Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of the Application of) ) PLAINCOM, INC. ) FCC File No: 9507123 ) to Provide 39 GHz Point-to-Point Microwave) Service in Waco, TX ) ORDER ON RECONSIDERATION Adopted: October 29, 1999 Released: October 29, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. By letter dated September 22, 1998, the Licensing and Technical Analysis Branch (Branch) dismissed a February 6, 1998, amendment to the above-captioned application for a 39 GHz station authorization in the Point-to-Point Microwave Radio Service in the area of Waco, TX submitted by Plaincom, Inc. (Plaincom). On October 29, 1998, Plaincom filed a Petition for Reconsideration (Petition) of the Branch's action. For the reasons set forth below, we affirm the Branch's action and deny Plaincom's Petition. II. BACKGROUND 2. On July 26, 1995, we placed the above-referenced Plaincom application on public notice. On November 13, 1995, the Wireless Telecommunications Bureau (Bureau) announced that 39 GHz applications would no longer be accepted for filing in the Common Carrier or Operational Fixed Point-to- Point Microwave Radio Services until the Commission acted upon a pending petition for rulemaking affecting these services. On December 8, 1995, Plaincom filed an amendment to its application, reducing the proposed service area. The amendment was accepted and applied to Plaincom's initial application. However, the amendment failed to resolve the mutual exclusivity as to an application filed by Astrolink Communications, Inc. (Astrolink) and another application filed by Biztel, Inc. (Biztel). 3. On December 15, 1995, the Commission modified the Bureau's 39 GHz Freeze Order by distinguishing between those pending 39 GHz applications that would be processed and those applications that would be held in abeyance pending the outcome of the rulemaking proceeding. On January 17, 1997, the Commission held that it would process all 39 GHz amendments-of-right filed on or after November 13, 1995, but before December 15, 1995. On November 3, 1997, the Commission decided to dismiss, without prejudice, pending mutually exclusive applications, unless the mutual exclusivity was resolved by an amendment-of-right filed before December 15, 1995. 4. On February 6, 1998, Plaincom filed a second amendment (February Amendment) to its initial application to modify its coordinates to "reduce the size of its proposed service area." On September 22, 1998, the Branch dismissed Plaincom's February Amendment in accordance with the interim processing procedures for the 39 GHz service. The Branch found that the February Amendment was filed after December 15, 1995, when the freeze on the acceptance of amendments became effective. III. DISCUSSION 5. First, Plaincom argues that the coordinates revised in its December 8, 1995, amendment contained a clerical error and that the February Amendment served as a correction and was, therefore, an amendment-of-right, which is effective upon filing. Thus, Plaincom requests that the February Amendment be reinstated. Pursuant to the Commission's Rules, 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. While we don't doubt Plaincom's claim of clerical error, we are, nevertheless, required to abide by the requirements set out in Section 101.45(f)(5) of the Commission's Rules. Upon further reexamination of Plaincom's application, we find that there was no evidence within the four corners of the application, either in the form of service area maps or conflicting coordinates, such that the Branch would have been alerted to a clerical error. Specifically, the December amendment requested a change in the proposed site's longitude, while the February Amendment reflected a change in latitude. Furthermore, even if we accept the change in latitude coordinates found in Plaincom's February Amendment, Plaincom's service area would remain mutually exclusive with Biztel's application. 6. Plaincom also contends that the Commission is "without authority to dismiss Plaincom's amendment which took effect when filed." This argument does not distinguish between amendments that are accepted for filing and amendments that are not accepted for filing because of a freeze. In the Jan 17 MO&O, the Commission addressed this issue and concluded that the NPRM and Order suspended acceptance of all amendments-of-right filed after December 15, 1995. 7. Plaincom next argues that the Commission's failure to process its amendment violates Section 309(j)(7)(B) of the Communications Act, which prohibits the Commission from holding an auction solely for the purpose of raising funds for the federal treasury. The Commission has previously addressed this argument. Thus, Plaincom's argument is dismissed here as repetitious. 8. Finally, Plaincom asserts that the Commission's freeze on amendments-of-right violates Congress's directive to the Commission to "continue to use engineering solutions, negotiation, threshold qualifications, service regulations and other means in order to avoid mutual exclusivity in application and licensing proceedings." We believe that this directive, at a minimum, pertains to applications that meet Commission filing requirements. As discussed above, Plaincom filed its second amendment after the December 15, 1995, cut-off date for filing amendments-of-right. Consequently, because Plaincom's amendment was not an amendment-of-right filed before December 15, 1995, it was not acceptable for filing. Thus, we do not believe that the provisions of Section 309(j)(6)(E) of the Communications Act apply to the subject application and amendment. As a result, Plaincom's Petition for Reconsideration, filed on November 2, 1998, is hereby denied. IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405, of the Communications Act of 1934, as amended, 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 Plaincom, Inc. on November 2, 1998 IS DENIED. 10. 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