******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) JAMES W. O'KEEFE ) Application Nos. 9600639 - 9600662 ) 9600665 - 9600668 For Licenses for 39 GHz Point-to-Point ) Microwave Stations in Various Locations ) Throughout the United States ) ORDER Adopted: June 22, 1999 Released: June 22, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. This Order addresses twenty-eight Petitions To Deny (Petitions) filed by WinStar Wireless Fiber Corp. (WinStar) against the above-referenced applications of James W. O'Keefe. This Order also addresses the Petition to Deny filed by Pacific Bell Mobile Services (Pacific Bell) against an O'Keefe San Francisco application. For the reasons that follow, we grant the Petitions. II. BACKGROUND 2. On March 4, 1994, WinStar's predecessor in interest, Avant-Garde Telecommunications, Inc. (Avant-Garde) filed applications for grant of three 39 GHz channel pairs in thirty markets. Avant-Garde was already licensed for four channel pairs in each of those markets. On June 14, 1994, Pacific Bell filed an application to operate in San Francisco, California on Channel 6A and B. On July 6, 1994, a public notice announcing that the Avant-Garde and Pacific Bell applications were accepted for filing was released. Pacific Bell submitted a minor amendment to its application on October 17, 1994, reducing the size of the requested service area and deleting a request for three channels. 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. The transfer application contained references to the March 4, 1994 Avant-Garde pending applications and appeared on public notice as accepted for filing on May 1, 1995. On July 5, 1995, a public notice announcing the grant of the transfer application was released. On July 18, 1995, WinStar notified the Commission that the subject merger had been consummated and that the name of the surviving corporation was WinStar Wireless Fiber Corp. 4. On August 4, 1995, WinStar filed letters (Notification Letters) informing the Commission that, pursuant to the Avant-Garde/WinStar merger, the pending Avant-Garde applications should be amended to specify WinStar as the applicant. 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. The amended applications appeared on public notice on August 16, 1995, under WinStar's name. 5. On October 16, 1995, O'Keefe filed applications for new 39 GHz licenses, which were placed on public notice on November 1, 1995. The pending applications of WinStar and O'Keefe requested the same or substantially identical frequencies in the same geographical areas. 6. On December 1, 1995, WinStar filed its Petitions with the Commission, asserting that the transfer of Avant-Garde to WinStar did not open a new filing window, and even if it did, O'Keefe filed competing applications fifteen months after such a window would have closed. III. DISCUSSION 7. O'Keefe advances two reasons to support its position that a new filing window was opened on August 16, 1995 when WinStar's amended applications were placed on public notice. O'Keefe alleges that Ashbacker Radio Corp. v. F.C.C. requires consideration of its applications with WinStar's application. Additionally, O'Keefe alleges that the filing of the Notification Letters by WinStar constitutes major amendments of the ninety pending applications. A. Ashbacker Doctrine 8. O'Keefe first argues that the Ashbacker doctrine mandates that competing license applications are normally considered via hearings. In Rainbow Broadcasting, the D.C. Circuit, interpreting Ashbacker, stated that when the Commission receives mutually exclusive applications for an open frequency from two or more qualified applicants, it must treat them equally; it cannot grant one application and require the others to compete against an "incumbent." Rainbow Broadcasting further explained that the Ashbacker doctrine did not address what circumstances created an "open" frequency triggering the competition requirement. 9. In the 39 GHz point-to-point microwave service, the Commission promulgated "cut-off" rules that establish deadlines by which applications must be filed in order to be considered for Ashbacker hearings. "The purpose of these rules is to attract all competitive applications for a particular [frequency] within a fixed and reasonably short time frame, allowing the Commission to satisfy its Ashbacker obligations with a single, fairly prompt comparative hearing." Pursuant to the notice and cut-off procedure under which the applications at issue in the instant case were filed, competing applicants were to be reviewed comparatively only if they filed their applications within "[s]ixty days after the date of the public notice listing the first of the conflicting applications as accepted for filing." Consequently, timely filers "have a legitimate expectation that the cut-off rules will be enforced." Thus, in the 39 GHz context, the Ashbacker doctrine requiring equal treatment of competing applications only applies if the applications were submitted within the applicable filing window. As discussed in further detail below, we find that no new filing window opened under the instant circumstances. B. Amendments 10. O'Keefe's second basis for finding that a new filing window opened is the assertion that there was no showing by WinStar that the additional Avant-Garde applications for more channels was incidental to the April 11, 1995 transfer application. Therefore, O'Keefe asserts, no new filing window was triggered by the transfer application. O'Keefe asserts that the only new filing window established with respect to Avant- Garde's pending applications was the one that opened upon release of the August 16, 1995 Public Notice, announcing the WinStar amended applications. O'Keefe argues that these amendments should be deemed major amendments because they indicate a substantial change in ownership or control to those pending applications. 11. WinStar asserts that the amended applications did not open a new filing window. WinStar explains that Sections 21.23(c) and (e) of the Commission's Rules provide that when an application is amended to reflect a change in ownership, it is a major amendment, unless an exception applies. WinStar asserts that two exceptions apply here. First, WinStar explains that the facts at issue are the same as those found in Airsignal International. The Commission explained that the filing of amendments to pending applications to reflect a change in ownership caused by a merger that was previously approved by the Commission, constituted "an independent legitimate business purpose and [was] not primarily for acquiring pending applications" that exempted the amendments from being deemed "major" pursuant to Section 21.23(c)(6) of the Commission's Rules. Second, WinStar argues that the Notification Letters should not be deemed major amendments under Section 21.31(e)(3) of the Commission's Rules, because the notification reflected "only a change in ownership or control found by the FCC to be in the public interest when it approved the transfer of control of Avant-Garde. Thus, WinStar concludes that the amendments were minor, and did not open a new filing window. 12. The Commission's Rules state that amendments are classified on a case-by-case basis. First, we are persuaded that the factual circumstances presented in this case are the same as the factual circumstances presented in Airsignal International. In that connection, we find that the subject amendments are appropriately deemed to be within the Section 21.23(c)(6) exemption to the classification as major amendments. Second, we find that the amendments reflect a change in ownership or control found by the Commission to be in the public interest when Avant-Garde's application for transfer of control was granted, fitting the exemption from the cut-off rules found in Section 21.31(e)(3) of the Commission's Rules. Consequently, we conclude that a new filing window was not opened by the August 16, 1995 Public Notice announcing the WinStar amended applications. We further conclude that the O'Keefe applications were not timely filed because they were received after the applicable cut-off date of July 6, 1994. IV. CONCLUSION 13. Therefore, for the reasons set forth above, we dismiss the O'Keefe applications as untimely filed against WinStar's first-filed applications requesting substantially identical frequencies in the same geographical areas. In addition, we dismiss O'Keefe's San Francisco application, as untimely filed against Pacific Bell's first-filed application requesting substantially identical frequencies in the same geographical area. V. ORDERING CLAUSES 14. ACCORDINGLY, 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), 309(d), the WinStar Wireless Fiber Corp. and Pacific Bell Mobile Services Petitions to Deny, filed on December 1, 1995 and November 30, 1995 respectively, ARE GRANTED. 15. IT IS ALSO ORDERED that pursuant to Sections 4(i) and 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(d) and former Section 21.20(a)(2) of the Commission's Rules, 47 C.F.R.  21.20(a)(2)(1995), the O'Keefe applications, FCC File Nos. 9600639-9600662 and 9600665- 9600668, filed on October 16, 1995, ARE DISMISSED. 16. This action is taken pursuant to delegated authority granted under 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