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DISCUSSION ă  S' "<5. First, Santa Cruz argues that Waugh's proposed 32 dB% contour covers only 36.7 square miles  S' xof land in the MSA in violation of Commission rules.@ ' {O(&'ԍId. at 5.@ We agree. The evidence in the record  xdemonstrates that Waugh's application fails to propose coverage of at least fifty contiguous square miles"b ,^(^())H"  x@of unserved area in the Santa Cruz MSA. Based upon a review of that evidence, we have determined  xthat more than fifty percent of the area within Waugh's proposed service area contour is already served  xby a cell site in Santa Cruz's system and that Waugh's proposed cell site is actually located inside the  xexisting contour of Santa Cruz's cellular system. Consequently, Waugh's application violates former  S`'section 22.924(a)(1) of the Commission's rules.o `' {O'ԍSee John K. Lemons/Delta Trust, 13 FCC Rcd. 8058 (1997).o  "N6. Second, Santa Cruz states that Waugh's proposed service area extends beyond the MSA  S' xboundary and into the ocean area off the coastline.Z Z' yO 'ԍPetition at 5. Z Santa Cruz argues that Waugh's attempt to include  xka portion of the Pacific Ocean as part of its unserved area is contrary to the Commission's rules and lacks  S' xkany supporting case precedent.l ' yO" '#C\  P6QɒP#эPetition at 5.l Waugh contends in his Opposition to Petition to Deny (Opposition) filed  x^on April 17, 1995, that although the Commission prohibited unserved area cellular applicants from serving  SH ' xZwateronly areas,^H z' {Ob' "/ #C\  P6QɒP#э See Amendment of Part 22 of the Commission's rules to provide for filing and processing of applications  {O,' x^ for unserved areas in the Cellular Service and to modify other cellular rules, Third Report and Order, WT Docket  {O'No. 906, 7 FCC Rcd. 7183, 718485 (1992) (Third Report and Order).  unserved area applications proposing service to both populated and water areas are  S ' xkpermitted.j ' yO`'#C\  P6QɒP#эOpposition at 67.j Waugh therefore concludes that his proposed extension into the Pacific Ocean did not render  S 'his application unacceptable for filing.g 0 ' {O'#C\  P6QɒP#эId. at 7.g  "7. We conclude that in addition to violating former section 22.924(a)(1) of the Commission's  xcrules because it fails to propose a minimum service area of at least fifty contiguous square miles of  xxunserved area, Waugh's application also violates former section 22.902(b)(4)(i) because it extends beyond  xthe Santa Cruz cellular market. When Waugh filed his application on April 14, 1993, the Commission's  xrules prohibited Initial Phase I applications from including an extension of the applicant's proposed 32  S' xdB% contour beyond the market boundary. Waugh's proposed service area extends beyond the Santa Cruz  xtMSA boundary and includes approximately fifty square miles of ocean area off the coastline outside of  xthe Santa Cruz MSA. Because a portion of its proposed service area lies beyond the Santa Cruz market,  Sh'Waugh's application is defective.th ' {O 'ԍSee Third Report and Order, 7 FCC Rcd. at 7185 (1992). t  "h8. Third, Santa Cruz states that the ground elevation of Waugh's cell location is listed in the  xapplication as 161 feet, but argues that the proposed site is actually located between the 80 and 120 foot  x}contour lines in the United States Geological Survey topographic map included as Exhibit VII to the  S' xstatement of Santa Cruz's consulting engineer.GT ' yO&'ԍPetition at 46.G Thus, Santa Cruz argues that either the geographic",^(^())"  S' xcoordinates or the ground elevation of Waugh's proposed cell location is erroneous.g' {Oh'#C\  P6QɒP#эId. at 5.g Waugh claims that  xhis error in identifying the ground elevation of the cell site can be cured by a minor amendment under  S' xthe Commission's rules because it does not affect any contour.uZ' yO'#C\  P6QɒP#эOpposition at 8. u We agree. This kind of defect may be  S'cured by a minor amendment.-' {O' " ԍ#V\  PA P#See, e.g., Johnstown Cellular Communications Co., # X\  P6G;ɒP#1 FCC Rcd. 1164, 116566 (CCB 1986); 47 C.F.R.  22.949 (a)(4) (formerly 47 C.F.R.  22.918(c)(1)).-  "9. Fourth, Santa Cruz alleges that there was no unserved area in the Santa Cruz market at the  S' xgtime Waugh filed his application.ED' {O 'ԍPetition at 7.E It states that with the granting of its modification request of March  x19, 1992, Santa Cruz's cellular system covers over ninetyeight percent of the Santa Cruz MSA, leaving  S' xless than six contiguous square miles of unserved area.i' {O6'#C\  P6QɒP#эId. at 2. i In his Opposition, Waugh responds that Santa  S' xCruz filed its SIU map twelve days late in violation of section 22.925 of the Commission's rules.Gh ' yO'ԍ47 C.F.R.  22.925.G  x*Waugh contends that the Commission should not permit Santa Cruz to claim unserved area protection on  SH ' xythe basis of an SIU map that it neglected to file within the proper time.BH ' yO'ԍOpposition at 5. B Waugh argues that the  xappropriate remedy for Santa Cruz's carelessness is for the Commission to deem the Santa Cruz system  xprotected against unservedarea applications only to the extent that timelyfiled SIU maps indicated that  S ' xSanta Cruz's Cellular Geographic Service Area (CGSA) extended into the Santa Cruz market.g ' {O'#C\  P6QɒP#эId. at 5.g In  xresponse, Santa