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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** 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), filed applications to modify certain existing licenses in the 39 GHz band. The Avant- Garde applications were placed on Public Notice on July 6, 1994. 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. 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." On May 1, 1995, the Transfer Application appeared on Public Notice as accepted for filing. 3. On June 26, 1995, the Division's Licensing and Technical Analysis Branch (Branch) granted the Transfer Application. 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. 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. 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 of the Commission's Rules. The pending Avant-Garde applications appeared on Public Notice on August 16, 1995 (August 16 Public Notice) under WinStar's name. 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. 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. 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. 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. 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." 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. The August 16 Public Notice listed the subject applications, reflecting the transfer of control from Avant-Garde to WinStar. While amendments specifying a substantial change in control of an applicant are generally deemed major amendments, in this instance, the Notifications Letters should be deemed minor amendments pursuant to former Section 21.23(c)(6) of the Commission's Rules. 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. 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. 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. 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. 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. Its failure to timely object to the Transfer Application before it became final renders the objections untimely at this juncture. 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 j:\sblake\39ord2 J. Burton R. Melson