Federal Communications Commission DA 96-1822 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of Southwestern Bell Mobile Systems, Inc. For a Construction Permit for Unserved Area in Cellular Market 003A, Chicago MSA Bay Area Cellular Telephone Company For a Construction Permit for Unserved Area in Cellular Market 007A, San Francisco MSA Florida Cellular Service, Inc. For a Construction Permit for Unserved Area in Cellular Market 012B, Miami MSA Minneapolis SMSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 015B, Minneapolis-StPaul MSA GTE Mobilnet of Oregon Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 030B, Portland, OR/WA MSA File No. 10000-CL-P-003-A-93 File No. 10002-CL-P-007-A-93 File No. 10004-CL-P-012-B-93 File No. 10005-CL-P-015-B-93 File No. 10008-CL-P-030-B-93 Columbus Cellular Telephone Company For a Construction Permit for Unserved Area in Cellular Market 031 A, Columbus MSA Alabama Cellular Service, Inc. For a Construction Permit for Unserved Area in 16868 File No. 10009-CL-P-031-A-93 File No. 10011-CL-P-041-B-93 Federal Communications Commission DA 96-1822 Cellular Market 041B, Birmingham MSA Virginia Cellular Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 0433, Norfolk-Virginia Beach- Portsmouth MSA Contel Cellular of Nashville, Inc. For a Construction Permit for Unserved Area in Cellular Market 046A, Nashville-Davidson MSA Triad Metronet, Inc. For a Construction Permit for Unserved Area in Cellular Market 047A, Greensboro-Winston Salem-High Point MSA Chicago SMSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 054B, Gary-Hammond-East Chicago MSA Virginia Cellular Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 059B, Richmond MSA ALLTEL Mobile Communications of the Carolinas, Inc. For a Construction Permit for Unserved Area in Cellular Market 061B, Charlotte MSA File No. 10012-CL-P-043-B-93 File No. 10013-CL-P-046-A-93 File No. 10014-CL-P-047-A-93 File No. 10016-CL-P-054-B-93 File No. 10017-CL-P-059-B-93 File No. 10018-CL-P-061-B-93 16869 Federal Communications Commission DA 96-1822 Carolina Metronet, Inc. For a Construction Permit for Unserved Area in Cellular Market 071 A, Raleigh-Durham MSA File No. 10019-CL-P-071-A-93 Century Cellunet of Lansing Limited Partnership For a Construction Pennit for Unserved Area in Cellular Market 078B, East Lansing MSA File No. 10022-CL-P-078-B-93 El Paso Cellular Telephone Company For a Construction Permit for Unserved Area in Cellular Market 081A, El Paso MSA File No. 10023-CL-P-081-A-93 Contel Cellular of the South, Inc. For a Construction Pennit for Unserved Area in Cellular Market 083B, Mobile MSA File No. 10024-CL-P-083-B-93 South Carolina Metronet, Inc. For a Construction Permit for Unserved Area in Cellular Market 090A, Charleston- North Charleston MSA McCaw Communications of Nevada, Inc. For a Construction Permit for Unserved Area in Cellular Market 093A, Las Vegas, NV MSA File No. 10026-CL-P-090-A-93 File No. 10027-CL-P-093-A-93 Flint Cellular Telephone Company For a Construction Pennit for Unserved Area in Cellular Market 094A, Saginaw-Bay City- Midland MSA File No. 10028-CL-P-094-A-93 16870 Federal Communications Commission DA 96-1822 Binghamton MSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 122B, Binghamton MSA File No. 10032-CL-P-122-B-93 Santa Barbara Cellular Systems, Ltd. For a Construction Permit for Unserved Area in Cellular Market 124A, Santa Barbara- Santa Maria-Lompoc MSA File No. 10033-CL-P-124-A-93 GTE Mobilnet of California Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 126B, Salinas-Seaside- Monterey MSA File No. 10034-CL-P-126-B-93 Rockford MSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 