******************************************************** 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 r e ) ) ALASKA RSA NO. 1 GENERAL ) PARTNERSHIP ) ) ) and ) ) File No. CWD 96-11 BRISTOL BAY CELLULAR PARTNERSHIP ) ) Petition for Waiver and Special Relief ) ORDER Adopted: October 15, 1997 Released: October 16, 1997 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION AND BACKGROUND 1. In this order, we grant in part and deny in part a petition for special relief and waiver filed on March 20, 1996, by Alaska Rural Service Area ("RSA") No. 1 General Partnership ("Alaska General Partnership") and Bristol Bay Cellular Partnership ("Bristol") (jointly "Petitioners"). Petitioners, who are cellular licensees in Alaska, seek two types of relief from the Commission. First, petitioners request the establishment of procedures to grant blanket special temporary authority ("STA") or interim operating authority ("IOA") upon the filing of Phase II unserved area applications in the Alaska RSA Nos. 1 and 2 markets. Second, Petitioners seek a waiver of Section 22.317, which provides that any base station which is not operational for a period of 90 continuous days shall be deemed permanently discontinued. For the reasons discussed below, we deny petitioners' request for special relief, but grant the waiver of Section 22.317 of the Commission's rules. 2. Alaska General Partnership is the frequency B block licensee of cellular station KNKN 204 in the Alaska 1 - Wade Hampton RSA. It serves not only the Fairbanks area, but also such isolated areas as Barrow and Prudhoe Bay on the coast of the Arctic Ocean, and Cape Nome and Kotzebue on the Bering Strait. Bristol holds a frequency B block license for cellular station KNKN 287 in a portion of the Alaska 2 - Bethel RSA. It operates cell sites in southwest Alaska, providing service to inland villages, coastal communities and commercial fishing fleets. II. DISCUSSION 3. In support of their requests, petitioners state that the size, sparsity of population, climate and unique economic character of Alaska RSA Nos. 1 and 2 distinguish them from all other cellular markets in the United States. Petitioners contend that Alaska has climatic conditions unlike any other state and that many economic activities are seasonal, temporary, or of short duration. Petitioners have presented a chart of the movements of fishing fleets and corresponding on-shore activity based upon materials obtained from the Alaska Department of Fish and Game. The chart reveals that a number of the fishing seasons are for the duration of one month and, in two instances, for approximately two weeks. Petitioners provide mineral exploration as another example of economic activity of short seasonal duration. Some mineral exploration follows seasonal patterns and occurs in locations where tundra roads may be established only during the winter months to minimize the risk to the environment. Petitioners argue that because demand for service arises and disappears quickly in Alaska, they need more flexible licensing procedures. 4. Petitioners note that the time for filing Phase I applications in the two markets has expired. Although Phase II applications now may be filed, petitioners further contend that even unopposed Phase II applications can take up to 75-90 days to process. Petitioners contend that the grant of IOAs or STAs will enable them to meet fast developing or transient needs for wireless services in Alaska. An IOA is not an appropriate remedy in the situation described by petitioners. IOAs are used in situations where it is evident that applications will not be granted for extend periods of time, normally due to extended litigation. Petitioners have not alleged that this is the case in either market. Therefore, at this time, we will not address petitioners request in the alternative for an IOA. Our rules currently permit carriers to request STAs to operate new or modified equipment in circumstances requiring immediate or temporary use of Public Mobile Services stations. Specifically, Section 22.125(a)(4) of the Commission's rules authorizes the grant of "STA upon a finding that there are extraordinary circumstances requiring operation in the public interest and that delay in the institution of such service would seriously prejudice the public interest." We recognize that it is necessary to account for the unique characteristics of a particular cellular market in making policy. However, we are unpersuaded that the situations petitioners describe warrant a blanket grant of STAs. Petitioners' suggestion that we grant STAs upon the filing of Phase II applications would radically change our licensing system by authorizing STAs without first determining on a case-by-case basis if extraordinary circumstances existed to justify granting STA. Because Section 22.125(a)(4) enables petitioners to file a request for STA when filing its Phase II unserved area applications, we believe petitioners' needs are adequately met. Accordingly, we deny their request for the grant of blanket STAs. 5. In addition to the arguments raised above, petitioners contend that Section 22.317 inhibits the provision of cellular service in remote areas of seasonal commercial activity, such as areas where fishing fleets are active for a month or two each year. Petitioners, therefore, request a waiver of Section 22.317 in order to discontinue cell site operations for up to ten contiguous months by all Alaska RSA Nos. 1 and 2 cellular carriers without forfeiture of authority for the sites. An applicant seeking a waiver of a Commission rule faces a heavy burden. The applicant must demonstrate unique and compelling public interest reasons to justify the waiver, and must also show that the underlying purpose of the rule will not be undermined by granting the waiver. We believe petitioners have met that burden by demonstrating Alaska's unique climatic conditions and the resulting effect of those conditions on commercial activities. While many types of commercial activities throughout the United States are seasonal, the seasonal activities in Alaska are far more extreme. Requiring petitioners to provide service that is not needed at certain times of the year would not serve the public interest. Subscribers almost certainly would pay higher rates to cover unnecessary operating costs. We will, therefore, permit petitioners to discontinue service on those stations where it appears justified, for periods not to exceed ten consecutive months. We will, however, require petitioners to notify the Licensing and Technical Analysis Branch of the Commercial Wireless Division when they intend to discontinue service for periods in excess of 90 days and to further notify the Licensing and Technical Analysis Branch when they intend to resume service. III. CONCLUSION AND ORDERING CLAUSES 6. We find that petitioners have failed to justify their request for the grant of blanket STAs to allow for the immediate offering of service upon the filing of Phase II unserved area applications. Accordingly, we deny their request for special relief. Petitioners have, however, met the required burden in seeking a waiver of Section 22.317 of the Commission's rules. Accordingly, we grant a waiver of that rule to permit discontinuance of service in the Alaska RSA Nos. 1 and 2 for up to ten consecutive months in accordance with the conditions enumerated in Paragraph 6. 7. Accordingly, IT IS ORDERED that pursuant to Section 309(f) of the Communications Act of 1934, as amended, 47 U.S.C.  309(f), and Sections 1.3 and 22.119 of the Commission's rules, 47 C.F.R.  1.3 and 22.119, the request of Alaska RSA No. 1 General Partnership and Bristol Bay Cellular Partnership for special relief filed on March 20, 1996, IS DENIED. 8. IT IS FURTHER ORDERED that pursuant to Sections 1.3 and 22.119 of the Commission's rules, 47 C.F.R.  1.3 and 22.119, the request of Alaska RSA No. 1 General Partnership and Bristol Bay Cellular Partnership for a waiver of 47 C.F.R  22.317 filed on March 20, 1996, IS GRANTED, subject to the conditions set forth above. 9. This action is taken pursuant to delegated authority under Section 0.331 of the Commission's rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phython Chief, Wireless Telecommunications Bureau