirement confers secondary status upon pointtomultipoint users employing those types of antennas.I y yO'ԍComsearch Petition at 5.I  S4'  k756.` ` As discussed in the Report and Order and Second NPRM, we permit various types of  |$&antennas for use in the 39 GHz band because Category A directional antenna may be too restrictive to  S' |$^fulfill the requirements of diverse system configurations in the 39 GHz band.m, y {O'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18631.m We clarify, however, that  |$Category A and B radiation pattern requirements do not apply to widebeam antennas, such as omni |$Qdirectional and sectored antennas. Pointtomultipoint licensees should benefit from this rule modification  |$because the omnidirectional and sectored antennas "represent a more costeffective and technically  |$7suitable alternative to traditional narrowbeam Category A antennas when deployed in a pointtomultipoint  S' |$configuration."D y {O|"'ԍId. at 18632.D However, in the event that interference difficulties arise as a result of the use of wide |$beam antennas and are not resolved by the licensees, we reserve the right to employ any reasonable method necessary to resolve the interference, including requiring the use of better performing antennas."P ,l(l(,,e"  S'X` ` 2. Frequency Coordination and Power Flux Density Limit (#  S'  k857.` ` In the Report and Order and Second NPRM, in order to facilitate coordination between  |$ 39 GHz licensees licensed in adjoining areas, the Commission adopted interim frequency coordination  |$Dprocedures, but declined to establish final rules concerning maximum field strength or power flux density  |$7(PFD) limits pending the results of the National Spectrum Management Association (NSMA) interference  S' |$3study.Gy {Oz'ԍId. at 1863233.G We decided, in the interim, that it was in the public interest to continue to use the frequency  |$coordination procedures in Section 101.103(d) of our rules, as amended, with the following modifications:  |$3(1) neighboring cochannel and adjacent channel licensees must coordinate within 16 kilometers of an  |$&adjacent service area boundary, and (2) licensees that receive coordination notifications must respond  Sr'within 10 days, as opposed to the 30 days afforded under the former rules.rZy {Ol ' G6! ԍId. at 1863334; see also UlS Report and Order, FCC 98234 at para. 8488. 47 C.F.R. Section 101.103(d)  {O6 ' |$; was revised pursuant to the ULS Report and Order to require frequency coordination to be completed prior to filing  |$ an application for regular authorization, or a major amendment to a pending application, or any major modification  {O' |$} to a license. Id. Applicants and licensees should refer to 47 C.F.R.  1.929 of the Commission's Rules for a classification of major and minor filings.   S" '  k958.` ` Several petitioners express concern regarding the interim coordination boundaries and  S ' |$notification response time. y {O' G6! ԍSee, e.g., ART Petition at 45; Comsearch Petition at 25; WinStar Petition at 78; see also ART Opposition at 7; Fixed Section Opposition at 23. First, regarding coordination boundaries, one party contends that a  |$coordination distance of 16 km for 39 GHz services is not enough to preclude the possibility of harmful  S ' |$tinterference, and suggests that a distance of 50 km be used.K j y yO'ԍComsearch Petition at 24.K WinStar disagrees, maintaining that the  |$frequency coordination measures are interim in nature and that "it would be counterproductive to adopt  SZ' |$Q[permanent] interference measures" prior to analyzing the results of the NSMA study.KZ y yO'ԍWinStar Opposition at 57.K We concur with  |$WinStar as we have received no notice of difficulties to date with the interim rule, nor to our knowledge,  |$have incumbent licensees experienced complications. Therefore, we find that it is in the public interest  |$to retain the interim rule requiring licensees to coordinate frequency interference within 16 kilometers of  S'an adjacent service area boundary, pending the conclusion and analysis of the NSMA study.' y yO' G6! ԍWe have previously found that the propagation characteristics of the 39 GHz spectrum requires a 16 Km  {O 'coordination distance between neighboring systems. Report and Order and Second NPRM, 12 FCC Rcd at 18634.'  Sj'  k:59.