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 Federal  Communications  Commission  DA  99-  368 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  Applications  of  )  File  Nos.  9600691-  9600711  )  9600714-  9600718 
 PLAINCOM,  INC.  )  ) 
 to  Provide  39  GHz  Point-  to-  Point  Microwave  Radio  )  Service  in  Various  Locations  ) 
 ) 


 ORDER 
 Adopted:  February  22,  1999  Released:  February  23,  1999 
 By  the  Chief,  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau: 
 I.  INTRODUCTION 
 1.  This  Order  consolidates  the  disposition  of  twenty-  six  petitions  to  deny  (Petitions)  filed  by  WinStar  Wireless  Fiber  Corp.  (WinStar),  a  subsidiary  of  WinStar  Communications,  Inc.  (WSC)  against 
 applications  filed  by  Plaincom,  Inc.  (Plaincom)  for  38.6-  40.0  GHz  (39  GHz)  point-  to-  point  microwave  radio  station  licenses  in  Chicago,  IL;  Atlanta,  GA;  Boston,  MA;  Dallas,  TX;  Cleveland,  OH;  San  Diego, 
 CA;  Cincinnati,  OH;  Washington,  DC;  Tampa,  FL;  Tacoma,  WA;  San  Francisco,  CA;  Buffalo,  NY;  Denver,  CO;  Miami,  FL;  Kansas  City,  MO;  Los  Angeles,  CA;  Houston,  TX;  Detroit,  MI;  New  York,  NY; 
 New  York  (West);  New  York  (Long  Island);  Baltimore,  MD;  Pittsburgh,  PA;  Phoenix,  AZ;  St.  Paul,  MN;  and  Milwaukee,  WI.  As  discussed  in  further  detail  below,  we  find  that  the  Plaincom  applications  are 
 defective  because  they  were  untimely  filed.  Consequently,  the  WinStar  Petitions,  filed  December  1,  1995,  are  hereby  granted  and  the  Plaincom  applications  are  dismissed. 


 II.  BACKGROUND 
 2.  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.  2  The  Avant- 


 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. 
 2  WinStar  Application  File  Nos.  9404165-  9404183,  9404185-  9404188,  9404191,  9404193,  9504885.  The  Wireless 
 Telecommunications  Bureau  granted  WinStar  Application  File  Nos.  9404165,  9404168,  9404170,  9404172,  9404175,  9404178,  9404183  which  were  placed  on  Public  Notice  on  February  10,  1998.  See  Public  Notice,  Wireless 


 Telecommunications  Bureau  Weekly  Receipts  and  Disposals,  Report  No.  1975  (released  February  10,  1998).  WinStar  Application  File  No.  9504885  was  withdrawn  and  placed  on  Public  Notice  on  November  12,  1997.  See  Public  Notice, 
 Wireless  Telecommunications  Bureau  Weekly  Receipts  and  Disposals,  Report  No.  1962  (released  November  12,  1997). 
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 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).  In  the  Transfer  Application,  WSC  asserted  that  the  transfer  of  control  was  for  legitimate  business  purposes  and  would  benefit  the  public.  4  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  service  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 
 3.  On  June  26,  1995,  the  Division's  Licensing  and  Technical  Analysis  Branch  (Branch)  granted  the  Transfer  Application.  7  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.  8  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.  9  WinStar  also  requested  that  the  Commission  either  categorize  the  Notification  Letters  as  minor 
 amendments  or  exempt  them  from  the  "cut-  off"  provisions  of  former  Section  21.31  10  of  the  Commission's  Rules.  11  The  pending  Avant-  Garde  applications  appeared  on  Public  Notice  on  August  16,  1995  (August 
 16  Public  Notice)  under  WinStar's  name.  12 


 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.,  File 
 No.  95-  13155  (30),  at  Exhibit  L. 
 5  Id.  at  Exhibit  L. 


 6  Public  Notice,  Wireless  Telecommunications  Bureau  Part  21  Receipts  and  Disposals,  Report  No.  1132  (May  1, 
 1995). 
 7  Public  Notice,  Wireless  Telecommunications  Bureau  Part  21  Receipts  and  Disposals,  Report  No.  1142  (July  5, 
 1995). 
 8  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. 
 9  Amendment  to  Pending  Applications  to  Specify  the  Transfer  of  Control  to  WinStar  Wireless  Fiber  Corp.  (dated 
 Aug.  4,  1995).  The  Division  accepted  the  amendments  for  filing  in  the  August  16,  1995  Public  Notice,  Report  No.  1148. 


