**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Applications of )

)

WINSTAR WIRELESS, INC. ) File Nos. 9404195, 9404200, 9404201,

) 9404202, 9404204

For Licenses to Operate Point-to-Point )

Microwave Facilities in the 38.6-40.0 GHz )

Frequency Band at Various Locations )

throughout the United States )

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 4, 1999 Released: November 9, 1999**

By the Commission:

**I. INTRODUCTION**

1\. This *Order* addresses an Application for Review filed by WinStar
Wireless, Inc, (WinStar) of the June 15, 1998, action of the Licensing
and Technical Analysis Branch (Branch) regarding the above-captioned
applications requesting licenses to operate Point-to-Point Microwave
facilities in the 38.6-40.0 GHz (39 GHz) band in various locations
throughout the United States.[^1] For the reasons stated herein, we deny
the Application for Review.

**II. BACKGROUND**

2\. *Seven Channel Pairs Requested in Twelve Markets.* On March 4, 1994,
WinStar submitted twelve applications requesting seven 39 GHz channel
pairs in each of twelve markets.[^2] These applications were placed on
public notice on July 6, 1994.[^3] On October 17, 1994, WinStar
requested to amend each of the applications to reduce the number of its
channel pairs from seven to four channel pairs.[^4] On January 25, 1995,
the Bureau released a public notice reflecting its acceptance of
WinStar\'s request to reduce the number of channel pairs sought to four
channel pairs.[^5]

3\. *One Channel Pair Granted in Seven of Twelve Markets.* On June 15,
1995, the Bureau acted on six of WinStar\'s applications,[^6] granting
one channel pair and dismissing those applications as to the three
remaining channel pairs.[^7] The Bureau also dismissed a seventh
application due to a partial overlap with existing authorizations.[^8]

4\. *One Channel Pair Granted in Remaining Five Markets.* On July 17,
1995, WinStar submitted a letter (July, 1995 Amendment) entitled \"Minor
Amendment of Applications,\" which, *inter alia,* identified one
\"clean\" channel pair among the four channel pairs requested in the
remaining five applications.[^9] On the following day, the Bureau
granted each of the requested clean channel pairs.[^10]

5\. *Petition for Reconsideration of Commission\'s July 18, 1995
Action.* On October 2, 1995, WinStar submitted a letter (October, 1995
letter) to the Bureau urging it to grant the \"remaining\" three channel
pairs in each of the five applications that were granted on July 18,
1995.[^11] In that letter WinStar asserted that the requests for three
additional channel pairs in each of the five markets were still
pending.[^12] On June 15, 1998, the Branch responded to WinStar, stating
that WinStar\'s July, 1995 Amendment identifying a clean channel pair
removed the three remaining channel pairs from the applications, and
that action on those applications was reflected in the July 26, 1995
Public Notice.[^13] The letter also noted that a timely petition for
reconsideration of such action had not been filed.[^14] On July 15,
1998, WinStar filed its Application for Review.

**III. DISCUSSION**

6\. In the Application for Review, WinStar presents three arguments.
First, it argues that the July 1995 Amendment did not request dismissal
of the three remaining channels pairs in the five applications.[^15]
Consequently, WinStar alleges the Bureau erred in interpreting its
request as an amendment from four channel pairs to a single channel
pair.[^16] Second, WinStar asserts that because it never amended its
request to decrease the number of channel pairs from four to one, the
Bureau dismissed the three remaining channel pairs without providing
adequate notice of the dismissal.[^17] Third, in the event that there
was a valid dismissal of the applications, WinStar argues that its
October, 1995 letter must be considered a timely filed petition for
reconsideration.[^18]

7\. In their Oppositions, Commco and Bachow, who hold licenses in some
of the markets at issue, assert that the Application for Review was
untimely filed and contained insufficient justification for the waiver
of any applicable statutory filing deadlines.[^19] Specifically, they
argue that WinStar should have sought reconsideration within thirty days
of the July 26, 1995, action granting its applications and that WinStar
has not made an adequate showing as to why it was not possible for it to
seek reconsideration within the time provided by the Commission\'s
Rules.[^20]

8\. *WinStar letter.* We begin our analysis with the Bureau\'s
interpretation of the July 17, 1995 letter. (*See* Appendix A). WinStar
argues that the letter, on its face, does not request dismissal of the
three remaining channel pairs and that it did not seek amendment of its
applications to reduce its request from four channel pairs to a single
channel pair.[^21] WinStar also states that had it desired to amend its
application to request a reduced number of channel pairs, it would have
done so explicitly as it did when it amended its application to reduce
its request from seven channel pairs to four channel pairs.[^22]

9\. Based upon our review of this matter, we find that the Bureau
staff\'s interpretation that the letter was WinStar\'s voluntary
reduction of its request from four channel pairs to one channel pair was
reasonable under the circumstances. In its July 17, 1995 letter, WinStar
states that the letter\'s purpose is to \"expedite grant of the pending
applications,\" thereby suggesting that it was willing to accept a grant
under the circumstances it proposed in the letter. Moreover, after
WinStar stated \"\[t\]o the extent that the Commission intends to grant
only one of the four channels requested,\" WinStar identified a clean
channel pair in each of the five markets.[^23] Additionally, WinStar
stated that it was \"also\" amending the applications to reduce the
service areas, thus suggesting that the prior paragraph identifying the
clean channels pairs was also an amendment. We note that WinStar did not
request a reduction in the service area of the Charlotte application.
WinStar concludes the letter by requesting a grant of the applications
\"as amended herein.\" The Bureau interpreted this statement as
referring to an amendment of both the service area and the requested
channel pairs. Based upon this language, we conclude that the staff
reasonably interpreted the letter as WinStar\'s amendment of its request
from four channel pairs to one channel pair.

10\. Though we find that the Bureau\'s interpretation was reasonable, we
have the additional benefit in this review, of assessing the totality of
the circumstances surrounding these applications which further supports
our conclusion that the July 17, 1995 letter should be treated as an
amendment of the applications from four paired channels to one paired
channel. WinStar has alleged that the letter was only meant to amend the
service areas of the four cities listed in the letter.[^24] However, in
the July 26, 1995 Public Notice, the applications for those four cities,
*and* the application for Charlotte, were listed as amended and a single
paired channel was granted in each of those five applications. Thus,
WinStar was put on notice that the Bureau had accepted its letter as an
amendment of the number of channels requested, in addition to a
reduction in the service area. Notably, WinStar never raised any
objections to this fact and did not seek any review until long after the
filing deadline had passed.

11\. *Notice.* With this determination in mind, we turn to the adequacy
of the notice and whether the Bureau provided sufficient notice to
WinStar of its action, thereby triggering the thirty-day filing window
for review of the Division\'s actions. WinStar argues that the
Commission\'s July 26, 1995 Public Notice was insufficient notice of the
action taken on the remaining five pending applications and seeks
reinstatement of its applications for the three channel pairs in the
remaining five applications.[^25] Additionally it claims that the July
26, 1995 Public Notice did not conform to Commission practice for
dismissals of multi-channel 39 GHz applications.[^26] Specifically,
WinStar alleges that Commission practice is to provide express, written
notice when dismissing channel pairs of multi-channel applications and
that the Commission did not do so in this instance.[^27]

12\. A public notice which initiates the thirty-day period for seeking
review or reconsideration of agency actions is adequate if it alerts
interested parties to documents which would allow them to determine
whether their interests were implicated.[^28] The Commission has wide
latitude regarding the information included in a public notice, provided
that the notice gives \"fair warning\" of the scope of the described
action.[^29]