13IB, Rockford, IL MSA File No. 10036-CL-P-131-B-93 Visalia Cellular Telephone Company For a Construction Permit for Unserved Area in Cellular Market 150A, Visalia-Tulare- Porterville MSA File No. 10037-CL-P-150-A-93 Roanoke MSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 157B, Roanoke MSA File No. 10038-CL-P-157-B-93 GTE Mobilnet of California Limited Partnership File No. 10041-CL-P-175-B-93 16871 Federal Communications Commission DA 96-1822 For a Construction Permit for Unserved Area in Cellular Market 175B, Santa Cruz MSA SBMS Cellular Telecommunications Springfield, Inc. For a Construction Permit for Unserved Area in Cellular Market 176A, Springfield MSA File No. 10042-CL-P-176-A-93 MobileTel, Inc. For a Construction Permit for Unserved Area in Cellular Market 184B, Houma-Thibodaux MSA File No. 10043-CL-P-184-B-93 Champaign CellTelCo For a Construction Permit for Unserved Area in Cellular Market 196A, Champaign-Urbana- Rantoul MSA File No. 10046-CL-P-196-A-93 Cumberland Cellular Telephone Company For a Construction Permit for Unserved Area hi Cellular Market 209A, Clarksville- Hopkinsville MSA File No. 10047-CL-P-209-A-93 Wilmington Cellular Communications, Inc. For a Construction Permit for Unserved Area in Cellular Market 218A, Wilmington NC MSA File No. 10048-CL-P-218-A-93 Abilene SMSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 22GB, Abilene MSA File No. 10050-CL-P-220-B-93 16872 Federal Communications Commission DA 96-1822 Tuscaloosa Cellular Partnership For a Construction Permit for Unserved Area in Cellular Market 222A, Tuscaloosa MSA Florence Cellular Telephone Company, Inc. For a Construction Permit for Unserved Area in Cellular Market 226A, Florence MSA Mississippi Cellular Telephone Company For a Construction Permit for Unserved Area in Cellular Market 252B, Pascagoula MSA Midland/Odessa SMSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 255B, Odessa MSA Florence Metronet, Inc. For a Construction Permit for Unserved Area in Cellular Market 264A, Florence MSA Albany Telephone Company For a Construction Permit for Unserved Area in Cellular Market 266A, Glens Falls MSA Chicago SMSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 273B, Kankakee MSA File No. 10051-CL-P-222-A-93 File No. 10053-CL-P-226-A-93 File No. 10055-CL-P-252-B-93 File No. 10056-CL-P-255-B-93 File No. 10057-CL-P-264-A-93 File No. 10058-CL-P-266-A-93 File No. 10059-CL-P-273-B-93 16873 Federal Communications Commission DA 96-1822 Evansville MSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 293B, Owensboro MSA File No. 10061-CL-P-293-B-93 Midland/Odessa SMSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 295B, Midland MSA File No. 10063-CL-P-295-B-93 Alton Cellular, Inc. For a Construction Permit for Unserved Area in Cellular Market 305B, Alton-Granite City MSA Dayton Cellular Telephone Company For a Construction Permit for Unserved Area in Cellular Market 040A, Dayton MSA File No. 10064-CL-P-305-B-93 File No. 10010-CL-P-040-A-93 Gary Cellular Telephone Company For a Construction Permit for Unserved Area in Cellular Market 054A, Gary-Hammond- East Chicago MSA File No. 10015-CL-P-054-A-93 ACC/McCaw Cellular of Fresno For a Construction Permit for Unserved Area in Cellular Market 074A, Fresno MSA File No. 10020-CL-P-074-A-93 Lansing Cellular Telephone Company For a Construction Permit for Unserved Area in Cellular Market 078A, Lansing MSA File No. 10021-CL-P-078-A-93 Chattanooga Cellular Telephone Company File No. 10025-CL-P-088-A-93 16874 Federal Communications Commission DA 96-1822 For a Construction Permit for Unserved Area in Cellular Market 088A, Chattanooga MSA Contel Cellular of Kentucky, Inc. For a Construction Permit for Unserved Area in Cellular Market 116A, Lexington-Fayette MSA Huntsville MSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 120B, Huntsville MSA Contel Cellular of the South, Inc. For a Construction Permit for Unserved Area in Cellular Market 127B, Pensacola MSA McAllen-Edinburg-Mission SMSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 162B, Brownsville- Harlingen MSA GTE Mobilnet of Terre Haute Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 185B, Terre Haute MSA Amarillo SMSA Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 188B, Amarillo MSA File No. 10030-CL-P-116-A-93 File No. 10031-CL-P-120-B-93 File No. 10035-CL-P-127-B-93 File No. 10040-CL-P-162-B-93 File No. 10044-CL-P-185-B-93 File No. 10045-CL-P-188-B-93 16875 Federal Communications Commission DA 96-1822 Medford Cellular Telephone Company, Inc. For a Construction Permit for Unserved Area in Cellular Market 229A, Medford MSA Contel Cellular of the Southwest, Inc. For a Construction Permits for Unserved Area in Cellular Market 285B, Las Cruces MSA Contel Cellular of Davenport, Inc. For a Construction Permit for Unserved Area in Cellular Market 98B, Davenport- Rock Island-Moline MSA Brown County MSA Cellular Limited Partnership For a Construction Permit for Unserved Area in Cellular Market 186B, Green Bay, Wisconsin MSA Redding Cellular Partnership For a Construction Permit for Unserved Area in Cellular Market 254A, Redding, California MSA File No. 10054-CL-P-229-A-93 File No. 10060-CL-P-285-B-93 File No. 10029-CL-P-098-B-93 File No. 06213-CL-CP-93 File Nos. 06218-CL-CP-93 00640-CL-CP-94 MEMORANDUM OPINION AND ORDER Adopted: November 1, 1996 Released: November 4 , 1996 By the Chief, Wireless Telecommunications Bureau: 16876 Federal Communications Commission DA 96-1822 I. INTRODUCTION 1. In this Order, we address four Petitions for Reconsideration (Petitions) involving the above-captioned proceedings filed on March 3,1 March 14,2 April 5,3 and April 18, 1994,4 by the Committee for Effective Cellular Rules ("CECR"), requesting that any grants of the captioned applications be expressly conditioned on the final disposition of CECR's Petition for Review in the United States Court of Appeals for the District of Columbia Circuit with respect to the Commission's unserved area cellular rules.5 For the reasons discussed below, we dismiss CECR's Petitions for Reconsideration as moot.6 II. DISCUSSION 2. In 1992, the Commission adopted the Cellular Unserved Second Report and Order, which modified its licensing rules in the Domestic Public Cellular Radiotelephone Service to require a new method for determining the Cellular Geographic Service Areas (COS As) of cellular systems, to allow expansion of the CGSA during the five year build-out period, and to clarify filing requirements for cellular unserved areas.7 CECR filed a Petition for Reconsideration of the Cellular Unserved Second Report and Order, requesting that the Commission rescind its modification of all cellular licenses and suspend the use of the new mathematical formula as the means of determining CGSAs until the renewal of existing licenses or the issuance of new licenses. CECR claimed that the Commission exceeded its statutory authority by improperly modifying the licenses of existing cellular systems. In 1993, the Commission denied CECR's 1 The Petition filed on March 3, 1994 opposed the license grants of the licensees listed under the heading "Petition I" in Appendix A. 2 The Petition filed on March 14, 1994 opposed the license grants of the licensees listed under the heading "Petition II" in Appendix A. 3 The Petition filed on April 5, 1994 opposed the license grant of Contel Cellular which is listed under the heading "Petition ffl" in Appendix A. 4 The Petition filed on April 18, 1994 opposed the license grants of the licensees listed under the heading "Petition IV" in Appendix A. 5 Committee For Effective Cellular Rules v. FCC, 53 F.3d 1309 (D.C. Cir. 1995). 