` ` Second, ART and WinStar request a reduction in notification response time, with ART  SB' |$requesting a decrease from 10 to 5 business days.By {O$' G6!Z ԍART Petition at 45; see also WinStar Opposition at 6, maintaining that "a shorter response time is necessary to facilitate rapid service installation schedules." ART argues that 5 business days would better  |$facilitate the ability of a licensee to determine the impact of an interference problem and to rapidly meet" >,l(l(,,"  S' |$customer needs.Ey yOh'ԍART Petition at 45.E We are not persuaded that a shorter response time will necessarily decrease burdens  |$on licensees and Commission staff. We also are concerned that a fiveday response time could unduly  |$burden coordination notice recipients by forcing them to rush a response without having sufficient time  |$to fully consider the relevant technical data of the proposed operation. Thus, we conclude that a reduction in the notification response is not warranted at this time.  S' ` ` 3. Partitioning and Disaggregation  S'  k;60.` ` In the Report and Order and Second NPRM, the Commission stated that all entities  |$eligible to hold 39 GHz licenses should be permitted to partition and disaggregate spectrum within the 39  Sr' |$GHz band.srXy {Oj 'ԍReport and Order and Second NPRM, 12 FCC Rcd at 1863418636.s It stated that these options would enhance 39 GHz licensee flexibility with respect to system  SJ ' |$design and service offerings.:J y {O'ԍId.: Some petitioners incorrectly read these rules to mean that these options  S" ' |$are not available to incumbent licensees.Z" |y {O>'ԍSee, e.g., Winstar Petition at 13.Z We, therefore, clarify that all 39 GHz licensees, including  |$incumbents and those who obtain their 39 GHz license by competitive bidding, may partition and disaggregate.  S '  k<61.` ` Although the Report and Order and Second NPRM did not address the issue of combined  S\' |$partitioning and disaggregation agreements, WinStar requests that we permit this type of arrangement.I\y yO 'ԍWinStar Petition at 45.I  |$The Commission has previously allowed such combinations in other services and has found that providing  |$licensees such flexibility promotes "competitive service offerings, encourages new market entrants, and  S' |$"ensures quality service to the public."y {O"' G6! ԍSee Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems  {O' |$@ in the 800 MHz Frequency Band, GN Docket No. 93252, Second Report and Order, 12 FCC Rcd 19079, 19150  {O' |$ (1997) (SMR Order); In the Matter of Geographic Partitioning and Spectrum Disaggregation by Commercial Mobile  {O' |$U Radio Services Licensees, WT Docket No. 96148, Report and Order and Further Notice of Proposed Rule Making,  {OJ'11 FCC Rcd 21831, 21866 (1997) (PCS Order). Therefore, in keeping with the underlying purpose of this  S' |$proceeding, i.e., to promote flexibility both in system design and service, and to encourage new entrants  |$&into the market, we permit all 39 GHz licensees to enter into combined partitioning and disaggregation agreements.  S'  k=62.` ` In addition, in the Report and Order and Second NPRM, the Commission decided to allow  S' |$partitioning according to county boundaries or geopolitical subdivisions.X y {O$'ԍReport and Order and Second NPRM, 12 FCC Rcd at 18635; see 47 C.F.R.  101.56(a)(1). WinStar requests that  |$licensees be allowed to partition along any licensee defined service area arguing that requiring partitioning  |$along geo-political subdivision boundaries is "unduly restrictive and will diminish the utility of licensees'"!,l(l(,,("  S' |$Zpartitioning abilities."Gy yOh'ԍWinStar Petition at 6.G We agree with WinStar's concern and will observe the policy as established  S' |$gin the PCS Order of allowing licensees to determine the area to be partitioned._\Xy {O' G6! ԍPCS Order, 11 FCC Rcd at 21847. In the PCS Order, the Commission determined that requiring geographic  |$ partitioning by county lines may not necessarily be "reflective of market realities and may otherwise inhibit  {Ob'partitioning." Id._ Therefore, Section  S'101.56(a)(1)M|y yO'ԍ47 C.F.R.  101.56(a)(1).M is amended as follows:  GxXThe holder of a EA authorization to provide service pursuant to the competitive bidding  Gxprocess and any incumbent licensee of rectangular service areas in the 38.640.0 GHz  Gx~band may enter into agreements with eligible parties to partition any portion of its service  Gx#area as defined by the partitioner and partitionee. Alternatively, licensees may enter into  Gx,agreements or contracts to disaggregate any portion of spectrum, provided acquired spectrum is disaggregated according to frequency pairs.   