Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Applications of ) ) WINSTAR WIRELESS FIBER CORP. ) FCC File Nos. 9404165, 9404168, 9404170 ) 9404172, 9404175, 9404178, 9404183 For Licenses to Operate Point-to-Point ) 9404189, 9404190, 9404192, 9404165 Microwave Facilities in the 39 GHz ) Frequency Band at Various Locations ) Throughout the United States ) ) PLAINCOM, INC. ) FCC File No. 9510171 ) For License to Operate a Point-to-Point ) Microwave Facility in the 39 GHz ) Frequency Band in St. Louis, Missouri ) ORDER Adopted: October 22, 1999 Released: October 25, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we address the petitions for reconsideration filed by PLAINCOM, Inc. (Plaincom), Eric Sterman (Sterman) (Collective Petitioners) and James W. O'Keefe (O'Keefe) of the Licensing and Technical Analysis Branch (Branch) grant of the above-captioned applications to WinStar Wireless Fiber Corp. (WinStar), a subsidiary of WinStar Communications, Inc. (WSC), to operate on the 38.6 - 40.0 GHz frequency band (39 GHz band). Additionally, we resolve the above-captioned pending application that was filed by Plaincom. We also resolve the clarification petition of Plaincom and Sterman, concerning two of the above-captioned applications. For the reasons stated below, we deny the petitions for reconsideration and the clarification petition, dismiss the subject application that was filed by Plaincom, and affirm the grant of the WinStar applications. II. BACKGROUND A. Transfer of Control 2. On September 16, 1993, WinStar's predecessor in interest, Avant-Garde Telecommunications, Inc. (Avant-Garde), was granted licenses for four 39 GHz channel pairs in thirty markets. On March 4, 1994, Avant-Garde filed applications for three additional 39 GHz channel pairs in each of those markets. On July 6, 1994, a public notice announcing that the Avant-Garde applications were accepted for filing was released. 3. On April 11, 1995, Avant-Garde filed an application for transfer of control of Avant-Garde to WinCom Corp., a subsidiary of WSC (Transfer Application). On May 1, 1995, the Transfer Application appeared on public notice as accepted for filing. The Branch granted the Transfer Application on June 6, 1995 and announced the grant in a public notice on July 5, 1995. WSC filed a letter on July 18, 1995, notifying the Commission that the merger had been consummated and that the name of the surviving corporation was WinStar. 4. On August 4, 1995, WinStar, pursuant to the Avant-Garde/WinStar merger, filed letters (Notification Letters) informing the FCC that the applications filed by Avant-Garde should specify WinStar as the applicant. WinStar also requested that the FCC either categorize the Notification 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. The Petitioners subsequently filed competing applications in many of the same markets. These applications were placed on public notice as accepted for filing. WinStar then filed petitions to deny Petitioners' competing applications, to which responsive pleadings were filed. 5. On February 2, 1998, the Branch cited the Transfer Application, which was deemed to be in the public interest, as the basis for its conclusion that the amendment of WinStar's pending applications should be categorized as minor. Thus, on February 2, 1998, the WinStar applications were granted and the thirty 39 GHz licenses were re-issued with both the original and additional channel pairs. On March 12, 1998, Petitioners filed petitions, requesting that the Bureau reconsider and rescind grant of the applications, to which responsive pleadings were filed. B. Modification of Stations WMN326 and WMN319 6. In November of 1994, Avant-Garde discovered that the licenses that were granted on September 16, 1993, for the four original channel pairs at Stations WMN326 in Dallas, Texas, and WMN319 in Atlanta, Georgia, contained coordinates which excluded a significant portion of each station's anticipated market area. On November 22, 1994, Avant-Garde submitted modification applications in order to address this deficiency. However, Avant-Garde did not amend the March 4, 1994, applications for additional channel pairs, which continued to request the original coordinates that were granted to Stations WMN319 and WMN326, respectively. On June 13, 1995, the Commission granted the modification applications and re-issued the licenses for Stations WMN326 and WMN319 with the revised coordinates. 7. On October 9, 1998, WinStar notified the Branch that the licenses for Stations WMN326 and WMN319 no longer reflected the revised coordinates that were granted on June 13, 1995. Instead, they reflected the coordinates that were requested in the applications of March 4, 1994. WinStar requested that the licenses for the four original channel pairs at Stations WMN326 and WMN319 be re-issued with their respective revised coordinates. On November 30, 1998, the Branch granted WinStar's request. As for the additional channel pairs that were granted for Atlanta and Dallas on February 2, 1998, WinStar requested that the Branch issue new licenses which reflect the originally requested coordinates for each respective market. On November 30, 1998, the Branch granted WinStar's request and issued licenses for two new stations, Station WPOP581 in Atlanta and Station WPOP580 in Dallas. 8. On December 31, 1998, Plaincom and Sterman filed a Clarification Petition, which requested clarification from the Bureau that Stations WPOP580 and WPOP581 were not granted any territory beyond the area requested in the applications of March 4, 1994. On January 5, 1999, James O'Keefe notified the Commission that he was not served with a copy of WinStar's Correction Letter, in violation of the Commission's ex parte rules. On January 11, 1999, WinStar filed a reply to the Clarification Petition and the January 5 Letter. On January 12, 1999, O'Keefe filed a Reply to the January 11 Letter. On January 13, 1999, Plaincom and Sterman filed a letter, offering to withdraw their Clarification Petition upon confirmation that no additional territory was granted to Stations WPOP580 and WPOP581. III. DISCUSSION A. Petition for Reconsideration 9. The Petitioners advance several reasons to support their position that a new filing window was opened on August 16, 1995 when WinStar's amended applications were placed on public notice. They contend that Ashbacker Radio Corp. v. F.C.C. requires consideration of their applications with WinStar's application. Additionally, they contend that the filing of the Notification Letters by WinStar constitutes major amendments of the pending applications. They also argue that the Branch contravened the "one-to- a-market" licensing policy concerning 39 GHz licensees announced in September, 1994. Finally, the Petitioners contend that the Branch acted arbitrarily and in contravention of the policy implemented in the current 39 GHz rule making proceeding by granting the subject applications. 10. The Petitioners first argue 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; for example, 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. 11. 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. 12. The Petitioners' 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, the Petitioners assert, that a new filing window was established with respect to Avant-Garde's pending applications upon release of the August 16, 1995 Public Notice, announcing the WinStar amended applications. They argue that these amendments should be deemed major amendments because they indicate a substantial change in ownership or control to those pending applications. 13. 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 contends that the amendments were minor, and did not open a new filing window. 14. 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 Petitioner's applications were not timely filed because they were received after the applicable cut-off date of July 6, 1994. 15. Thirdly, the Petitioners assert that grant of WinStar's applications violated a licensing policy concerning a restriction on the amount of 39 GHz spectrum held by a single entity in a market for provision of certain services. WinStar argues that such policy does not apply, due to the nature of its intended use of the 39 GHz spectrum authorized by the applications. Avant-Garde filed the applications for authority to provide services other than personal communications services support. We find that grant of the WinStar applications does not violate any applicable policy and affirm the Branch's decision that such grant was in the public interest. 16. Finally, the Petitioner's argue that the Branch acted arbitrarily in granting the applications, instead of dismissing pending 39 GHz applications "without prejudice" pursuant to the 39 GHz rule making proceeding. The Petitioners claim that the Branch's action prejudices them because grant of the applications to WinStar precludes them from applying for licenses in the areas covered by the applications via the competitive bidding process. O'Keefe further argues that the Branch violated Section 555(e) of the Administrative Procedure Act (APA) by failing to provide notification of the dismissal of his competing applications. 