 10  Formerly  47  C.  F.  R.    21.31;  now  47  C.  F.  R.    101.45. 
 11  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). 
 12  Public  Notice,  Wireless  Telecommunications  Bureau  Part  21  Receipts  and  Disposals,  Report  No.  1148  (Aug.  16, 
 1995). 
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 4.  On  October  16,  1995,  Plaincom  submitted  competing  applications  against  the  Avant-Garde/  WinStar  applications.  On  December  1,  1995,  WinStar  filed  Petitions  to  Deny  against  Plaincom 
 application  nos.  9600691-  9600711  and  9600714-  9600718.  13 
 III.  DISCUSSION 
 5.  WinStar  alleges  that  Plaincom's  applications  were  filed  after  the  sixty  day  cut-  date.  Plaincom,  however,  asserts  its  applications  are  timely  because  WinStar  filed  a  major  amendment  to  its  original 
 applications.  We  find  that  Plaincom's  assertions  are  devoid  of  merit. 
 6.  On  July  6,  1994,  the  Avant-  Garde  applications  were  first  placed  on  Public  Notice  as  accepted  for  filing.  14  Former  Section  21.31(  b)  of  the  Commission's  Rules  provided  that  no  application  will  be 
 entitled  to  be  included  in  a  random  selection  process  or  to  comparative  consideration  with  a  previously  filed  application  unless  such  application  is  substantially  complete  and  tendered  for  filing  within  sixty  days 
 after  the  date  of  the  public  notice  listing  the  first  of  the  conflicting  applications  as  accepted  for  filing.  15  As  a  result,  the  60-  day  filing  window  for  Plaincom  to  file  competing  applications  closed  on  September  5, 
 1994.  However,  if  Avant-  Garde  filed  a  major  amendment  to  its  applications,  then  the  applications  would  be  considered  "newly  filed"  as  of  the  date  of  the  release  of  the  Public  Notice  listing  the  major  amendment 
 to  the  applications,  and  a  new  60-  day  filing  window  for  competing  applications  would  be  opened.  16  Former  Section  21.23(  c)(  5)  of  the  Commission's  Rules  provided  that  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."  17 


 7.  We  disagree  with  Plaincom's  contention  that  the  Notification  Letters  constitute  major  amendments  to  the  Avant-  Garde  applications.  The  Commission's  Rules  state  that  amendments  are 
 classified  on  a  case-  by-  case  basis.  18  The  August  16  Public  Notice  listed  the  subject  applications, 
 13  Plaincom  filed  a  Consolidated  Opposition  on  December  14,  1995.  On  January  11,  1996,  WinStar  filed  a 
 Consolidated  Reply  to  the  Consolidated  Opposition. 
 14  See  July  6  Public  Notice. 


 15  Formerly  47  C.  F.  R.    21.31(  b);  now  47  C.  F.  R.    101.45. 
 16  Formerly  47  C.  F.  R.    21.23(  c),  now  47  C.  F.  R.    1.927(  h).  See  Airsignal  International,  Inc.,  Memorandum  Opinion 
 and  Order,  81  FCC  2d  472  (1980)  (Commission  found  that  while  such  amendments  may  be  major,  they  do  not  open  a  new  filing  window  if  the  change  in  ownership  was  in  the  public  interest  .  .  .  [and]  .  .  .  made  to  effect  a  legitimate 


 business  purpose). 
 17  Formerly  47  C.  F.  R.    21.23(  c)(  5),  now  47  C.  F.  R.    1.927(  h).  See  Bell  Atlantic  Mobile  System,  Inc.,  Order,  10 
 FCC  Rcd  13262  (1995)  (Commission  permitted  amendments  to  pending  point-  to-  point  microwave  and  cellular  applications  and  granted  exemption  from  cut-  off  rules);  Loral  Space  &  Communication  Ltd  and  Orion  Network 


 Systems,  Inc.,  Order,  13  FCC  Rcd  4592  (1998)  (Commission  found  that  the  merger  served  an  independent  business  purpose,  i.  e.  to  strengthen  its  financial  resources,  thus  exempting  from  cut-  off  rules);  see  also  Airsignal  International, 
 Inc.,  Memorandum  Opinion  and  Order,  81  FCC  2d  472  (1980)  (Commission  granted  request  for  exemption  from  major  amendment  and  cut-  off  rules  because  change  in  ownership  was  deemed  to  be  in  public  interest  and  made  to  effect  a 
 legitimate  business  purpose,  i.  e.  providing  improved  research  and  technical  capabilities). 
 18  Formerly  47  C.  F.  R.    21.23(  c);  now  47  C.  F.  R.    1.927. 
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 reflecting  the  transfer  of  control  from  Avant-  Garde  to  WinStar.  19  While  amendments  specifying  a  substantial  change  in  control  of  an  applicant  are  generally  deemed  major  amendments,  20  in  this  instance, 
 the  Notifications  Letters  should  be  deemed  minor  amendments  pursuant  to  former  Section  21.23(  c)(  6)  of  the  Commission's  Rules.  21 


 8.  Furthermore,  the  Notification  Letters  specifically  stated  that  the  Transfer  Application  contained  a  description  of  the  business  purposes  for  the  subject  merger,  which  did  not  include  acquisition 
 of  the  Avant-  Garde  applications.  22  Exhibit  L  to  the  Transfer  Application  details  those  business  purposes  for  the  transfer  of  control.  That  exhibit  explains,  inter  alia,  that  the  company  resulting  from  the  merger 
 will  be  more  competitive,  due  to  the  expanded  operations  of  the  new  entity.  23  Exhibit  L  also  states  that  Avant-  Garde's  customers  will  benefit  from  the  merger  because  WSC's  greater  access  to  financial 
 resources  will  permit  advanced  technologies  to  be  provided  to  those  customers.  24  Therefore,  we  believe  that  WinStar,  in  its  Transfer  Application,  made  a  sufficient  business  interest  showing  for  a  finding  that  the 
 Notification  Letters  be  deemed  minor  amendments.  25  Consequently,  the  August  4,  1995  filing  did  not  initiate  a  new  filing  window,  and  thus  Plaincom's  competing  applications  were  not  timely  filed  pursuant 
 to  former  Section  21.31  of  the  Commission's  Rules. 
 9.  Moreover,  any  assertions  made  by  Plaincom  in  its  Opposition  to  the  Petitions  regarding  the  Transfer  Application  are  untimely  and,  thus,  we  will  not  address  the  merits  of  such  assertions.  We  note 
 that  Plaincom  had  an  opportunity  to  address  these  issues  by  filing  a  petition  to  deny  pursuant  to  applicable  Commission  Rules  when  the  Transfer  Application  was  first  filed.  26  Its  failure  to  timely  object 
 to  the  Transfer  Application  before  it  became  final  renders  the  objections  untimely  at  this  juncture.  27 


 19  August  16  Public  Notice  at  1-  7. 
 20  Formerly  47  C.  F.  R.    21.23(  c)(  5);  now  47  C.  F.  R.    1.927(  h).  See  Applications  of  Tequesta  Television,  Inc., 
 Memorandum  Opinion  and  Order,  103  FCC  2d  1182  (1986)(  Commission  found  substantial  change  of  controlling  ownership,  hence  application  was  dismissed);  see  also  Applications  of  Western  California  Cellular  Partners  and  MTEL 


 Cellular,  Inc.,  Order,  11  FCC  Rcd.  5705  (1996). 
 21  Public  Notice,  Wireless  Telecommunications  Bureau  Part  21  Receipts  and  Disposals,  Report  No.  1142  (July  5, 
 1995). 
 22  Notification  Letters  at  2. 


 23  See  Exhibit  L  to  the  Transfer  Application  at  1. 
 24  Id.  at  1-  2. 
 25  Public  Notice,  Wireless  Telecommunications  Bureau  Part  21  Receipts  and  Disposals,  Report  No.  1142  (July  5, 
 1995). 
 26  Former  47  C.  F.  R.    21.30.  See  Application  of  Lawrence  Daniels,  Memorandum  Opinion  and  Order,  3  FCC  Rcd. 
 7327  (Dec.  29,  1988)  (Commission  asserts  that  "the  Communications  Act  clearly  provides  for  public  participation  in  our  processes  .  .  .  and  .  .  .  provides  that  it  is  proper  to  specify  an  orderly  procedure  for  such  participation,"  noting  that 


 the  purpose  of  the  cut-  off  date  is  to  provide  for  a  fair  and  orderly  procedure  by  which  to  file  petitions  to  deny). 
 27  See  Amendment  of  the  Commission's  Rules  to  Relocate  the  Digital  Electronic  Message  Service  from  the  18  GHz  to 
 the  24  GHz  Band  and  to  Allocate  the  24  GHz  Band  for  Fixed  Services,  Memorandum  Opinion  and  Order,  13  FCC 
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 III.  ORDERING  CLAUSES 
 10.  IT  IS  ORDERED  that,  pursuant  to  Sections  4(  i)  and  309(  d)  of  the  Communications  Act  of  1934  as  amended,  47  U.  S.  C.    154(  i)  and  309(  d),  and  Section  21.30  of  the  Commission's  Rules,  47 
 C.  F.  R.    21.30,  Petitions  to  Deny  filed  by  WinStar  Wireless  Fiber  Corp.  on  August  18,  1995  against  Plaincom,  Inc.  Application  Nos.  9600691-  9600711  and  9600714-  9600718,  ARE  HEREBY  GRANTED. 


 11.  It  is  FURTHER  ORDERED  that,  pursuant  to  Sections  4(  i)  and  308  of  the  Communications  Act  of  1934  as  amended,  47  U.  S.  C.    154(  i)  and  308,  and  Section  21.28  of  the  Commission's  Rules,  47 
 C.  F.  R.    21.28,  that  the  applications  of  Plaincom,  Inc.  filed  on  October  16,  1995  ARE  DISMISSED. 
 12.  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 


 D'wana  R.  Terry  Chief,  Public  Safety  and  Private  Wireless  Division 
 Wireless  Telecommunications  Bureau 


 Rcd.  15147  (July  17,  1998)  (Commission  found  Petitioner's  challenges  to  license  grants  to  be  grossly  untimely,  where  Petitioner  filed  its  petition  almost  eight  months  after  the  last  of  the  initial  license  grants  were  made);  see  also 
 Application  of  HHT/  Estate  of  Robert  D.  Hanna,  Memorandum  Opinion  and  Order,  8  FCC  Rcd  1582  (March  1,  1993)  (Commission  denied  petition  to  deny  because  it  was  filed  six  years  after  the  due  date  prescribed  by  Section  21.30  of  the 
 Commission's  Rules). 
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