SJ '  k>63.` ` WinStar also raised the issue of whether licensees utilizing bidding credits should be  |$permitted to partition and disaggregate their spectrum in the same manner as licensees not eligible for such  S ' |$Qprovisions, and favored permitting partitioning and disaggregation by such licensees, subject to our unjust  S ' |$@enrichment rules.I y yO~'ԍWinStar Petition at 56.I We concur. We have permitted licensees utilizing bidding credits to partition and  |$disaggregate their spectrum in other services, and we find no reason not to allow 39 GHz licensees to have  S ' |$&the same opportunity.l y {O'ԍSee, e.g., SMR Order, 12 FCC Rcd 19079, 19148 (1997).l By this action, we encourage the participation of those who desire individual  |$links, smaller service areas, or smaller spectrum blocks in the provision of 39 GHz service. Thus, we will amend Section 101.56(i) accordingly.  S' F.` ` SECOND NOTICE OF PROPOSED RULE MAKING  S'  kq?64.` ` In the Second NPRM, the Commission sought comment on the appropriate provisions to  |$prevent unjust enrichment and ensure effective implementation of partitioning and disaggregation in the  SD' |$39 GHz service.pD. y {O 'ԍReport and Order and Second NPRM, 12 FCC Rcd at 1866869.p It also sought comment on how to calculate the unjust enrichment payments for 39  |$GHz licensees that are awarded bidding credits and subsequently partition or disaggregate to a business  |$not qualifying for bidding credits or not qualifying for the same level of bidding credits, and asked  |$commenters to address whether the unjust enrichment payments should be calculated on a proportional  S'basis.: y {O%'ԍId.:  ST'  k@65.` ` Subsequent to our issuance of the Second NPRM, we adopted a provision in Part 1 of the  |$Commission's Rules for all auctionable services that provides a uniform approach for calculating unjust"."R ,l(l(,,"  S' |$enrichment payments in the context of partitioning and disaggregation.\\y {Oh' G6! ԍSee Amendment of Part 1 of the Commission's Rules Competitive Bidding Procedures, WT Docket No.  {O2' |$ 9782, Third Report and Order and Second Further Notice of Proposed Rulemaking, 13 FCC Rcd 374, 434 (1997) (adopting 47 C.F.R.  1.2111(e)).\ Since we received no comments  |$Qaddressing the issue of calculating unjust enrichment payments, we will adopt the uniform procedures set  S' |$3forth in Sections 1.2111(d)Jy yO<'ԍ47 C.F.R.  1.2111(d).J and 1.2111(e)J|y yO'ԍ47 C.F.R.  1.2111(e).J of our rules for the 39 GHz service and amend Section  |$&101.56(i) accordingly. As a result, we will calculate unjust enrichment payments using population to  |$kdetermine the relative value of the partitioned area and the amount of spectrum disaggregated to determine  S8' |$the relative value of the disaggregated spectrum.8 y {O ' G6! ԍAs provided in our rules, the unjust enrichment payment will be reduced over time. See 47 C.F.R.  1.2111(d)(2). Population will be calculated based upon the latest  |$available census data. The Commission has consistently adopted this approach for other wireless services,  S' |$including most recently LMDS.~f y yO' G6! ԍRulemaking to Amend Parts 1, 2, 21 and 25 of the Commission's Rules to Redesignate the 27.5 29.5 GHz  |$ Frequency Band to Reallocate the 29.5 30.0 GHz Frequency Band, to Establish Rules and Policies for Local  {O~' |$Z Multipoint Distribution Service and for Fixed Satellite Service, FCC 9877, CC Docket No. 92297,  25, Fourth  {OH' |$ Report and Order, (released May 6, 1998); see also In the Matter of Geographic Partitioning and Spectrum  |$ Disaggregation by Commercial Mobile Radio Services Licensees; Implementation of Section 257 of the  |$* Communications Act Elimination of Market Entry Barriers, Broadband PCS Report and Order, FCC 96474, WT  {O'Docket No. 96148, Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd at 218812 (1996). For purposes of applying our unjust enrichment payments when a  |$Zcombined partitioning and disaggregation is proposed, we will use a combination of both population of  S'the partitioned area and amount of spectrum disaggregated to make these pro rata calculations.  SJ 'f IV. PROCEDURAL MATTERS   S 'l A.