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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 ) ) BIZTEL, INC. ) File Nos. 9506760-9506772, ) 9506802-9506805, to Modify Stations in the 39 GHz Point-to-Point ) 9506817, 9506883 Microwave Radio Service in Various Locations ) 9506000, 9506002 throughout the United States ) ORDER Adopted: May 19, 1999 Released: May 25, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. This Order consolidates nineteen petitions to deny filed by WinStar Wireless Fiber Corp. (WinStar) and two petitions to deny filed by DCT Communications, Inc. (DCT) against the above-captioned BizTel, Inc. (BizTel) modification applications requesting the addition of frequencies to its 38.6-40.0 GHz (39 GHz) band authorizations in the Point-to-Point Microwave Radio Service in various locations throughout the United States. For the reasons stated below, the WinStar petitions against BizTel's modification applications for Cleveland, Ohio; Atlanta, Georgia; Chicago, Illinois; Baltimore, Maryland; Detroit, Michigan; Houston, Texas; Dallas, Texas; St. Louis, Missouri; Phoenix, Arizona; Long Island, NY; Minneapolis/St.Paul, Minnesota; Washington, DC; Pittsburgh, Pennsylvania; Seattle, Washington; Tampa, Florida; and Denver, Colorado are dismissed as moot. Further, the WinStar petitions against BizTel's applications for the two New York, New York locations and the Athens, Georgia location are dismissed because the channels requested in those BizTel applications are not mutually exclusive with the channels referenced in the WinStar filings. Lastly, the DCT petitions against BizTel's applications for St. Louis, Missouri, and Washington, D.C. are dismissed as moot. 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. On July 6, 1994, the FCC released a public notice indicating its acceptance of those applications for filing. 3. On April 11, 1995, Avant-Garde filed an application for transfer of control of Avant-Garde to WinStar (Transfer Application). On May 1, 1995, the Transfer Application appeared on public notice as accepted for filing. The Licensing and Technical Analysis Branch (Branch) granted the Transfer Application on June 26, 1995, and control over Avant-Garde as licensee was subsequently transferred to WinStar. 4. On June 30, 1995, the FCC received BizTel's applications for authority to modify its existing licenses to add frequencies to its 39 GHz station authorization in the Point-to-Point Microwave Radio Service. BizTel's applications appeared on public notice as accepted for filing on July 19, 1995. On July 5, 1995, a public notice was released announcing that the Transfer Application had been granted. On August 4, 1995, WinStar, pursuant to the Avant-Garde/WinStar merger, filed a letter (Notification Letter) informing the FCC that the pending applications filed by Avant-Garde should be amended to specify WinStar as the applicant. WinStar also requested that the FCC either categorize the Notification Letter as a minor amendment, or exempt it from the "cut-off" provisions of former Section 21.31 of the Commission's Rules. The modification applications originally submitted by Avant-Garde appeared on public notice on August 16, 1995 (August 16 Public Notice) under WinStar's name. On August 18, 1995, WinStar filed a separate petition to deny against each of BizTel's applications, arguing that the applications should be returned as defective because they were filed after the applicable cut-off date for filing of competing applications. 5. In addition to the WinStar and BizTel application filings, DCT filed applications for licenses for 39 GHz channels in St. Louis, Missouri and Washington, DC on June 8, 1995. DCT's applications were dismissed on August 2, 1995 because the Branch concluded that the requested channel pairs were unavailable as a result of WinStar's previously filed applications. On August 18, 1995, DCT filed two petitions to deny asserting that the BizTel applications were incomplete and therefore defective. Specifically, DCT states that BizTel failed to completely respond to Item 21 of the FCC Form 494 and that its applications failed to make the supplementary showings required by former Section 21.706(a)(4) of the Commission's Rules. Insofar as DCT's applications were filed prior to the BizTel applications, DCT stated that it filed the two Petitions to Deny against the BizTel application in the event that the Bureau should classify the above-referenced WinStar amendments as major amendments in accordance with Section 21.23(c) of the Commission's Rules, and thus deny the WinStar Petitions against BizTel. 6. BizTel requested withdrawal of its application for Detroit on November 7, 1995. On February 2, 1998, the Branch dismissed BizTel's Applications for Cleveland, Atlanta, Chicago, Baltimore, Houston, Dallas, St. Louis, Phoenix, Long Island, Minneapolis/St. Paul, Washington, Pittsburgh, Seattle, Tampa, and Denver in accordance with Sections 101.45 and 101.35 of the Commission's Rules. The Branch found that these applications were defective on the basis that they were untimely filed. The Branch also dismissed in part applications for the two New York locations. BizTel did not file a petition for reconsideration of the Branch decision; thus, these Branch actions subsequently became final decisions. We note, however, that the Branch did not act upon BizTel's application for Athens. III. DISCUSSION A. WinStar Petitions 7. In the February 2, 1998 Regiec Letter, the Branch found that BizTel's applications for Cleveland, Atlanta, Chicago, Baltimore, Houston, Dallas, St. Louis, Phoenix, Long Island, Minneapolis/St. Paul, Washington, Pittsburgh, Seattle, Tampa, and Denver were untimely filed on June 30, 1995 because they were filed after the 60-day cut off date. Therefore, the Branch dismissed the above referenced applications as unacceptable for filing in accordance with Section 101.35 of the Commission's Rules. This action renders the WinStar Petitions against these applications moot. 8. Further, we conclude that the WinStar Petition against BizTel's application for Detroit should be dismissed as moot. In this connection, we note that BizTel requested withdrawal of the Detroit application on November 7, 1995. Accordingly, the WinStar Petition with respect to this application is moot. We grant BizTel's withdrawal request pursuant to Section 1.934(a) of the Commission's Rules. 