Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of Application of  | * | File No. 9507123             |
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| PLAINCOM, INC.                   | ) |                              |
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| To Provide 39 GHz Point-to-Point | ) |                              |
| Microwave Service in Waco, TX    | \ |                              |
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|                                  | * |                              |
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+----------------------------------+---+------------------------------+

ORDER ON RECONSIDERATION

**Adopted:** May 18, 2000 **Released:** May 22, 2000

By the Deputy Chief, Wireless Telecommunications Bureau:

# Introduction

1.  In this *Order*, we deny a petition for reconsideration (Petition)
    filed by Astrolink Communications, Inc. (Astrolink)[^1] of our
    denial[^2] of a petition for reconsideration, filed by Plaincom,
    Inc. (Plaincom). Astrolink asks that we reverse our *Plaincom
    Order*, reinstate and grant the above-captioned application and
    related amendments to provide 39 GHz service in the Waco, Texas
    service area, and reinstate and grant Astrolink's application to
    provide 39 GHz service in the Austin, Texas service area.[^3]

# background

2.  On September 9, 1994, the Telecommunications Industry Association
    (TIA) filed a petition for rule making seeking to increase the
    amount of spectrum available for operations contemplated in the 39
    GHz band.[^4] On June 14, 1995, an application filed by Biztel, Inc.
    (Biztel) to provide 39 GHz service in the Waco, Texas area was
    placed on public notice.[^5] On June 28, 1995, an application filed
    by Astrolink to provide 39 GHz service in the Austin, Texas area was
    placed on public notice.[^6] On July 12, 1995, Plaincom filed the
    above-captioned application to provide 39 GHz service in the Waco,
    Texas area.[^7]

3.  On November 13, 1995, pursuant to delegated authority, the Wireless
    Telecommunications Bureau ordered that, pending Commission action on
    the TIA rulemaking petition, no new 39 GHz applications would be
    accepted for filing, and any such applications received on or after
    such date would be returned as unacceptable for filing.[^8] On
    December 8, 1995, Plaincom submitted an amendment to its
    application, reducing the proposed service area (December
    Amendment).[^9] The amendment was accepted, but it failed to resolve
    the mutual exclusivity with the Astrolink and Biztel applications.

4.  On December 15, 1995, the Commission initiated the rule making
    proceeding requested by TIA.[^10] The *NPRM and Order* provided,
    *inter alia*, that the following actions would be held in abeyance
    during the pendency of the rulemaking proceeding: (a) applications
    pending as of November 13, 1995, that were either mutually exclusive
    or still within the 60-day period for filing mutually exclusive
    applications;[^11] (b) amendments to pending applications filed on
    or after November 13, 1995; and (c) applications for modifications
    of existing licenses filed on or after November 13, 1995.[^12] On
    November 3, 1997, the Commission released new licensing and
    technical rules governing the use of the 39 GHz band.[^13]

5.  On February 6, 1998, Plaincom submitted a second amendment (February
    Amendment) to its initial application to modify its coordinates to
    reduce the size of its proposed service area.[^14] By letter dated
    September 22, 1998, the Licensing and Technical Analysis Branch,
    Public Safety and Private Wireless Division (Division), dismissed
    the February Amendment in accordance with the interim processing
    procedures for the 39 GHz service because the February Amendment was
    filed after December 15, 1995.[^15] On July 29, 1999, the Commission
    generally affirmed the decisions made in the *Report and Order and
    Second NPRM* with regard to the further processing of pending 39 GHz
    applications.[^16]

6.  On October 29, 1999, the Division denied Plaincom's petition for
    reconsideration of the dismissal of the February Amendment. Plaincom
    had argued, *inter alia*, that the December Amendment contained a
    clerical error, and that the February Amendment, which attempted to
    correct this error, was an amendment of right, effective upon
    filing.[^17] The Division determined, however, that the February
    Amendment was properly dismissed because it did not satisfy the
    requirements of Section 101.45(f) of the Commission's Rules,[^18] in
    that there was no evidence within the four corners of the December
    Amendment to indicate a clerical error existed.[^19] On November 23,
    1999, we dismissed, *inter alia*, the Plaincom and Astrolink
    applications in accordance with the *July 1999 MO&O.*[^20] On
    November 29, 1999, Astrolink requested reconsideration of the
    Division's *Plaincom Order*. On the same date, Plaincom filed an
    application for review of the Division's October 29, 1999
    action.[^21] On March 4, 2000, the Commission upheld the Division's
    decision and denied Plaincom's Application for Review.[^22]