13\. WinStar argues that when the Bureau granted one channel pair and
expressly dismissed the other three channel pairs in six of the twelve
markets on June 15, 1995, it sent dismissal letters stating that \"the
remainder of the frequencies on your application have been
dismissed.\"[^30] In this connection, WinStar contends that because the
Bureau did not send the same type of dismissal letter after it granted
the single channel pairs WinStar had identified as \"clean,\" the Bureau
departed from its prior practice and precedent of notification, and thus
insufficiently advised WinStar of its action with regard to the
remaining three channel pairs in the five markets.[^31]

14\. We disagree. The Division\'s June 15, 1995 action granting one of
four requested channel pairs was a partial grant. To comply with the
requirements of Section 21.32(d) of the Commission\'s Rules,[^32] the
Division forwarded a letter informing WinStar of the reasons for its
decision to grant the application \"in part.\"[^33] After WinStar
amended its applications a second time to a single paired channel, the
Division had no requirement to send a dismissal letter because it
granted the amended applications in their entirety. Thus, an
accompanying dismissal letter was unnecessary because the Division was
not dismissing anything \-- the three channels pairs had already been
withdrawn by the July 17, 1995 letter. Similarly, it would have been
inconsistent with the Bureau\'s action of granting the amended
applications to include a notation in the Public Notice that these
grants were partial grants.[^34] The difference between the June 28,
1995 Public Notice, which indicated that only one of the four channel
pairs was granted, and the July 1995 Public Notice, which made no such
reference, was based on the fact that at the time of the Division\'s
action, it was ruling upon applications consisting of, in their
entirety, a single channel pair. The Division therefore acted in
accordance with its past practice and precedent in 39 GHz matters and
its actions were not arbitrary and capricious.

15\. Even if we agreed with WinStar\'s argument that the grant of the
single channel pair on July 18, 1995 was actually a partial grant, our
rules provide guidance for parties who receive partial grants of their
applications. Under Section 21.32(d) of our Rules, an applicant who
receives a partial grant of its application must either accept the
action in its entirety or reject it in its entirety.[^35] WinStar did
not reject the partial grant, nor did it request review of such action
until after the statutory thirty-day deadline for reconsideration
requests had passed.

16\. Moreover, in this instance WinStar proposed to the Bureau in its
July 17, 1995 letter a set of circumstances which it found acceptable.
When the Bureau granted to WinStar what it had requested, a sufficiently
clear basis for this action already existed because WinStar, in effect,
had provided it in the letter. The Bureau\'s action was therefore
self-explanatory and there was no reason to provide further reasoning
and issue a dismissal letter under Section 21.32 of the Commission\'s
Rules.[^36]

17\. Thus we find that the Public Notice, issued on July 26, 1995,
provided WinStar with sufficient notice of the Bureau\'s July 18, 1995
action. First, we find the July 26, 1995 Public Notice adequately
provided notice of the Division\'s action on July 18, 1995 with regard
to WinStar\'s applications. Second, it noted that the WinStar
applications for Charlotte, New Orleans, Norfolk, Oklahoma City and
Portland had been amended. Third, it listed the frequencies and
coordinates of the channel pairs which were granted. Again, because the
single channel pairs in each market were the only ones at issue, it was
not necessary for the Bureau to take further measures to notify WinStar
of its actions. Thus, after giving the July 26, 1995 Public Notice a
fair reading, interested parties would have understood that only one
channel was being ruled upon and that nothing remained pending following
this action. The public notice was therefore sufficient to permit
someone exercising reasonable diligence to be aware of the Bureau\'s
actions.

18\. *Timeliness of Petition for Reconsideration.* To the extent the
July 1995 Public Notice amended WinStar\'s application to a request for
a single channel pair, WinStar argues that its October 1995 letter
should be considered a timely filed petition for reconsideration even
though it was filed more than sixty days after the July 26, 1995 Public
Notice addressing these applications.[^37] The October 1995 letter
should be considered timely, WinStar contends, because of a procedural
violation by the Bureau (its failure to send WinStar a dismissal letter
or to adequately notify WinStar of the dismissal) which resulted in the
late-filed petition for reconsideration.[^38] Therefore, WinStar argues
that an extension of the thirty-day petition period specified in Section
405 of the Communications Act, as amended and Section 1.106 of the
Commission\'s Rules is warranted.[^39] WinStar, therefore, asserts that
because it did not receive legally adequate notice of the \"dismissal\"
of its applications until it received the Branch\'s June 15, 1998
letter, its Application for Review, filed on July 15, 1998, was filed
within the thirty-day time limit established by Section 1.115 of the
Commission\'s Rules.[^40]

19\. We disagree. We find that because the July 26, 1995 Public Notice
complied with the Commission\'s Rules, the Administrative Procedure Act
and the applicable legal standards as discussed above, the thirty-day
filing window for any applications for review opened on July 27, 1995.
Under Section 1.115 of the Commission\'s Rules, an application for
review must be filed within thirty days of the action for which review
is sought. Thus, the Bureau\'s grant on July 18, 1995, which was placed
on public notice on July 26, 1995, established an August 25, 1995
cut-off date for reconsideration of the Bureau\'s actions.[^41] The next
action taken by Winstar, however, did not occur until WinStar\'s October
2, 1995 letter in which it stated its position on the pendency of the
three additional channels. The letter is dated more than sixty days
after the public notice was issued and more than thirty days after the
statutory deadline for reconsideration had passed.[^42] Because we have
concluded the notice was not defective, WinStar\'s letter of October 2,
1995, even if it is deemed a petition for reconsideration, was untimely
filed.

**IV. CONCLUSION**

20\. For the foregoing reasons, we find that WinStar\'s Application for
Review must be denied and its associated request for reinstatement of
the applications for the three channel pairs in Charlotte, New Orleans,
Norfolk, Oklahoma City and Portland must also be denied.

**V. ORDERING CLAUSES**

21\. IT IS ORDERED that, pursuant to section 4(i) of the Communications
Act of 1934, as amended, 47 U.S.C. § 154(i) and section 1.115 of the
Commission\'s Rules, 47 C.F.R. § 1.115, the WinStar Application for
Review filed on July 15, 1998 is DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

APPENDIX A

WinStar\'s July 17, 1995 Letter

In March 1994, WinStar Wireless, Inc. (\"WinStar\") filed twelve 38 GHz
applications. The Commission recently granted in part six of those
applications. With respect to the five pending applications, WinStar
understands that the Commission has encountered some minor difficulties
in processing those applications. *In order to expedite grant of the
pending applications*, WinStar submits the following information.

> To the extent that the Commission intends to grant only one of the
> four channels requested, WinStar has reviewed the publicly-available
> information to determine which requested channel pairs do not have any
> conflicting applications. WinStar believes that the chart below
> reflects a \"clean\" channel pair for each of the five cities where
> WinStar\'s March, 1994 applications are pending.
>
> 1\. Charlotte, NC 11
>
> 2\. New Orleans, LA 14
>
> 3\. Norfolk, VA 9
>
> 4\. Oklahoma City, OK 11
>
> 5\. Portland, OR 11
>
> In addition, to expedite the grant of the pending applications,
> WinStar is *also* amending the applications to specify a smaller
> service area for those cities that exceed 100 miles on a side. The
> revised service areas (and the corresponding dimensions) are set forth
> in the following chart:
>
> New Orleans:
>
> Longitude: 90º 32\' 13\" - 89º 11\' 32\"
>
> Latitude: 30º 29\' 36\" - 29º 07\' 04\"
>
> \[Requested area is approximately 81.1 x 95 miles\]
>
> Norfolk:
>
> Longitude: 78º 15\' 00\" - 76º 45\' 00\"
>
> Latitude: 38º 00\' 00\" - 36º 37\' 28\"
>
> \[Requested area is approximately 83.1 x 95 miles\]
>
> Oklahoma City:
>
> Longitude: 98º 29\' 58\" - 96º 49\' 25\"
>
> Latitude: 35º 52\' 21\" - 34º 49\' 03\"
>
> \[Requested area is approximately 72.8 x 95 miles\]
>
> Portland:
>
> Longitude: 124º 00\' 00\" - 122º 04\' 01\"
>
> Latitude: 46º 00\' 00\" - 44º 37\' 28\"
>
> \[Requested area is approximately 95 x 95 miles\]
>
> Because these reductions in service area do not result in any increase
> in potential interference, and do not reflect any other significant
> change in operations, WinStar believes that they qualify as minor
> amendments under the Commission\'s Rules, 47 C.F.R. §21.23. Thus no
> further Public Notice is necessary, 47 C.F.R. §21.27(a)(1). In light
> of the foregoing information, WinStar respectfully requests that the
> Commission expeditiously grant the five pending WinStar applications
> *as amended herein.*[^43] (Emphasis added).

[^1]:     ^?^WinStar Application for Review, filed on July 15, 1998
    (Application for Review). The Application for Review is opposed by
    Commco Communications Corporation (Commco) and Bachow
    Communications, Inc. (Bachow).

[^2]:     ^?^Austin, Texas; Charlotte, North Carolina; Indianapolis,
    Indiana; Jacksonville, Florida; Memphis, Tennessee; New Orleans,
    Louisiana; Norfolk, Virginia; Oklahoma City, Oklahoma; Omaha,
    Nebraska; Portland, Oregon; San Antonio, Texas; and Stamford,
    Connecticut.

[^3]:     ^?^*See* FCC Public Notice No. 1090 (July 6, 1994).

[^4]:     ^?^Letter from David W. Ackerman, Executive Vice
    President,WinStar, to William F. Caton, Acting Secretary, FCC (Oct.
    17, 1994). WinStar made this request even though it asserted that
    its applications did not come within the restrictions created by the
    public notice released on September 16, 1994, which limited all 39
    GHz applicants to one channel pair per market if the applicants
    sought use of the spectrum for PCS support. Public Notice, Mimeo No.
    44787 (rel. Sept. 16, 1994) (39 GHz Notice).

[^5]:     ^?^*See* FCC Public Notice No. 1119 (January 25, 1995) listing
    applications amended substantially since acceptance for filing.

[^6]:     ^?^The six markets ruled upon were Austin, Texas;
    Indianapolis, Indiana; Jacksonville, Florida; Memphis, Tennessee;
    Omaha, Nebraska; and San Antonio, Texas.

[^7]:     ^?^*See* FCC Public Notice No. 1141 (June 28, 1995).

[^8]:     ^?^This application was ultimately granted as to one channel
    pair and dismissed as to the remaining three channel pairs. *See*
    FCC Public Notice No. 1159 (Nov. 1, 1995) regarding Stamford, CT.

[^9]:     ^?^Letter from Stephen L. Goodman, Halprin, Temple & Goodman,
    to William F. Caton, Acting Secretary, FCC, (July 17, 1995).

[^10]:     ^?^*See* FCC Public Notice No. 1145 (July 26, 1995).

[^11]:     ^?^Letter from Leo I. George, Executive Vice President for
    Regulatory Affairs, WinStar, to Regina Keeney, Chief, WTB, FCC (Oct.
    2, 1995.)

[^12]:     ^?^*Id.*

[^13]:     ^?^Letter from Mary M. Schultz, Chief, Licensing and
    Technical Analysis Branch, Public Safety and Private Wireless
    Division, WTB, FCC, to Michael F. Finn, Wilkie, Farr & Gallagher,
    (June 15, 1998.)

[^14]:     ^?^*Id.*

[^15]:     ^?^The five markets were Charlotte (FCC File No. 9404195),
    New Orleans (FCC File No. 9404200), Norfolk (FCC File No. 9404201),
    Oklahoma City (FCC File No. 9404202), and Portland (FCC File No.
    9404204).

[^16]:     ^?^WinStar Application for Review at 10-11.

[^17]:     ^?^*Id.* at 11-18.

[^18]:     ^?^*Id.* at 20-22.

[^19]:     ^?^Commco Opposition at 3; Bachow Opposition at 3.