` ` Regulatory Flexibility Act (#`  S '  k A66.` ` The Supplemental Final Regulatory Flexibility Analysis, pursuant to the Regulatory  S 'Flexibility Act, see 5 U.S.C.  604, is contained in Appendix B.  S4' B.` ` Ordering Clauses  S '  S'  kJB67.` ` This action is taken pursuant to authority found in Sections 4 (i), 257, 303(r) and 309(j)  |$of the Communications Act of 1934, as amended, 47 U.S.C.  154 (i), 257, 303(r), and 309(j) and  |$Sections 0.131 and 1.429 of the Commission's Rules, 47 C.F.R.  0.131 & 1.429. For the reasons set forth above, we take the following actions.  S'  kC68.` ` IT IS ORDERED that, the Petitions for Reconsideration filed by ELAR Cellular and BizTel, Inc., ARE DISMISSED IN PART and DENIED IN PART. "#,l(l(,,("Ԍ S'  kdD69.` ` IT IS FURTHER ORDERED that, the Petitions for Reconsideration submitted by AA&T  S' |$et al., (filed Mar. 9, 1998), Advanced Radio Telecom (filed Mar. 9, 1998), Bachow, et al. (filed Mar. 9,  |$71998), Biztel, Inc, (filed Feb. 20, 1998), Columbia Millimeter Communications, L.P. (filed Mar. 9, 1998),  S' |$Commco L.L.C., et al. (filed Mar. 9, 1998), Comsearch (filed Mar 6, 1998), DCT Transmission, L.L.C.  |$M(filed Mar. 9, 1998), No Wire LLC (filed Dec. 4, 1997), James W. O'Keefe (filed Mar 9, 1998), TRW  |$Inc. (filed Feb. 20, 1998), and WinStar (filed Mar. 9, 1998) ARE HEREBY GRANTED IN PART AND DENIED IN PART.  S'  kE70.` ` IT IS FURTHER ORDERED that the Emergency Petition for Stay filed by DCT Transmission, L.L.C. IS HEREBY DISMISSED as moot.  SL '  kF71.` ` IT IS FURTHER ORDERED that Part 101 of the Commission's Rules IS AMENDED  |$as specified in Appendix C, effective 60 days after publication in the Federal Register. This action is  |$taken pursuant to Sections 4(i), 303(c), 303(f), 303(g), 303(r) and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(c), 303(f), 303(g), 303(r) and 309(j).  S '  k0G72.` ` IT IS FURTHER ORDERED that the Commission's Office of Public Affairs, Reference  S\' |$IOperations Division, SHALL SEND a copy of this Memorandum Opinion and Order, including the  |$ISupplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. ` p` hp ` `  Ghh}FEDERAL COMMUNICATIONS COMMISSION ` `  Ghh}Magalie Roman Salas ` `  Ghh}Secretary "$,l(l(,,P"  S' APPENDIX A  |$!PARTIES FILING PETITIONS FOR RECONSIDERATION OF THE COMMISSION'S JANUARY  S417, 1997 MEMORANDUM OPINION AND ORDER  S9' ELAR Cellular (ELAR)  S'BizTel, Inc. (BizTel)  S'  S4 |$  PARTIES FILING PETITIONS FOR RECONSIDERATION OF THE COMMISSION'S REPORT  R4AND ORDER AND SECOND NPRM  AA&T Wireless Services, Cambridge Partners, Inc. , Linda Chester, HICAP Networks, Inc., Paul R. ""Likins, PIW Development Corporation, SMC Associates, Southfield Communications LLC, Wireless  S 'Telco (AA&T et al.) Advanced Radio Telecom Corporation (ART) Bachow and Associates, Inc., and Bachow Communications, Inc. (Bachow) Biztel, Inc., (Biztel) Columbia Millimeter Communications, L.P. (CMC)  S4'Commco, L.L.C., Plaincom, Inc., Sintra Capital Corporation, Eric Sterman (Commco et al.) Comsearch DCT Transmission, L.L.C., (DCT) No Wire L.L.C., (No Wire) James W. O'Keefe (O'Keefe) TRW, Inc. (TRW) WinStar Communications, Inc. (WinStar)  S' PARTIES FILING OPPOSITIONS TO PETITIONS FOR RECONSIDERATION Advanced Radio Telecom Corp. (ART) Alcatel Network System, Inc., Digital Microwave Corporation, Harris CorporationFarinon  SV'Division (Alcatel et. al.) Biztel, Inc. (Biztel) Fixed PointtoPoint Communications Section, Wireless Communications Division, of the Telecommunications Industry Association (Fixed Section) WinStar Communications, Inc. (WinStar)  Sh' PARTIES FILING REPLIES TO THE OPPOSITIONS Columbia Millimeter Communications, L.P. (CMC)  S 'TRW, Inc., Lockheed Martin Corporation (TRW) James O'Keefe (O'Keefe Reply)  Sx#' LATE FILED COMMENTS Alcatel Network System, Inc., Digital Microwave Corporation, Harris CorporationFarinon Division  S&'(Alcatel et. al.) "&%,l(l(,,,%"  S' APPENDIX B ă  S' T REGULATORY FLEXIBILITY ACT ă  S`' Supplemental Final Regulatory Flexibility Analysis ă  Q8'  Q'nMemorandum Opinion and Order ă  S' G6!As required by the Regulatory Flexibility Act, see 5 U.S.C.  603 (RFA), an Initial Regulatory  S' |$Analysis (IRFA) was incorporated into the Notice of Proposed Rulemaking and Order (NPRM and Order)  St' |$in this proceeding.t% yO ' G6!