# discussion

7.  Section 1.106(b)(1) of the Commission's Rules provides that any
    non-party whose interests are adversely affected by any action taken
    by the Commission or by the designated authority may file a petition
    requesting reconsideration of the action taken, provided that the
    non-party shall state with particularity the manner in which the
    person's interests are adversely affected by the action taken, and
    shall show good reason why it was not possible to participate in the
    earlier stages of the proceeding.[^23] Astrolink surmises that the
    Division dismissed the Astrolink application in the *Dismissal
    Notice* based upon its decision in the *Plaincom Order* that the
    Astrolink application and the Plaincom application were mutually
    exclusive as of December 15, 1995.[^24] Astrolink therefore claims
    that it was adversely affected by the Division's decision set forth
    in the *Plaincom Order* not to accept the February Amendment.
    Astrolink argues that its participation in the earlier stages of
    this proceeding was not possible until the dismissal of the
    Astrolink application. It was at this point that Astrolink's
    interests were directly and immediately affected.[^25] We find that
    Astrolink has established standing to seek reconsideration of the
    *Plaincom Order*.

8.  Astrolink argues that the Division incorrectly concluded that
    Section 101.45(f)(5) of the Commission's Rules required dismissal of
    the February Amendment.[^26] Section 101.45(f)(5) provides that
    amendments merely correcting typographical, transcription, or
    similar clerical errors, which are clearly demonstrated to be
    mistakes by reference to other parts of the application, and whose
    discovery does not create any new frequency conflicts, are not
    considered to be newly filed applications.[^27] Astrolink disputes
    the Division's conclusion that there was no evidence within the four
    corners of the December Amendment, either in the form of service
    area maps or conflicting coordinates, such that the Branch would
    have been alerted to a clerical error.[^28] Astrolink argues that
    because Plaincom expressly stated that it was filing the December
    Amendment to resolve frequency conflicts with other pending
    applications, Commission staff should have recognized that Plaincom
    had made a clerical error when it became apparent that the December
    Application failed to achieve that purpose.[^29]

9.  We disagree. Even with the change in coordinates found in the
    February Amendment, Plaincom's service area would have remained
    mutually exclusive with Biztel's application.[^30] Therefore, the
    amendment that Plaincom stated in February 1998 that it had intended
    to make in December 1995 would have achieved the purpose of
    eliminating Plaincom's mutual exclusivity with the pending
    applications only in conjunction with amendments or dismissals by
    other applicants.[^31] Thus, it was not apparent from the face of
    the December Amendment that it contained an error. Moreover, as the
    Commission pointed out in the *July 1999 MO&O*, Section 101.45(f)
    "does not provide an applicant with a vested right to amend its
    application. Rather it provides an exception to the general rule
    that pending applications amended by major amendments are considered
    'newly-filed' and lose their place in the processing line."[^32]

10. As previously stated, the Commission affirmed the Division's
    decision. Thus, the Astrolink and Plaincom applications were
    mutually exclusive on November 13, 1995, according the dismissal of
    Astrolink's application was in accordance with the Commission's 39
    GHz application processing policy.[^33]

# Conclusion and ordering clauses

11. By this *Order on Reconsideration*, for the aforementioned reasons,
    we affirm the denial of Plaincom's petition for reconsideration and
    deny Astrolink's petition for reconsideration filed on November
    29, 1999. In doing so, we deny Astrolink's request for reinstatement
    and grant of Plaincom's application to provide 39 GHz service in the
    Waco, Texas service area and Astrolink's request for reinstatement
    and grant of its application to provide 39 GHz service in the
    Austin, Texas service area.

12. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405 of
    the Communications Act of 1934, 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 by Astrolink Communications,
    Inc., on November 29, 1999, is DENIED.

13. 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

Kathleen O'Brien Ham

Deputy Chief,

Wireless Telecommunications Bureau

[^1]: Astrolink Communications, Inc., Petition for Reconsideration
    (filed Nov. 29, 1999) (Petition).

[^2]: Plaincom, Inc., *Order on Reconsideration*, DA 99-1816 (WTB PSPWD
    rel. Oct. 29, 1999) (*Plaincom Order*) *aff'd* Plaincom, Inc.,
    *Memorandum Opinion and Order*, FCC 00-144 (rel. May 4,
    2000)(*Plaincom MO&O*).

[^3]: Petition at 5-6.

[^4]: Telecommunications Industry Association, Fixed Point-to-Point
    Microwave Section, Petition for Rulemaking, RM 8553 (filed Sept. 9,
    1994); *see also* *Public Notice*, Report No. 2044 (Dec. 1, 1994).

[^5]: FCC File No. 9505595 appeared on *Public Notice*, Wireless
    Telecommunications Bureau Part 21 Receipts and Disposals, Report No.
    1139 (rel. June 14, 1995) (Biztel Application).

