**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Applications of )

)

JAMES W. O'KEEFE )

) FCC File Nos. 9600639 - 9600662

For Licenses to Operate Point-to-Point ) 9600665 - 9600668

Microwave Facilities in the 39 GHz )

Frequency Band at Various Locations )

Throughout the United States )

**ORDER ON RECONSIDERATION**

**Adopted: December 13, 1999 Released: December 14, 1999**

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

**I. INTRODUCTION**

1\. In this *Order on Reconsideration*, we address the petition for
reconsideration (Petition)[^1] filed by James W. O\'Keefe (O\'Keefe)
regarding an *Order*[^2] that granted WinStar Wireless Fiber Corp.'s
(WinStar) petitions to deny the above-captioned applications, and
dismissed the applications as untimely filed. For the reasons stated
below, we deny the Petition.

**II. BACKGROUND**

2\. On March 4, 1994, WinStar\'s predecessor in interest, Avant-Garde
Telecommunications, Inc. (Avant-Garde) filed applications for grant of
three 38.6 - 40.0 GHz frequency band (39 GHz band) channel pairs in
thirty markets.[^3] On April 11, 1995, Avant-Garde filed an application
for transfer of control (Transfer Application) of Avant-Garde to WinCom
Corp., a wholly-owned subsidiary of WinStar Communications, Inc.[^4] The
Transfer Application referred to the pending March 4, 1994 Avant-Garde
applications.[^5] On July 5, 1995, a public notice announcing the grant
of the transfer application was released.[^6] WinStar notified the
Commission on July 18, 1995 that the subject merger had been consummated
and that the name of the surviving corporation was WinStar Wireless
Fiber Corp.[^7] On August 4, 1995, WinStar filed letters (Notification
Letters) informing the Commission that the pending Avant-Garde
applications should be amended to specify WinStar as the applicant.[^8]
WinStar also requested that the Commission either categorize the letters
as minor amendments or exempt them from the "cut-off" provisions of
Section 21.31 of the Commission\'s Rules.[^9] The amended applications
appeared on public notice on August 16, 1995, under WinStar\'s
name.[^10]

3\. On October 16, 1995, O\'Keefe filed applications for new 39 GHz
licenses.[^11] The pending applications of WinStar and O\'Keefe
requested the same or substantially identical frequencies in the same
geographical areas. On December 1, 1995, WinStar filed petitions to deny
O'Keefe's applications, asserting that the transfer of Avant-Garde to
WinStar did not open a new filing window,[^12] and that even if it did,
O\'Keefe filed competing applications long after such a window would
have closed.[^13] WinStar also asserted that the Notification Letters
did not open a new filing window, because they were minor amendments
exempt from the Commission's "cut-off" requirements.[^14]

4\. On June 22, 1999, we granted WinStar's petitions, and dismissed
O'Keefe's applications.[^15] We determined that WinStar's amendments did
not open a new filing window, because they were minor according to
former Section 21.23(c)(6) of the Commission's Rules,[^16] which exempts
amendments from classification as major when they merely reflect a
transfer of ownership or control that is not primarily to acquire
pending applications.[^17] Following the precedent of *Airsignal
International, Inc.*,[^18] we concluded that the WinStar/Avant-Garde
merger, previously approved by the Commission and found to be in the
public interest, satisfied the Section 21.23(c)(6) exemption.[^19] We
therefore found that O'Keefe's applications were untimely because they
were filed more than thirty days after the applicable cut-off date of
July 6, 1994.[^20] O'Keefe filed the Petition on July 22, 1999.

**III. DISCUSSION**

5\. O'Keefe argues that the Division's reliance on *Airsignal* is
misguided because the facts at issue in this matter are different from
those therein. Specifically, O'Keefe infers that the Commission was not
fully aware of the pending applications that would transfer to WinStar
when it approved the Winstar/Avant-Garde merger. O'Keefe contends that
WinStar should have submitted the details of its later Notification
Letters at the same time as its Transfer Applications, including "the
number of licenses (constructed and unconstructed) and pending
applications that are to be acquired, and the amount and allocation of
the total consideration paid."[^21] WinStar responds that *Airsignal*
followed a substantially identical course of events, including a similar
timeline.[^22] WinStar notes that its Notification Letters, like those
of *Airsignal*, necessarily came after approval of its Transfer
Application,[^23] in accordance with the Commission's Rules.[^24]

6\. As noted above, the Transfer Application notified the Commission of
the pending Avant-Garde applications.[^25] In determining that the
application amendments were minor, we relied upon provisions of former
Section 21.23(c)(5) of the Commission's Rules,[^26] together with our
judgment that the amendments constituted "an independent legitimate
business purpose...not primarily for acquiring pending applications,"
reflecting a change in ownership that it found to be in the public
interest.[^27] We agree that *Airsignal* governs the present case,
despite O'Keefe's arguments that we should retroactively impose new
requirements regarding the specificity with which pending applications
must be discussed,[^28] and that by granting WinStar's petition to deny,
the Division "created a *per se* approach to ownership amendments."[^29]
Consequently, we reaffirm our conclusion that a new filing window was
not opened by the August 16, 1995 *Public Notice* announcing the WinStar
amended applications. Therefore, O'Keefe's applications were not timely
filed because they were received after the cut-off date created by the
July 6, 1994 *Public Notice*.