6 CECR also filed a Petition for Reconsideration on April 11,1994 against the Contel Cellular license grant for Market 98B, Davenport-Rock Island, Moline MSA. On April 19, 1994, CECR filed a Motion to Dismiss its Petition because it duplicated the petition which was filed on April 5, 1994. We grant this motion. 7 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, Second Report and Order, CC Docket No. 90-6, 7 FCC Red 2449 (1992) (Cellular Unserved Second Report and Order). 16877 Federal Communications Commission DA 96-1822 Petition for Reconsideration.8 On March 22, 1993, CECR filed a Petition for Review with the United States Court of Appeals for the District of Columbia Circuit requesting that the court vacate the Cellular Unserved Second Report and Order and the Memorandum Opinion and Order on Reconsideration. CECR also requested that the Commission and the Court of Appeals stay the grant of any application for new cell sites in Unserved Areas. Both the Commission and the Court of Appeals denied CECR's stay requests.9 3. On four separate occasions in 1994, the Commission granted construction permits to a total of sixty unserved area cellular applicants. 10 CECR filed a Petition for Reconsideration (Petition) of each of these grants. Each Petition requested that the Commission explicitly condition the grant of the construction permits upon the final disposition of CECR's Petition for Review with the court.11 Additionally, each Petition incorporated CECR's previously filed motions for stay by reference.12 4. On May 9, 1995, the Court of Appeals dismissed CECR's petition for review and affirmed the Cellular Unserved Order, holding that the Commission did not act arbitrarily and capriciously when it amended its cellular regulations through a notice-and-comment rule making.13 The court concluded that the Commission acted within its statutory authority when it implemented a service-wide change through its rule making authority to the technical requirements for cellular licenses and significantly reduced the unserved areas.14 Because the Court of Appeals denied the request for judicial relief upon which CECR's Petitions were based, all of CECR's petitions for reconsideration are rendered moot. Accordingly, we dismiss the petitions in their entirety. 8 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, Memorandum Opinion and Order on Reconsideration, Docket No. 90-6, 8 FCC Red 1363, H 2-3 (1992) (Memorandum Opinion and Order on Reconsideration). 9 Order, CC Docket No. 90-6, 8 FCC Red 5087,I 4 (1993); Order, Committee for Effective Cellular Rules v. FCC,, No. 93-1220 (D.C.Cir. September 29, 1993). 10 Public Notice, Report No. CL-94-32, Feb. 1, 1994; Public Notice, Report No. CL-94-38, Feb. 11, 1994; Public Notice, Report No. CL-94-45, Mar. 11, 1994; Public Notice, Report No. CL-94-48, Mar. 18, 1994. 11 Petition I at 12; Petition n at 5; Petition ITJ at 4-5; Petition IV at 4-5. 12 Petition I at 10; Petition n at 3; Petition in at 3; Petition IV at 3. 13 Committee for Effective Cellular Rules v. FCC, 53 F.3d at 1312. 