******************************************************** 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 re Application of ) ) PENDLETON C. WAUGH ) File No. 10130-CL-P-175-A-94 ) For New Authorization to ) Construct DPCRTS Systems in ) Unserved Portions of the ) ) Santa Cruz, California MSA No. 175A ) ) ORDER Adopted: June 18, 1999 Released: June 18, 1999 By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. INTRODUCTION 1. In this Order, we dismiss the above application of Pendleton C. Waugh (Waugh) seeking authority to construct a new system in the unserved area of the Santa Cruz, California Metropolitan Statistical Area (MSA) No. 175A (Santa Cruz MSA), filed on April 14, 1993. Additionally, we grant the Petition to Deny (Petition) that application filed on March 16, 1995, by Santa Cruz Cellular Telephone, Inc. (Santa Cruz). We further deny a Motion to Strike Reply to Opposition to Petition to Deny (Motion to Strike) filed by Waugh on April 25, 1995. II. BACKGROUND 2. Santa Cruz, the Block A cellular licensee for the Santa Cruz MSA, received a construction permit for its system on March 19, 1987. Consequently, its five-year build-out period for the system expired on March 19, 1992. On the last day of its build-out period, Santa Cruz filed an FCC Form 401 modification application for its system to add a sector to its existing Empire Grade cell site. We granted the modification application on June 22, 1992. This modification increased the coverage of Santa Cruz's cellular system to 98.7% of the Santa Cruz MSA. 3. On August 14, 1993, Waugh filed his application seeking authority to construct a new system in the unserved areas of Santa Cruz, California. On February 10, 1995, we named Waugh the tentative selectee to provide cellular service in the unserved areas of the Santa Cruz MSA. Waugh's application proposes to serve unserved area within the Santa Cruz MSA as well as a portion of the water area extending beyond the Santa Cruz MSA. Following issuance of the public notice announcing Waugh as the tentative selectee, Santa Cruz filed a timely petition to deny. 4. Santa Cruz objects to the grant of Waugh's application because it violates sections 22.902(b)(4)(i) and 22.924(a)(1) of the Commission's rules. Santa Cruz asserts that the application: (a) includes an extension of the proposed 32 dB service contour beyond the Santa Cruz MSA boundaries; (b) fails to propose fifty contiguous square miles of unserved area coverage within the Santa Cruz MSA; and (c) specifies either an incorrect ground elevation or incorrect geographic coordinates for its proposed cell location. Santa Cruz further alleges that there was no unserved area in the Santa Cruz MSA, and that the multiple defects in Waugh's application raise character issues concerning the propriety of filing an application with such serious technical defects. III. DISCUSSION 5. First, Santa Cruz argues that Waugh's proposed 32 dB contour covers only 36.7 square miles of land in the MSA in violation of Commission rules. We agree. The evidence in the record demonstrates that Waugh's application fails to propose coverage of at least fifty contiguous square miles of unserved area in the Santa Cruz MSA. Based upon a review of that evidence, we have determined that more than fifty percent of the area within Waugh's proposed service area contour is already served by a cell site in Santa Cruz's system and that Waugh's proposed cell site is actually located inside the existing contour of Santa Cruz's cellular system. Consequently, Waugh's application violates former section 22.924(a)(1) of the Commission's rules. 6. Second, Santa Cruz states that Waugh's proposed service area extends beyond the MSA boundary and into the ocean area off the coastline. Santa Cruz argues that Waugh's attempt to include a portion of the Pacific Ocean as part of its unserved area is contrary to the Commission's rules and lacks any supporting case precedent. Waugh contends in his Opposition to Petition to Deny (Opposition) filed on April 17, 1995, that although the Commission prohibited unserved area cellular applicants from serving water-only areas, unserved area applications proposing service to both populated and water areas are permitted. Waugh therefore concludes that his proposed extension into the Pacific Ocean did not render his application unacceptable for filing. 7. We conclude that in addition to violating former section 22.924(a)(1) of the Commission's rules because it fails to propose a minimum service area of at least fifty contiguous square miles of unserved area, Waugh's application also violates former section 22.902(b)(4)(i) because it extends beyond the Santa Cruz cellular market. When Waugh filed his application on April 14, 1993, the Commission's rules prohibited Initial Phase I applications from including an extension of the applicant's proposed 32 dB contour beyond the market boundary. Waugh's proposed service area extends beyond the Santa Cruz MSA boundary and includes approximately fifty square miles of ocean area off the coastline outside of the Santa Cruz MSA. Because a portion of its proposed service area lies beyond the Santa Cruz market, Waugh's application is defective. 8. Third, Santa Cruz states that the ground elevation of Waugh's cell location is listed in the application as 161 feet, but argues that the proposed site is actually located between the 80 and 120 foot contour lines in the United States Geological Survey topographic map included as Exhibit VII to the statement of Santa Cruz's consulting engineer. Thus, Santa Cruz argues that either the geographic coordinates or the ground elevation of Waugh's proposed cell location is erroneous. Waugh claims that his error in identifying the ground elevation of the cell site can be cured by a minor amendment under the Commission's rules because it does not affect any contour. We agree. This kind of defect may be cured by a minor amendment. 9. Fourth, Santa Cruz alleges that there was no unserved area in the Santa Cruz market at the time Waugh filed his application. It states that with the granting of its modification request of March 19, 1992, Santa Cruz's cellular system covers over ninety-eight percent of the Santa Cruz MSA, leaving less than six contiguous square miles of unserved area. In his Opposition, Waugh responds that Santa Cruz filed its SIU map twelve days late in violation of section 22.925 of the Commission's rules. Waugh contends that the Commission should not permit Santa Cruz to claim unserved area protection on the basis of an SIU map that it neglected to file within the proper time. Waugh argues that the appropriate remedy for Santa Cruz's carelessness is for the Commission to deem the Santa Cruz system protected against unserved-area applications only to the extent that timely-filed SIU maps indicated that Santa Cruz's Cellular Geographic Service Area (CGSA) extended into the Santa Cruz market. In response, Santa Cruz argues that Waugh's application is so defective that it amounts to an abuse of the Commission's processes, and that he should not be allowed to use the late-filed SIU "as an excuse" for his failure to ensure that the unserved area application covered at least fifty contiguous square miles of unserved area. Moreover, Santa Cruz argues, this coverage information could have been gleaned from the subsequent FCC Form 489 minor modification application Santa Cruz filed on October 28, 1992, and from its SIU filed on March 31, 1993. Santa Cruz alleges that had Waugh conducted thorough pre-filing research as required by the Commission, he would have discovered this information. Accordingly, Santa Cruz argues, Waugh's application not only contains serious technical deficiencies, but also raises a character issue because Waugh filed an application he should have known could not be granted. 10. Former section 22.924(a)(1) of the Commission's rules requires that Phase I unserved area applicants must propose a minimum CGSA of 130 contiguous square kilometers (50 contiguous square miles) within the MSA. The Licensing and Technical Analysis Branch has reviewed Waugh's application and concludes that it fails to meet minimum coverage requirements under section 22.951 because there is no fifty contiguous square mile unserved area in the Santa Cruz MSA. The Santa Cruz MSA consists of approximately 446 square miles. On March 19, 1992, prior to the expiration of the five year build-out period, Santa Cruz filed a major modification to add a sector to its existing Empire Grade cell site. When we granted this application three months later, Santa Cruz's system covered 375.8 square miles of the Santa Cruz MSA. When the Commission adopted new rules in April, 1992, requiring all licensees to convert from 39 dB to 32 dB to calculate their service area contours, Santa Cruz's covered area increased to approximately 98.7 percent of the MSA. This increase in coverage left slightly less than six contiguous square miles of unserved area in the Santa Cruz MSA as of April 14, 1993, the date Waugh filed his application. 11. Santa Cruz filed a Form 489 notification for an additional cell site and a map depicting the coverage resulting from the new site on November 10, 1994. This map reflects Santa Cruz's authorized system as it now stands. Following the change resulting from this latest filing which slightly increased the existing unserved area in the market, Santa Cruz's 32 dBu contour presently covers 96.5 percent of its MSA, leaving only 15.6 square miles not included within its service area. We cannot grant Waugh's unserved area application because it fails to propose at least fifty contiguous square miles and extends beyond the MSA. IV. CONCLUSION 12. Waugh's failure to propose fifty contiguous square miles of unserved area prevents the Commission from granting his unserved area application. V. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 309, the Petition to Deny filed by Santa Cruz Cellular Telephone, Inc. on March 16, 1995, IS GRANTED. 14. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 309, and Sections 0.331 and 22.128(d)(2) of the Commission's Rules, 47 C.F.R.  0.331 and 22.128(d)(2), the application of Pendleton C. Waugh filed on April 14, 1993, for a new authorization to construct DPCRTS systems in unserved portions of the Santa Cruz, California MSA IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William W. Kunze Deputy Chief, Commercial Wireless Division Wireless Telecommunications Bureau