Cruz argues that Waugh's application is so defective that it amounts to an abuse of the  S ' xCommission's processes,g ' {O:'#C\  P6QɒP#эId. at 8.g and that he should not be allowed to use the latefiled SIU "as an excuse" for  xghis failure to ensure that the unserved area application covered at least fifty contiguous square miles of  S0' xunserved area.c0' yO| '#C\  P6QɒP#эReply at 6.c Moreover, Santa Cruz argues, this coverage information could have been gleaned from  S' xMthe subsequent FCC Form 489 minor modification application Santa Cruz filed on October 28, 1992,n<' {O"'#C\  P6QɒP#эId. at 7. n  xand from its SIU filed on March 31, 1993. Santa Cruz alleges that had Waugh conducted thorough pre S' xfiling research as required by the Commission,' {O&&'#C\  P6QɒP#эSee Public Notice, Report No. CL9336, (rel. Dec. 23, 1992)#C*f9 xQ BZX#.  he would have discovered this information.`' yO' "c #C\  P6QɒP#эSixty days before the end of the five year buildout period, the licensee of each cellular system authorized  xD on each channel block in each cellular market must file a system information update (SIU) comprised of a full size  x map, a reduced map, and an exhibit showing technical data relevant to determination of the system's cellular  x geographic service area. The licensee must accurately depict the relevant cell locations and coverage of its system  {O'at the end of the five year buildout period. See 47 C.F.R.  22.925 (now 47 C.F.R.  22.947(c)). "z,^(^())"  xDAccordingly, Santa Cruz argues, Waugh's application not only contains serious technical deficiencies, but  xalso raises a character issue because Waugh filed an application he should have known could not be  S'granted.j z' yO'#C\  P6QɒP#эPetition at 1011.j  x  "y10. Former section 22.924(a)(1) of the Commission's rules requires that Phase I unserved area  xapplicants must propose a minimum CGSA of 130 contiguous square kilometers (50 contiguous square  xmiles) within the MSA. The Licensing and Technical Analysis Branch has reviewed Waugh's application  xand concludes that it fails to meet minimum coverage requirements under section 22.951 because there  xis no fifty contiguous square mile unserved area in the Santa Cruz MSA. The Santa Cruz MSA consists  S' xxof approximately 446 square miles.m! ' yOB'ԍPetition, Exh. A, Engineering Statement of Daniel J Hubbard.m On March 19, 1992, prior to the expiration of the five year buildout  xperiod, Santa Cruz filed a major modification to add a sector to its existing Empire Grade cell site. When  SH ' xwe granted this application three months later,u"H ' {O'ԍSee Public Notice, Report No. CL92107, (rel. June 22, 1992.)u Santa Cruz's system covered 375.8 square miles of the  xSanta Cruz MSA. When the Commission adopted new rules in April, 1992, requiring all licensees to  S ' xconvert from 39 dB% to 32 dB% to calculate their service area contours,#( , ' {O' " ԍSee Amendment of Part 22 of the Commission's Rules to Provide for the Filing and Processing of  {O' x* Applications for Unserved Areas in the Cellular Service and to Modify Other Cellular Rules, Second Report and  {OX' x Order, Docket No. 906, 7 FCC Rcd. 2449, 245254 (1992), aff'd sub nom, Committee for Effective Cellular Rules  {O"'v. FCC, 53 F.3d 1309 (D.C. Cir. 1995).  Santa Cruz's covered area  xincreased to approximately 98.7 percent of the MSA. This increase in coverage left slightly less than six  xcontiguous square miles of unserved area in the Santa Cruz MSA as of April 14, 1993, the date Waugh filed his application.  "11. Santa Cruz filed a Form 489 notification for an additional cell site and a map depicting the  S' x^coverage resulting from the new site on November 10, 1994.$' {O'#C\  P6QɒP#эSee Petition at Exhibits A & III. This map reflects Santa Cruz's authorized  xsystem as it now stands. Following the change resulting from this latest filing which slightly increased  S' xthe existing unserved area in the market, Santa Cruz's 32 dBu% contour presently covers 96.5 percent of  S' xits MSA, leaving only 15.6 square miles not included within its service area.i%' yO#'#C\  P6QɒP#эPetition, Exh. A.i We cannot grant Waugh's  x3unserved area application because it fails to propose at least fifty contiguous square miles and extends beyond the MSA. ">%,^(^())n"Ԍ S'ԙD IV. CONCLUSION ă  "A12. Waugh's failure to propose fifty contiguous square miles of unserved area prevents the  S'Commission from granting his unserved area application.  S`'  S8'-V. ORDERING CLAUSES ă  "<13. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 309 of the Communications  xAct of 1934, as amended, 47 U.S.C.  154(i) and 309, the Petition to Deny filed by Santa Cruz Cellular Telephone, Inc. on March 16, 1995, IS GRANTED.  "14. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309 of the Communications  xAct of 1934, as amended, 47 U.S.C.  154(i) and 309, and Sections 0.331 and 22.128(d)(2) of the  xCommission's Rules, 47 C.F.R.  0.331 and 22.128(d)(2), the application of Pendleton C. Waugh filed  x&on April 14, 1993, for a new authorization to construct DPCRTS systems in unserved portions of the Santa Cruz, California MSA IS DENIED.    S'` `  hhC FEDERAL COMMUNICATIONS COMMISSION ` `  hhCWilliam W. Kunze ` `  hhCDeputy Chief,  &BJ Commercial Wireless Division &BJ  ` `  hhCWireless Telecommunications Bureau