14 Id. 16878 Federal Communications Commission DA 96-1822 III. ORDERING CLAUSES 5. IT IS ORDERED that pursuant to Sections 4(i), 303(r), 309 and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 309 and 405, and Section 22.128 of the Commission's rules, 47 C.F.R. § 22.128, and the authority delegated under Section 0.331 of the Commission's rules, 47 C.F.R. § 0.331, that the Petitions for Reconsideration filed by the Committee for Effective Cellular Rules on March 3,1994, March 14,1994, April 5, 1994, April 11, 1994 and April 18, 1994 respectively ARE DISMISSED as moot. 6. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 303(r), 309 and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 309 and 405, and Section 22.119 of the Commission's rules, 47 C.F.R. § 22.119, that waivers of Section 22.105(d) of the Commission's rules, 47 C.F.R. § 22.105(d) filed on March 21, 1994 and April 1, 1994 respectively ARE DENIED. FEDERAL COMMUNICATIONS COMMISSION Michele C. Farquhar Chief, Wireless Telecommunications Bureau 16879 Federal Communications Commission DA 96-1822 APPENDIX A PETITION I Southwestern Bell Mobile Systems, Inc. SBMS Cellular Telecomm. Springfield, Inc. Champaign CellTelCo Abilene SMSA L.P. Midland/Odessa SMSA L.P. (2 Markets) Mississippi Cellular Telephone Co. McCaw Communications of Nevada,. Inc. Santa Barbara Cellular Systems, Ltd. Visalia Cellular Telephone Co. GTE Mobilnet of Oregon L.P. Virginia Cellular L.P. (2 Markets) Contel Cellular of Nashville, Inc. Triad Metronet, Inc. Carolina Metronet, Inc. Contel Cellular of the South, Inc. South Carolina Metronet, Inc. Binghamton MSA L.P. GTE Mobilnet of California L.P. (2 Markets) Rockford MSA L.P. Roanoke MSA L.P. Florence Metronet, Inc. Tuscaloosa Cellular Partnership Florence Cellular Telephone Co., Inc. Evansville MSA L.P. Alabama Cellular Service, Inc. Albany Telephone Co. ALLTEL Mobile Comm. of the Carolinas, Inc. Alton Cellular, Inc. Bay Area Cellular Telephone Co. Century Cellunet of Lansing L.P. Chicago SMSA L.P. (2 Markets) Columbus Cellular Telephone Co. Cumberland Cellular Telephone Co. El Paso Cellular Telephone Co. Flint Cellular Telephone Co. Florida Cellular Service, Inc. Minneapolis SMSA L.P. MobileTel, Inc. Wilmington Cellular Communications, Inc. Collectively - SBMS Collectively - SBMS Collectively - SBMS Collectively - SBMS Collectively - SBMS Mississippi Cellular Collectively - McCaw Collectively - McCaw Collectively - McCaw Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Alabama Cellular Albany Telephone ALLTEL Alton Cellular Bay Area Century Cellunet Chicago SMSA Columbus Cellular Cumberland Cellular El Paso Flint Cellular Florida Cellular Minneapolis SMSA MobileTel Wilmington Cellular 16880 Federal Communications Commission DA 96-1822 PETITION II ACC/McCaw Cellular of Fresno Medford Cellular Telephone Co., Inc. Gary Cellular Telephone Co. McAllen-Edinburg-Mission SMSA L.P. Amarillo SMSA L.P. Chattanooga Cellular Telephone Co. Contel Cellular of Kentucky, Inc. Contel Cellular of the South, Inc. GTE Mobilnet of Terre Haute L.P. Contel Cellular of the Southwest, Inc. Dayton Cellular Telephone Co. Huntsville MSA L.P. Lansing Cellular Telephone Co. Jointly - ACC/McCaw Jointly - ACC/McCaw Collectively - Gary Cellular Collectively - Gary Cellular Collectively - Gary Cellular Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Collectively - GTEM/CCI Dayton Cellular Huntsville Lansing Cellular PETITION III Contel Cellular of Davenport, Inc. Contel Cellular PETITION IV Brown County MSA Cellular L.P. Redding Cellular Partnership (2 Markets) Brown County Redding Cellular 16881 Federal Communications Commission DA 96-1822 APPENDIX B OPPOSITION TO PETITIONS ACC/McCaw Alabama Cellular Albany Telephone ALLTEL Bay Area Brown County Century Cellunet Contel Cellular El Paso Florida Cellular Gary Cellular GTEM/CCI Hunts ville McCaw Mississippi Cellular MobileTel Redding Cellular SBMS 16882