******************************************************** 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. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) McElroy Electronics Corporation ) CWD No. 98-16 ) ) Request for Clarification of Commission Rules) Regarding Section 22.911(a) in Relation to) Construction of Cellular System for) Market No. 15-A2, Minneapolis-St. Paul,) MN/WI ) ORDER Adopted: April 10, 1998 Released: April 10, 1998 By the Acting Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we further explain our Extension Order of March 13, 1998, in which we partially granted McElroy Electronics Corporation's ("McElroy") Request for Extension of Time to complete construction of cellular Station KNKR320, Minneapolis-St. Paul (Market No. 15-A2). In so doing, we grant McElroy's request for clarification of whether a cellular carrier may use narrow beam antennas between the cardinal radials of its service area boundary (SAB) to provide service outside its SAB. II. BACKGROUND 2. McElroy is the Phase I unserved area cellular licensee in the Minneapolis-St. Paul, MN/WI, MSA (Market No. 15-A2). AT&T Wireless Services of Minnesota, Inc. ("AT&T Wireless") is the Block A cellular system licensee in the Minneapolis-St. Paul, MN, MSA, the Block A2 licensee in the Minnesota 6-Hubbard RSA, and the Block A licensee in the St. Cloud, MN MSA. AT&T Wireless and McElroy share borders that separate each of the above-listed AT&T Wireless markets from McElroy's Market No. 15-A2. Both parties seek to serve portions of the Interstate 94 corridor. The Commission authorized McElroy to construct cells at Monticello, Albion Center, and Harris for Market No. 15-A2 on March 13, 1997. Since that time, McElroy has constructed the Albion Center and Harris cell sites. If McElroy had not filed a request for an extension of time, its authorization would have automatically terminated on March 13, 1998, for the Monticello cell. McElroy filed a Request for Extension of Time on February 27, 1998, seeking additional time to construct the Monticello site. AT&T Wireless opposed McElroy's extension request. 3. AT&T Wireless has placed narrow beam antennas within its cellular geographic service area (CGSA) at its Big Lake, Minnesota site, which is in the St. Cloud, MN MSA. From its Big Lake cell site, AT&T Wireless's narrow beam antennas produce a radiation pattern that is focused between the cardinal radials of AT&T Wireless's SAB, resulting in a reliable signal well beyond the SAB for the cell site as calculated using section 22.911(a) of the Commission's rules. As a result, McElroy alleges that this radiation pattern will cause interference in McElroy's CGSA upon construction and operation of the Monticello cell site because AT&T Wireless will capture subscriber traffic within McElroy's CGSA by using the narrow beam antennas. 4. In our March 13, 1998 Extension Order, we partially granted McElroy's Request for Extension of Time. We granted McElroy thirty days from the release date of this Order to complete construction of its Monticello cell site because of the "unique circumstances" that McElroy presented in its request for extension of time. III. DISCUSSION 5. It is undisputed that if McElroy constructs and operates its Monticello cell site to the maximum extent of its authorization, AT&T Wireless's use of the narrow beam antennas will result in the capture of subscriber traffic within McElroy's CGSA unless AT&T Wireless reduces the transmitting power or antenna height (or both) at its Big Lake cell site. The issue is whether AT&T Wireless's use of narrow beam antennas in this manner is proper. AT&T Wireless contends that its use of narrow beam antennas at its Big Lake facilities, which is adjacent to McElroy's Monticello site, is consistent with the Commission's rules. 6. In our Extension Order, we found that McElroy had presented "unique" circumstances justifying its extension request. McElroy argued that construction of a cell site with multiple sectors, which would be the type of system required if McElroy had to respect AT&T Wireless's narrow beam radiation pattern, is "entirely different" and "more costly" than construction of the cell it has been authorized to build. McElroy further argued that before it constructs the site, it needs Commission guidance on the question of the status of the operations of AT&T Wireless. McElroy asserted that construction at the Monticello site would be "futile" and "wasteful" unless and until the Commission acts on its request for guidance. Finally, McElroy claimed that regardless of which sectors are permitted, McElroy's present Monticello authorization would be preempted along the Interstate 94 corridor by the signals being directed into the area from AT&T Wireless's Big Lake narrow beam antennas. According to McElroy, these signals would capture traffic along this corridor, and its Monticello site would not provide the intended coverage. 7. AT&T Wireless argued that McElroy's request did not meet the standard for an extension of time under the Commission's rules. AT&T Wireless maintained that the Commission may grant an extension only if the licensee demonstrates that construction is not complete due to circumstances beyond its control. According to AT&T Wireless, McElroy has not constructed at the Monticello site because it was awaiting a decision by the Commission on the propriety of the use of narrow beam antennas -- a voluntary choice -- not a circumstance beyond McElroy's control. Consequently, AT&T Wireless asserted that its engineering scheme is not relevant to the issue of the Monticello site, as McElroy is obligated to construct that site in accordance with the Commission's construction deadlines. 8. We grant extensions of construction deadlines when the failure to construct is due to circumstances beyond the licensee's control. Our rules also provide generally for waivers in cases of unique circumstances. In this situation, we believe that the use by AT&T Wireless of narrow beam antennas, and questions that this use engendered, are circumstances beyond McElroy's control that hindered its ability to construct its Monticello cell site. Construction by McElroy under these circumstances would not have been practical. It would have been unreasonable for McElroy to construct this cell site until it knew our position concerning AT&T Wireless's use of narrow beam antennas, because our position on this issue directly affects the type of site that McElroy will construct. 9. Further, certain additional facts buttress our conclusion that this case presents unique circumstances that justify an extension of the construction deadline. First, AT&T Wireless's use of narrow beam cells do not appear in the Commission records. McElroy learned of the narrow beam cells protruding into its CGSA only by conducting on-site field tests of the affected area along the Interstate 94 corridor. 10. Second, McElroy brought AT&T Wireless's use of the narrow beam antennas to our attention in a pleading filed with the Commission in October 1997 in response to a Form 489 notification submitted by AT&T Wireless. This pleading was filed five months before McElroy's construction deadline. Subsequently, in January 1998, McElroy requested a meeting with staff members of the Commercial Wireless Division to explain its inability to reach an agreement with AT&T Wireless on the border dispute, as well as its uncertainty concerning the use of narrow beam antennas. This meeting, at which representatives of both McElroy and AT&T were present, occurred on February 2, 1998. We did not respond to McElroy's query, and McElroy filed its Request for Extension of Time on February 27, 1998. McElroy then requested an additional meeting, which was held on March 11, 1998, with all parties present. We find, therefore, that McElroy made diligent attempts to obtain guidance in sufficient time to construct its Monticello cell site. 11. Third, by clarifying the issue of the encroachment into a cellular licensee's CGSA through the use of narrow beam antennas by an adjacent licensee, we will provide certainty to the parties to enable them to resolve the border dispute. We believe that this regulatory certainty will benefit the public by allowing these carriers to provide service in accordance with our rules in a stable and efficient manner. 12. Regarding the specific question of AT&T Wireless's use of narrow beam antennas, in 1993, the Commission stated that the CGSA of a cellular licensee is protected from the capture of subscriber traffic which results from an SAB extension. In 1997, in the Cellular Unserved Areas Further Memorandum Opinion and Order on Reconsideration, the Commission clarified the protection that a licensee is entitled to within its CGSA. The Commission noted that the cellular radio industry had matured to the point where many licensees have CGSAs that have reached the borders of their respective MSAs or RSAs. As a result, the Commission recognized that "border wars," such as this one in Minnesota, might become more common. Accordingly, the Commission emphatically stated that "any licensee, regardless of when it was licensed or how well it is financed, is entitled to protection within its CGSA, and conversely, must not cause interference by extensions into the CGSAs of other licensees, unless the parties agree to accept the intrusion." In this pronouncement, the Commission did not limit the extent to which cellular licensees have protection from SAB extensions. 13. A licensee's CGSA is determined by its composite SABs. Section 22.911 defines methods for calculating SABs. These methods require a licensee to compute the distance to the SAB along each of the eight cardinal radials, and to compute the distance to the SAB along all other radials by linear interpolation. This approach provides a reasonable means for calculating the reliable service area of a cell under most conditions. However, when a licensee focuses narrow beam antennas between cardinal radials, linear interpolation does not accurately depict the area actually served by a cell. Although the use of narrow beam antennas is not expressly prohibited by the Commission's rules, an adjacent licensee must consent to any extension within the adjacent licensee's CGSA. 14. While the foregoing sets forth the basic rules that apply, we remind the parties that the goal of the Commission's cellular licensing scheme is to allow the cellular licensees to provide nationwide seamless cellular service to the public. Progress toward achievement of this goal depends in large part upon the success of informal negotiations between cellular licensees in determining mutually agreeable arrangements of facilities along comon borders. Therefore, we remind both licensees of their obligations under section 22.907 of the Commission's rules to attempt to resolve this situation between themselves. In part, section 22.907 states that "[l]icensees must cooperate and make reasonable efforts to resolve technical problems that may inhibit effective and efficient use of the cellular radio spectrum." IV. ORDERING CLAUSES 15. Accordingly, having reviewed the pleadings and the record in this matter, IT IS ORDERED that pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and section 22.907 of the Commission's rules, 47 C.F.R.  22.907, that both McElroy Electronics Corporation and AT&T Wireless, Inc. make a reasonable effort to resolve any technical problems that inhibit the effective and efficient use of cellular radio spectrum. Any solution should be consistent with the Commission's intention that a cellular licensee is entitled to protection from capture within its CGSA. 16. IT IS FURTHER ORDERED that pursuant to sections 4(i), 303(f), and 319(a) and (b) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) 303(f) and 319(a), (b) and section 22.130 of the Commission's rules, as amended, 47 C.F.R.  22.130, the Joint Opposition filed by AT&T Wireless Services, Inc., on March 5, 1998, IS DENIED. 17. In accordance with this action, McElroy Electronics Corporation has a period of thirty days from the release date of this Order in which to complete construction of cellular Station KNKR320, Minneapolis-St. Paul (Market No. 15-A2). 18. This action is taken pursuant to authority delegated by section 0.331 of the Commission's rules, as amended, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Steven E. Weingarten Acting Chief, Commercial Wireless Division Wireless Telecommunications Bureau