9. In addition, the Branch determined that the BizTel applications for the two New York locations were filed after the 60-day cut off date; and, thus dismissed these applications in part in accordance with Section 101.35 of the Commission's Rules. The New York application associated with File No. 9506766 was dismissed in part on frequencies 38800-38850/39500-39550 while the New York application associated with File No. 9506767 was dismissed in part on frequencies 39100-39150/39800-39850. Consequently, this action renders the WinStar petitions against the dismissed portions of these applications moot. The WinStar Petitions regarding the two remaining frequencies in the New York applications and the application for Athens are discussed in the following paragraphs. 10. With regard to the portions of the two New York applications still remaining, we need not act on these channels because WinStar did not request the other remaining frequencies in its applications. To have standing to contest those channels, WinStar must be a "party in interest" and must allege sufficient facts to demonstrate that a grant of the subject application would be inconsistent with the public interest, convenience and necessity. We find that WinStar is without standing to challenge the channels which do not overlap with those requested by BizTel on the basis that it is not a party in interest. Moreover, WinStar has not demonstrated that grant of the remainder of BizTel's New York applications would result in a demonstrable injury to either the public interest or to WinStar. We find, therefore, that the Branch properly dismissed only those frequencies which overlapped with those requested by WinStar. For this reason, we will deny WinStar's petitions to deny the two New York applications as to frequencies 38950-39000/39650-39700 for File No. 9506766 and as to frequencies 38950-39000/39650-39700 for File No. 9506767. 11. Similarly, we find that a frequency conflict does not exist with regard to the Athens, Georgia application. Although WinStar contends that the application contains a frequency conflict with its licensed operations for these channels under Call Sign WMN319, our review of the applications shows that there is no overlap between the service areas in which WinStar operates and where BizTel seeks to operate. Thus, we conclude that BizTel's Athens, Georgia application is not a competing application with respect to WinStar's licensed operations under Call Sign WMN319. Moreover, we note that Section 101.103 of the Commission's Rules requires any applicant whose facilities could cause frequency interference on active channels to conduct frequency coordination with existing licensees prior to any use of the proposed frequencies. As a result, we find that WinStar has failed to present sufficient grounds for a grant of its Petition. 12. For the foregoing reasons, WinStar's Petition against BizTel's application for Athens, Georgia is dismissed. WinStar's Petition against BizTel's application for New York (App. No. 9506766) is dismissed with respect to frequencies 38950-39000/39650-39700 MHz and WinStar's Petition against the BizTel application for New York (App. No. 9506767) is dismissed with respect to frequencies 38950-39000/39650- 39700 MHz. B. DCT Petitions 13. On June 30, 1995, BizTel filed two modification applications for additional channel pairs in the St. Louis, Missouri and Washington, DC. On August 18, 1995, DCT filed two Petitions against the BizTel applications. DCT argued that if the Branch determines that the Avant Garde/WinStar merger resulted in a major amendment and ultimately dismisses WinStar's Petitions, then its applications should be considered on their merits since DCT filed its applications before the BizTel applications were filed. 14. On February 2, 1998, the Branch dismissed BizTel's applications for St. Louis, Missouri and Washington, DC, as untimely filed. We find that the Branch dismissal rendered moot the DCT Petitions against BizTel's applications for St. Louis and Washington. Accordingly, the DCT Petitions for these applications will be dismissed. IV. CONCLUSION 15. For the foregoing reasons, we find that the WinStar and DCT petitions to deny against BizTel's applications for Cleveland, Atlanta, Chicago, Baltimore, Houston, the two New York locations, Dallas, St. Louis, Phoenix, Long Island, Minneapolis/St. Paul, Washington, D.C., Pittsburgh, Seattle, Tampa, and Denver are moot because the applications were dismissed by a Branch decision which is now a final action. We also find that WinStar does not have standing to contest the remaining portions of BizTel's applications for the two New York locations not addressed by such Branch decision. Thus, WinStar's petitions against these two applications are dismissed. Finally, we deny WinStar's petition against the BizTel application for Athens, Georgia because BizTel's application does not overlap WinStar's licensed service area. V. ORDERING CLAUSES 16. This action is taken pursuant to delegated authority granted under the provisions of sections 0.131 and 0.331, 47 C.F.R.  0.131, 0.331. 17. IT IS ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and 1.939(g) of the Commission's Rules, 47 C.F.R.  1.939(g), the WinStar Petitions to Deny filed August 18, 1995 against BizTel Application Nos. 9506760-9506765, 9506766 IN PART (38800-38850/39500-39550 MHz), 9506767 IN PART (39100-39150/39800-39850 MHz), 9506768-9506772, 9506802-9506805, and 9506817, ARE HEREBY DISMISSED AS MOOT. 18. IT IS ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and 1.939(g) of the Commission's Rules, 47 C.F.R.  1.939(g), the DCT Petitions to Deny filed June 8, 1995 against BizTel Application Nos. 9506000 and 9506002 ARE HEREBY DISMISSED AS MOOT. 19. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and 1.939(g) of the Commission's Rules, 47 C.F.R.  1.939(g), the WinStar Petitions to Deny the remaining portions of BizTel Application Nos. 9506766 and 9506767 not addressed by the February 2, 1998 Regiec letter ARE HEREBY DISMISSED for lack of standing. 20. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and 1.939(g) of the Commission's Rules, 47 C.F.R.  1.939(g), the WinStar Petition to Deny BizTel Application No. 9506883 IS HEREBY DISMISSED. 21. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and 1.939(g) of the Commission's Rules, 47 C.F.R.  1.939(g), the DCT Petitions to Deny BizTel Application Nos. 9506769 and 9506802, ARE HEREBY DISMISSED as MOOT. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau