Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )
                                )
AirCell, Inc.                   )
Pine Belt Cellular, Inc.        )
                                )
AirCell, Inc.                   )
Tennessee RSA No. 3 Limited Partnership)
                                )
AirCell, Inc.                   )
WESTEX Telecommunications, Inc. )       
                                )
AirCell, Inc.                   )
XIT Cellular                    )
                                )
AirCell, Inc.                   )
ETEX Cellular Co., Inc.         )
                                )
AirCell, Inc.                   )
Cellular Network Partnership    )
                                )
AirCell, Inc.                   )
North Alabama Cellular, LLC     )
                                )
                                )
Petitions for Waiver of the     )
Airborne Cellular Rule          )
                                 
                             ORDER

   Adopted:  July 30, 1999              Released:  July 30, 1999

By the Deputy Chief, Wireless Telecommunications Bureau:


                         I.  INTRODUCTION

     1.   On December 24, 1998, the Wireless Telecommunications Bureau (Bureau) released an
Order granting AirCell, Inc. (AirCell) and certain participating cellular carriers a waiver of section 22.925
of the Commission's rules, subject to certain conditions.  The AirCell Order allows other cellular licensees
that want to participate with AirCell and operate under the terms and conditions of the AirCell Order to file
their own waiver requests.  On February 5, 1999, the Commission received six such requests filed jointly
by AirCell with each of six cellular licensees -- Pine Belt Cellular, Inc., Tennessee RSA No.3 Limited
Partnership, WESTEX Telecommunications, Inc., XIT Cellular, ETEX Cellular Co., Inc., and Cellular
Network Partnership -- and on April 9, 1999, the Commission received such a request filed jointly by AirCell
with North Alabama Cellular, LLC (collectively, Petitioners).  For the reasons expressed below, the Bureau
grants the waiver requests.
 

                         II.  BACKGROUND

     2.   AirCell has developed a system of specially engineered mobile cellular terminals for use
aboard general aviation aircraft.  The AirCell equipment, which includes a modified cellular mobile
telephone and specially designed aircraft antenna, is designed to avoid causing significant interference to
terrestrial cellular systems.  AirCell ground stations are collocated at cellsites of cellular licensees that have
entered into partnership arrangements with AirCell.  Customer traffic from an AirCell mobile telephone is
interconnected with the public switched network through an AirCell partner's cellular switch.
 
     3.   On December 24, 1998, the Bureau granted in part the petition by AirCell and its partners,
as amended, for waiver of section 22.925 of the Commission's rules, which prohibits the airborne use of
cellular telephones.  The waiver authorized certain specific cellular providers to furnish system capacity for
the provision of cellular service on a secondary basis to airborne mobile units utilizing AirCell technology,
and established a number of mandatory conditions and recommended guidelines regarding operation of the
AirCell equipment.  The Bureau stated that AirCell's acceptance of secondary status with respect to the
primary terrestrial operations of cellular licenses was a significant factor in its evaluation.

     4.   On February 5, 1999 and April 9, 1999, Petitioners filed joint waiver requests with AirCell
seeking inclusion and identical treatment with the original cellular licensees.  On March 5, 1999, AirTouch
Communications, Inc., Ameritech, AT&T Wireless Services, Inc., Bell Atlantic Mobile, Inc., BellSouth
Cellular Corporation, GTE Wireless Incorporated, and SBC Wireless, Inc. (collectively, Carriers) filed a
Consolidated Opposition to Petitions for Waiver of the Airborne Cellular Rule (Consolidated Opposition). 
AirCell, the Petitioners and United States Cellular Corporation (USCC) filed separate replies to the
Consolidated Opposition on March 19, 1999.  AirCell filed a Request for Expedited Relief on April 16,
1999.


                         III.  DISCUSSION

     5.   In the AirCell Order, the Bureau specifically waived rule section 22.925 for those cellular
licensees who signed agreements to become participants in the AirCell system and were made parties to the
AirCell proceeding by virtue of AirCell's July 31, 1998 amendment to its petition.  The Bureau stated that
any future cellular licensee seeking to participate in the AirCell system must file with the Commission a
request for waiver, with an attachment stating its intention to participate in the AirCell system.  Further,
the Bureau stated that the attachment must include a statement acknowledging that the licensee agrees to the
terms of the waiver and conditions set forth in the AirCell Order.

     6.   Pursuant to the AirCell Order, each of the Petitioners states that it intends to participate in
the AirCell system, and operate with AirCell mobile units on a secondary basis, in precisely the same manner
as the licensees that have already received waiver authority.  Each Petitioner states that it agrees to the terms
of the AirCell Order, including operation of the AirCell mobile units on a secondary basis pursuant to the
conditions set forth in Appendix A of the AirCell Order.  Further, each Petitioner states that the legal basis
for this waiver is identical to that for the initial AirCell Order.  Each Petitioner also states that the special
or unique circumstances justifying this waiver are identical to those that justified the initial AirCell Order. 
Each Petitioner states that the public interest benefits justifying this waiver are identical to those that justified
the initial AirCell Order.  Finally, we note that in our companion Order on Reconsideration, we clarify
several aspects of the AirCell Order and reduce the notification distance requirement.

     7.   The Carriers make three basic arguments in opposition to the Petitioners' requests.  First,
the Carriers claim there is evidence that AirCell and its existing and proposed cellular partners are violating
the AirCell Order.  Second, the Carriers claim that new waivers cannot be granted because AirCell has filed
a petition for reconsideration of the AirCell Order "strongly objecting to the minimal terms and conditions
that were imposed."  The Carriers argue that AirCell's "challenge" of the AirCell Order constitutes a
rejection of the AirCell Order and the conditional waiver the Order adopts, and that such action on AirCell's
part effectively vacates the AirCell Order and precludes the granting of additional waivers.  Third, the
Carriers claim that the Bureau cannot grant a waiver that is not expressly defined.  The Carriers contend
that the Bureau cannot grant any additional waivers because both AirCell and the Carriers have challenged
the AirCell Order and therefore the terms of the waiver, subject to petitions, would be ambiguous and would
not be fixed until those petitions are resolved at a later date.

     8.   The evidence of alleged violations of the AirCell Order presented by the Carriers is based
largely on the Carriers' claim that "by taking on the licensees' coordination and notification obligations,
AirCell -- a non-licensee -- has taken over all of the responsibility" explicitly given to the licensees and in
violation of the AirCell Order.  AirCell argues, in response, that "[i]t is perfectly appropriate for AirCell
to act as the agent for certain partners in fulfilling the notification and coordination requirements of the
Waiver Order."  We agree with AirCell.  We note that a central contact point for system management and
system/site termination seems reasonable for the AirCell nationwide system.  This delegation of authority
is consistent with the AirCell Order and is not inconsistent with each of the AirCell partners being ultimately
responsible for the operations conducted under their respective cellular licenses and at all times fully
retaining their rights and obligations as Commission licensees.

     9.   In addition, the Carriers contend that AirCell and USCC have not provided the 30-day
advance notification to all systems within 270 kilometers called for by Condition 6 of the AirCell Order. 
In response, AirCell states that either it or its cellular partners issue waiver notifications.  AirCell argues
that the waiver notifications include all of the information required under the AirCell Order and that it uses
special mapping software and the most accurate, publicly-available information to identify all relevant
licensees within 168 miles of each AirCell partner's cellsite.  Also, the Carriers allege that AirCell
intentionally mischaracterized the AirCell Order in certain notifications by claiming that Tennessee RSA
No. 3 (Tenn-3) and Pine Belt Cellular (Pine Belt) waivers were granted by the AirCell Order.  AirCell
responds that it "has issued notification letters on behalf of partners whose waiver petitions are pending" or
the partners have issued notifications themselves.  AirCell states that it issued these "advance notifications"
to "simply provide non-participating carriers with the requisite information while the partners' routine
requests for authority are pending."  Further, AirCell claims that it has "issued supplemental notices on
behalf of these carriers clarifying that their waiver requests are pending and will include such a clarification
in future notifications issued under similar circumstances."  We are not persuaded by these contentions that
AirCell and USCC are ignoring the notification and coordination conditions or that AirCell willfully misled
carriers about the waiver status of Tenn-3 and Pine Belt.  We believe that AirCell and its partners have acted
in good faith to provide all licensees including the Carriers with all necessary and relevant information, and
have acted expeditiously to clear up any minor errors.

     10.  In response to the second argument, that AirCell forfeited the waiver by petitioning for
reconsideration, AirCell contends that the AirCell Order granted only a waiver of Section 22.925, not any
sort of authorization or license to any party.  AirCell contends that the "rule sections on which the
Opponents base their argument that the waiver has been forfeited, however, clearly apply only to
reconsiderations of 'station licenses,' 'authorizations' and 'instruments of authorization.'"  AirCell contends
that the AirCell Order is none of these.  AirCell is correct.  The AirCell Order grants a conditional waiver
to AirCell and its original cellular partners.  We note that the Commission regularly accepts and addresses
petitions for reconsideration of conditional waivers filed by the parties to whom the waiver was granted. 
With regard to the disposition of the petition for reconsideration and the application for review, the
Petitioners will be subject to any modifications to the terms and conditions that the Commission may impose.

     11.  Finally, with regard to the argument that we cannot grant Petitioners' waiver request in light
of the Carriers' outstanding application for review and AirCell's petition for reconsideration, AirCell
responds that "[c]ontrary to the Opponents' characterization of this waiver as 'floating,' the waiver's
parameters and/or conditions are and will at all times be explicitly and concretely established."  AirCell
argues that if the Commission grants the additional waiver petitions during the pendency of AirCell's petition
for reconsideration or the Carriers' application for review, the Petitioners will be subject to the waiver in the
same way, and under the same well-defined conditions, as the initial petitioners.  If those conditions are
modified on reconsideration or review, all waiver petitioners -- both the initial petitioners and the subsequent
petitioners -- will be subject to the same, well-defined, modified conditions.  AirCell further contends that
the AirCell Order explicitly contemplates extending "relatively automatic grants" of waivers to cellular
licensees seeking relief identical to the AirCell Order to allow them to deploy AirCell's air-to-ground cellular
equipment.  AirCell states that the Petitioners and any additional waiver petitioners "seek only to be placed
in the same position as the parties to the original waiver request, i.e., enjoying the benefits of the grant as
currently conditioned and as potentially modified on reconsideration."  We agree with AirCell on this issue. 
The Commission's consideration of the petitions before it regarding the AirCell Order is not germane to the
Bureau's narrow task of disposing of these or other similar waiver requests.  Although the Commission's
ultimate decision certainly may affect the operation of the AirCell system, the Bureau cannot anticipate the
Commission's decision on this matter.  The original cellular participants as well as the Petitioners will be
subject to whatever modification the Commission makes, if any, to the original waiver.

     12.  Because Petitioners have made the showings and commitments required in the AirCell Order
and Carriers have not persuaded us that granting these identical waivers is otherwise contrary to the public
interest, we hereby grant the Petitioners' requests for waiver of section 22.925 of the Commission rules.  We
note that our Order on Reconsideration released today imposes no additional burdens on AirCell or carriers
participating in the AirCell system, and thus there is no reason to believe that any Petitioner would be unable
or unwilling to agree to the terms of the AirCell Order as modified by the Order on Reconsideration.  In light
of this, if any Petitioner is in fact unable or unwilling to comply with those terms, it must reject its individual
waiver grant within 30 days, and we will construe failure to so reject this grant as acceptance of the terms
of the AirCell Order as modified.


                       IV.  ORDERING CLAUSE

     13.  Accordingly, IT IS ORDERED, pursuant to sections 1.3 and 22.119(a) of the Commission's
rules, 47 C.F.R.  1.3, 22.119(a), that the requests of AirCell, Inc., Pine Belt Cellular, Inc., Tennessee RSA
No.3 Limited Partnership, WESTEX Telecommunications, Inc., XIT Cellular, ETEX Cellular Co., Inc.,
Cellular Network Partnership and North Alabama Cellular, LLC for waiver of section 22.925 of the
Commission's rules, 47 C.F.R.  22.925, ARE GRANTED, subject to the terms and conditions set forth in
In re AirCell, Inc., Petition, Pursuant to Section 7 of the Act, for a Waiver of the Airborne Cellular Rule, or,
in the Alternative, for a Declaratory Ruling, Order, 14 FCC Rcd 806 (Wireless Tel. Bur. 1998), as modified
in In re AirCell, Inc., Order on Reconsideration, DA 99-1522 (Wireless Tel. Bur.,  July 30, 1999), and as
those terms and conditions may be subsequently modified or amended.

     14.  This action is taken pursuant to the authority delegated in section 0.331 of the Commission's
rules, 47 C.F.R.  0.331.



                              FEDERAL COMMUNICATIONS COMMISSION




                              James D. Schlichting
                              Deputy Chief, Wireless Telecommunications Bureau