*Pages 1--6 from Microsoft Word - 19736.doc* Federal Communications Commission DA 99- 368 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Applications of ) File Nos. 9600691- 9600711 ) 9600714- 9600718 PLAINCOM, INC. ) ) to Provide 39 GHz Point- to- Point Microwave Radio ) Service in Various Locations ) ) ORDER Adopted: February 22, 1999 Released: February 23, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. This Order consolidates the disposition of twenty- six petitions to deny (Petitions) filed by WinStar Wireless Fiber Corp. (WinStar), a subsidiary of WinStar Communications, Inc. (WSC) against applications filed by Plaincom, Inc. (Plaincom) for 38.6- 40.0 GHz (39 GHz) point- to- point microwave radio station licenses in Chicago, IL; Atlanta, GA; Boston, MA; Dallas, TX; Cleveland, OH; San Diego, CA; Cincinnati, OH; Washington, DC; Tampa, FL; Tacoma, WA; San Francisco, CA; Buffalo, NY; Denver, CO; Miami, FL; Kansas City, MO; Los Angeles, CA; Houston, TX; Detroit, MI; New York, NY; New York (West); New York (Long Island); Baltimore, MD; Pittsburgh, PA; Phoenix, AZ; St. Paul, MN; and Milwaukee, WI. As discussed in further detail below, we find that the Plaincom applications are defective because they were untimely filed. Consequently, the WinStar Petitions, filed December 1, 1995, are hereby granted and the Plaincom applications are dismissed. II. BACKGROUND 2. On March 4, 1994, WinStar's predecessor in interest, Avant- Garde Telecommunications, Inc. (Avant- Garde), 1 filed applications to modify certain existing licenses in the 39 GHz band. 2 The Avant- 1 Avant- Garde was merged into WinCom Corp., a subsidiary of WSC. WinCom Corp. was the surviving corporation. On July 18, 1995, WinCom Corp. changed its name to WinStar Wireless Fiber Corp. 2 WinStar Application File Nos. 9404165- 9404183, 9404185- 9404188, 9404191, 9404193, 9504885. The Wireless Telecommunications Bureau granted WinStar Application File Nos. 9404165, 9404168, 9404170, 9404172, 9404175, 9404178, 9404183 which were placed on Public Notice on February 10, 1998. See Public Notice, Wireless Telecommunications Bureau Weekly Receipts and Disposals, Report No. 1975 (released February 10, 1998). WinStar Application File No. 9504885 was withdrawn and placed on Public Notice on November 12, 1997. See Public Notice, Wireless Telecommunications Bureau Weekly Receipts and Disposals, Report No. 1962 (released November 12, 1997). 1 Federal Communications Commission DA 99- 368 2 Garde applications were placed on Public Notice on July 6, 1994. 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). In the Transfer Application, WSC asserted that the transfer of control was for legitimate business purposes and would benefit the public. 4 Specifically, WSC noted that the transfer would enable WSC to acquire financial strength and technical expertise and would ultimately: (a) allow the "expansion of [WSC] 's telecommunications operations throughout the United States"; (b) ensure that "advanced technologies are made available to Avant- Garde's current customers" via WSC's "greater access to capital"; and (c) enhance "[ WSC] 's service offerings and the competitiveness of 39 GHz operations." 5 On May 1, 1995, the Transfer Application appeared on Public Notice as accepted for filing. 6 3. On June 26, 1995, the Division's Licensing and Technical Analysis Branch (Branch) granted the Transfer Application. 7 WinCom filed a letter on July 18, 1995, notifying the Commission that the subject merger had been consummated and that WinStar was the surviving corporation. 8 On August 4, 1995, WinStar filed letters (Notification Letters) informing the Commission that, pursuant to the Avant-Garde/ WinStar merger, the subject applications should be amended to specify WinStar as the applicant. 9 WinStar also requested that the Commission either categorize the Notification Letters as minor amendments or exempt them from the "cut- off" provisions of former Section 21.31 10 of the Commission's Rules. 11 The pending Avant- Garde applications appeared on Public Notice on August 16, 1995 (August 16 Public Notice) under WinStar's name. 12 3 Public Notice, Private Radio Bureau Part 21 Receipts and Disposals, Report No. 1090 (July 6, 1994). 4 FCC Application for Consent to Transfer Control of Avant- Garde Telecommunications, Inc. to WinCom Corp., File No. 95- 13155 (30), at Exhibit L. 5 Id. at Exhibit L. 6 Public Notice, Wireless Telecommunications Bureau Part 21 Receipts and Disposals, Report No. 1132 (May 1, 1995). 7 Public Notice, Wireless Telecommunications Bureau Part 21 Receipts and Disposals, Report No. 1142 (July 5, 1995). 8 Letter from Stephen L. Goodman, Esq. to William F. Caton, Acting Secretary, FCC (July 18, 1995). The July 18, 1995 letter also informed the Commission that WinCom Corp. had changed its name to WinStar Wireless Fiber Corp. 9 Amendment to Pending Applications to Specify the Transfer of Control to WinStar Wireless Fiber Corp. (dated Aug. 4, 1995). The Division accepted the amendments for filing in the August 16, 1995 Public Notice, Report No. 1148. 10 Formerly 47 C. F. R. § 21.31; now 47 C. F. R. § 101.45. 11 Although 39 GHz applications are now subject to Section 101 of the Commission's Rules, Section 21 applies to the underlying applications because they were filed prior to July 31, 1996. See 47 C. F. R. § 101.4( a). 12 Public Notice, Wireless Telecommunications Bureau Part 21 Receipts and Disposals, Report No. 1148 (Aug. 16, 1995). 2 Federal Communications Commission DA 99- 368 3 4. On October 16, 1995, Plaincom submitted competing applications against the Avant-Garde/ WinStar applications. On December 1, 1995, WinStar filed Petitions to Deny against Plaincom application nos. 9600691- 9600711 and 9600714- 9600718. 13 III. DISCUSSION 5. WinStar alleges that Plaincom's applications were filed after the sixty day cut- date. Plaincom, however, asserts its applications are timely because WinStar filed a major amendment to its original applications. We find that Plaincom's assertions are devoid of merit. 6. On July 6, 1994, the Avant- Garde applications were first placed on Public Notice as accepted for filing. 14 Former Section 21.31( b) of the Commission's Rules provided that no application will be entitled to be included in a random selection process or to comparative consideration with a previously filed application unless such application is substantially complete and tendered for filing within sixty days after the date of the public notice listing the first of the conflicting applications as accepted for filing. 15 As a result, the 60- day filing window for Plaincom to file competing applications closed on September 5, 1994. However, if Avant- Garde filed a major amendment to its applications, then the applications would be considered "newly filed" as of the date of the release of the Public Notice listing the major amendment to the applications, and a new 60- day filing window for competing applications would be opened. 16 Former Section 21.23( c)( 5) of the Commission's Rules provided that an amendment specifying a substantial change in ownership of an applicant is not a major amendment if the transfer or assignment "is for legitimate business purposes other than the acquisition of applications." 17 7. We disagree with Plaincom's contention that the Notification Letters constitute major amendments to the Avant- Garde applications. The Commission's Rules state that amendments are classified on a case- by- case basis. 18 The August 16 Public Notice listed the subject applications, 13 Plaincom filed a Consolidated Opposition on December 14, 1995. On January 11, 1996, WinStar filed a Consolidated Reply to the Consolidated Opposition. 14 See July 6 Public Notice. 15 Formerly 47 C. F. R. § 21.31( b); now 47 C. F. R. § 101.45. 16 Formerly 47 C. F. R. § 21.23( c), now 47 C. F. R. § 1.927( h). See Airsignal International, Inc., Memorandum Opinion and Order, 81 FCC 2d 472 (1980) (Commission found that while such amendments may be major, they do not open a new filing window if the change in ownership was in the public interest . . . [and] . . . made to effect a legitimate business purpose). 17 Formerly 47 C. F. R. § 21.23( c)( 5), now 47 C. F. R. § 1.927( h). See Bell Atlantic Mobile System, Inc., Order, 10 FCC Rcd 13262 (1995) (Commission permitted amendments to pending point- to- point microwave and cellular applications and granted exemption from cut- off rules); Loral Space & Communication Ltd and Orion Network Systems, Inc., Order, 13 FCC Rcd 4592 (1998) (Commission found that the merger served an independent business purpose, i. e. to strengthen its financial resources, thus exempting from cut- off rules); see also Airsignal International, Inc., Memorandum Opinion and Order, 81 FCC 2d 472 (1980) (Commission granted request for exemption from major amendment and cut- off rules because change in ownership was deemed to be in public interest and made to effect a legitimate business purpose, i. e. providing improved research and technical capabilities). 18 Formerly 47 C. F. R. § 21.23( c); now 47 C. F. R. § 1.927. 3 Federal Communications Commission DA 99- 368 4 reflecting the transfer of control from Avant- Garde to WinStar. 19 While amendments specifying a substantial change in control of an applicant are generally deemed major amendments, 20 in this instance, the Notifications Letters should be deemed minor amendments pursuant to former Section 21.23( c)( 6) of the Commission's Rules. 21 8. Furthermore, the Notification Letters specifically stated that the Transfer Application contained a description of the business purposes for the subject merger, which did not include acquisition of the Avant- Garde applications. 22 Exhibit L to the Transfer Application details those business purposes for the transfer of control. That exhibit explains, inter alia, that the company resulting from the merger will be more competitive, due to the expanded operations of the new entity. 23 Exhibit L also states that Avant- Garde's customers will benefit from the merger because WSC's greater access to financial resources will permit advanced technologies to be provided to those customers. 24 Therefore, we believe that WinStar, in its Transfer Application, made a sufficient business interest showing for a finding that the Notification Letters be deemed minor amendments. 25 Consequently, the August 4, 1995 filing did not initiate a new filing window, and thus Plaincom's competing applications were not timely filed pursuant to former Section 21.31 of the Commission's Rules. 9. Moreover, any assertions made by Plaincom in its Opposition to the Petitions regarding the Transfer Application are untimely and, thus, we will not address the merits of such assertions. We note that Plaincom had an opportunity to address these issues by filing a petition to deny pursuant to applicable Commission Rules when the Transfer Application was first filed. 26 Its failure to timely object to the Transfer Application before it became final renders the objections untimely at this juncture. 27 19 August 16 Public Notice at 1- 7. 20 Formerly 47 C. F. R. § 21.23( c)( 5); now 47 C. F. R. § 1.927( h). See Applications of Tequesta Television, Inc., Memorandum Opinion and Order, 103 FCC 2d 1182 (1986)( Commission found substantial change of controlling ownership, hence application was dismissed); see also Applications of Western California Cellular Partners and MTEL Cellular, Inc., Order, 11 FCC Rcd. 5705 (1996). 21 Public Notice, Wireless Telecommunications Bureau Part 21 Receipts and Disposals, Report No. 1142 (July 5, 1995). 22 Notification Letters at 2. 23 See Exhibit L to the Transfer Application at 1. 24 Id. at 1- 2. 25 Public Notice, Wireless Telecommunications Bureau Part 21 Receipts and Disposals, Report No. 1142 (July 5, 1995). 26 Former 47 C. F. R. § 21.30. See Application of Lawrence Daniels, Memorandum Opinion and Order, 3 FCC Rcd. 7327 (Dec. 29, 1988) (Commission asserts that "the Communications Act clearly provides for public participation in our processes . . . and . . . provides that it is proper to specify an orderly procedure for such participation," noting that the purpose of the cut- off date is to provide for a fair and orderly procedure by which to file petitions to deny). 27 See Amendment of the Commission's Rules to Relocate the Digital Electronic Message Service from the 18 GHz to the 24 GHz Band and to Allocate the 24 GHz Band for Fixed Services, Memorandum Opinion and Order, 13 FCC 4 Federal Communications Commission DA 99- 368 5 III. ORDERING CLAUSES 10. 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) and 309( d), and Section 21.30 of the Commission's Rules, 47 C. F. R. § 21.30, Petitions to Deny filed by WinStar Wireless Fiber Corp. on August 18, 1995 against Plaincom, Inc. Application Nos. 9600691- 9600711 and 9600714- 9600718, ARE HEREBY GRANTED. 11. 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) and 308, and Section 21.28 of the Commission's Rules, 47 C. F. R. § 21.28, that the applications of Plaincom, Inc. filed on October 16, 1995 ARE DISMISSED. 12. 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 Rcd. 15147 (July 17, 1998) (Commission found Petitioner's challenges to license grants to be grossly untimely, where Petitioner filed its petition almost eight months after the last of the initial license grants were made); see also Application of HHT/ Estate of Robert D. Hanna, Memorandum Opinion and Order, 8 FCC Rcd 1582 (March 1, 1993) (Commission denied petition to deny because it was filed six years after the due date prescribed by Section 21.30 of the Commission's Rules). 5 Federal Communications Commission DA 99- 368 6 j:\ sblake\ 39ord2 J. Burton R. Melson 6