**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Applications of ) File Nos. 9600691-9600711

) 9600714-9600718

PLAINCOM, INC. )

)

to Provide 39 GHz Point-to-Point Microwave Radio )

Service in Various Locations )

)

**ORDER**

**Adopted: February 22, 1999 Released: February 23, 1999**

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

**I. INTRODUCTION**

1\. This Order consolidates the disposition of twenty-six petitions to
deny (Petitions) filed by WinStar Wireless Fiber Corp. (WinStar), a
subsidiary of WinStar Communications, Inc. (WSC) against applications
filed by Plaincom, Inc. (Plaincom) for 38.6-40.0 GHz (39 GHz)
point-to-point microwave radio station licenses in Chicago, IL; Atlanta,
GA; Boston, MA; Dallas, TX; Cleveland, OH; San Diego, CA; Cincinnati,
OH; Washington, DC; Tampa, FL; Tacoma, WA; San Francisco, CA; Buffalo,
NY; Denver, CO; Miami, FL; Kansas City, MO; Los Angeles, CA; Houston,
TX; Detroit, MI; New York, NY; New York (West); New York (Long Island);
Baltimore, MD; Pittsburgh, PA; Phoenix, AZ; St. Paul, MN; and Milwaukee,
WI. As discussed in further detail below, we find that the Plaincom
applications are defective because they were untimely filed.
Consequently, the WinStar Petitions, filed December 1, 1995, are hereby
granted and the Plaincom applications are dismissed.

**II. BACKGROUND**

2\. On March 4, 1994, WinStar\'s predecessor in interest, Avant-Garde
Telecommunications, Inc. (Avant-Garde),[^1] filed applications to modify
certain existing licenses in the 39 GHz band.[^2] The Avant-Garde
applications were placed on Public Notice on July 6, 1994.[^3] On April
11, 1995, Avant- Garde filed an application for transfer of control of
Avant-Garde to WinCom Corp., a subsidiary of WSC (Transfer Application).
In the Transfer Application, WSC asserted that the transfer of control
was for legitimate business purposes and would benefit the public.[^4]
Specifically, WSC noted that the transfer would enable WSC to acquire
financial strength and technical expertise and would ultimately: (a)
allow the \"expansion of \[WSC\]\'s telecommunications operations
throughout the United States\"; (b) ensure that \"advanced technologies
are made available to Avant-Garde\'s current customers\" via WSC\'s
\"greater access to capital\"; and (c) enhance \"\[WSC\]\'s service
offerings and the competitiveness of 39 GHz operations.\"[^5] On May 1,
1995, the Transfer Application appeared on Public Notice as accepted for
filing.[^6]

3\. On June 26, 1995, the Division\'s Licensing and Technical Analysis
Branch (Branch) granted the Transfer Application.[^7] WinCom filed a
letter on July 18, 1995, notifying the Commission that the subject
merger had been consummated and that WinStar was the surviving
corporation.[^8] On August 4, 1995, WinStar filed letters (Notification
Letters) informing the Commission that, pursuant to the
Avant-Garde/WinStar merger, the subject applications should be amended
to specify WinStar as the applicant.[^9] WinStar also requested that the
Commission either categorize the Notification Letters as minor
amendments or exempt them from the \"cut-off\" provisions of former
Section 21.31[^10] of the Commission\'s Rules.[^11] The pending
Avant-Garde applications appeared on Public Notice on August 16, 1995
(August 16 Public Notice) under WinStar\'s name.[^12]

4\. On October 16, 1995, Plaincom submitted competing applications
against the Avant-Garde/WinStar applications. On December 1, 1995,
WinStar filed Petitions to Deny against Plaincom application nos.
9600691-9600711 and 9600714-9600718.[^13]

**III. DISCUSSION**

5\. WinStar alleges that Plaincom\'s applications were filed after the
sixty day cut-date. Plaincom, however, asserts its applications are
timely because WinStar filed a major amendment to its original
applications. We find that Plaincom\'s assertions are devoid of merit.

6\. On July 6, 1994, the Avant-Garde applications were first placed on
Public Notice as accepted for filing.[^14] Former Section 21.31(b) of
the Commission\'s Rules provided that no application will be entitled to
be included in a random selection process or to comparative
consideration with a previously filed application unless such
application is substantially complete and tendered for filing within
sixty days after the date of the public notice listing the first of the
conflicting applications as accepted for filing.[^15] As a result, the
60-day filing window for Plaincom to file competing applications closed
on September 5, 1994. However, if Avant-Garde filed a major amendment to
its applications, then the applications would be considered \"newly
filed\" as of the date of the release of the Public Notice listing the
major amendment to the applications, and a new 60-day filing window for
competing applications would be opened.[^16] Former Section 21.23(c)(5)
of the Commission\'s Rules provided that an amendment specifying a
substantial change in ownership of an applicant is not a major amendment
if the transfer or assignment \"is for legitimate business purposes
other than the acquisition of applications.\"[^17]

