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


In the Matter of                  )
                                 )
ALLTEL Communications, Inc.       )   File No. EB-05-SE-084


                            ORDER

Adopted:  April 20, 2005                Released:  April 22, 
2005

By the Deputy Chief, Enforcement Bureau:

     1.        On March 21, 2005, ALLTEL Communications, 
Inc. (``ALLTEL''), filed a petition for declaratory ruling 
pursuant to Section 1.2 of the Commission's Rules 
(``Rules''),1 seeking a ruling that its acquisition of 
certain wireless properties from Cingular Wireless LLC 
(``Cingular'') does not render ALLTEL a ``successor or 
assign'' for purposes of the Enhanced 911 (``E911'') Consent 
Decrees entered into between the Commission and Cingular or 
AT&T Wireless Services, Inc. (``AT&T Wireless'').2  For the 
reasons that follow, we grant ALLTEL's petition.  

     2.        Under Phase II of the E911 rules, wireless 
carriers are required to provide to the designated Public 
Safety Answering Point (``PSAP'') the location of wireless 
911 callers by latitude and longitude using either a 
handset-based or network-based location technology, in 
accordance with specified deployment and accuracy 
benchmarks.3  ALLTEL is a Code Division Multiple Access 
(``CDMA'') based carrier classified as a Tier II carrier for 
E911 purposes4 and employs a handset-based location 
technology, the SnapTrack Assisted-Global Position System 
(``A-GPS'') solution.  As a Tier II carrier, ALLTEL is 
subject to the handset sale and activation benchmarks 
specified by the Commission for Tier II carriers in the Stay 
Order.  By contrast, Cingular is a nationwide Tier I 
wireless carrier that employs a network-based location 
technology over its Time Division Multiple Access (``TDMA'') 
and Global System for Mobile Communications (``GSM'') based 
networks.  In 2002 and 2003, the Commission entered into 
Consent Decrees with both Cingular and AT&T Wireless which 
terminated Enforcement Bureau investigations into the 
carriers' possible violations of the E911 Phase II rules and 
specified benchmarks for deployment of the carriers' 
network-based location technologies over their TDMA and GSM 
networks.5  The Consent Decrees define ``Cingular'' as 
including its ``subsidiaries, affiliates, partners, and any 
successors or assigns.''6  The Consent Decrees do not 
further define what constitutes ``successors or assigns.''

     3.        In 2004, the Commission approved Cingular's 
acquisition of AT&T Wireless,  conditioned upon Cingular's 
post-transaction divestiture of certain wireless assets and 
spectrum holdings in designated local mobile telephony 
markets.7  Implementing the post-transaction divestiture 
conditions, Cingular and ALLTEL filed transfer of control 
applications, in which ALLTEL sought to acquire wireless 
properties, consisting of spectrum holdings and network 
assets or just spectrum holdings, in 18 of the designated 
local mobile telephony markets.8  On April 8, 2005, the 
Wireless Telecommunications Bureau granted these transfer of 
control applications.9  

     4.        In connection with the transfer of control 
applications, ALLTEL filed the instant petition.10  As 
ALLTEL will be acquiring spectrum, TDMA and GSM network 
assets, and subscribers from Cingular,11 ALLTEL seeks a 
ruling that it not be deemed a successor or assign subject 
to the terms and conditions of the Consent Decrees.  ALLTEL 
maintains that it would be unreasonably burdensome to treat 
it as a successor or assign for purposes of the Consent 
Decrees.  Specifically, ALLTEL states that the Consent 
Decrees should not apply to it because the Decrees arose out 
of investigations into Cingular's possible violations of the 
E911 Phase II rules, and, as such, were carrier-specific 
(relating only to Cingular, a Tier I nationwide carrier) and 
technology-specific (applying to Cingular's deployment of 
its network-based location technology and its TDMA and GSM 
equipment).12  In contrast, ALLTEL states that it is not, 
and has not been, the target of any E911 investigations, 
that it is a regional Tier II carrier, that it utilizes 
CDMA-based equipment and handset-based location technology, 
and that it is subject to the E911 Phase II handset-based 
solution benchmarks established for Tier II carriers.13  
ALLTEL further asserts that it is not a successor or assign 
under either traditional corporate law's general rule of 
successor non-liability and its four exceptions,14 or under 
the alternative ``substantial continuity'' test the 
Commission has used in one instance.15  