7\. O'Keefe further argues that the Division, by exempting WinStar from
its cut-off rules, violated *Ashbacker Radio Corp. v. FCC*, which
requires that all applications accepted for filing be treated
equally.[^30] We believe that O'Keefe's argument is misguided, however,
because we did not grant any waiver, but instead held that, under the
applicable rules, the amendments were minor and did not trigger a new
filing window.[^31] Thus, we believe that our decision is consistent
with *Ashbacker*.

**IV. CONCLUSION**

8\. For the reasons set forth above, we deny the O'Keefe petition for
reconsideration. Because the WinStar amendments did not trigger a new
filing window, O'Keefe's applications were untimely filed and thus
dismissed.

**V. ORDERING CLAUSES**

9\. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405 of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
and Section 1.106 of the Commission\'s Rules, 47 C.F.R. § 1.106, the
Petition for Reconsideration filed on July 22, 1999 by James W. O\'Keefe
IS DENIED.

10\. This action is taken pursuant to delegated authority granted under
the provisions of 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

[^1]: James W. O'Keefe (O'Keefe) Petition for Reconsideration (filed
    July 22, 1999) ("*Petition*").

[^2]: Applications of James W. O'Keefe for Licenses for 39 GHz
    Point-to-Point Microwave Stations in Various Locations Throughout
    the United States, *Order*, DA 99-1210 (WTB PSPWD rel. June 22,
    1999) ("*Order*").

[^3]: *Id.* at ¶ 2.

[^4]: *Id.* at ¶ 3.

[^5]: *Id.; see also* WinStar Wireless Fiber Corp. (Winstar) Transfer of
    Control Application, Exhibits C ("Avant-Garde\'s pending
    applications to expand the number of authorized channel pairs in the
    cities in which it is licensed will also be transferred") and L
    ("given these public interest benefits from the transfer of both
    licenses and applications\...").

[^6]: *Order* at ¶ 3.

[^7]: *Id*. The July 18, 1995 letter also informed the Commission that
    WinCom Corp. had changed its name to WinStar Wireless Fiber Corp.
    *Id.* at n.7.

[^8]: *Id.* at ¶ 4.

[^9]: *Id*. Although 39 GHz applications are now subject to Section 101
    of the Commission\'s Rules, Part 21 applies here, since these
    applications were filed prior to July 31, 1996. *See* 47 C.F.R. §
    101.4(a).

[^10]: *Order* at ¶ 4.

[^11]: *Id.* at ¶ 5.

[^12]: *Id.* at ¶ 6.

[^13]: *Id.*

[^14]: WinStar Petition to Deny at 2, 3 (filed Dec. 1, 1995).

[^15]: *Order* at ¶¶ 14, 15.

[^16]: 47 C.F.R. § 21.23(c)(6) (1995).

[^17]: *Order* at ¶ 12.

[^18]: Airsignal International, Inc., *Memorandum Opinion and Order*, 81
    FCC 2d 472 (1980) ("*Airsignal*").

[^19]: *Id.*

[^20]: *Id.*

[^21]: *Petition* at 8. O'Keefe also compares three further Commission
    cases that fell under the § 21.23 exemption, but he cites findings
    rather than their specific factual distinctions, failing to
    distinguish the instant case. *Id.* at 9.

[^22]: *See* Opposition of WinStar, Exhibit A (filed Aug. 4, 1999).

[^23]: *Id.* at 6 n.25.

[^24]: *See* 47 C.F.R. § 21.38 (1995).

[^25]: *See supra* note 3.

[^26]: 47 C.F.R. § 21.23(c)(5) (1995).

[^27]: *Order* at ¶¶ 11, 12 (citing *Airsignal*).

[^28]: O'Keefe Reply to Opposition to Petition for Reconsideration at 4,
    5 (filed Aug. 10, 1999).

[^29]: *Petition* at 12.

[^30]: *Id.* at 12, 13 (citing Ashbacker Radio Corp. v. F.C.C., 326 U.S.
    327 (1945)).

[^31]: *Order* at ¶ 9.