*Pages 1--5 from Microsoft Word - 7927.doc* Federal Communications Commission FCC 01- 115 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Applications of SAGIR, INC. For the Modification of Domestic Public Cellular Station KNKN383 in the Nebraska 1 -Sioux Rural Service Area, Market No. 533A N. E. COLORADO CELLULAR, INC. For Authority to Establish a New Station in the Cellular Radiotelephone Service in the Nebraska 1 – Sioux Rural Service Area, Market No. 533A as a Phase I Unserved Area Applicant ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) File No. 01558- CL- MP- 95 File No. 10189- CL- P- 1533- A- 94 MEMORANDUM OPINION AND ORDER Adopted: March 29, 2001 Released: April 3, 2001 By the Commission: I. INTRODUCTION 1. The Commission has before it an Application for Review filed by N. E. Colorado Cellular, Inc. (NECC) on March 30, 2000. 1 NECC seeks review of an order (released February 29, 2000) of the Wireless Telecommunications Bureau, Commercial Wireless Division, Policy and Rules Branch (Branch) 2 denying NECC’s Petition for Reconsideration against the grant of the above- captioned modification application of Sagir, Inc. (Sagir). 3 NECC also seeks review of the Branch’s dismissal of NECC’s above-captioned Phase I unserved area application in the Branch Order. For the reasons stated below, we deny NECC’s Application for Review. 1 Sagir, Inc. filed an Opposition to the Application for Review and an Erratum to its Opposition on April 14 and 19, 2000, respectively. NECC filed a Reply to the Opposition on April 24, 2000. 2 Sagir, Inc., Order, 15 FCC Rcd. 4466 (Policy and Rules Branch 2000) (Branch Order). 3 In its application, Sagir requested a modification to its cellular geographic service area (CGSA) by submitting an alternative CGSA determination pursuant to former Commission rule section 22.903( b), 47 C. F. R. § 22.903( b). Rule section 22.903( b) was renumbered as current rule section 22.911( b), 47 C. F. R. § 22.911( b). See Revision of Part 22 of the Commission’s Rules Governing the Public Mobile Services, Report and Order, 9 FCC Rcd 6513 (1994). 1 Federal Communications Commission FCC 01- 115 2 II. DISCUSSION A. Sagir’s Modification Application. 1. Background 2. Sagir is the Block A licensee of Station KNKN- 383 serving the Nebraska 1- Sioux RSA (Sioux RSA). NECC is the Block A licensee of Station KNKR- 307 serving the Colorado 2 RSA, which is adjacent to the Sioux RSA. On November 19, 1994, Sagir filed the above- captioned alternative CGSA modification application, which the Commission placed on public notice on December 5, 1994. 4 A petition to deny Sagir’s application was due no later than 30 days from the date of public notice (i. e., on or before January 5, 1995). 5 NECC did not file a petition to deny Sagir’s modification application. On December 21, 1994, NECC filed the above- captioned Phase I unserved area application for portions of the Nebraska 1- Sioux RSA, which the Commission placed on public notice on February 17, 1995. 6 On April 7, 1995, the Commission granted Sagir’s modification application. 7 NECC first opposed Sagir’s application in its Petition for Reconsideration filed on May 8, 1995. The Branch dismissed NECC’s Petition for Reconsideration because NECC did not demonstrate good reason for its failure to participate earlier in the Sagir application proceeding as required by Section 1.106( b)( 1) of the Commission’s rules. 8 In its Petition for Reconsideration, NECC argued that it first had an interest in the Sioux RSA on February 17, 1995, 9 the date that the Commission issued a public notice accepting NECC’s above- captioned Phase I unserved area application for filing. 10 The Branch rejected this argument, and concluded that NECC could have raised its objections at the petition to deny stage. 11 NECC challenges the Branch’s conclusion. 4 Public Notice, Report No. CL- 95- 23 (rel. Dec. 5, 1994). 5 See 47 C. F. R. § 22.130( a)( 4) (1995). Section 22.130 of the Commission’s rules was removed in 1998. See Amendment of Parts 0, 1, 12, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the Universal Licensing System in the Wireless Telecommunications Services, Report and Order, WT Docket No. 98- 20, FCC 98- 234 (rel. Oct. 21, 1998), 63 Fed. Reg. 68904 (Dec. 14, 1998) (ULS Order). New rule Section 1.939, adopted in the ULS Order, sets forth the requirements for filing petitions to deny. See 47 C. F. R. § 1.939. 