     5.        As ALLTEL correctly notes, the Consent 
Decrees do not define what constitutes ``successors or 
assigns'' for purposes thereof.  Likewise, neither the 
Communications Act nor the Commission's rules define 
``successor'' or ``assign.''  The Commission has stated that 
``a successor or assign analysis is ultimately fact-based'' 
and that the terms successor and assign ``take their meaning 
from the particular legal context in which they were 
used.''16  The Commission has further stated that in 
considering the particular facts and the legal context, 
courts have generally looked for ``substantial continuity'' 
between two companies such that one entity steps into the 
shoes of, or replaces, another entity.17  Considering the 
particular facts and legal context before us, we do not 
believe that there will be ``substantial continuity'' 
between Cingular and ALLTEL.  Following the transaction, 
Cingular and ALLTEL will both continue to operate as 
competing, independent, going concerns in all of the subject 
markets, each with their own assets and customers.  Thus, 
ALLTEL will not simply be stepping into Cingular's shoes and 
``substantially continuing'' Cingular's business operations.  
Accordingly, we find that ALLTEL's acquisition of the select 
wireless properties from Cingular will not render it a 
successor or assign for purposes of the Consent Decrees.  

     6.        We believe that our finding is consistent 
with the Commission's Stay Order, which addressed how 
mergers and acquisitions will affect a carrier's 
classification, and thus its obligations, under the E911 
Phase II rules.  Specifically, the Stay Order stated: 

     To promote certainty about the scope of a carrier's 
     obligations, each carrier will retain its 
     classification throughout the E911 Phase II deployment 
     process, absent a merger or acquisition.  If a merger 
     or acquisition occurs, a carrier will be classified 
     according to its acquiring carrier's classification, 
     absent special circumstances.18  

As ALLTEL is the acquiring carrier in the transaction, the 
acquired wireless properties will be subject to ALLTEL's 
Tier II E911 Phase II obligations.  

     7.        Furthermore, we do not believe that our 
finding will undermine the objectives of the E911 rules or 
the Consent Decrees.19  The Consent Decrees arose out of 
investigations of Cingular and AT&T Wireless for potential 
violations of their E911 Phase II obligations and by their 
terms were applicable to those carriers' GSM and TDMA 
networks.  No similar findings of potential violations by 
ALLTEL of its E911 Phase II obligations under the Stay Order 
are at issue here.  Post-acquisition, Cingular will continue 
to be subject to its own obligations under the Consent 
Decrees, while ALLTEL will remain subject to its own 
obligations under the Stay Order.  Finally, we note that the 
transaction will not result in any disruption of E911 Phase 
II services.  In this regard, in markets where ALLTEL 
acquires customers from Cingular, ALLTEL plans to 
expeditiously deploy CDMA technology and transition existing 
subscribers to its CDMA network and handset-based solution, 
but it has pledged to meet all of Cingular's current E911 
Phase I and Phase II obligations using a network-based 
solution as long as it has TDMA and GSM subscribers in those 
markets.20  

     8.        Accordingly, IT IS  ORDERED that, pursuant to 
Section  1.2  of the  Rules,  the  Petition for  Declaratory 
Ruling filed  by ALLTEL IS  GRANTED to the  extent indicated 
herein. 

     9.        IT  IS FURTHER  ORDERED that  a copy  of this 
Order  shall be  sent  by first  class  and certified  mail, 
return receipt requested, to Glenn S. Rabin, Vice President, 
Federal Regulatory Affairs, Alltel Communications, Inc., 601 
Pennsylvania Ave., N.W., Suite 720, Washington, D.C. 20004.



                              FEDERAL         COMMUNICATIONS 
COMMISSION
                         


                              Linda Blair
                              Deputy    Chief,   Enforcement 
Bureau





_________________________

147 C.F.R.  1.2.

2ALLTEL  Communications,  Inc.   Petition  for  Declaratory 
Ruling or,  in the  Alternative, Request for  Waiver (March 
21, 2005) (``Petition''). 

347 C.F.R.  20.18(e)-(g). 

4See  Revision   of  the   Commission's  Rules   to  Ensure 
Compatibility with Enhanced  911 Emergency Calling Systems, 
17 FCC Rcd 14841 (2003) (temporarily staying the E911 Phase 
II requirements for the mid-sized, regional Tier II and the 
small Tier III carriers) (``Stay Order''). 

5See  Cingular  Wireless  LLC,  18  FCC  Rcd  11746  (2003) 
(``Cingular GSM  Consent Decree''); Cingular  Wireless LLC, 
17 FCC Rcd 8529  (2002) (``Cingular TDMA Consent Decree''); 
AT&T  Wireless  Services, Inc.,  17  FCC  Rcd 19938  (2002) 
(``AT&T  Wireless  GSM  Consent  Decree'');  AT&T  Wireless 
Services, Inc.,  17 FCC  Rcd 11510 (2002)  (``AT&T Wireless 
TDMA Consent Decree'').