< ԍAmendment of the Commission's Rules Regarding the 37.038.6 GHz and 38.640.0 GHz Bands, ET Docket  {O 'No. 95183, Notice of Proposed RuleMaking and Order, 11 FCC Rcd 4930 (1995) (NPRM and Order). The Commission sought written public comment on the proposals in the NPRM and  SN ' |$Order, including comment on the IRFA. A Final Regulatory Flexibility Analysis (FRFA) was  S( ' |$incorporated in the Report and Order and Second Notice of Proposed Rule Making in this proceeding in  S ' |$ET Docket No. 95183._Z "BJ yO' G6!< ԍAmendment of the Commission's Rules Regarding the 37.038.6 GHz and 38.640.0 GHz Bands, ET Docket  {O' |$ 95183, Report and Order and Second Notice of Proposed Rule Making, 12 FCC Rcd 18600 (1997) (Report and  {MV'Order and Second NPRM)._ This present Supplemental FRFA, associated with the present Memorandum  S ' |$Opinion and Order (MO&O), reflects revised or additional information to that contained in the FRFA.& D% {O' G6!@ ԍThe instant MO&O also addresses petitions for reconsideration of a prior Memorandum Opinion and Order  {O' |$ released on January 17, 1997 (Jan. 17 MO&O). The prior Jan. 17 MO&O modified the interim filing and processing  {OT' |$^ rules for the 39 GHz band. However, in the instant MO&O, the Commission promulgates no additional rules, and our action does not affect the previous analysis.  S 'This supplemental FRFA conforms to the RFA.O 2 % {O'ԍSee 5 U.S.C.  604. O  Sf' A.Need for, and Objectives of, the Memorandum Opinion and Order  S' G6!This MO&O addresses petitions for reconsideration and clarification received in response to the  S' |$Report and Order and further simplifies and corrects the rules implemented in the Report and Order. This  S' |$3MO&O reconsiders the service area definitions established in the Report and Order and determines to  S' |$@license all channel blocks in the 39 GHz band using Economic Areas (EAs). In the Report and Order,  |$the Commission determined to license all channel blocks in the 39 GHz band using Basic Trading Areas  |$(BTAs). However, due to recent developments concerning Rand McNally's copyright interests in BTAs,  |$@the Commission has determined that the public interest would be better served by licensing all 39 GHz  S'channel blocks using Economic Areas (EAs) as the authorized service areas. % yOj#' G6!  ԍEAs are delineated by the Regional Analysis Division of Economic Analysis, U.S. Department of  {O2$'Commerce. See 47 C.F.R.  90.7.   S' G6!/The MO&O further modifies the Commission's geographic partitioning provisions and permits the  |$kuse of partitioning and disaggregation by parties taking advantage of bidding credits under our competitive  Sh' |$bidding licensing rules. In the NPRM, we proposed a partitioning scheme with respect to rural telephone"h&,l(l(,,"  S' |$Mcompanies. Then, in the Report and Order, the Commission determined that the option of partitioning  |$should be made available to all entities eligible to be licensees in the 39 GHz band. The Commission also  |$tconcluded that all 39 GHz licensees should be permitted to disaggregate their spectrum blocks. In the  S' |$*MO&O, we have clarified that incumbent licensees may partition and disaggregate their nonEA licenses.  |$'We have allowed all 39 GHz licensees to enter into and/or combine existing partitioning and  |$Zdisaggregation agreements and we have permitted licensees to define their own partitioning boundaries  |$along licensee service areas in order to encourage new entrants, including small businesses, into the  |$market. We will enable licensees utilizing bidding credits to partition and disaggregate, subject to unjust enrichment provisions.  St' G6!In the MO&O, the Commission reconsiders its decision regarding license renewal. In the Report  SN ' |$and Order, the Commission required a showing of substantial service 18 months prior to the license  S( ' |$expiration date. The MO&O, however, directs 39 GHz licensees to comport with the recently  |$cimplemented Part 1 rules governing license renewal provided in Section 1.949 of the Commission's  S ' |$@Rules.5& % {OB' |$ ԍ47 C.F.R.  1.949; see also In the Matter of Biennial Regulatory Review Amendment of Parts 0, 1, 13, 22,  |$ 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the  {O' |$b Universal Licensing System in the Wireless Telecommunications Services, WT Docket No. 9820, Report and Order,  {O'FCC 9823 (adopted September 17, 1998, released, October 21, 1998) (ULS Report and Order).5 Section 1.949 requires all applications for renewal of station authorization to be filed no later  S ' |$ than the license expiration date and no sooner than 90 days prior to the expiration date.