***************************** *************************** 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. ********************************* ******************************** PUBLIC NOTICE Federal Communications Commission 1919 M St., N.W. Washington, D.C. 20554 DA 98-2263 News media information: 202/418-0500 Fax-On-Demand: 202/418-2830 Internet: http://www.fcc.gov ftp.fcc.gov November 6, 1998 Commercial Wireless Division Approves Settlements Between McElroy Electronics Corp. and Neighboring Licensees File Nos. 02909-CL-MP-97, 01942-CL-P2-98, 01943-CL-P2-98, 02033-CL-P2-98 By the Chief, Commercial Wireless Division: On June 10, 1997, McElroy Electronics Corp. ("McElroy"), licensee of Cellular Radiotelephone Service Station KNKR320, filed an FCC Form 600 Phase I major modification application pursuant to section 22.949(a)(3) of the Commission's rules, requesting authority to serve unserved areas of the Minneapolis-St. Paul, MN MSA, Market No. 15A-2, File No. 02909-CL-MP-97 ("Phase I Major Modification Application"). AT&T Wireless Services of Minnesota, Inc., the A block licensee in the Minneapolis-St. Paul, MN MSA, and its affiliate, St. Cloud Cellular Telephone Company, Inc., the A block licensee in the St. Cloud, MN MSA (collectively "AT&T Wireless") timely filed a Petition to Deny McElroy's Phase I Major Modification Application. A separate timely Petition to Dismiss, Deny, or Condition was filed by One Cellular Corporation, the A block licensee in the Wisconsin 1 RSA; C.I.S. of Pine Bluff, Inc., the A1 block licensee in the Minnesota 6 RSA; and Five Cellular Corporation, the A2 block licensee in the Wisconsin 5 RSA (collectively the "Price Affiliates"). Both petitions contended that McElroy had proposed greater than de minimis extensions into the petitioners' markets, and that McElroy's application should therefore be dismissed, denied, conditioned, or "significantly" amended consistent with the Commission's rules regarding such extensions. In its Opposition to the AT&T Petition to Deny, McElroy contended that its extensions were justified and that its application should be granted. While McElroy's Phase I Major Modification Application was pending, McElroy filed a Request to Return Notification and for Other Relief on October 17, 1997 ("Request to Return"), with respect to an FCC Form 489 submitted by AT&T Wireless in connection with the St. Cloud MSA. McElroy contends that the notification is defective under sections 22.124(b)(2) and (3) of the Commission's rules, which state that notifications of actions that violate the Commission's rules or for which an application for authorization is required are defective. AT&T Wireless filed three Phase II applications, File Nos. 01942-CL-P2-98 (March 12, 1998), 01943-CL-P2-98 (March 12, 1998), and 02033-CL-P2-98 (March 19, 1998) ("AT&T Wireless Phase II Applications"). On October 7, 1997, McElroy and the Price Affiliates filed a "Joint Request for Approval of Settlement Agreement" ("Price Affiliates Joint Settlement Agreement"). On August 12, 1998, the Price Affiliates filed a Withdrawal of Petition to Deny and Request for Expedited Approval of "Joint Request for Approval of Settlement Agreement." On July 23, 1998, McElroy and AT&T Wireless filed a "Joint Request for Approval of Settlement Agreement, Dismissal of Petition to Deny, Phase II Applications and Other Pleadings, and Grant of Major Modification Application" ("AT&T Joint Settlement Agreement"). The Commercial Wireless Division ("Division") has reviewed the Petitions to Deny, the Request to Return and associated pleadings, and finds that they raise no substantial or material questions of fact under section 309 of the Communications Act of 1934, as amended. The Division has also reviewed the Joint Settlement Agreements, as well as the declarations of the parties to them. The Division finds that the Joint Settlement Agreements comport with the requirements of section 22.129 of the Commission's rules, assuming that the conditions set forth below are met, and that if these conditions are met, approval of the Joint Settlement Agreements is in the public interest. First, within thirty days of the date of this Public Notice, McElroy must submit new FCC Form 600 Schedule Cs with the radial responses for Item C20, and the Service Area Boundary ("SAB") distances calculated in accordance with 47 C.F.R.  22.911(a). Second, McElroy will claim no Cellular Geographic Service Area ("CGSA") outside the market boundary for the Minneapolis/St. Paul MN MSA Market No. 15A-2 without filing for the appropriate authorization. Third, for those bordering markets that are in Phase II, if McElroy desires to claim any area of the SAB overlap into those markets as CGSA it must file a Phase II application; for those bordering markets that are currently in or will in the future enter their five year build-out period, if McElroy desires to claim any area of the SAB overlap into those markets as CGSA it must file the appropriate Phase I or System Information Update map (SIU) at the permitted time. Fourth, for those bordering markets that are in Phase II, if the locations that are being granted have an SAB that overlaps the CGSA of any system in those markets, McElroy must obtain written consent from the licensee of the system allowing the SAB to remain. If written consent cannot be obtained, then McElroy must reduce the transmitting power or antenna height (or both) at the pertinent cell site as necessary to remove the SAB from the CGSA of the other system. Fifth, for those bordering markets that are currently in their five year build-out period, or will enter their five year build-out period in the future, McElroy may continue to operate those facilities that produce an SAB overlapping a subsequently authorized or existing portion of the CGSA of another cellular system until the licensee of that system requests that the SAB be removed from its CGSA. In the event such a request is made, McElroy must reduce the transmitting power or antenna height (or both) at the pertinent cell site as necessary to remove the SAB from the CGSA of the other system, unless a written consent is obtained from the licensee of the other system allowing the SAB to remain. Accordingly, the Joint Settlement Agreement filed by McElroy and the Price Affiliates on October 7, 1997, and the Joint Settlement Agreement filed by McElroy and AT&T Wireless on July 23, 1998, are hereby approved with the foregoing conditions. In addition, the Price Affiliates' Withdrawal of Petition to Deny is granted, and AT&T Wireless's Petition to Deny and the Price Affiliates' Petition to Deny are dismissed consistent with these conditions. McElroy's Request to Return is dismissed, and all other pleadings associated with this case are dismissed. Further, AT&T Wireless's Phase II applications (File Nos. 01942-CL-P2-98, 01943-CL-P2-98, and 02033-CL-P2-98) are also dismissed, and McElroy's Phase I Major Modification Application (File No. 02909-CL-MP-97) is granted consistent with the foregoing conditions, effective on the date of this Public Notice.