17. The Petitioners' argument is predicated on there being a new filing window. As indicated, the amendment to WinStar's pending applications was minor and thus, no new filing window was opened. Therefore, the Petitioners applications were untimely filed. The Petitioners had prior notice under Section 21.31(b) of the Commission's Rules that applications which are untimely filed will be considered defective and subject to dismissal. Accordingly, we do not believe that they were prejudiced by grant of WinStar's applications. In addition, O'Keefe's claim that the Branch violated Section 555(e) of the APA is moot, because we address the reasons for the dismissal of those applications in this Order. Thus, we find that O'Keefe suffered no harm from the Branch's alleged error. 18. In their Reply, Collective Petitioners claim, for the first time, that the Transfer Application and the Notification Letters did not comport with Section 21.29 of the Commission's Rules, which requires parties in interest to pending applications, when merging their interests, to submit certain evidence, showing that the merger of interests is consistent with the public interest. That argument is unrelated to the matters raised in WinStar's Opposition, and thus is outside the scope of reply, in accordance with Section 1.106(h) of the Commission's Rules. Collective Petitioners argue that WinStar raised the matter of its responsibilities under Section 21.29 of the Commission's Rules, by citing cases that contain discussions of that rule. Thus, according to the Petitioners, the issue is permitted under Section 1.106(h) of the Commission's Rules. WinStar, however, explains that it cited cases in support of its argument that the listing of its applications on public notice did not open a new filing window, and did not discuss Section 21.29 of the Commission's Rules in either of its Oppositions. We conclude that the mere citation of a case in an opposition pleading which contains discussion of a rule or point of law not associated with a matter raised in that opposition does not make challenges or arguments related to such rule or point of law ripe for discussion in a reply pleading. B. Clarification Petition 19. In their Clarification Petition, Plaincom and Sterman argue that if WinStar, by its Correction Letter, sought to amend its request for additional channels in the Atlanta and Dallas markets by seeking enlargement of the respective service areas, such an amendment would have been subject to the 39 GHz filing "freeze," and should not have been accepted for filing. The parties request that we clarify that the additional channels granted to WinStar in the Atlanta and Dallas markets do not encompass any territory beyond that specified in the original applications for the new channels. 20. WinStar argues that its sole purpose in filing the Correction Letter was to notify the Branch that the licenses for Stations WMN326 and WMN319 no longer reflected the revised coordinates that were granted on June 13, 1995. Therefore, by its Correction Letter, WinStar sought to have the licenses for the four original channel pairs at Stations WMN326 and WMN319 re-issued with their respective revised coordinates. As for the additional channel pairs that were granted for Atlanta and Dallas on February 2, 1998, WinStar requested in its Correction Letter that the Branch issue new licenses which reflect the originally requested coordinates for each respective market. In other words, the Correction Letter did not seek to enlarge the Atlanta and Dallas service areas that were originally requested on March 4, 1994, when WinStar applied for additional channel pairs. Therefore, we clarify that the newly issued licenses for Station WPOP581 in Atlanta and Station WPOP580 in Dallas do not encompass any territory beyond that previously authorized to WinStar in those markets. IV. ORDERING CLAUSES 21. 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 Petitions for Reconsideration filed on March 12, 1998, by PLAINCOM, Inc., James W. O'Keefe, and Eric Sterman ARE DENIED. 22. 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 1.934(f) of the Commission's Rules, 47 C.F.R.  1.934(f), the Application No. 9510171 that was filed by PLAINCOM, Inc. on September 15, 1995, IS DISMISSED. 23. 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 Clarification or, in the Alternative, Reconsideration filed on December 31, 1998, by PLAINCOM, Inc. and Eric Sterman IS GRANTED, and all associated filings ARE DISMISSED. 24. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r), and Section 1.1202(a) of the Commission's Rules, 47 C.F.R.  1.1202(a), the Letter regarding Ex Parte that was filed on January 5, 1999, by James O'Keefe IS DISMISSED. 25. These actions are taken pursuant to delegated authority granted under the 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