= % yO'ԍ47 C.F.R.  1.949.= Finally, the  |$Commission considered various petitions for reconsideration relating to the dismissal of pending 39 GHz  |$applications and coordination requirements. The rule changes made herein are generally minor in nature and are focused on eliminating confusion and promoting the public interest.  S'  S' G6!QB . Summary of Significant Issues Raised by Public Comments in Response to the Final  S'Regulatory Flexibility Analysis  G6! No petitions were filed in direct response to the FRFA. In general, the 12 petitions for  SJ' |$&reconsideration of the Report and Order, five opposition to petitions and two replies were not directly  |$<related to small entities. However, one petition raised several issues that might affect small entities  |$concerning partitioning and disaggregation. In particular, this party requested that the Commission allow  |$Qthe combination of partitioning and disaggregation agreements and permit 39 GHz licensees to define their  |$own boundaries for partitioning, as opposed to partitioning according to county lines or geopolitical  S' |$Qsubdivisions.IF% yOj 'ԍWinstar Petition at 47.I Further, Winstar requested that licensees utilizing bidding credits be permitted to partition  S\'and disaggregate their spectrum, subject to the unjust enrichment provisions of the Commission.I\% yO"'ԍWinstar Petition at 56.I  S ' C.  Description and Estimate of the Small Entities to Which Rules Will Apply  G6!In the previous FRFA in this proceeding, we determined in detail the description and estimate of  |$the following small entities subject to these rules from the FRFA: cellular licensees, Broadband PCS"'f ,l(l(,,"  S' |$licensees, and PointtoPoint or PointtoMultipoint licensees.t% {Oh'ԍReport and Order and Second NPRM, 12 FCC Rcd at 1867718679. t We include the following revision of the  |$estimate for broadband PCS Licensees: The broadband PCS spectrum is divided into six frequency blocks  |$7designated A through F, and the Commission has held auctions for each block. The Commission defined  |$"small entity" for Blocks C and F as an entity that has average gross revenues of less than $40 million  S`' |$in the three previous calendar years.^`Z% {OZ' G6!p ԍSee Amendment of Parts 20 and 24 of the Commission's Rules Broadband PCS Competitive Bidding and  {O$' |$ the Commercial Mobile Radio Service Spectrum Cap, Report and Order, FCC 96278, WT Docket No. 9659, paras.  {O'5760. (released June 24, 1996), 61 FR 33859 (July 1, 1996), see also 47 C.F.R.  24.720(b). For Block F, an additional classification for "very small business"  |$kwas added and is defined as an entity that, together with their affiliates, has average gross revenues of not  S' |$more than $15 million for the preceding three calendar years.q\% {O0 ' G6!p ԍSee Amendment of Parts 20 and 24 of the Commission's Rules Broadband PCS Competitive Bidding and  {O ' |$D the Commercial Mobile Radio Service Spectrum Cap, Report and Order, FCC 96278, WT Docket No. 9659, para. 60. (released June 24, 1996), 61 FR 33859 (July 1, 1996).q These regulations defining "small entity"  S' |$Qin the context of broadband PCS auctions have been approved by the SBA.% {O,' G6!" ԍSee, e.g., Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket  {O'No. 93253, Fifth Report and Order, 9 FCC Rcd 5532, 55815584 (1994). No small businesses within  |$the SBA approved definition bid successfully for licenses in Blocks A and B. There were 90 winning  |$bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small  Sp' |$business bidders won approximately 40% of the 1,479 licenses for Blocks D, E, and F.p % yO'ԍFCC News, Broadband PCS, D, E, and F Block Auction Closes, No. 71744 (rel. Jan. 14, 1997). Based on this  |$information, we conclude that the number of small broadband PCS licensees will include the 90 winning  |$3C Block bidders and the 93 qualifying bidders in the D, E, and F blocks, for a total of 183 small entity  S 'PCS providers as defined by the SBA and the Commission's auction rules .  S 'D. Description of the Projected Reporting, Recordkeeping, and Other Compliance   Requirements  SX' G6!V There are no general reporting or recordkeeping requirements proposed or adopted in this MO&O.  