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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 ) ) Dallas CUSA Settlement Group, L.C.) ) File No. 10073-CL-P-009-B-93 For new authorization ) to construct DPCRTS ) systems in unserved portions of the ) Dallas, Texas (MSA No. 9B) ) ) ORDER Adopted: June 18, 1999 Released: June 18, 1999 By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. INTRODUCTION 1. This Order grants a Petition to Deny (Petition) filed on April 10, 1995, by Southwestern Bell Mobile Systems, Inc. (SBMS) against the above-captioned application of Dallas CUSA Settlement Group, L.C. (Settlement Group), filed on July 1, 1992, to provide cellular service to an unserved area in the Dallas, Texas Metropolitan Statistical Area (MSA), Market No. 9B (Dallas MSA). SBMS is the General Partner of the Dallas SMSA Limited Partnership, licensee of the Dallas MSA, as well as the General Partner of Texas RSA 6 Limited Partnership, the licensee of Texas Rural Service Area (RSA) No. 6 (Texas RSA 6), which borders on the Dallas MSA. II. BACKGROUND A. Cellular Licensing Rules and Regulations 2. Up to July 16, 1992, a licensee's Cellular Geographic Service Area (CGSA) could be any area within an MSA/RSA defined by a cellular licensee as the area intended to be served. A licensee had to depict each cell site and its respective 39 dB contour within its CGSA. The composite area of the 39 dB contours of all cell sites had to cover at least 75% of the system's total CGSA. As long as the cellular licensee's cell sites provided coverage to at least 75% of its defined CGSA before the expiration of the five-year build-out period, the cellular licensee retained the remainder of the defined CGSA. Consequently, any area within the defined CGSA that did not receive service from a cell site did not become unserved area. The Commission's rules allowed the cellular licensee to construct cell sites to serve this remaining area because it was within the licensee's CGSA. The Commission regarded the CGSA as determining the limits of the cellular system service area for purposes of providing protection to that system. 3. On April 9, 1992, the Commission adopted a new mathematical formula for determining the CGSA of cellular license holders. The Commission replaced the earlier method, in which the licensee delineated its proposed service area by drawing boundaries on maps, with a new mathematical formula, and lowered the required signal strength from 39 dB to 32 dB . This new method of calculation increased the distance to the service area boundary for an individual cell site by an average of 31% and redefined the CGSA as the composite of all the cells in the system, with certain exclusions. The Commission modified the authorizations of existing cellular systems to redefine the boundaries of their CGSAs in accordance with the new signal strength requirements, effective July 16, 1992. The Commission also clarified certain administrative filing details in the Cellular Unserved Area Second Report and Order concerning application filing requirements for cellular unserved areas. The Commission directed licensees in the top 90 markets for which the five year fill-in period had already expired to recalculate their service areas and file System Information Updates (SIU) reflecting those calculations by July 16, 1992. The Commission further stated that it would not accept any unserved area applications until that date. For those cellular licensees whose five-year fill-in period expired on or before September 14, 1992, SIUs were due on July 16, 1992. The date of the window to file applications for authority to construct and operate new cellular systems for unserved areas in these markets would be announced by public notice. 4. On July 10, 1992, the Commission postponed the date for filing SIUs for all licensees, including those whose SIU was due on July 16, 1992. On November 13, 1992, the Commission announced that all licensees whose five-year fill-in period ended on or before March 15, 1993, must submit their SIUs by January 12, 1993. B. Dallas MSA 5. SBMS's five year fill-in period expired on August 26, 1988. At that time, SBMS served 79.1% of its CGSA and claimed the entire Dallas MSA as its CGSA. SBMS also filed an FCC Form 401 application on June 18, 1992 for an additional cell site. All of the new cell sites became operational shortly thereafter. SBMS also submitted FCC Form 489 notifications for five cell sites within its recalculated CGSA prior to the July 16, 1992 date to recalculate CGSAs. SBMS's recalculated CGSA includes the alleged unserved area Settlement Group wishes to serve. On January 11, 1993, SBMS filed its SIU for the Dallas MSA. 6. The Settlement Group was formed to implement a full-market settlement among the nineteen applicants for the unserved areas within the Dallas MSA. It notified the Commercial Wireless Division (Division) of its agreement and the Division accepted the settlement. The Division subsequently designated Settlement Group as the tentative selectee for the unserved area in the Dallas MSA. C. Arguments 7. SBMS alleges that the Settlement Group's unserved area application is defective because the Settlement Group seeks to serve an area that receives service from SBMS. Specifically, SBMS asserts that it covers the area from cell sites located both within the Dallas MSA and the adjacent Texas 6 RSA. It claims that its timely filed SIU map reflected this coverage. Accordingly, SBMS seeks dismissal of Settlement Group's application. Settlement Group argues that because SBMS expanded its coverage within the Dallas MSA after the expiration of the five year fill-in period, SBMS is not lawfully entitled to claim protection against unserved-area filings for SBMS's expanded coverage. Settlement Group alleges the increased coverage resulted from SBMS filing five FCC Form 489 notifications and an FCC Form 401 application between October 1, 1990 and June 18, 1992, well after the expiration of SBMS's five year fill-in period. Settlement Group references SBMS's Form 489 for the Weatherford site as an especially egregious violation of the Commission's rules. Settlement Group alleges that while SBMS filed an FCC Form 489 notification for the Weatherford site on June 11, 1992 -- approximately five weeks before the cut-off date for SIU maps -- the cell site was not completed and operational until August 14, 1992, four weeks after the cut-off date. Settlement Group claims that none of the sites in question (especially the Weatherford site) are entitled to protection as part of SBMS's CGSA. III. DISCUSSION 8. As an initial matter, we must determine SBMS's CGSA because the Commission's rules specifically provide that a licensee's CGSA is entitiled to protection. The Licensing and Technical Analysis Branch's (the Branch) examination of the engineering data and the Commission's records indicates that SBMS serves the alleged unserved area from cell sites located both within the Dallas MSA and within the Texas 6 RSA. SBMS defined its CGSA as the entire Dallas MSA at the end of the five year fill-in period. While SBMS did not provide coverage to the entire CGSA, the Commission's rules only required 75% coverage to receive protection for the entire area. Attachment A to Settlement Group's opposition consists of an engineering report. Page three contains a table indicating that the size of the Dallas MSA is 8,325 square miles. The table also indicates that the composite 39 dB contour of SBMS's system at the end of its five year fill-in period covered 6,587 square miles. This coverage represents 79.1% of the total area of the Dallas MSA. Thus, the information Settlement Group provides in its own report supports SBMS's claim that at the end of its five year fill-in period, SBMS was entitled to claim the entire Dallas MSA as its CGSA. While it is true that the Commission's rules did not permit a cellular licensee to increase its CGSA after the expiration of the five year fill-in period, licensees could add facilities as long as they did not increase the size of their CGSAs. The six cell sites SBMS added were either located within its CGSA or extended into the Dallas MSA from a location in the adjacent Texas 6 RSA. Since SBMS's CGSA was concurrent with the entire Dallas market at the end of the five year fill-in period, the addition of these sites did not increase its CGSA. 9. According to SBMS, the central issue is whether SBMS served the area in question by the July 16, 1992 deadline. SBMS alleges that all that remains unserved in the Dallas MSA is an area of less than sixteen square miles - an area well under the fifty square mile allowance the Commission permits before declaring an area "unserved" for the purpose of our Phase I cellular rules. SBMS attached to its application copies of its FCC Forms 401 and 489 for the cell sites that were either pending or in service by the July 16, 1992, deadline. Settlement Group proposes to construct a cell site providing coverage to an area along the central western border of the Dallas MSA. However, our examination of SBMS's SIU map indicates that the area Settlement Group proposes to serve was already being served by SBMS at the time Settlement Group filed its unserved area application. Coverage from SBMS's Springtown cell site in the Dallas MSA and the Santos and Mineral Wells cell sites located in the adjacent Texas 6 RSA serve the same area proposed by Settlement Group's application. SBMS is the general partner of the Texas RSA 6 Limited Partnership, the Block B licensee in the Texas 6 RSA. Dallas SMSA Limited Partnership, the licensee of the Dallas MSA, previously consented to extensions from the Mineral Wells and Santos sites into their CGSA. Thus, the area was not unserved at the time of the July 16 deadline. 10. Settlement Group refers to five cell sites, including the Weatherford site, for which SBMS filed Form 489 notifications but which Settlement Group claims were not operational as of the date SBMS filed those forms. We disagree. Section 22.9(b) does not require that the sites be actually operating when the Form is mailed to the Commission. The licensee, of course, has the option of commencing operations when it mails the form to us. Here, all filings by SBMS pertaining to these five sites were in full compliance with our rules because section 22.9(d)(6) allows permissive changes to base station facilities provided there is no increase to the reliable service area contour. In this instance, the five cell sites were located within SBMS's CGSA and did not increase SBMS's CGSA as determined at the end of their five year fill-in period. 11. Based upon the authorized cell sites of SBMS at the time Settlement Group filed its application, the only area that remained unserved in the Dallas MSA consisted of approximately sixteen square miles. Section 22.924(a)(1) provides that the minimum unserved area that may be applied for is fifty contiguous square miles. Thus, there is insufficient unserved area for Settlement Group to apply for in the Dallas MSA. We further find that SBMS' filings pertaining to the five sites were in full compliance with the Commission's rules because they did not increase the size of its CGSA. The increase that did occur in SBMS' CGSA resulted from the new formula the Commission imposed in its Cellular Unserved Area Second Report and Order. 12. Finally, Settlement group challenges new rules the Commission adopted reducing the required signal strength from 39 dB to 32 dB , which often reduced the amount of unserved area within a market. The legality of those rules has been upheld by the U.S. Court of Appeals for the D.C. Circuit. IV. CONCLUSION 13. Based upon the pleadings before us, we conclude that we cannot grant the application of the Dallas CUSA Settlement Group, L.C. as there is not fifty contiguous square miles of unserved area in the Dallas MSA. We therefore grant the Petition to Deny filed by Southwestern Bell Mobile Systems, Inc. V. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act, as amended, 47 U.S.C.  154(i) and 309, and Sections 0.331 and 22.130 of the Commission's rules, 47 C.F.R.  0.331 and 22.130, the Petition to Deny filed by Southwestern Bell Mobile Systems on April 10, 1995, IS GRANTED. 15. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act, as amended, 47 U.S.C.  154(i) and 309, and Sections 0.331 and 22.128 of the Commission's rules, 47 C.F.R.  0.331 and 22.128, the application of the DALLAS CUSA Settlement Group, L.C. filed on July 2, 1992 for a new authorization to construct DPCRTS systems in unserved portions of the Dallas, Texas MSA No. 9B, File No. 10073-CL-P-009-B-93, IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION William W. Kunze Deputy Chief, Commercial Wireless Division Wireless Telecommunications Bureau