******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect 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 Applications of ) File Nos. 9600663 ) 9600664 ERIC STERMAN ) 9600669-9600690 ) to Provide 39 GHz Point-to-Point ) Microwave Radio Service in Various Locations ) ORDER Adopted: September 13, 1999 Released: September 14, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we grant the Petition to Deny, filed on December 1, 1995, by WinStar Wireless Fiber Corp. (WinStar), a subsidiary of WinStar Communications, Inc. (WSC), against Eric Sterman (Sterman). Accordingly, the applications filed by Sterman, requesting authorization to operate new Point- to-Point Microwave Radio Service systems in the 38.6 to 40.0 GHz (39 GHz) band in Pittsburgh, PA, Kansas City, MO, Houston, TX, San Francisco, CA, San Diego, CA, St. Paul, MN, Tacoma, WA, Washington, DC, Chicago, IL, Spokane, WA, Los Angeles, CA, Cleveland, OH, Atlanta, GA, Miami, FL, Denver, CO, Boston, MA, Milwaukee, WI, Dallas, TX, Detroit, MI, Buffalo, NY, Cincinnati, OH, Tampa, FL, St. Louis, MO, and Phoenix, AZ, respectively, are dismissed because they were untimely filed. II. BACKGROUND 2. Avant-Garde Telecommunications, Inc. (Avant-Garde), WinStar's predecessor in interest, applied for three additional 39 GHz channels in markets in which it already had authorization for four channels. Avant-Garde's applications were placed on public notice on July 6, 1994. On April 11, 1995, Avant-Garde filed an application for consent to transfer control of Avant-Garde's 39 GHz licenses to WinCom Corp., a subsidiary of WSC (Transfer Application). On June 26, 1995, the Commission granted the Transfer Application. WSC filed a letter on July 18, 1995, notifying the Commission that the subject merger had been consummated and that the name of the surviving corporation was WinStar Wireless Fiber Corp. 3. On August 4, 1995, WinStar, pursuant to the Avant-Garde/WinStar merger, filed letters informing the Commission that the pending applications should be amended to specify WinStar as the applicant. On August 16, 1995, the applications appeared on public notice under WinStar's name. On October 16, 1995, the Wireless Telecommunications Bureau (Bureau) received the above-referenced competing applications from Sterman. III. DISCUSSION 4. Under former Section 21.31(e) (currently Section 101.45(f)) of the Commission's Rules, the Bureau will allow a new filing window to open if a pending application is subject to a major amendment. WinStar, in its petition to deny, claimed that no new 60-day filing window was opened when Avant-Garde's pending applications were amended to reflect a change in ownership. WinStar relied on former Section 21.23(c) (currently Section 1.927(g)) of the Commission's Rules to argue that the amendment of Avant- Garde's applications was a minor amendment because the "transfer of control is for legitimate business purposes other than the acquisition of applications." Alternatively, WinStar argued that if the amendment is deemed major, it should be exempted from the requirements of former Section 21.31 (currently Section 101.45) of the Commission's Rules because the amendment reflects a change in ownership found by the Bureau to be in the public interest when it granted approval of the transfer of control of Avant-Garde's licenses. 5. Sterman, in his consolidated opposition to petition to deny, relied on Section 21.39(c) (currently Section 101.55(d)) of the Commission's Rules, McCaw Personal Communications, Inc., Kansas City Southern Industries, Inc., ISA Communications Services, Inc. and Microband Corporation of America to argue that an applicant must provide sufficient factual details to support a claim under former Section 21.23(c) (currently Section 1.927(g)) of the Commission's Rules. Sterman averred that WinStar included no factual details to show that the acquisition of Avant-Garde's applications was incidental to the acquisition of the licenses. 6. We agree with WinStar's assertion that the transfer of Avant-Garde's pending applications to WinStar constituted a minor amendment and thus opened no new filing window. We find that the amendments are minor because the transfer of control was for a legitimate business purpose other than the acquisition of applications, i.e., they reflect the change in ownership caused by the Commission-approved Avant-Garde/WinStar merger. The Avant-Garde/WinStar merger was approved because it would serve several legitimate business purposes. For example, in its transfer of control application, Avant-Garde and WinStar stated that the merger would ensure the availability of advanced technology to Avant-Garde's customers because WinStar had greater access to capital. The application also stated that as a result of the transaction WinStar would be able to expand its telecommunications operations throughout the United States. 7. Contrary to Sterman's contentions, the Bureau does not mandate that sufficient details about the totality of the underlying transaction be included with the amended applications to support a claim under former Section 21.23(c) (currently Section 1.927(g)) of the Commission's Rules. Sterman's reliance on former Section 21.39(c) (currently Section 101.55(d)) of the Commission's Rules is misplaced. This section deals with the transfer of ownership in radio facilities that "is incidental to a sale of other facilities or merger of interests," not with a change in ownership affecting pending applications. Sterman's reliance on McCaw, KCSI, ISAComm, and MCA is similarly misplaced. In those decisions, as in this case, the underlying transaction was cited as evidence that the pending applications were amended for a legitimate business purpose other than the acquisition of applications. 8. WinStar next argues that if it is determined that no new filing window was opened, then Sterman's applications are untimely filed. Under former Section 21.31(b) (currently Section 101.45(b)) of the Commission's Rules, no application will be consolidated for hearing with a previously filed application unless such application is substantially complete and tendered for filing within 60 days after the date of the public notice listing the first of the conflicting applications as accepted for filing. If an application is filed after the 60-day cut-off date, it will be dismissed. As previously indicated, we have determined that no new filing window was opened when the Avant-Garde applications became subject to a minor amendment. Thus, the relevant 60-day cut-off period was triggered when the Avant-Garde applications were placed on public notice on July 6, 1994. The date that Sterman filed his above- referenced applications, October 16, 1995, was well beyond the 60-day period for which competing applications to the Avant-Garde applications could be filed. Accordingly, Sterman's applications are defective because they were untimely filed. Therefore, we dismiss Sterman's applications pursuant to former Section 21.28 (currently Section 1.934(f)) of the Commission's Rules. IV. ORDERING CLAUSES 9. IT IS ORDERED that pursuant to Sections 4(i) and 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(d), and Section 1.939 of the Commission's Rules, 47 C.F.R.  1.939, the petition to deny filed by WinStar Wireless Fiber Corp. on December 1, 1995, IS GRANTED. 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(f) of the Commission's Rules, 47 C.F.R.  1.934(f), the applications filed by Eric Sterman on October 16, 1995, ARE DISMISSED. 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