Federal Communications Commission
	
DA 99-3020
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of the Application of
PLA[NCOM, INC. FCC File No. 9507560
For Authority to Establish New
Point-to-Point Microwave Facilities
In the 3 8.6-40.0 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 3 8.6-40.0 GHz (39 GI-Iz) band.2
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.3 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.4
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.5 On December 31, 1996, Plaincom filed an amendment,6 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,
'Plaincom Petition for Reconsideration (filed Apr. 26, 1999) (Petition).
2Letter From Mary Schultz, Chief, Licensing and Technical Analysis Branch, to Ed Clinton, President of
Plaincom (Mar. 25, 1999) (Dismissal Letter).
3FCC File No. 9507560. Public Notice, Report No. 1146 (rel. Aug. 2, 1995).
4FCC File No. 9509449. Public Notice, Report No. 1152 (rd. Sept. 13, 1995).
5Amendment of the Commissions Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, Notice of
Proposed Rule Making and Order, ET Docket No. 95-183, 11 FCC Rcd 4930, 4988-4989 ¶ 123 (1995).
6Letter from Kimberly D. Wheeler, counsel for Plaincom, to Mary Schultz, Acting Chief, Microwave
Branch (filed Dec. 31, 1996).
7Letter from Ed Clinton, President of Plaincom, to Mary Schultz, Public Safety and Private Wireless
Division (filed Dec. 4, 1998).
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Federal Communications Commission
	
DA 99-3020
pending mutually exclusive 39 GHz applications.8 On March 25, 1999, the Branch dismissd 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.9
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,
1995.10 Plaincom also argues1 1 that the filing freeze in effect improperly modified or eliminated
Sections 101.2912 and 101.4513 of the Commission's Rules without notice and opportunity for comment
in violation of Section 553 of the Administrative Procedure Act.'4 Plaincom 'S third argument'5 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.'6 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, 1995.17 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,'8 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.
8See Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, Report
and Order and Second Notice ofProposedRulemaking, ET Docket No. 95-183, 12 FCC Rcd 18600, 18641-45 ¶ 87-
97 (1997).
9Dismissal Letter at 1.
°Petition at 5.
1 'Id. at 8.
1247 C.F.R. § 101.29(a).
1347 C.F.R. § 101.45(f)(2).
'4See 5 U.S.C. § 553.
1 5Petition at 11.
'6See 47 U.S.C. § 309(j)(6)(E).
'7See Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands,
Memorandum Opinion and Order, ET Docket No. 95-183, 14 FCC Rcd 12428, 12441-48 ¶ 22-38 (1999).
'81d
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Federal Communications Commission
	
DA 99-3020
5. This action is taken under delegated authority pursuant to Sections 0.13 1 and 0.33 1 of the
Commission's Rules, 47 C.F.R. § 0.13 1, 0.33 1.
FEDERAL COMMUNICATIONS COMMISSION
D'wana R. Terry
Chief, Public Safety and Private Wireless Division
Wireless Telecommunications Bureau
86