**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of the Application of )

)

PLAINCOM, INC. ) FCC File Nos. 9600691-9600711

) 9600714-9600718

To Provide 39 GHz Point-to-Point Microwave )

Radio Service in Various Locations )

# ORDER ON RECONSIDERATION

## Adopted: December 15, 1999 Released: December 16, 1999 

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

1\. *Introduction.* The Public Safety and Private Wireless Division
(Division) has before it a petition for reconsideration filed on March
25, 1999, by Plaincom Inc. (Plaincom). [^1] Plaincom requests review of
the Division's February 23, 1999 order granting petitions to deny the
above-captioned applications, and dismissing the applications.[^2] For
the reasons set forth below, Plaincom's Petition is denied.

2\. *Background.* On March 4, 1994, Avant-Garde Telecommunications
(Avant-Garde) filed applications to modify certain existing licenses in
the 38.6--40.0 GHz (39 GHz) band.[^3] On June 26, 1995, the Commission
granted an application from Avant-Garde for consent to transfer its
license pursuant to a merger with a subsidiary of WinStar
Communications, Inc.[^4] On July 18, 1995, the Commission was notified
that the merger had been consummated and that Winstar Wireless Fiber
Corp. (Winstar) was the surviving corporation.[^5] On August 4, 1995,
WinStar filed a series of letters substituting WinStar as the applicant
with respect to Avant-Garde's pending applications.[^6] After the
applications appeared on public notice under WinStar's name on August
16, 1995,[^7] Plaincom filed the above-captioned applications in partial
conflict with the Avant-Garde/WinStar applications.[^8] WinStar filed
petitions to deny the Plaincom applications on December 1, 1995.[^9] In
February 1998, the Commission granted the Avant-Garde/WinStar's
applications.[^10]

3\. On February 23, 1999, the Division granted WinStar's petitions to
deny the Plaincom applications, and dismissed the applications.[^11] We
reasoned[^12] that, pursuant to former Section 21.23 of the Commission's
Rules, 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."[^13] We found that the August 4, 1995 filing met this
standard, so the August 16, 1995 public notice did not open a new window
for filing applications mutually exclusive with the Avant-Garde/WinStar
applications.[^14] Therefore, Plaincom's 1995 applications were not
timely filed.[^15] We also stated that Plaincom's objections, in its
opposition to WinStar's petition to deny, to the June 26, 1995 grant of
the transfer application were untimely and would not be addressed.[^16]
On March 25, 1999, Plaincom filed its petition for reconsideration.[^17]

4*. Discussion.* Plaincom asserts that Winstar's Amendment Letters were
major amendments and opened a new cut-off window for filing competing
applications.[^18] We find that it raises no new information or
arguments that we did not consider and address when we granted WinStar's
petitions to deny[^19] and denied Plaincom's petition for
reconsideration of the grant of WinStar's applications.[^20]

5\. Plaincom also argues that its assertions concerning the transfer
application were timely because Plaincom could not have raised them
while the application was pending.[^21] Plaincom contends that it could
not have objected sooner because nothing in the public notice announcing
the filing of the transfer application informed it that WinStar was
seeking to acquire the Avant-Garde applications.[^22] We disagree. As we
have explained previously, the transfer application contained sufficient
information to put the Commission, and the public, on notice that the
application involved the transfer of applications from Avant-Garde to
WinStar.[^23] Plaincom's failure to object to the transfer applications
before they became final renders its objections untimely at this
juncture.[^24]

6\. We continue to believe that the WinStar amendments did not a trigger
a new filing window. Therefore, Plaincom's applications were untimely
filed and properly dismissed. As a result, we affirm the denial of
Plaincom's petition for reconsideration and the dismissal of its
applications.

7\. Accordingly, IT IS ORDERED that pursuant to Section 4(i) and 309 of
the Communications Act of 1934, as amended, 47. U.S.C. §§ 154(i), 309
and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106 the
Petition for Reconsideration filed on March 25, 1999 by Plaincom IS
DENIED.

9\. This action is taken under delegated authority pursuant to Section
0.131 and 0.331 of the Commissions Rules, 47 C.F.R. §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

D\'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: Plaincom Petition for Reconsideration (filed Mar. 25, 1999)
    (Petition).

[^2]: Plaincom, Inc., *Order*, 14 FCC Rcd 3349, (WTB PSPWD) (Plaincom
    Dismissal).

[^3]: *Id.* at 3349 ¶ 2.

[^4]: *Id.* at 3350 ¶ 3.

[^5]: *Id.*

[^6]: *Id.*

[^7]: *Id.*

[^8]: *Id.* at 3351 ¶ 4.

[^9]: *Id.*

[^10]: *See* WinStar Wireless Fiber Corp., *Order*, DA 99-2293, at ¶ 5
    (WTB PSPWD rel. Oct. 25, 1999) (Reconsideration Denial).

[^11]: *See* Plaincom Dismissal, 14 FCC Rcd at 3351 ¶ 5.

[^12]: *Id.* at 3351 ¶ 6.

[^13]: Former 47 C.F.R. § 21.23(c)(5); now 47 C.F.R. § 1.927(h).

[^14]: Plaincom Dismissal, 14 FCC Rcd at 3351-52 ¶¶ 7-8.

[^15]: *Id.* at 3352 ¶ 8.

[^16]: *Id.* at 3352-53 ¶ 9.

[^17]: Petition.

[^18]: *Id.* at 11.

[^19]: *See* Plaincom Dismissal, 14 FCC Rcd at 3351-52 ¶¶ 7-8.

[^20]: *Se*e Reconsideration Denial at ¶¶ 9-18.

[^21]: *Se*e Petition at 20.

[^22]: *Id.* at 21.

[^23]: *See* Plaincom Dismissal, 14 FCC Rcd at 3352 ¶ 8.

[^24]: *Id.* at 3352-53 ¶ 9.