Federal Communications Commission DA 97-2290
Before the
Federal Communications Commission 
Washington, D.C 20554
In the Matter of )
)Sagir, Inc. ) 
Complainant, )
) v. ) File No. WB/ENF-F-95-014
N.E. Colorado Cellularjnc. ) 
Defendant )
MEMORANDUM OPINION AND ORDER 
Adopted: November 3,1997 Released: November 5,1997
By Chief, Enforcement and Consumer Information Division:
L INTRODUCTION
1. We have before us a Petition For Partial Reconsideration ("Petition"), filed on March 
5, 1997, by RE. Colorado Cellular, Inc. ("NECC"). NECC requests reconsideration in part of 
the Memorandum Opinion and Order, issued in this proceeding by the Chief, Enforcement 
Division1, Wireless Telecommunications Bureau, pursuant to delegated authority. Sagir Inc. v. 
N.E. Colorado Cellular, Inc., 12 FCC Red 1183 (MO&O, released February 3, 1997). The 
MO&O acted on a formal complaint filed by Sagir, Inc. ("Sagir") against NECC. Sagir and 
NECC are licensed to provide cellular radiotelephone services in adjacent Rural Service Areas 
("RSAs"). In the MO&O we granted Sagir's complaint to the extent that we determined that 
NECC had violated Section 22.9 ll(d) of the Commission's Rules by its delay in removing an 
unauthorized Service Area Boundary ("SAB") extension from Sagir's Cellular Geographic Service 
Area ("CGSA"), after it was requested by Sagir to do so. However, we further concluded that 
Sagir had failed to prove by a preponderance of the evidence that it incurred damages resulting 
from NECC's violation of the Rules, and we denied Sagir's complaint to the extent that it therein 
sought an award of damages.
The Division's name subsequently was changed to "Enforcement and Consumer Information Division.'
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Federal Communications Commission DA 97-2290
2. In its instant Petition, NECC requests the Division to reconsider its determination that 
NECC had violated the Commission's Rules and to render a determination that NECC was in 
compliance with the Commissions Rules. Sagir, on March 18, 1997, filed ah Opposition2 to 
NECC's Petition and NECC filed a Reply thereto on March 28, 1997. Upon consideration of 
these pleadings, we conclude that MO&O had correctly determined that NECC had violated 
Section 22.9 ll(d) of the Commission's Rules. Accordingly, we deny NECC's Petition.
H. BACKGROUND
3. Sagir is the cellular radiotelephone licensee in the Nebraska 1 - Sioux RSA, Market 
No. 533A, and NECC is the licensee hi the adjacent Colorado 2 - Logan RSA, Market No. 349A. 
On May 8, 1992, NECC added a new cell to its system, cell #4, at Ovid, Colorado, with a de 
minimis SAB extension into a portion of the adjacent Nebraska 1 RSA, which at that time had 
not yet been covered by Sagir's system. On August 5, 1994, Sagir filed an FCC Form 489 
notification with the Commission that it had constructed a cell at Chappell, Nebraska, with a SAB 
which overlapped NECC's Ovid site extension into Sagir's market3
4. Thereafter, the parties entered into negotiations attempting to reach a mutual contour 
extension agreement, which would equalize signal strength from each of their systems at the 
borders shared by both companies.4 After initial negotiations, Sagir, by October 19, 1994 at the 
latest, unequivocally requested NECC to withdraw its Ovid cell extension from its CGSA. Sagir 
also filed an informal complaint against NECC with the Commission on that date and another 
informal compliant, subsequently on November 11, 1994, in which it requested the Commission 
to order NECC to withdraw its extension. However, these actions did not terminate the 
negotiations between the parties, who continued their attempts to reach a mutual extension 
agreement5 While the parties were still negotiating, on October 20, 1994, Sagir filed an FCC 
Form 401 application, requesting authority to implement modifications at its Chappell site, which
2 In its Reply, NECC contends that Sagir lades standing to oppose its Petition and that by filing its 
Opposition Sagir has abused the Commission's process. NECC requests the Commission to impose sanctions upon 
Sagir to discourage the riling of mis kind of pleading, "which wastes FCC resources." In this regard, NECC argues 
that, because the MO&O denied Sagir's claim for damages, it "is no longer a party to mis proceeding and therefore 
has no standing to file an Opposition."
We reject NECC's argument Sagir is the complainant in this proceeding. Although, as NECC argues, H 
has been finally determined that NECC will not be required to pay damages to Sagir, neither NECC nor Sagir has 
lost its status as a party to mis proceeding. Accordingly, we believe that, just as NECC has a right to request 
reconsideration of determinations in the MO&O, with which it disagrees, Sagir has a right to oppose reconsideration 
and reversal of those determinations.
3 MO&O at 1 2.
4 MO&O at 1 3.
s MO&O at H 4.
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Federal Communications Commission DA 97-2290
were essentially the same as those which it had previously proposed in negotiations with NECC 
and which had been rejected by NECC. After it had been granted several extensions of time by 
the Commercial Wireless Division, to facilitate continued negotiation of a mutual extension 
agreement, NECC filed a petition to deny with respect to Sagir's application.6
5. NECC believed, based on its engineering analysis, that it could not withdraw the 
unauthorized SAB extension by merely reducing power at its Ovid cell without an "unacceptable" 
loss of its system's signal to a significant part of its service area. NECC determined that major 
modifications of its Ovid cell would be required, including a complete change in the antenna 
system and the use of a combination of three directional antennae, in order for it to maintain any 
significant service in its own market. NECC believed that Sagir was aware of these 
circumstances and that Sagir was also aware that once NECC made these costly changes, NECC 
would no longer have an incentive to enter into mutual extension agreement with Sagir. 
Nevertheless, Sagir continued its negotiations with NECC and at no time in the negotiating 
sessions between the parties, did Sagir demand that NECC's contour be removed before 
negotiations could continue.7
6. Finally, after NECC had concluded that a mutual extension agreement would not be 
reached, hi January 1995, it began the process of redesigning its Ovid site to remove the 
extension from Sagir's market. Although it initially announced that it would complete the 
modifications by March 31, 1995, it experienced delays in the delivery of equipment, and 
construction was further delayed by heavy rains. The modifications were finally completed and 
placed in service on June 6, 1995,8 at which time its SAB extension was finally removed from 
Sagir's CGSA.9
7. In the MO&O, we held that NECC, by its failure to remove its SAB from Sagir's 
CGSA promptly after it was requested by Sagir to do so on October 19, 1994, had violated 
Section 22.91 l(d) of the Commission's Rules.10 This section, among other things, specifies the 
protections accorded to cellular licensees against capture of subscriber traffic within their CGSAs 
by adjacent systems on the same channel. Specifically, in cases such as this, where an SAB of
6 MO&O at 1 5.
7 MO&O at f 6.
8 MO&O at \ 7.
9 MO&O at 1 8.
10 MO&O, 118.
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Federal Communications Commission DA 97-2290
one carrier overlaps the CGSA of an adjacent carrier and that carrier has requested its removal, 
Section 22.911 (d)(2)(i) provides that:
In the event such request is made, the licensee of the overlapping 
system must reduce the transmitting power or antenna height (or 
both) at the pertinent cell site as necessary to remove the SAB from 
the CGSA of the other system, unless a written consent from the 
licensee of the other system allowing the SAB to remain is 
obtained.