[^20]:     ^?^Commco Opposition at 3; Bachow Opposition at 3.

[^21]:     ^?^WinStar Application for Review at 10.

[^22]:     ^?^*Id.*

[^23]:     ^?^By \"clean\" channel pair, we are referring to a frequency
    that may be granted pursuant to the Commission\'s Rules.

[^24]:     ^?^New Orleans, Norfolk, Oklahoma City and Portland.

[^25]:     ^?^WinStar Application for Review at 11.

[^26]:     ^?^*Id.*

[^27]:     ^?^In this regard, WinStar makes reference to *Com-Pal,
    Inc.*, 71 FCC 2d 423 (CCB 1978) and *Airsignal Int\'l of
    Philadelphia, Pa., Inc.*, 68 FCC 2d 1447 (CCB 1977).

[^28]:     ^?^*Hispanic Information and Telecommunications Network v.
    FCC*, 865 F.2d 1289, 1295 (D.C. Cir. 1989); KOLA, Inc., 11 FCC Rcd.
    14297, 14310 (1996).

[^29]:     ^?^*See Ridge Radio Corporation v. FCC,* 292 F.2d 770, 773
    (D.C. Cir. 1961); KOLA, Inc., 11 FCC Rcd. at 14310 (1996).

[^30]:     ^?^*See* Letters from Michael B. Hayden, Chief, Microwave
    Branch, FCC to WinStar granting in part File numbers 9404194,
    9404197, 9404198, 9404199, 9404203 (June 20, 1995).

[^31]:     ^?^Application for Review at 11-14.

[^32]:     ^?^Previously codified as 47 C.F.R. § 101.47(c) (1996)
    (currently codified at 47 C.F.R. § 1.945(e)).

[^33]:     ^?^*See* 47 C.F.R. § 21.32(d) (1995) (currently codified at
    47 C.F.R. § 1.945(e)) which provides: \"Whenever the Commission,
    without a formal hearing, grants any application in part, or subject
    to any terms or conditions other than those normally applied to
    applications of the same type, it shall inform the applicant of the
    reasons therefor, and the grant shall be considered final unless the
    Commission should revise its action (either by granting the
    application as originally requested, or by designating the
    application for a formal evidentiary hearing) in response to a
    petition for reconsideration which: (1) is filed by the applicant
    within thirty (30) days from the date of the letter or order giving
    the reasons for the partial or conditional grant; (2) rejects the
    grant as made and explains the reasons why the application should be
    granted as originally requested; and (3) returns the instrument of
    authorization.

[^34]:     ^?^WinStar Application for Review at 14.

[^35]:     ^?^*See* 47 C.F.R. § 21.32(d) (currently codified at 47
    C.F.R. § 1.945(e)); 47 C.F.R. § 101.4(a) which requires that we use
    the rules in Part 21 for applications filed as of July 31, 1996. We
    note that it is for this reason that the Commission takes action on
    an entire file when issuing a decision. WinStar counters by arguing
    that we should not rely on our \"flawed electronic processing
    system\" as justification for dismissing its applications without
    proper notice. However, it is not our processing system upon which
    we rely here but rather our rules regarding partial grants which are
    clear and concise and were available to WinStar.

[^36]:     ^?^47 C.F.R. § 21.32 (currently codified at 47 C.F.R. §
    1.945).

[^37]:     ^?^Application for Review at 20.

[^38]:     ^?^*Id.* at 20-21.

[^39]:     ^?^*Id.*

[^40]:     ^?^Reply of WinStar to Opposition of Bachow Communications,
    Inc. at 2; Reply of WinStar to Opposition of Commco Communications
    Corporation at 2.

[^41]:     ^?^*See* 47 C.F.R. § 1.115(d).

[^42]:     ^?^*See* 47 U.S.C. § 405.

[^43]:     ^?^ Letter from Stephen L. Goodman, Halprin, Temple &
    Goodman, to William F. Caton, Acting Secretary, FCC (July 17, 1995.)