6 See Public Notice, Report No. CL- 95- 55 (rel. Feb. 17, 1995) (accepting NECC’s application and granting NECC tentative selectee status for unserved areas within the Sioux RSA). 7 Public Notice, Report No. CL- 95- 24 (rel. April 7, 1995). 8 Branch Order, 15 FCC Rcd. at 4468 ¶ 4. See 47 C. F. R. § 1.106( b)( 1) (A person who has not participated in the earlier stages of a proceeding may petition for reconsideration of an adverse decision only if that person “show[ s] good reason why it was not possible for him to participate in the earlier stages of the proceeding.” ). 9 See NECC Petition for Reconsideration at 3. 10 See n. 6, supra. 11 Branch Order, 15 FCC Rcd. at 4468 ¶ 4. 2 Federal Communications Commission FCC 01- 115 3 2. Discussion 3. We find, as the Branch did below, that NECC’s interest in the Sioux RSA, and thus its standing to file a petition to deny Sagir’s modification application arose on December 21, 1994, the date that NECC filed its unserved area application for the Sioux RSA. 12 NECC therefore had standing to file a petition to deny prior to the January 4, 1995 filing deadline. Even if we were to accept NECC’s assertion that it did not have an interest in the Sioux RSA until February 17, 1995, which we do not, NECC has not explained why it waited 80 days — until May 8, 1995 — to oppose Sagir’s modification application. It is well established that “[ i] nterested persons seeking to participate in FCC proceedings are required to join the proceedings at the earliest opportunity.” 13 NECC has failed to meet this standard. 14 4. NECC cites several cases in which the Commission exercised its discretion and accepted a petition for reconsideration that did not comply with Section 1.106( b)( 1). 15 None of the cases cited by NECC requires us to exercise our discretion here and consider the substance of NECC’s procedurally infirm Petition for Reconsideration. Indeed, NECC acknowledges that “Commission precedent reveals decisions on both sides of this issue.” 16 In Concorde Telephone, for example, the Commission held that “a person who has the right to participate in a proceeding before the Commission cannot delay exercising that right until after the Commission has acted and then expect to be allowed to participate by filing post- grant pleadings.” 17 NECC’s allegation that there are “dead spots” within Sagir’s alternative CGSA 18 does not present the kind of serious injury to the public sufficient to outweigh considerations of administrative finality. Section 22.911( b) of the Commission’s rules provides that “service is considered to be provided in all areas, including ‘dead spots’” of an alternative CGSA. 19 We therefore decline to exercise our discretion 12 See Branch Order, 15 FCC Rcd. 4467- 68, ¶ 4 (“ Because both entities [NECC and Sagir] proposed to provide service in the same area, NECC had a clear interest in Sagir’s application before the January 4, 1995 deadline [for filing a petition to deny] and could have timely contested Sagir’s modification application.”). See also In re Applications of the Trustees of Indiana University Indianapolis, Indiana, Memorandum Opinion and Order, 8 FCC Rcd. 5555, 5557 ¶ 11 (1993) (“ Upon the filing of its mutually exclusive application, IBEC became a party in interest, the status required of a petitioner by Section 309( d)( 1) of the Act.”). 13 Office of Communication of the United Church of Christ v. FCC, 911 F. 2d 803, 808 (D. C. Cir. 1990). 14 See In re Application of Davidson County Broadcasting Co., Inc., Memorandum Opinion and Order, 8 FCC Rcd. 1689, 1690 ¶ 7 (1993) (rejecting a petition for reconsideration for failure to meet the requirements of Section 1.106( b)( 1) and noting that the party could have filed an earlier informal objection in the proceeding). 15 Application for Review at n. 3. 16 Id. at 2. 17 Concord Telephone Exchange, Inc., Memorandum Opinion and Order, 56 RR2d 653, 656- 57 ¶ 9 (1984) (Concorde Telephone). See also GTE Mobilnet of Houston Ltd. Partnership, Order on Reconsideration, 8 FCC Rcd. 2728 (1993) (party that fails to demonstrate why it could not timely file petition to deny will not have its petition for reconsideration considered by Commission). 