[^6]: FCC File No 9506290 appeared on *Public Notice*, Wireless
    Telecommunications Bureau Part 21 Receipts and Disposals, Report No.
    1141 (rel. June 28, 1995) (Astrolink Application).

[^7]: *Public Notice*, Wireless Telecommunications Bureau Part 21
    Receipts and Disposals, Report No. 1145 (rel. July 26, 1995)
    (Plaincom Application).

[^8]: Petition for Amendment of the Commission\'s Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands, RM-8553, *Order*, 11 FCC Rcd
    1156, 1156 ¶ 2 (WTB 1995).

[^9]: Plaincom\'s original application specified the coordinates of its
    proposed Waco, TX service area as 30-45-00NLAT,
    96-00-00WLONG/32-00-00NLAT, 98-00-00WLONG. On December 8, 1995
    Plaincom amended its application and specified the new coordinates
    as 30-45-00NLAT, 96-20-00WLONG/32-00-00NLAT, 98-00-00WLONG.

[^10]: Amendment of the Commission\'s Rules Regarding the 37.0-38.6 GHz
    and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Notice of Proposed
    Rule Making and Order*, 11 FCC Rcd 4930, 4988-4989 ¶¶ 121-124 (*NPRM
    and Order*).

[^11]: *S**ee* 47 C.F.R. § 21.31(b)(2)(i) (1995). An application will be
    deemed mutually exclusive of an earlier-filed application if the two
    applications are mutually exclusive and the second application was
    filed either within sixty days after the date of the public notice
    listing the earlier application or one business day before the
    Commission acts on the earlier application, whichever is earlier. 47
    C.F.R. § 21.31(b)(2) (1995).

[^12]: *NPRM and Order*, 11 FCC Rcd at 4989 ¶ 124 & n.197.

[^13]: Amendment of the Commission\'s Rules Regarding the 37.0-38.6 GHz
    and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Report and Order and
    Second Notice of Proposed Rule Making*, 12 FCC Rcd 18600 (1997)
    (*Report and Order and Second NPRM*).

[^14]: The February Amendment requested a change in coordinates to
    30-50-15NLAT, 92-20-00WLONG/32-00-00NLAT, 98-00-00WLONG.

[^15]: Letter from Mary M. Shultz, Chief, Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division, to Mr.
    Ed Clinton, President, PLAINCOM, INC. (Sept. 22, 1998); *see also
    Public Notice*, Wireless Telecommunications Bureau Weekly Receipts
    and Disposals, Report No. 2008 (rel. Sept. 29, 1998).

[^16]: Amendment of the Commission\'s Rules Regarding the 37.0-38.6 GHz
    and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Memorandum Opinion
    and Order*, 14 FCC Rcd 12428 (*July 1999 MO&O*).

[^17]: *See Plaincom Order*, ¶ 5.

[^18]: 47 C.F.R. § 101.45(f).

[^19]: *Plaincom Order*, ¶ 5*.*

[^20]: *Public Notice*, 39 GHz Applications Dismissed, DA 99-2631 (WTB
    PSPWD rel. Nov. 23, 1999) (*Dismissal Notice*).

[^21]: Plaincom, *Application for Review* (filed Nov. 29, 1999).

[^22]: *Plaincom MO&O*, ¶¶ 2-3.

[^23]: 47 C.F.R. § 1.106(b)(1).

[^24]: Petition at 1-3 *citing* *Dismissal Notice* at 13, dismissing the
    Astrolink Application. Astrolink notes that the *Dismissal Notice*
    did not state a specific reason for the dismissal of the Astrolink
    Application, but cited to the *Report and Order and Second NPRM*,
    wherein the Commission ordered that any mutually exclusive
    application pending as of December 14, 1995, would be dismissed.
    *Petition* at 2*.*

[^25]: Petition at 2-3*.*

[^26]: *Id.* at 3-5.

[^27]: 47 C.F.R. § 101.45(f)(5).

[^28]: *See* Petition at 4-5, *citing Plaincom Order*, ¶ 5.

[^29]: Petition at 4-5. Astrolink further argues that Commission staff
    bore responsibility for ensuring that the December Amendment
    achieved its stated purpose of removing mutual exclusivity because
    only the Commission staff had access to the database containing the
    pending 39 GHz applications. *Id.* at 4-5.

[^30]: *Plaincom Order*, ¶ 5.

[^31]: For example, Biztel later dismissed its application. *Id.* at
    n.15.

[^32]: *July 1999 MO&O*, 14 FCC Rcd at 12446 ¶ 34.

[^33]: *See* para. 4, *supra*.