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FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
Bachow/Coastel, L.L.C., )
v. ) File No. WB/ENF-F-98-
GTE Wireless of the South, )
ORDER ON REVIEW
Adopted: February 14, 2001 Released: February 22, 2001
By the Commission:
In this order, we affirm a February 29, 2000, Order of
the Enforcement Bureau that ruled GTE Wireless of the South, Inc.
(``GTE'') had violated our regulations by having the service area
boundaries (``SABs'') of three cellular towers overlap the cellular
geographic service area (``CGSA'') licensed to Bachow/Coastel
L.L.C. (``Bachow'') in the Gulf of Mexico.1 We also affirm the
Bureau Order's ruling that directed GTE to modify the signal
strength of these cell sites to eliminate the unlawful SAB
extensions. Therefore, we deny the Application for Review that GTE
filed on March 16, 2000.
While GTE disputes the Enforcement Bureau's
interpretation of various portions of the record, GTE has not
persuaded us that the Bureau erred in its findings that Sand Island
does not extend the southern boundary of GTE's CGSA and that GTE's
CGSA does not extend beyond the ``coastline'' into the Gulf of
Mexico CGSA. Accordingly, we adopt the reasoning of the Bureau
Order and incorporate the same here, with the additional comments
GTE asserts that the U.S. Supreme Court issued a
settlement decree between the United States and Alabama ``for the
purpose of determining the Submerged Lands Act grant to the State
of Alabama''2 that delineated the contours of the Alabama coastline
to include Sand Island. Furthermore, GTE avers that the State of
Alabama itself claims that Sand Island falls on the Alabama side of
``the border dividing the area over which Alabama controls the
mineral and mining rights and the area over which the federal
government controls the mineral and mining rights.''3 GTE contends
that the Enforcement Bureau ignored those findings and argues that
Alabama's borders, thus defined by the Supreme Court and the State
of Alabama, should also establish the boundary between the parties'
respective CGSAs. We disagree. The Commission has previously
established that the service area boundary for the Gulf of Mexico
is at the coastline.4 Evidence as to the borders of the State of
Alabama or the grants that Alabama receives under Submerged Land
Act proceedings, therefore, while instructive, are not dispositive
to our determination of this issue. Furthermore, in the case upon
which GTE relies, the Supreme Court granted a jointly filed
supplemental decree to set the baseline for determining the
Submerged Lands Act grant to the State of Alabama. The Court did
not apply the definition of ``coastline'' when it accepted the
settlement.5 Therefore, given our conclusion that the appropriate
CGSA demarcation is the ``coastline'' as defined by the Commission,
we find that the Bureau correctly applied the Commission's
standards in establishing the boundary between GTE's CGSA and
In PetroCom, as referenced above, the Commission affirmed
a Common Carrier decision to utilize previously developed
definitions of ``coastline'' and ``inland waters'' in establishing
the geographic limitations for the Gulf of Mexico cellular
licenses.7 Accordingly, the Commission defines ``coastline'' as
``the line of ordinary low water along that portion of the coast
which is in direct contact with the open sea and the line marking
the seaward limit of inland waters'' and ``inland waters'' to
include ``bays, historic inland waters, and waters circumscribed by
a fringe of islands within the immediate vicinity of the
shoreline.'' Thus in order for the Commission to extend GTE's
Mobile, Alabama CGSA, we must conclude that a bay, historic inland
water, or fringe islands constitutes part of the Alabama coastline
south of Dauphin Island and Mobile Point.
GTE asserts that Sand Island is an island that forms part
of the Alabama coastline. However, whether Sand Island is an
island to be considered part of the coastline depends on whether it
is submerged at high tide.8 GTE argues that the Enforcement Bureau
should have relied on a 1982 U.S. Geological Survey (``USGS'') map,
instead of the 1970 USGS map cited in the Bureau Order.9 Based on
our review of the record, we agree that the 1970 map is not the
most recent evidence in the record. Neither, however, is the 1982
map. The record also contains a 1997 map from National Oceanic and
Atmospheric Administration. This most recent map indicates that
Sand Island is submerged even at low tide and, thus, is not an
``island'' which could constitute an island for the purpose of
establishing the coastline.10 In addition, we take judicial notice
of a photograph taken by the U.S. Geological Survey on July 17,
1996, which also indicates that Sand Island is below water at high
tide.11 In light of the most recent map and the photograph, we
agree with the Bureau's conclusion that Sand Island is not an
island that can be used to establish the Alabama coastline and,
thus, Sand Island does not extend GTE's CGSA.12
Alternatively, GTE argues that the Commission should use
an island with a lighthouse on it, located even farther from the
mainland than Sand Island, to draw the border between the Bachow
CGSA and the GTE CGSA. GTE states that even though the lighthouse
island is submerged at high tide, ``the coastline may be drawn to
include the lighthouse island.''13 GTE asserts that Article 4 of
the Convention on the Territorial Sea and the Contiguous Zone
permits these coastline determinations to be made with low-tide
elevations (i.e., portions of land that are submerged at high tide
but exposed at low tide) when ``lighthouses or similar
installations which are permanently above sea level have been built
on them.''14 Indeed, we acknowledge that the Convention may, as a
matter of international law, give this Commission the latitude to
use the lighthouse island when determining the coastline boundary
between Bachow's CGSA and GTE's CGSA. GTE, however, fails to
demonstrate that the Commission must use the lighthouse island to
draw the coastline for the purpose of determining the boundary
between Bachow's CGSA and GTE's CGSA and we decline to do so. In
particular, lighthouses can come and go for a variety of reasons,
especially one located on an island that is submerged at high tide.
Because we believe that CGSA boundaries should be as stable as
possible, we conclude, therefore, that the lighthouse island is not
an appropriate landmark to draw the boundary between Bachow's CGSA
and GTE's CGSA.
As another alternative, GTE contends that the lighthouse
island, Sand Island, and a third island circumscribe ``inland
waters'' (i.e., Pelican Bay) that results in all three islands
becoming part of the Alabama coastline.15 GTE proffers four
methods for determining when a body of water constitutes inland
waters: ``(1) if the waters are circumscribed by a fringe of
islands within the immediate vicinity of the shoreline; (2) if the
body of water is on the landward side of a baseline establishing
the coastline; (3) if the body of water constitutes a historic bay;
and (4) if the body of water constitutes a juridical bay.''16 Even
giving wide latitude to GTE's argument regarding inland waters, we
conclude that the geographic features of Pelican Bay do not provide
the stability licensees require for their CGSA boundaries. Because
Sand Island and the lighthouse island have already been determined
not to be islands for purposes of determining the coastline, GTE
cannot viably contend that they constitute fringe islands for
establishing inland waters. Likewise, GTE cannot prevail under its
second rationale that Pelican Bay is on the landward side of a
baseline establishing the coastline and is thus an inland water,
because GTE draws its coastline baseline through Sand Island and
the lighthouse island which we have already concluded are
insufficient themselves to be considered part of the coastline.
GTE's third and fourth arguments are that this particular body of
water constitutes a juridical or historic bay and is consequently
an inland water that forms part of the coastline. Article 7 of the
Convention defines a juridical bay as ``a well-marked indentation
whose penetration is in such proportion to the width of its mouth
as to contain landlocked waters and constitute more than a mere
curvature of the coast.''17 Given that Pelican Bay extends outward
into the Gulf of Mexico south of Dauphin Island and Mobile Point
and is not landlocked on any side, we cannot conclude that it
satisfies the definition of juridical bay. While the Convention
did not define the term ``historic bay,'' as noted by GTE, the
Supreme Court did consider the issue in United States v.
Louisiana.18 The Supreme Court there, however, did not reach the
threshold question of ``how unlike a juridical bay a body of water
can be and still qualify as a historic bay.''19 Although the
Supreme Court stated that a ``historic bay need not conform to the
geographic tests for a juridical bay,'' it also concluded that the
body of water at issue in that case closely resembled one.20 In
this matter, however, we find that the configuration of Pelican Bay
is sufficiently dissimilar to a juridical bay to not constitute a
bay at all. The determination of whether Pelican Bay constitutes
an historical bay allows the Commission to consider factors such as
the geographic configuration of the islands that potentially frame
the inland waters. As we have already described, the geographic
configuration of Pelican Bay does not have sufficiently stable
features to warrant their use in this determination. Thus, we
reiterate that the discretion to adopt a different standard for
determining the coastline boundary between Bachow's CGSA and GTE's
CGSA does not require us to do so. We find that the Bureau's
decision to base its coastline determination on stable geographical
features, as described above and in the Bureau Order, was
appropriate for the purposes of determining CGSA boundaries.
Finally, GTE contends that the Bureau failed to address
the argument that the Commission had authorized GTE to extend its
CGSA into the Gulf of Mexico when the Commission approved the Gulf
Shores cell site in September 1987. While we agree that the Bureau
did not directly address this issue in the Bureau Order, we believe
that the crux of the Bureau Order and the regulations promulgated
by this Commission refutes the notion that two licensees may have
overlapping CGSAs.21 As discussed in the Bureau Order, the Bachow
CGSA is currently defined as coterminous with the entire Gulf of
Mexico Metropolitan Statistical Area (``GMSA'').22 In fact, GTE
even admitted in its answer that ``under FCC's current Rules, the
entire GMSA is the CGSA of Complainant.''23 In any event, our
review of the record indicates that GTE has not adequately
supported its assertion that its CGSA was, in fact, authorized into
the Gulf of Mexico prior to the establishment of the GMSA.
To support its assertion, GTE mainly relies on a Gulf
Shores contour map from a July 2, 1987, Form 489 minor modification
application that allegedly depicts GTE's authorized CGSA as
extending into the Gulf. This 1987 map, however, depicts a
different CGSA boundary than the one initially presented to the
Commission in the Foley cell site construction permit application
on March 8, 1983.24 GTE outlines the circumstances that caused the
Foley cell site to evolve into the Gulf Shores cell site with
various Form 401 and 489 applications for the two sites. GTE does
not, however, include any maps with these applications, let alone a
map that could demonstrate possible changes in the location of cell
site contour or the CGSA boundary associated with moving the cell
site location from Foley to Gulf Shores.25 Standing alone, the
uncorroborated 1987 map does not offer a complete picture as to the
CGSA boundary. Thus, we find that GTE has not adequately supported
its assertion that its CGSA extends into the Gulf of Mexico.
Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i),
4(j), and 208 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 151, 154(i), 154(j), 208, that the Application for Review
filed by GTE IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
1 See Bachow/Coastel, L.L.C. v. GTE Wireless of the South, Inc.,
Order, DA 00-420 (rel. Feb. 29, 2000) (``Bureau Order'').
2 See United States v. Louisiana, 507 U.S. 7, 9 (1993).
3 See GTE Application for Review at 13, Mar. 16, 2000.
4 See In re Applications of Petroleum Communications, Inc., and
Gulf Cellular Associates, 1 FCC Rcd. 511, ¶ 5 (rel. Nov. 7, 1986)
5 See United States v. Louisiana, 507 U.S. at 7-9.
6 See Bureau Order at ¶¶ 3, 12.
7 See PetroCom at ¶¶ 16-17 (relying on Supreme Court precedent
in United States v. Louisiana, 363 U.S. 1, 66-67, n.108 (1960).
That case involved both the Submerged Lands Act and the Convention
on the Territorial Sea and the Contiguous Zone. See Submerged
Lands Act, 43 U.S.C. §§ 1301-1364; see also Convention on the
Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 10(1),
15 U.S.T. 1606, 516 U.N.T.S. 205). See also United States v.
Louisiana, 470 U.S. 93 (1985), part of the line of cases arising
from the original ruling by the Supreme Court in 1960.
8 See Convention on the Territorial Sea and the Contiguous Zone,
Apr. 29, 1958, art. 10(1), 15 U.S.T. 1606, 516 U.N.T.S. 205 (the
term ``island'' is defined as ``a naturally formed area of land,
surrounded by water, which is above water at high tide''). See
also Bureau Order at ¶ 12.
9 See Bureau Order at ¶ 12.
10 See Bachow Legal Brief on Requested Issues, Exhibit U,
Reproductions of Portions of December 1997 Map Distributed by
National Oceanographic and Atmospheric Administration, Oct. 5,
11 See Aerial Photograph, United States Geological Survey, July
17, 1996. See also 47 C.F.R. § 1.361; see also FED. R. EVID. 201.
12 See Bureau Order at ¶ 12. The fact that Sand Island is now
submerged at high tide further underscores the need for the
Commission to base its CGSA boundaries on land masses not so
readily subject to change.
13 GTE Application for Review at 8. While GTE argues that the
lighthouse island is above the high-water mark in 1981, it has not
convincingly demonstrated that such is the case today. Given the
more recent map and photograph of Sand Island referenced above, we
are not persuaded that anything except the lighthouse itself is
above the high-water mark.
14 Id. (quoting Convention on the Territorial Sea and the
Contiguous Zone, Apr. 29, 1958, art. 4(3), 15 U.S.T. 1606, 516
15 This third island is Pelican Island. Bachow does not contest
whether Pelican Island is an ``island.''
16 GTE Application for Review at 9.
17 Convention on the Territorial Sea and the Contiguous Zone,
Apr. 29, 1958, art. 7, 15 U.S.T. 1606, 516 U.N.T.S. 205 (emphasis
18 See United States v. Louisiana, 470 U.S. 93, 102 (1985).
19 Id. at 102, n.2.
21 See 47 C.F.R. §§ 22.911(d), 22.912.
22 See Bureau Order at ¶ 5. The Bureau's decision was based on
the current rules governing licensing of cellular service in the
Gulf of Mexico. We note that in a pending rulemaking proceeding,
the Commission has proposed certain prospective modifications to
these rules. See Cellular Service and Other Commercial Mobile
Radio Services in the Gulf of Mexico, WT Docket No. 97-112,
Amendment of Part 22 of the Commission's Rules to Provide for
Filing and Processing of Applications for Unserved Areas in the
Cellular Service and to Modify Other Cellular Rules, CC Docket No.
90-6, Second Further Notice of Proposed Rule Making, 12 FCC Rcd.
4516 (1997). Our conclusion in this Order on Review that the
Bureau properly applied the current rules is in no way intended to
prejudge the outcome of the pending rulemaking.
23 See GTE Answer at 22.
24 See GTE Application for Review at 17; see also Supplemental
Information Submitted by GTE, Exhibit H, Oct. 5, 1998.
25 See GTE Application for Review at 16-19; see also Supplemental
Information Submitted by GTE at 19-25, Exhibits H-P. GTE claims
that the Public Notices issued by the Commission in the mid-1980s
regarding the Foley and Gulf Shores cell site gave GTE permission
from the Commission to ``increase the presently authorized CGSA.''
See GTE Application for Review at 18. We believe that GTE
mischaracterizes these Public Notices as dealing with the GMSA when
they actually deal with possible de minimis extensions into the
Pensacola, Florida, MSA. See Supplemental Information Submitted by
GTE, Exhibits H-J, L, M.