18 Application for Review at 5. 19 47 C. F. R. § 22.911( b). Dead spots are defined as “[ s] mall areas within a service area where the field strength is lower than the minimum level for reliable service.” 47 C. F. R. § 22. 99. 3 Federal Communications Commission FCC 01- 115 4 to accept NECC’s belated assertion of its interest in the Sagir modification application. 20 The Branch’s dismissal of NECC’s Petition for Reconsideration for failure to meet the requirements of Section 1.106( b)( 1) was proper. 21 B. NECC’s Phase I Unserved Area Application. 1. Background 5. NECC filed its above- captioned Phase I unserved area application for a portion of the Sioux RSA on December 21, 1994. 22 NECC’s application was placed on public notice as accepted for filing on February 17, 1995. 23 On April 7, 1995, the Commission granted Sagir’s above- captioned alternative CGSA application. 24 In the order below, the Branch determined that “the CGSA proposed in NECC’s [unserved area] application is covered entirely by Sagir’s authorized CGSA,” 25 and found that NECC failed to comply with the requirements for Phase I unserved area applications set forth in Section 22.949 of the Commission’s rules. 26 Specifically, the Branch dismissed NECC’s application as defective “because it seeks to provide service in an area that is presently not unserved.” 27 2. Discussion 6. In its Application for Review, NECC asserts that “[ i] t was reversible error . . . to dismiss NECC’s application because its proposed contours covered area within Sagir’s CGSA.” 28 We disagree. NECC cites no Commission case, rule, or policy in support of its assertion. Rather, NECC claims that “[ a] ll of the area NECC proposes to cover was, as a matter of fact, unserved area at the time NECC’s application was filed, and most of it remains unserved.” 29 NECC’s argument ignores the requirements of Section 22.949( a). Section 22.949( a) provides, in pertinent part, that a Phase I application may be filed “to operate a new cellular system in or to expand an existing cellular system into unserved area . . . as soon as these areas become available.” 30 The area that NECC proposed to serve in its Phase I application was 20 See WCOV, Inc. v. FCC, 464 F. 2d 812, 814 (D. C. Cir. 1972) (dismissal of petition for reconsideration upheld where arguments were untimely raised and there was no showing of serious injury to the public) and Valley Telecasting Co., Inc. v. FCC, 336 F. 2d 914) (D. C. Cir. 1964) (same). 21 Because we dismiss NECC’s Petition for Reconsideration on procedural grounds, we do not further address NECC’s allegations regarding the level of service provided by Sagir. 22 See 47 C. F. R. § 22.949( a) (Phase I unserved area rule). 23 See n. 5, supra. 24 Public Notice, Report No. CL- 95- 24 (rel. April 7, 1995). 25 Branch Order, 15 FCC Rcd. at 4468, ¶ 5. 26 Id. 27 Id. 28 Application for Review at 8. 29 Id. 30 47 C. F. R. § 22.949( a) (emphasis added). 4 Federal Communications Commission FCC 01- 115 5 unavailable within the meaning of Section 22.949 by virtue of the grant of Sagir’s alternative CGSA modification application, affirmed above. The Branch’s statement that NECC proposed “service in an area that is presently not unserved” was not a factual determination of the extent of service being provided by Sagir within its authorized CGSA. Rather, the Branch’s statement reflects that Sagir was authorized to serve the area; as such, the area applied for by NECC was not available for grant of a Phase I unserved area application. The Branch’s dismissal of NECC’s Phase I unserved area application was therefore proper. 7. Accordingly, IT IS ORDERED that, pursuant to Sections 4( i), 5( c)( 5), 308 and 309( d)( 1) of the Communications Act, as amended, 47 U. S. C. §§ 154( i), 155( c)( 5), 308 and 309( d)( 1), and Sections 1.106( b)( 1), 1.115( g) and 22.949( a) of the Commission’s rules, 47 C. F. R. §§ 1.106( b)( 1), 1.115( g) and 22.949( a), the Application for Review filed by N. E. Colorado Cellular, Inc. on March 30, 2000 in the above- captioned matters is DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 5