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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 re Application of ) File Nos. 02601-CL-CP-95 ) 02618-CL-CP-95 EASTERN AIRWAVES, L.L.C. ) 02619-CL-CP-95 ) For A Phase II Cellular Unserved Area ) Authorization in the Nevada 5 White Pine ) Rural Service Area ) Market No. 547B ) ) ) In re Application of ) ) 02616-CL-CP-95 EASTERN AIRWAVES, L.L.C. ) 02617-CL-CP-95 ) For A Phase II Cellular Unserved Area ) Authorization in the Nevada 4 Mineral ) Rural Service Area ) Market No. 546B ) ) ) ) In re Application of ) 02596-CL-CP-95 ) 02597-CL-CP-95 DESERT MOBILE, L.L.C. ) ) For A Phase II Cellular Unserved Area ) Authorization in the Nevada 5 White Pine ) Rural Service Area ) Market No. 547B ) ) ) In re ) 06048-CL-MP-94 ) AIR TOUCH CELLULAR ) ) For Order to Show Cause for Revocation of Its ) Authorization for the Wireline Cellular Telephone ) System in the Nevada 5 White Pine Service Area ) Market No. 547B ) ORDER Adopted: June 14, 1999 Released: June 14, 1999 By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. Before us are the following three petitions to deny filed by AirTouch Cellular ("AirTouch") on March 13, 1995: (1) a petition to deny three Phase II Cellular Unserved Area Applications filed by Eastern Airwaves, L.L.C. ("Eastern") in the Nevada 5 White Pine Rural Service Area ("RSA") Market No. 547B; (2) a petition to deny two Phase II Cellular Unserved Area Applications filed by Eastern in the Nevada 4 Mineral RSA Market No. 546B; and (3) a petition to deny two Phase II Cellular Unserved Area Applications filed by Desert Mobile, L.L.C. ("Desert") in the Nevada 5 White Pine RSA Market No. 547B. All of these applications were filed on December 30, 1994. For the reasons discussed below, we grant AirTouch's petitions and dismiss the applications of Eastern and Desert. 2. Also before us is Desert's Petition to Revoke Improperly Granted Authorization ("Revocation Petition"), to set for revocation AirTouch's authorization for the wireline cellular telephone system in the Nevada 5 White Pine RSA Market No. 547B. As explained below, we dismiss this petition because the issues raised therein are moot. II. BACKGROUND 3. In 1988, the Commission adopted a "five-year fill-in period" after the grant of the first construction permit in each RSA, which permitted RSA licensees to file applications to expand their original Cellular Geographic Service Area (CGSA) without being subject to competing applications for unserved areas within their RSAs. The Commission adopted this rule in order to give licensees time to identify unpredicted demand outside the CGSA or other changing demand patterns that might require CGSA expansion and to avoid the regulatory delay that competing applications could create. 4. At the time the Commission adopted this five-year fill-in period, it also required RSA licensees to file a Form 401 application and receive prior Commission approval for any expansion of a CGSA. If an RSA licensee filed a Form 401 in order to expand its CGSA, no other party was permitted to file a competing application while the RSA licensee's Form 401 was pending. In 1994, the Commission eliminated the requirement that an RSA licensee always obtain prior Commission approval for expanding its CGSA by filing an FCC Form 401 application. Instead, for any "permissive changes," a licensee was merely required to notify the Commission following the completion of construction by filing an FCC Form 489. Moreover, the licensee was permitted to commence service on the day the Form 489 was postmarked. Section 22.9(d) of the Commission's rules defined "permissive changes" to include (1) a request to change or add an additional radio frequency, (2) a change to or addition of a cell site provided that the CGSA is unchanged, and (3) a change to or addition of a cell site during the five-year fill-in period, provided that the service area boundary, determined in accordance with section 22.903(a), does not extend outside the RSA, except pursuant to an agreement with an incumbent licensee. 5. This order addresses a number of applications and petitions, which together raise the issue of whether, after this rule change, an RSA licensee was still permitted to seek prior Commission approval for "permissive changes" by filing an FCC Form 401. Nevada 5 RSA On August 1, 1994, AirTouch filed an FCC Form 401 application (File No. 06048-CL-MP-94) in lieu of an FCC Form 489 in order to obtain authority to add six cell sites to its CGSA in the Nevada 5 White Pine RSA Market No. 547B ("Nevada 5 RSA"). Five of the cell sites were located within the Nevada 5 RSA boundary and one extended beyond the Nevada 5 RSA boundary with consent from the licensee in that RSA. The Commission granted the application on October 14, 1994. The grant occurred just four days