******************************************************** 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 the Matter of ) ) Fee Nos. 9177648 et al. Cellular Rural Service Area Applications) in Market Nos. 599A and 672A ) ORDER ON RECONSIDERATION Adopted: July 21, 1999 Released: July 21, 1999 By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. By this Order on Reconsideration, we grant the Petitions for Reconsideration filed by Alee Cellular Communications (Alee) and Zephyr Tele-Link (Zephyr) on May 24, 1999 and May 27, 1999, respectively. The petitioners seek reconsideration of the Commercial Wireless Division's (Division) decision dismissing all pending Cellular Radiotelephone Rural Service Area (RSA) applications in Market Nos. 599A -- Nowata, Oklahoma and 672A -- Chambers, Texas. II. BACKGROUND 2. On April 2, 1999, the Division released the Cellular RSA Dismissal Order, dismissing all pending cellular applications in six RSAs in which no cellular licenses had been awarded. The applications in these markets were filed in anticipation of the Commission awarding licenses for these markets by lottery. The Division explained that due to the Balanced Budget Act of 1997, the Commission no longer has authority to use lotteries to select among competing mutually exclusive applicants for initial licenses or construction permits. The Division determined that in the absence of lottery authority, it was in the public interest to dismiss without prejudice pending RSA applications that were filed under our former lottery rules. Finally, the Division concluded that these RSA applicants, having participated in an initial lottery, did not qualify for refunds of their filing fees. On April 29, 1999, the Division dismissed pending cellular applications in RSA Market Nos. 599A -- Nowata, Oklahoma, and 672A -- Chambers, Texas where no initial licenses had been awarded. The Division stated that the reasons for the dismissals were identical to those set forth in the Cellular RSA Dismissal Order. 3. In their petitions for reconsideration, Alee and Zephyr contend that the Division's April 29, 1999 Cellular RSA Dismissal Order fails to take into consideration the cellular relottery on April 8, 1992, in which Alee was picked as the tentative selectee for RSA Market 672A, and Zephyr was selected as the tentative selectee for RSA Market 599A. Both parties point out that the relotteries were conducted more than five years before the enactment of the Balanced Budget Act of 1997, which foreclosed future lotteries. Furthermore, they note that they perfected their cellular applications in compliance with the cellular rules applicable to lottery winners at the time. Alee and Zephyr, therefore, assert that the Bureau should reinstate their cellular applications for RSA Markets Nos. 672A and 599A, because the dismissal of their applications was erroneous. III. DISCUSSION 4. Our review of the record before us reveals that a relottery was conducted on April 8, 1992, Alee won the relottery for Market 672A and Zephyr won the relottery for Market 599A. Public Notice of the relottery winners was given on April 9, 1992. In addition, our records show that Alee and Zephyr both submitted the legal and technical information required by sections 22.923 and 1.65 of the Commission's rules. A Public Notice released on June 12, 1992, listed Alee and Zephyr as the tentative selectees in their respective markets. Our records indicate that petitions to deny were timely filed against both applications and that the applications remain pending. Accordingly, we set aside the April 29, 1999 Cellular Dismissal Order insofar as it dismissed the applications filed by Alee and Zephyr for cellular RSA Market Nos. 672A and 599A, respectively. We therefore return these applications to pending status. IV. ORDERING CLAUSES 5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405, and sections 0.331 and 1.106 of the Commission's rules, 47 C.F.R.  0.331, 1.106, the Petitions for Reconsideration filed by Alee Cellular Communications and Zephyr Tele-Link on May 24, 1999 and May 27, 1999, respectively, ARE GRANTED, to the extent provided for above. 6. IT IS FURTHER ORDERED that cellular applications filed by Alee Cellular Communications (File No. 11025-CL-P-672-A-89) and Zephyr Tele-Link (File No. 11022-CL-P-599-A-89) for RSA Market Nos. 599A and 672A, respectively, ARE REINSTATED NUNC PRO TUNC and returned to a pending status. FEDERAL COMMUNICATIONS COMMISSION Paul D'Ari Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau