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                            Before the
                 FEDERAL COMMUNICATIONS COMMISSION
                       Washington, DC  20554

Bachow/Coastel, L.L.C.,          )
                                )
    Complainant,                )
                                )
         v.                     )       File No.  WB/ENF-F-98-
                                )       005
GTE Wireless of the South,       )
Inc.,                            )
                                )
    Defendant.

                          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 
below.

          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 
Bachow's CGSA.6

          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 July17, 
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 July2, 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
                              Secretary
_________________________

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) 
(``PetroCom'').

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, 
1998.

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 
U.N.T.S. 205).

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 
added).

18   See United States v. Louisiana, 470 U.S. 93, 102 (1985).

19   Id. at 102, n.2.

20   Id.

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.