**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Applications of )

)

COMMCO, L.L.C. ) FCC File Nos. 9600712, 9600713, )

) 9600719, 9600720

For Licenses for 39 GHz Point-to-Point ) Microwave Stations in Various
Locations )

Throughout the United States )

**ORDER**

**Adopted: October 18, 1999 Released: October 20, 1999**

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

This Order consolidates four petitions to deny (Petitions) filed on
December 1, 1995 by WinStar Wireless Fiber Corp. (WinStar), a subsidiary
of WinStar Communications, Inc. (WSC), against the above-captioned
applications filed by Commco L.L.C. (Commco) for 38.6 to 40.0 GHz (39
GHz) Point-to-Point Microwave Radio Station licenses in Baltimore,
Maryland; New York (West), New York; New York, New York; and New York
(Long Island), New York. As discussed in further detail below, we find
that the Commco applications are defective because they were untimely
filed. Consequently, the Petitions are hereby granted, and the Commco
applications are dismissed.

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 in Baltimore, Maryland; New
York (West), New York; New York, New York; and New York (Long Island),
New York.[^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).[^4] In the Transfer Application, WSC asserted that the
transfer of control was for legitimate business purposes and would
benefit the public. 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 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]

On June 26, 1995, the former Microwave Branch (Branch), Licensing
Division,[^7] granted the Transfer Application.[^8] 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.[^9] 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.[^10] WinStar also requested that
the Commission either categorize the Notification Letters as minor
amendments or exempt them from the \"cut-off\" provisions of Section
21.31[^11] of the Commission Rules.[^12] The pending Avant-Garde
applications appeared on public notice on August 16, 1995, under
WinStar\'s name.

On October 16, 1995, Commco submitted the above-captioned competing
applications against the Avant-Garde/WinStar applications. On December
1, 1995, WinStar filed the subject Petitions against the Commco
applications.[^13]

WinStar alleges that Commco\'s applications were filed after the
sixty-day cut-off date for filing competing applications.[^14] Commco
replies that WinStar\'s August 4, 1995 Notification Letters constituted
major amendments to its original applications, thus opening a new filing
window within which Commco timely filed competing applications.[^15] As
we have previously found, however, the amended applications did not open
a new filing window.[^16] In this connection, we note that former
Section 21.23(c)(5) of the Commission\'s Rules, as then in effect,
provided that an amendment done to reflect a change in ownership is not
a major amendment when the assignment \"is for legitimate business
purposes other than the acquisition of applications.[^17] In *Airsignal
International*, the Commission held that amendments to pending
applications to reflect a change in ownership caused by a merger that
was previously approved by the Commission meets this standard.[^18] We
find that the subject amendments reflect a change in ownership or
control found by the Commission to be in the public interest when
Avant-Garde\'s application for transfer of control was granted.
Consequently, we conclude that a new filing window was not opened by the
August 16, 1995 Public Notice announcing the WinStar amended
applications. As a result, the Commco applications were not timely filed
because they were received after the applicable cut-off date of
September 5, 1994. We therefore dismiss the Commco applications as
untimely filed against WinStar\'s first-filed applications requesting
substantially identical frequencies in the same geographical areas.

IT IS ORDERED that, pursuant to Sections 4(i) and 309(d) of the
Communications Act of 1934 as amended, 47 C.F.R. §§ 154(i) and 309(d)
and Section 21.20(a)(2) of the Commission\'s Rules, 47 C.F.R. §
21.20(a)(2), the WinStar Petitions to Deny filed on December 1, 1995,
ARE GRANTED, and the Commco applications, FCC File Nos. 9600712,
9600713, 9600719, 9600720, filed on October 16, 1995, ARE DISMISSED.

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

FEDERAL COMMUNICATIONS COMMISSION

D\'wana R.Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^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.
    (WinStar).

[^2]:     ^?^The Wireless Telecommunications Bureau granted FCC File No.
    9404183. *See* *Public Notice*, Wireless Telecommunications Bureau
    Weekly Receipts and Disposals, Report No. 1975 (February 10, 1998).

[^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. FCC File No.
    9513155 (Transfer Application).

[^5]:     ^?^Transfer Application at Exhibit L.

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

[^7]:     ^?^Pursuant to an internal reorganization at the Wireless
    Telecommunications Bureau in 1997, the Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division assumed
    the functions of the former Microwave Branch.

[^8]:     ^?^*Public Notice*, Wireless Telecommunications Bureau Part 21
    Receipts and Disposals, Report No. 1142 (July 5, 1995).

[^9]:     ^?^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.

[^10]:     ^?^Amendment to Pending Applications to Specify the Transfer
    of Control to WinStar Wireless Fiber Corp. (dated August 4, 1995).
    *Public Notice*, Wireless Telecommunications Bureau Part 21 Receipts
    and Disposals, Report No. 1148 (August 16, 1995).

[^11]:     ^?^Former 47 C.F.R. § 21.31, now 47 C.F.R. § 101.45.

[^12]:     ^?^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).

[^13]:     ^?^Commco filed a Consolidated Opposition to Petitions to
    Deny on December 14, 1995 (Commco Opposition). On January 11, 1996,
    WinStar filed a Consolidated Reply to Consolidated Opposition
    (WinStar Reply).

[^14]:     ^?^On December 1, 1995, WinStar filed four Petitions to Deny
    against the above-captioned Commco applications. (Petitions).

[^15]:     ^?^Commco filed the subject competing applications on October
    16, 1995, within 60 days of the release of the August 16, 1995
    Public Notice.

[^16]:     ^?^*See* Applications of James W. O\'Keefe for Licenses for
    39 GHz Point-to-Point Stations in Various Locations Throughout the
    United States, *Order*, DA 99-1210, ¶¶ 8-9 (WTB PSPWD rel. June 22,
    1999) (*O\'Keefe Order*).

[^17]:     ^?^Former 47 C.F.R. § 21.23(c)(5), now 47 C.F.R. § 1.927(h);
    *see also* former 47 C.F.R. § 21.31(e)(3), now 47 C.F.R. § 1.927(h).

[^18]:     ^?^ Airsignal International, Inc., 81 FCC 2d 472 (1980); *see
    also* *O\'Keefe Order* at ¶ 12.