6See Cingular  GSM Consent  Decree, 18 FCC  Rcd at  11748  
2(c); Cingular  TDMA Consent Decree,  17 FCC Rcd at  8531  
2(c).   The Consent  Decrees with  AT&T Wireless  similarly 
define ``AT&T  Wireless'' as including  its ``subsidiaries, 
and  any successors  or assigns.''   See AT&T  Wireless GSM 
Consent Decree, 17  FCC Rcd at 19941   3(c); AT&T Wireless 
TDMA Consent Decree, 17 FCC Rcd at 11514  6(c).

7See  Applications  of  AT&T Wireless  Services,  Inc.  and 
Cingular Wireless Corp. for Transfer of Control of Licenses 
and Authorizations,  19 FCC Rcd 21522,  21620-24   254-66 
(2004) (detailing the divestiture conditions). 

8See  ALLTEL Corporation  and  Cingular  Wireless LLC  Seek 
Consent to Transfer of Control  of Alltel Newco LLC, Public 
Notice, DA 05-389 (WTB, February 14, 2005).

9See Public Notice, Report No. 2124 (WTB, April 13, 2005).

10ALLTEL concurrently  filed a  petition with  the Wireless 
Telecommunications Bureau, seeking a  limited waiver of the 
applicable  Phase  II  benchmarks in  order  to  transition 
customers in the affected  markets from Cingular's TDMA and 
GSM  networks   to  ALLTEL's  CDMA  network.    See  ALLTEL 
Communications, Inc. Petition for Limited Waiver, CC Docket 
No. 94-102, filed March 21, 2005.  ALLTEL's waiver petition 
will    be   addressed    separately   by    the   Wireless 
Telecommunications Bureau.

11ALLTEL noted that in ten of the eighteen markets which it 
is acquiring from Cingular,  it will obtain either spectrum 
and network assets, or  spectrum only, but not subscribers.  
In these  ten markets,  ALLTEL will commence  service using 
CDMA-only  technology and  will  provide  Phase II  service 
exclusively via  an A-GPS  handset-based solution.   In the 
remaining  eight  markets,  ALLTEL  will  obtain  spectrum, 
network assets  and subscribers.   In these  eight markets, 
ALLTEL plans  to expeditiously  deploy CDMA  technology and 
transition  existing subscribers  to its  CDMA network  and 
handset-based solution.  Petition  at 4-5.  However, ALLTEL 
states  that it  will continue  to meet  all of  Cingular's 
current  E911 Phase  I  and Phase  II  obligations using  a 
network-based  solution as  long  as it  has  TDMA and  GSM 
subscribers in those markets.  Petition at 14.  

12Petition at 3-5.   

13Id.  

14See, e.g., North Shore Gas  Co. v. Salomon Inc., 152 F.3d 
642 (7th  Cir. 1998).  The  four exceptions to  the general 
rule  of successor  non-liability are:   (1) the  purchaser 
expressly or  impliedly agrees  to assume  the liabilities; 
(2) the transaction is a  de facto merger or consolidation; 
(3) the purchaser is a ``mere continuation'' of the seller; 
and (4) the transaction is an effort to fraudulently escape 
liability.  Id. at 651.

15Applications of  Ameritech Corp. and  SBC Communications, 
Inc., 14  FCC Rcd  14712 (1999)  (``Ameritech-SBC Order''), 
rev'd on  other grounds sub nom.,  Assoc. of Communications 
Enterprises, 235  F.3d 662  (D.C. Cir. 2001)  (applying the 
``substantial  continuity'' test  to  determine whether   a 
carrier's   affiliate   was    bound   by   the   carrier's 
obligations).   

16Ameritech-SBC Order,  14 FCC Rcd at  14897, 14900, citing 
Howard Johnson Co. v.  Detroit Local Joint Executive Board, 
Hotel and Restaurant Employees and Bartenders International 
Union,  AFL-CIO,   417  U.S.   249  (1974)   (stating  that 
determinations about  successorship must be based  on ``the 
facts  of each  case  and the  particular legal  obligation 
which  is at  issue'' and  that ``there  is and  can be  no 
single  definition of  `successor' which  is applicable  in 
every legal context). 

17Ameritech-SBC  Order,  14  FCC Rcd  at  14897  (citations 
omitted). 

18Stay Order, 17 FCC Rcd 14841, 14848  23 (2002).

19Id. at 13-14.

20See n. 11 supra.