7\. We disagree with Plaincom\'s contention that the Notification
Letters constitute major amendments to the Avant-Garde applications. The
Commission\'s Rules state that amendments are classified on a
case-by-case basis.[^18] The August 16 Public Notice listed the subject
applications, reflecting the transfer of control from Avant-Garde to
WinStar.[^19] While amendments specifying a substantial change in
control of an applicant are generally deemed major amendments,[^20] in
this instance, the Notifications Letters should be deemed minor
amendments pursuant to former Section 21.23(c)(6) of the Commission\'s
Rules.[^21]

8\. Furthermore, the Notification Letters specifically stated that the
Transfer Application contained a description of the business purposes
for the subject merger, which did not include acquisition of the
Avant-Garde applications.[^22] Exhibit L to the Transfer Application
details those business purposes for the transfer of control. That
exhibit explains, *inter alia*, that the company resulting from the
merger will be more competitive, due to the expanded operations of the
new entity.[^23] Exhibit L also states that Avant-Garde\'s customers
will benefit from the merger because WSC\'s greater access to financial
resources will permit advanced technologies to be provided to those
customers.[^24] Therefore, we believe that WinStar, in its Transfer
Application, made a sufficient business interest showing for a finding
that the Notification Letters be deemed minor amendments.[^25]
Consequently, the August 4, 1995 filing did not initiate a new filing
window, and thus Plaincom\'s competing applications were not timely
filed pursuant to former Section 21.31 of the Commission\'s Rules.

9\. Moreover, any assertions made by Plaincom in its Opposition to the
Petitions regarding the Transfer Application are untimely and, thus, we
will not address the merits of such assertions. We note that Plaincom
had an opportunity to address these issues by filing a petition to deny
pursuant to applicable Commission Rules when the Transfer Application
was first filed.[^26] Its failure to timely object to the Transfer
Application before it became final renders the objections untimely at
this juncture.[^27]

**III. ORDERING CLAUSES**

10\. IT IS ORDERED that, pursuant to Sections 4(i) and 309(d) of the
Communications Act of 1934 as amended, 47 U.S.C. §§ 154(i) and 309(d),
and Section 21.30 of the Commission\'s Rules, 47 C.F.R. § 21.30,
Petitions to Deny filed by WinStar Wireless Fiber Corp. on August 18,
1995 against Plaincom, Inc. Application Nos. 9600691-9600711 and
9600714-9600718, ARE HEREBY GRANTED.

11\. It is FURTHER ORDERED that, pursuant to Sections 4(i) and 308 of
the Communications Act of 1934 as amended, 47 U.S.C. §§ 154(i) and 308,
and Section 21.28 of the Commission\'s Rules, 47 C.F.R. § 21.28, that
the applications of Plaincom, Inc. filed on October 16, 1995 ARE
DISMISSED.

12\. This action is taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission\'s Rules, 47 C.F.R. § 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

D\'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

j:\\sblake\\39ord2

J. Burton

R. Melson

[^1]:     ^?^Avant-Garde was merged into WinCom Corp., a subsidiary of
    WSC. WinCom Corp. was the surviving corporation. On July 18, 1995,
    WinCom Corp. changed its name to WinStar Wireless Fiber Corp.

[^2]:     ^?^WinStar Application File Nos. 9404165-9404183,
    9404185-9404188, 9404191, 9404193, 9504885. The Wireless
    Telecommunications Bureau granted WinStar Application File Nos.
    9404165, 9404168, 9404170, 9404172, 9404175, 9404178, 9404183 which
    were placed on Public Notice on February 10, 1998. *See Public
    Notice*, Wireless Telecommunications Bureau Weekly Receipts and
    Disposals, Report No. 1975 (released February 10, 1998). WinStar
    Application File No. 9504885 was withdrawn and placed on Public
    Notice on November 12, 1997. *See Public Notice,* Wireless
    Telecommunications Bureau Weekly Receipts and Disposals, Report No.
    1962 (released November 12, 1997).

[^3]:     ^?^*Public Notice*, Private Radio Bureau Part 21 Receipts and
    Disposals, Report No. 1090 (July 6, 1994).

[^4]:     ^?^FCC Application for Consent to Transfer Control of
    Avant-Garde Telecommunications, Inc. to WinCom Corp., File No.
    95-13155 (30), at Exhibit L.

[^5]:     ^?^*Id.* at Exhibit L.

[^6]:     ^?^*Public Notice*, Wireless Telecommunications Bureau Part 21
    Receipts and Disposals, Report No. 1132 (May 1, 1995).

[^7]:     ^?^*Public Notice*, Wireless Telecommunications Bureau Part 21
    Receipts and Disposals, Report No. 1142 (July 5, 1995).

[^8]:     ^?^Letter from Stephen L. Goodman, Esq. to William F. Caton,
    Acting Secretary, FCC (July 18, 1995). The July 18, 1995 letter also
    informed the Commission that WinCom Corp. had changed its name to
    WinStar Wireless Fiber Corp.

[^9]:     ^?^Amendment to Pending Applications to Specify the Transfer
    of Control to WinStar Wireless Fiber Corp. (dated Aug. 4, 1995). The
    Division accepted the amendments for filing in the August 16, 1995
    Public Notice, Report No. 1148.

[^10]:     ^?^Formerly 47 C.F.R. § 21.31; now 47 C.F.R. § 101.45.

[^11]:     ^?^Although 39 GHz applications are now subject to Section
    101 of the Commission\'s Rules, Section 21 applies to the underlying
    applications because they were filed prior to July 31, 1996. *See*
    47 C.F.R. § 101.4(a).

[^12]:     ^?^*Public Notice*, Wireless Telecommunications Bureau Part
    21 Receipts and Disposals, Report No. 1148 (Aug. 16, 1995).

[^13]:     ^?^Plaincom filed a Consolidated Opposition on December 14,
    1995. On January 11, 1996, WinStar filed a Consolidated Reply to the
    Consolidated Opposition.

[^14]:     ^?^*See* July 6 Public Notice.

[^15]:     ^?^Formerly 47 C.F.R. § 21.31(b); now 47 C.F.R. § 101.45.

[^16]:     ^?^Formerly 47 C.F.R. § 21.23(c), now 47 C.F.R. § 1.927(h).
    *See* Airsignal International, Inc., *Memorandum Opinion and Order*,
    81 FCC 2d 472 (1980) (Commission found that while such amendments
    may be major, they do not open a new filing window if the change in
    ownership was in the public interest . . . \[and\] . . . made to
    effect a legitimate business purpose).

[^17]:     ^?^Formerly 47 C.F.R. § 21.23(c)(5), now 47 C.F.R. §
    1.927(h). *See* Bell Atlantic Mobile System, Inc., *Order*, 10 FCC
    Rcd 13262 (1995) (Commission permitted amendments to pending
    point-to-point microwave and cellular applications and granted
    exemption from cut-off rules); Loral Space & Communication Ltd and
    Orion Network Systems, Inc., *Order*, 13 FCC Rcd 4592 (1998)
    (Commission found that the merger served an independent business
    purpose, i.e. to strengthen its financial resources, thus exempting
    from cut-off rules); *see also* Airsignal International, Inc.,
    *Memorandum Opinion and Order*, 81 FCC 2d 472 (1980) (Commission
    granted request for exemption from major amendment and cut-off rules
    because change in ownership was deemed to be in public interest and
    made to effect a legitimate business purpose, i.e. providing
    improved research and technical capabilities).

[^18]:     ^?^Formerly 47 C.F.R. § 21.23(c); now 47 C.F.R. § 1.927.

[^19]:     ^?^August 16 Public Notice at 1-7.

[^20]:     ^?^Formerly 47 C.F.R. § 21.23(c)(5); now 47 C.F.R. §
    1.927(h). *See* Applications of Tequesta Television, Inc.,
    *Memorandum Opinion and Order*, 103 FCC 2d 1182 (1986)(Commission
    found substantial change of controlling ownership, hence application
    was dismissed); *see also* Applications of Western California
    Cellular Partners and MTEL Cellular, Inc., *Order*, 11 FCC Rcd. 5705
    (1996).

[^21]:     ^?^*Public Notice*, Wireless Telecommunications Bureau Part
    21 Receipts and Disposals, Report No. 1142 (July 5, 1995).

[^22]:     ^?^Notification Letters at 2.

[^23]:     ^?^*See* Exhibit L to the Transfer Application at 1.

[^24]:     ^?^*Id.* at 1-2.

[^25]:     ^?^*Public Notice*, Wireless Telecommunications Bureau Part
    21 Receipts and Disposals, Report No. 1142 (July 5, 1995).

[^26]:     ^?^Former 47 C.F.R. § 21.30. *See* Application of Lawrence
    Daniels, *Memorandum Opinion and Order*, 3 FCC Rcd. 7327 (Dec. 29,
    1988) (Commission asserts that \"the Communications Act clearly
    provides for public participation in our processes . . . and . . .
    provides that it is proper to specify an orderly procedure for such
    participation,\" noting that the purpose of the cut-off date is to
    provide for a fair and orderly procedure by which to file petitions
    to deny).

[^27]:     ^?^*See* Amendment of the Commission\'s Rules to Relocate the
    Digital Electronic Message Service from the 18 GHz to the 24 GHz
    Band and to Allocate the 24 GHz Band for Fixed Services, *Memorandum
    Opinion and Order*, 13 FCC Rcd. 15147 (July 17, 1998) (Commission
    found Petitioner\'s challenges to license grants to be grossly
    untimely, where Petitioner filed its petition almost eight months
    after the last of the initial license grants were made); *see also*
    Application of HHT/Estate of Robert D. Hanna, *Memorandum Opinion
    and Order*, 8 FCC Rcd 1582 (March 1, 1993) (Commission denied
    petition to deny because it was filed six years after the due date
    prescribed by Section 21.30 of the Commission\'s Rules).