8. NECC argued, as it does in its instant petition for partial reconsideration, that Sagir, 
by its course of conduct in continuing negotiations toward a mutual extension agreement, had 
impliedly given its consent to allowing the overlapping SAB to remain pending conclusion of the 
negotiations, and that it was, under the circumstances, reasonable and consistent with the 
Commission's policy of encouraging cooperation among cellular licensees, for it not to remove 
the SAB extension until after the negotiations between it and Sagir had concluded,11 
Nevertheless, we held in the MO&O that NECC was not justified by these circumstances in 
refusing to remove its SAB extension from Sagir's CGSA, in light of the unambiguous language 
of Section 22.911 (d)(2)(i) of the Commission's Rules.13
m. ANALYSIS
9. In its petition for partial reconsideration, NECC for the most part repeats arguments 
that were previously advanced by it, and were considered and rejected in the MO&O. In this 
regard, it argues that Sagir by its course of conduct had consented to a continuation of NECC 
SAB extension on its CGSA during the course of negotiations between the parties for a mutual 
extension agreement13 However, as we held hi the MO&O, Section 22.91 l(d)(2)(i) requires that 
the SAB must be removed "unless a written consent from the licensee of the other system 
allowing the SAB to remain is obtained." Accordingly, even if Sagir's conduct in continuing 
negotiations with NECC could reasonably be interpreted as implying its consent to the 
continuation of the SAB extension, in spite of Sagir's repeated and explicit requests to NECC that 
it remove its SAB extension,14 this would not be sufficient basis to excuse NECC from removing 
the SAB extension. The rule unambiguously requires the encroaching licensee to remove its SAB 
extension, unless a "written consent" by the licensee of the adjacent system is obtained. The rule 
does not permit the SAB extension to be continued, based on the consent of the other licensee, 
which, NECC argues, was implied by Sagir's course of conduct.
11 MO&O, fl 15 and 16.
12 MO&O, tf 15 and 16.
13 Petition, pp 4-6.
14 See Sagir's Opposition, tl 8 and 9, Exhibits B and C.
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Federal Communications Commission DA 97-2290
10. NECC in this context points out that there was written correspondence between the 
parties in connection with the mutual extension negotiations, which it argues meets any 
requirement under the rules for a consent in writing. In particular, it refers to a letter agreement 
of December 22,1994, in which the parties agreed to conduct drive test in connection with these 
negotiations to measure the emissions from the NECC cell whose SAB extended into Sagir's 
CGSA " However, this correspondence, in general, merely reflects the fact of the on-going 
negotiations and the December 22, 1994 letter agreement, in particular, merely reflects that the 
drive tests would be conducted in connection with these negotiations. Neither the correspondence 
nor the letter agreement contain any statements by Sagir explicitly consenting to the continuation 
of the NECC's SAB extension.
11. Finally, NECC argues that the MO&O is inconsistent with the actions of the staff of 
the Commercial Wireless Division in this and other similar cases. It states that the Commercial 
Wireless Division staff was aware of the ongoing negotiations between NECC and Sagir and that 
it did not indicate to NECC that it was in violation of the Commission's Rules or that it should 
obtain a waiver of Section 22.91 l(d)(2)(i). NECC states that the staff also did not instruct it to 
pull back its contours in response to Sagir's request16 NECC alleges that the Commission's staff 
similarly did not interpose any objections with respect to other mutual contour extension 
negotiations in which NECC's counsel has participated.17 However, it does not appear that the 
parties sought a ruling by the Commercial Wireless Division staff with respect NECC's 
compliance with Section 22.91 l(d)(2)(i) of the Rules. Nor was the staff requested to grant NECC 
a waiver of this rule. Certainly, even if the Commercial Wireless Division staff was fully 
apprised of Sagir's requests of NECC to remove its SAB extension and NECC's failure to do so, 
the fact that it did not take any enforcement actions on its own initiative does not constitute a 
grant to NECC of a waiver of its obligations as a cellular licensee, unequivocally prescribed by 
Commission's Rules.
15 Petition, Exhibit A.
16 Petition, p. 6.
17 Petition, p. 8.
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Federal Communications Commission DA 97-2290
IV. ORDERING CLAUSE
12. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4Q) and 208, of the 
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j) & 208, and Sections 
0.321 and 1.106(j) of the Commission's Rules, 47 C.F.R. §§ 0.321 & 1.106Q), that the Petition 
For Partial Reconsideration filed by N.E. Colorado Cellular, Inc. is DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Howard C Davenport
Chief, Enforcement and Consumer Information Division
Wireless Telecommunications Bureau
17599