S2'  S '  S' G6!E .  Steps Taken to Minimize Significant Economic Impact on Small Entities , and Significant  S'Alternatives Considered  S'   G6!The use of EAs as authorized service areas will better serve the public interest. Specifically, EAs  |$twill provide ample population coverage and allow small businesses the flexibility to provide a variety of  |$"services. Further, the use of EAs will promote an equitable distribution of licenses among various  |$geographic areas and promote economic opportunity among a wide variety of applicants. Finally, those licensees seeking service areas smaller than EAs may partition or disaggregate.  Sz' G6!yThe minor partitioning and disaggregation rule changes implemented herein will further facilitate  |$market entry by small entities who may lack the financial resources for participation in the auctions,  |$including small businesses. By permitting flexible partitioning and disaggregation, small businesses will  |$be able to obtain licenses for smaller service areas and smaller amounts of spectrum tailored to meet the"( ,l(l(,,"  |$needs of their proposed service. Finally, allowing geographic partitioning of 39 GHz licenses defined by  |$*the parties along licensed service areas, rather than only by county lines or geopolitical subdivisions, will permit small businesses to enter the marketplace.  G6!The license renewal procedures governed by Section 1.949 of the Commission's Rules better  |$comport with the Commission's goal of promoting flexibility in system design and market development Further, this approach fosters uniformity across the wireless services.  S' G6!The Commission will send a copy of the MO&O, including this SFRFA, in a report to be sent to  S' |$Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996.V% {O 'ԍSee 5 U.S.C.  801(a)(1)(A).V In addition,  Sr' |$Qthe Commission will send copy of the MO&O, including the SFRFA, to the Chief Counsel for Advocacy  SL ' |$of the Small Business Administration. A copy of the MO&O and SFRFA (or summaries thereof) will be  S& 'published in the Federal Register.P& Z% {O 'ԍSee 5 U.S.C.  604(b).P  S ' G6!3 Report to Congress : The Commission will send a copy of the Memorandum Opinion and Order,  |$including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory  S ' |$Enforcement Fairness Act of 1996, see 5 U.S.C.  801(a)(1)(A). In addition, the Commission will send  Sb' |$a copy of the Memorandum Opinion and Order, including FRFA, to the Chief Counsel for Advocacy of  S<' |$Vthe Small Business Administration. A copy of the Memorandum Opinion and Order and FRFA (or  S'summaries thereof) will also be published in the Federal Register. See 5 U.S.C.  604(b). "),l(l(,,"  S' APPENDIX C   S'l A. Part 1 of Chapter 1 of Title 47 of the Code of Federal Regulations is amended as follows:  S`' PART 1 PRACTICE AND PROCEDURE 1. The authority citation for Part 1 continues to read as follows:  S' Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended: 47 U.S.C. Sections 154, 303:  S'Implement, 5 U.S.C. Sections 552 and 21 U.S.C. 853a, unless otherwise noted. 2. Revise paragraph (a)(9) to Section 1.2102 to read as follows:  S '  1.2102 Eligibility of applications for competitive bidding.  S ' (a) * * *  SX'` ` (9) Economic Area licenses in the 38.640.0 GHz band. * * * * B. Part 101 of Chapter 1 of Title 47 of the Code of Federal Regulations is amended as follows:  Sh' PART 101 FIXED MICROWAVE SERVICES 1. The authority citation for Part 101 continues to read as follows:  S' |$e# Authority: Sec. 4 and 303 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154  S'and 303, unless otherwise noted. * * * * 2. Amend  101.17 to revise paragraph (a) as follows:  S' 101.17 Performance Requirements for the 38.640.0 GHz frequency band.  G6!(a) All 38.640.0 GHz band licensees must demonstrate substantial service at the time of license  |$renewal. A licensee's substantial service showing should include, but not be limited to, the following  |$information for each channel for which they hold a license, in each EA or portion of an EA covered by  |$their license, in order to qualify for renewal of that license. The information provided will be judged by  |$the Commission to determine whether the licensee is providing service which rises to the level of "substantial." * * * *  "&*,l(l(,,%"Ԍ3. Amend  101.56 to revise paragraphs (a)(1), (b), (d)(1), (d)(2), (f), (g), (h), and (i) to read as follows:  S'  101.56 Partitioned Services Areas (PSAs) and Disaggregated Spectrum  S`' G6!l (a)(1) The holder of an EA authorization to provide service pursuant to the competitive bidding  |$process and any incumbent licensee of rectangular service areas in the 38.640.0 GHz band may enter into  |$&agreements with eligible parties to partition any portion of its service area as defined by the partitioner  |$}and partitionee. Alternatively, licensees may enter into agreements or contracts to disaggregate any portion of spectrum, provided acquired spectrum is disaggregated according to frequency pairs. * * *  G6!~(b) The eligibility requirements applicable to EA authorization holders also apply to those individuals and entities seeking partitioned or disaggregated spectrum authorizations. * * *  G6!8(d)(1) When any area within an EA becomes a partitioned service area, the remaining counties  |$and geopolitical subdivision within that EA will be subsequently treated and classified as a partitioned service area.  G6!(d)(2) At the time an EA is partitioned, the Commission shall cancel the EA authorization initially issued and issue a partitioned service area authorization to the former EA authorization holder. * * *  G6!(f) The duties and responsibilities imposed upon EA authorization holders in this part, apply to those licensees obtaining authorizations by partitioning or spectrum disaggregation.  G6!E(g) The buildout requirements for the partitioned service area or disaggregated spectrum shall be the same as applied to the EA authorization holder.  G6!4(h) The license term for the partitioned service area or disaggregated spectrum shall be the remainder of the period that would apply to the EA authorization holder.  S' G6!R (i) Licensees, except those using bidding credits in a competitive bidding procedure, shall have the authority to partition service areas or disaggregate spectrum. * * * * *" +,l(l(,," [Amend  101.63 to revise paragraph (a) to read as follows:  S'  101.63 Period of Construction; Certification of Completion of Construction  GxmXEach Station, except in Local Multipoint Distribution Services and the 38.640.0 GHz  Gxband, authorized under this part must be in operation within 18 months from the initial date of grant.  * * * 4. Add new section  101. 64 to read as follows:  S '  101.64 Service areas.  |$QService areas for 38.640.0 GHz service are Economic Areas (EAs) as defined below. EAs are delineated  |$by the Regional Economic Analysis Division, Bureau of Economic Analysis, U.S. Department of  |$tCommerce. The Commerce Department organizes the 50 States and the District of Columbia into 172  |$EAs. Additionally, there are four EAlike areas: Guam and Northern Mariana Islands; Puerto Rico and  |$the U.S. Virgin Islands; American Samoa. and the Gulf of Mexico. A total of 175 authorizations  |$Z(excluding the Gulf of Mexico EAlike area) will be issued for each channel block in the 39 GHz band.  S' * * * *  Sh' 5. Amend  101.103 to revise paragraph(i)(i) to read as follows:  S'  101.103 Frequency coordination procedures. * * * *  |$(i)(i) When the licensed facilities are to be operated in the band 38,600 MHz to 40,000 MHz and the  |$facilities are located within 16 kilometers of the boundaries of an Economic Area, each licensee must  |$complete the frequency coordination process of subsection 101.103(d) with respect to neighboring EA  |$tlicensees and existing licensees within its EA service area that may be affected by its operation prior to  |$Dinitiating service. In addition to the technical parameters listed in subsection 101.103(d), the coordinating  |$klicensee must also provide potentially affected parties technical information related to its subchannelization plan and system geometry. * * * * 6. Amend  101.147 to revise paragraph (u)(2) to read as follows:  S"'  101.147 Frequency assignments  SH$' * * *  S %'  |$(u)(2) Applications filed pursuant to Section 101.1206 shall identify any preexisting rectangular service  |$area authorizations that are located within, or are overlapping with, the EA for which the license is sought,"&,,l(l(,,%"  |$tand the provisions of Section 101.103 shall apply for purposes of frequency coordination between any  |$authorized rectangular service area(s) and EA service area(s) that are geographically adjoining and overlapping. * * * * *