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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554


In the Matter of Applications of             )
                                   )
NO WIRE L.L.C.                          )  File Nos.   9509049 (Columbus, OH)
                                        )         9509295 (Austin, TX)
                                   )         9509297 (Columbia, SC)
                                   )         9509046 (Fort Wayne, IN)
for Point-to-Point Microwave Radio           )         
Service Authorizations in the                )         
38,600 - 40,000  GHz Band in                 )
Austin, Texas and Columbus, Ohio             )


                             ORDER
                                
Adopted:  September 8, 1999                  Released:  September 9, 1999

By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:

     1.  Microwave Partners (Microwave) has petitioned the Public Safety and Private Wireless
Division (Division) of the Wireless Telecommunications Bureau (Bureau) to dismiss a competing No Wire
L.L.C. (No Wire) application for Point-to-Point Microwave Service in the 38.6 - 40.0 GHz Spectrum (39
GHz band) in Austin, Texas.  For the reasons set forth below, we dismiss the Petition in part as moot, and
will conduct for further review and processing of the non-mutually exclusive portions of No Wire's Austin,
Texas application.  In addition, Astrolink Communications, Inc. (Astrolink), Microwave's successor-in-
interest, has requested the Division to withdraw the Petition as to the competing No Wire 39 GHz
application containing a request for Channel 9 in Columbus, Ohio.  For the reasons set forth below, we
deny the Request, and will conduct for further review and processing of the non-mutually exclusive
portions of No Wire's Columbus, Ohio application.  Finally, No Wire has petitioned the Bureau to
reconsider the dismissal of amendments to three of its applications.  For the reasons set forth below, we
affirm the action of the Licensing and Technical Analysis Branch (Branch) dismissing the subject
amendments.


     2.  Austin, Texas.  On June 28, 1995, Microwave's application for 39 GHz authorization for
Channel 14 in Austin, Texas was placed on public notice.  On August 22, 1995, No Wire applied for
Channels 3, 4 and 14 for Austin, Texas.  Prior to filing its applications, No Wire sent Microwave a prior
coordination notice.  Microwave responded to the notice in a timely fashion, noting that there was a conflict
as to Channel 14.  On September 29, 1995, Microwave filed the subject Petition requesting that the
Bureau dismiss the No Wire application as to Channel 14 on the basis of mutual exclusivity.  On
November 13, 1995, the Bureau announced that no 39 GHz applications would be accepted for filing in the
Common Carrier or Operational Fixed Point-to-Point Microwave Services until the Commission acted
upon a pending petition for rule making affecting these services.  On November 27, 1995, No Wire
amended its application to delete Channels 3 and 14 from its Austin, Texas application.  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.  Thus, given the effectiveness of the November 27,
1995 amendment, we find Microwave's Petition requesting the dismissal of No Wire's application as to
Channel 14 to be moot.

     3.  Columbus, Ohio.  On June 28, 1995, Microwave's application for 39 GHz station authorization
for Channel 9 in Columbus, Ohio was placed on public notice.  On August 15, 1995, No Wire applied for
Channels 7, 8, and 9 for Columbus, Ohio.  Prior to filing its applications, No Wire sent Microwave a
prior coordination notice.  Microwave responded to the notice in a timely fashion, noting that there was a
conflict as to Channel 9.  On September 29, 1995, Microwave filed the subject Petition requesting that the
Bureau dismiss the No Wire application as to Channel 9, on the basis of mutual exclusivity.  In a
November 3, 1997 Report and Order and Second Notice of Proposed Rule Making, the Commission
explained that it would dismiss without prejudice all pending mutually exclusive applications unless the
mutual exclusivity was resolved by an amendment of right filed before December 15, 1995.

     4.  On April 18, 1997 and September 23, 1998, No Wire filed amendments seeking to delete
requests for Channels 7 and 9, respectively, from its Columbus, Ohio application.  On October 15, 1998,
Astrolink, Microwave's successor-in-interest, filed a Request to Withdraw its petition as to the Columbus,
Ohio application, explaining that Astrolink and No Wire amended their applications to eliminate the mutual
exclusivity.  On March 10, 1999, the Branch dismissed amendments to three of No Wire's applications,
including its September 23, 1998 amendment to the Columbus application, because the amendments were
filed after the December 15, 1995 deadline for filing amendments of right.

     5.  On April 9, 1999, No Wire filed with the Commission a Petition for Reconsideration of the
Branch's dismissal of the amendments to three of its applications.  No Wire first argues that its
amendments should not have been dismissed, but rather held in abeyance in accordance with the Notice of
Proposed Rulemaking and Order, because the Report and Order and Second NPRM is the subject of
petitions for reconsideration.  In a July 29 MO&O that addressed the outstanding petitions for
reconsideration, the Commission upheld the application processing policy set forth in the Report and Order
and Second NPRM.  As a result, we conclude that the Commission's action renders No Wire's first
argument moot.  No Wire next argues that the freeze on amendments of right should not be a bar to the
Branch's acceptance of its amendments of right "since these amendments do not conflict with the purpose of
new rules and do not undercut the policies they reflect."  We disagree.  At the outset of the 39 GHz rule
making proceeding, the Bureau explained that the applications that were tendered were not necessarily in
conformance with application and technical requirements that were under consideration for the band. 
Further, we note that this approach is consistent with the decision and reasoning in the Commission's July
29 MO&O concerning amendments of right. 

     6.  Consequently, we affirm the Branch's dismissal of the amendments to No Wire's applications as
unacceptable for filing in accordance with the Report and Order and Second NPRM, and dismiss No
Wire's April 9, 1999 Petition for Reconsideration.  We also dismiss No Wire's April 18, 1997, Columbus
amendment for the same reason.  In addition, we deny Astrolink's request to withdraw and dismiss,
without prejudice, the Microwave and No Wire Columbus, OH applications as to Channel 9 on the basis of
mutual exclusivity, in accordance with the Report and Order and Second NPRM.  As noted above, the
Microwave Petition is moot.  As a result, we dismiss Microwave's Petition in accordance with Section
1.939(g) of the Commission's Rules.
     
     7.  Accordingly, 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 Section 1.939(g) of the Commission's Rules, 47
C.F.R.  1.939(g), that the Petition to Dismiss filed by Microwave Partners on September 29, 1995, as to
No Wire L.L.C.'s Austin, Texas application, FCC File No. 9509295, IS DISMISSED AS MOOT.

     8.  IT IS FURTHER ORDERED that pursuant to sections 4(i) of the Communications Act of
1934, as amended, 47 U.S.C.  154(i), the Request to Withdraw Petitions to Dismiss filed by Astrolink
Communications, Inc. on October 15, 1998 IS DENIED.

     9.  IT IS FURTHER 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 No Wire L.L.C. on April 9, 1999 as to the
amendments to its Fort Wayne, Indiana application, FCC File No. 9509046, Columbus, Ohio application,
FCC File No. 9509049, and Columbia, SC application, FCC File No. 9509297, IS DENIED.

     10.  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 1.934 of the Commission's Rules, 47
C.F.R.  1.934, No Wire L.L.C. Columbus, OH application, FCC File No. 9509049, filed on August 15,
1995 IS DISMISSED.

     11.  This action is taken pursuant to delegated authority granted under Section 155(c) of the
Communications Act of 1934, as amended, 47 U.S.C.  155(c), and 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