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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 ) ) WINSTAR WIRELESS, INC. ) FCC File Nos. 9504851 ) 9504878 to Provide 39 GHz Point-to-Point Microwave ) Service in Anchorage, AK, and Peoria, IL ) ) and ) ) SINTRA CAPITAL CORPORATION ) FCC File No. 9507387 to Provide 39 GHz Point-to-Point Microwave ) Service in Anchorage, AK ) ORDER Adopted: September 7, 1999 Released: September 8, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we dismiss the above-referenced applications filed by WinStar Wireless, Inc. (WinStar) seeking authorization to operate systems in the 38.6 to 40.0 GHz (39 GHz) band in the areas of Anchorage, AK, and Peoria, IL. Similarly, we dismiss an application filed by Sintra Capital Corporation (Sintra) seeking authorization to operate systems in the 39 GHz band in the area of Anchorage, AK. For the reasons discussed below, we dismiss these applications pursuant to the Commission's Report and Order and Second Notice of Proposed Rule Making released on November 3, 1997. Furthermore, this Order denies a request filed by WinStar on November 13, 1995, seeking expedited grant of its Anchorage and Peoria applications. II. BACKGROUND 2. On May 10, 1995, WinStar applied for a 39 GHz authorization in the Point-to-Point Microwave Service in Anchorage, AK. WinStar's Anchorage application, which requested four frequency pairs, was placed on public notice on May 24, 1995. In its application, WinStar had stated a preference for channel 7 if all the requested channels were not granted. On June 28, 1995, the Wireless Telecommunications Bureau (Bureau) corrected the earlier public notice by stating that WinStar's Anchorage application should have been accepted for filing on one frequency pair rather than four frequency pairs. Therefore, the Bureau stated that WinStar's Anchorage application would be considered for frequencies 38900-38950/39600-39650 MHz only (channel 7). On July 14, 1995, Sintra timely filed a competing application for channel 7 in Anchorage, AK. 3. Also on May 10, 1995, WinStar applied for a 39 GHz authorization in the Point-to-Point Microwave Service in Peoria, IL. WinStar's Peoria application, which requested four frequency pairs, was placed on public notice on May 24, 1995. On July 26, 1995, the Bureau issued a corrected public notice stating that WinStar's Peoria application should have been accepted for filing on one frequency pair rather than four frequency pairs. Given WinStar's preference for channel 5 in its original application, the Bureau stated that WinStar's Peoria application would be considered for frequencies 38800-38850/39500- 39550 MHz only (channel 5). On July 24, 1995, Paul R. Likins (Likins) filed a competing application for channel 5 in Peoria, IL. 4. On November 12, 1995, pursuant to delegated authority, the Bureau announced that the Commission would no longer accept for filing any new applications for 39 GHz licenses in the Common Carrier or Operational Fixed Point-to-Point Microwave Radio Services, pending Commission action on a pending petition for rulemaking regarding the 37 GHz band. On November 13, 1995, WinStar filed a "Conditional Amendment and Request for Expedited Grant of WinStar Applications for 38 GHz Service in Cities Where No Mutual Exclusivity Exists and More than Sixty Days Have Passed Since Public Notice." In its Request, WinStar seeks expedited grant of nine applications, including the Anchorage and Peoria applications, arguing that they are beyond the cut-off window for the filing of competing applications and are not mutually exclusive with any other applications. Furthermore, WinStar offers a conditional amendment whereby WinStar will reduce its request down to a single channel per application if the Commission promptly grants WinStar a license for one of the clear channels in each of those markets. To date, all the applications addressed in WinStar's Request have been processed, with the exception of the Anchorage and Peoria applications, which remain pending. 5. On December 15, 1995, the Commission adopted and released a Notice of Proposed Rule Making and Order initiating the rule making proceeding requested by TIA. The NPRM and Order provided that pending applications would be processed if (a) they were not mutually exclusive with other applications at the time of the Bureau's November 13, 1995 Freeze Order, and (b) the 60-day period for filing mutually exclusive applications expired prior to November 13, 1995. The NPRM and Order further provided that those applications that were mutually exclusive with others as of November 13, 1995, or within the 60-day period for filing competing applications on or after November 13, 1995, would be held in abeyance for processing and disposition. 6. On November 3, 1997, the Commission released a Report and Order and Second NPRM addressing those 39 GHz applications held in abeyance pursuant to the processing freeze imposed in the NPRM and Order. The Commission determined that the best approach for processing pending mutually exclusive applications was to dismiss them without prejudice and to allow applicants to submit new applications under the competitive bidding rules established in that proceeding. In a Memorandum Opinion and Order, released July 29, 1999, the Commission affirmed this approach. III. DISCUSSION 7. In its Request, WinStar argues that the Anchorage and Peoria applications are ripe for grant because they are beyond the cut-off window for the filing of competing applications and are not mutually exclusive with any other applications. We disagree. Pursuant to the Report & Order and Second NPRM, the Commission determined that all mutually exclusive applications that were held in abeyance pursuant to the processing freeze imposed in the NPRM and Order would be dismissed. Because WinStar's Anchorage and Peoria applications were mutually exclusive on November 13, 1995, with the applications of Sintra and Likins, respectively, and mutual exclusivity was not resolved by an amendment of right filed before December 15, 1995, we dismiss the applications in accordance with the Report and Order and Second NPRM. IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 308 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 308, and Section 21.20 of the Commission's Rules, 47 C.F.R.  21.20, the applications filed by WinStar Wireless, Inc. on May 10, 1995 seeking to provide 39 GHz Point-to-Point Microwave Service in Anchorage, Alaska (FCC File No. 9504851) and Peoria, Illinois (FCC File No. 9504878) ARE DISMISSED without prejudice. 9. 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), 308, and Section 21.20 of the Commission's Rules, 47 C.F.R.  21.20, the application filed by Sintra Capital Corporation on July 14, 1995, seeking to provide 39 GHz Point-to-Point Microwave Service in Anchorage, Alaska (FCC File No. 9507387) IS DISMISSED without prejudice. 10. IT IS FURTHER ORDERED that pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), the "Conditional Amendment and Request for Expedited Grant of WinStar Applications for 38 GHz Service in Cities Where No Mutual Exclusivity Exists and More than Sixty Days Have Passed Since Public Notice" filed by WinStar Wireless, Inc. on November 13, 1995, IS DENIED as to the Anchorage and Peoria applications and IS DISMISSED as moot in all other respects. 11. 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