prior to the expiration of the five-year fill-in period for the Nevada 5 RSA. On December 30, 1994, Desert filed a petition to deny AirTouch's application and submitted two of its own applications for serving a portion of the unserved areas in the Nevada 5 RSA (File Nos. 02596 and 02597-CL-CP-95). On January 12, 1995, AirTouch submitted a letter to the Commission noting that Desert had filed its petition to deny after grant of AirTouch's Form 401 application. Stating that it was not aware of the grant of the application, Desert subsequently "correct[ed] the procedural error" by filing its revocation petition and withdrawing its petition to deny. On December 30, 1994, Eastern filed three Phase II unserved area applications for authority to construct new cellular facilities in the Nevada 5 RSA (File Nos. 02601, 02618, and 02619-CL-CP-95). On March 13, 1995, AirTouch filed the petitions before us to deny the applications filed by Eastern and Desert. On March 27, 1995, Eastern and Desert each filed an opposition to the petitions to deny filed by AirTouch. AirTouch replied to these oppositions on April 6, 1995. Then, in a letter dated September 8, 1995, AirTouch informed the Commission that it no longer intended to construct and operate the six new cell sites authorized by the Commission on October 14, 1994. Nevada 4 RSA On August 15, 1994, AirTouch, through its partner, Mineral RSA Limited Partnership ("Mineral"), also filed an FCC Form 401 application (File No. 06477-CL-MP-94), seeking authority to expand its CGSA in the Nevada 4 Mineral RSA Market No. 546B ("Nevada 4 RSA"). That application remains pending. The Nevada 4 RSA's five year fill-in period expired on October 18, 1994. Eastern filed two Phase II applications (File Nos. 02616 and 02617-CL-CP-95) in the Nevada 4 RSA on December 30, 1994. On March 13, 1995, AirTouch filed a petition, which is before us now, to deny Eastern's applications. On March 27, 1995, Eastern filed an opposition to the petition to deny filed by AirTouch. AirTouch filed a reply to the opposition on April 6, 1995. 6. Eastern and Desert allege in their oppositions that AirTouch, alone and through its partner Mineral, was not permitted to use an FCC Form 401 application to expand its CGSAs after the Commission eliminated this requirement in 1994. According to Eastern and Desert, AirTouch was required to complete the construction necessary to implement the extension of its CGSAs and notify the Commission through filing FCC Form 489s prior to the expiration of the five-year fill-in period. Eastern and Desert argue that AirTouch improperly used its FCC Form 401 applications in an attempt to extend the five-year fill-in period for the two RSAs beyond the October 18, 1994 deadline, thereby precluding other potential unserved area applicants from filing applications for that market for an additional period of time. They argue that AirTouch "effectively warehoused the right to serve" the areas listed in the Eastern and Desert applications. IV. DISCUSSION 7. Contrary to the argument propounded by Eastern and Desert, we find that AirTouch and Mineral were not in violation of the Commission's rules when they sought prior Commission approval to add new cell sites to their RSAs by filing FCC Form 401 applications. Pursuant to the Commission's rules in effect on the date that AirTouch and Mineral filed the Form 401 applications, their requested cell site additions qualified as "permissive" changes under section 22.9(d)(7)(iii) of the Commission's rules. 47 C.F.R.  22.9(d)(7)(iii). Consequently, section 22.9(d) of the rules did not require AirTouch or Mineral to receive prior authorization, through the filing of a Form 401 application, for each cell site addition or modification during the five-year fill- in period. They could have elected to construct these cell sites without prior authorization and to notify the Commission that these cell sites had been constructed by filing an FCC Form 489 for each site. Nonetheless, these licensees were not prohibited from seeking prior authorization through the filing of a Form 401. In this instance, we find that AirTouch and Mineral reasonably sought prior Commission approval to serve these areas by filing FCC Form 401 applications. 8. Because we find that AirTouch and Mineral were permitted to file FCC Form 401 applications in order to request the cell site changes discussed above, we also reject the argument presented by Eastern and Desert that AirTouch and Mineral were required to complete construction by the end of the five year fill-in period. Given that AirTouch and Mineral elected to file FCC Form 401 applications, competing applications could not be filed by other parties, provided that AirTouch and Mineral filed their applications before both five- year fill-in periods expired. 9. Accordingly, with regard to the Nevada 5 RSA, we find that AirTouch validly filed, and received authorization, to add new cell sites to its CGSA. As a result, Eastern and Desert's applications were defective since the service areas requested in their applications were already granted to AirTouch and, thus, not available to unserved area applicants. We will, therefore, grant the petitions to deny filed by AirTouch and dismiss the three Phase II unserved area applications filed by Eastern in the Nevada 5 RSA (File Nos. 02601, 02618, and 02619-CL-CP-95), as well as the two unserved area applications filed by Desert (File Nos. 02596 and 02597- CL-CP-95). Because AirTouch did not construct in this unserved area before the 12-month deadline, however, Eastern and Desert, as well any other interested parties, are now free to file a Phase II unserved area application for any unserved area in the Nevada 5 RSA. Because we conclude that AirTouch fully complied with our rules and we therefore grant its petitions to deny, we also dismiss, as moot, the revocation petition filed by Desert on January 26, 1995. 10. In addition, we find that Mineral was permitted to file an FCC Form 401 application in order to expand its CGSA in the Nevada 4 RSA. Accordingly, parties were not free to file competing applications against Mineral, as the incumbent licensee, so long as its application was filed prior to the expiration of the five-year fill-in period. Since Mineral's application, which was filed prior to the expiration of the five-year fill-period, was pending at the time Eastern filed its applications, we will grant AirTouch's petition to deny Eastern's applications filed in the Nevada 4 RSA, File Nos. 02616 and 02617-CL-CP-95, and dismiss such applications. Furthermore, because we find that it would serve the public interest, convenience and necessity, we hereby grant the pending 401 application filed by Mineral requesting authorization to expand its CGSA in the Nevada 4 RSA. V. CONCLUSIONS 11. We find that, pursuant to former Section 22.9 of the Commission's rules, AirTouch was not in violation of the Commission's rules by filing an FCC Form 401 application, seeking authorization for its proposed cell sites. Accordingly, because AirTouch had received valid authorization to construct cell sites at the time that Eastern and Desert filed Phase II unserved area applications, we grant the petitions to deny filed by Airtouch and dismiss the applications filed by Eastern and Desert in the Nevada 5 RSA as well as the revocation petition filed by Desert. In addition, because AirTouch had a valid application pending at the time that Eastern filed its applications in the Nevada 4 RSA, we also grant AirTouch's petition to deny Eastern's applications and dismiss such applications in the Nevada 4 RSA. Finally, we also grant Mineral's Form 401 application seeking authorization to expand its CGSA in the Nevada 4 RSA. VI. ORDERING CLAUSES 12. Accordingly, IT IS ORDERED that, pursuant to section 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d), and sections 0.331 and 22.130 of the Commission's rules, 47 C.F.R.  0.331, 22.130, the Petition to Deny Eastern Airwave, L.L.C.'s applications, File Nos. 02616-CL-CP-95 and 02617-CL-CP-95, filed by AirTouch Cellular on March 13, 1995 IS GRANTED. IT IS FURTHER ORDERED THAT the Petitions to Deny Eastern Airwave, L.L.C.'s applications, File Nos. 02601-CL-CP-95, 02618-CL-CP-95, and 02619-CL-CP-95, and Desert Mobile, L.L.C.'s applications, File Nos. 02596-CL-CP- 95 and 02597-CL-CP-95, filed by AirTouch Cellular on March 13, 1995 ARE GRANTED. 13. IT IS FURTHER ORDERED that, pursuant to sections 4(j) and 312(a) of the Communications Act of 1934, as amended, 47 U.S.C.  154(j) and 312(a), and section 0.331 of the Commission's rules, 47 C.F.R.  0.331, the Petition to Revoke Improperly Granted Authorization filed by Desert Mobile L.L.C. on January 26, 1995 IS DISMISSED AS MOOT. 14. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309(a) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 309(a), and sections 0.331 and 22.128(d)(2) of the Commission's rules, 47 C.F.R.  0.331, 22.128(d)(2), the unserved area applications filed by Desert Mobile L.L.C. and Eastern Airwaves, L.L.C, on December 30, 1994 for the areas protected by our grant of the applications of AirTouch ARE DISMISSED. 15. IT IS FURTHER ORDERED that, pursuant to sections 4(i), 303(f), 309(a), and 319(a) and (b) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(f), 309(a), 319(a) and (b), and section 0.331 of the Commission's rules, 47 C.F.R. 0.331, the application for authority to modify the license serving the Nevada 4 - Mineral RSA (Market No. 546B), File No. 06477-CL-MP-94, filed by Mineral, IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Paul D'Ari Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau