******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word 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 the Application of ) ) PLAINCOM, INC. ) FCC File No. 9507560 ) For Authority to Establish New ) Point-to-Point Microwave Facilities ) In the 38.6-40.0 GHz Frequency Band at ) Knoxville, TN ) ORDER ON RECONSIDERATION Adopted: December 28, 1999 Released: December 29, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. We have before us a petition for reconsideration (Petition) filed on April 26, 1999, by Plaincom Inc. (Plaincom). Plaincom requests review of a March 25, 1999 Licensing and Technical Analysis Branch (Branch) dismissal of Plaincom's December 31, 1996 and December 4, 1998 amendments to the above- captioned application for authorization in the 38.6-40.0 GHz (39 GHz) band. For the reasons set forth below, we deny Plaincom's Petition. 2. On July 17, 1995, Plaincom filed a 39 GHz application to provide service in the area of Knoxville, TN. On August 25, 1995, WinStar Wireless Fiber Corporation (WinStar) filed a co-channel application for Johnson City, TN that was mutually exclusive with Plaincom's Knoxville application. On December 15, 1995, the Commission suspended the processing of pending mutually exclusive 39 GHz applications and the filing of amendments thereto, pending the outcome of a rulemaking proceeding affecting this service. On December 31, 1996, Plaincom filed an amendment, to which it filed a correction on December 4, 1998, to cure the mutual exclusivity. In a Report and Order and Second NPRM, released on November 3, 1997, the Commission decided that it would dismiss, without prejudice, pending mutually exclusive 39 GHz applications. On March 25, 1999, the Branch dismissed Plaincom's December 31, 1996 and December 4, 1998 amendments because they were filed after the December 15, 1995 deadline for filing amendments to pending 39 GHz applications. 3. Plaincom first asserts that the two amendments brought its application into compliance with Commission policy and eliminated a frequency conflict with another pending application, and as such should be deemed amendments of right, which are effective when filed even if filed after December 15, 1995. Plaincom also argues that the filing freeze in effect improperly modified or eliminated Sections 101.29 and 101.45 of the Commission's Rules without notice and opportunity for comment in violation of Section 553 of the Administrative Procedure Act. Plaincom's third argument is that the dismissal of its amendments violates Section 309(j)(6)(E) of the Communications Act, which requires the FCC to use methods such as negotiation and its own service rules to resolve mutual exclusivity before it holds an auction. Subsequent to the filing of Plaincom's Petition, the Commission rejected these arguments when it denied petitions for reconsideration of its decision to dismiss applications and amendments filed on or after December 15, 1995. Plaincom offers no basis for revisiting these matters here. Thus, consistent with the Commission's decision regarding these and other related issues involving 39 GHz applications, we deny the Petition and affirm the Branch action. 4. Accordingly, IT IS ORDERED that, pursuant to Sections 154(i) and 405 of the Communications Act, 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 April 26, 1999 by Plaincom, Inc. IS DENIED. 5. 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