*Pages 1--5 from Microsoft Word - 6977.doc* Federal Communications Commission FCC 01- 59 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 Bachow/ Coastel, L. L. C., Complainant, v. GTE Wireless of the South, Inc., Defendant. ) ) ) ) ) ) ) ) ) File No. WB/ ENF- F- 98- 005 ORDER ON REVIEW Adopted: February 14, 2001 Released: February 22, 2001 By the Commission: 1. In this order, we affirm a February 29, 2000, Order of the Enforcement Bureau that ruled GTE Wireless of the South, Inc. (“ GTE”) had violated our regulations by having the service area boundaries (“ SABs”) of three cellular towers overlap the cellular geographic service area (“ CGSA”) licensed to Bachow/ Coastel L. L. C. (“ Bachow”) in the Gulf of Mexico. 1 We also affirm the Bureau Order’s ruling that directed GTE to modify the signal strength of these cell sites to eliminate the unlawful SAB extensions. Therefore, we deny the Application for Review that GTE filed on March 16, 2000. 2. While GTE disputes the Enforcement Bureau’s interpretation of various portions of the record, GTE has not persuaded us that the Bureau erred in its findings that Sand Island does not extend the southern boundary of GTE’s CGSA and that GTE’s CGSA does not extend beyond the “coastline” into the Gulf of Mexico CGSA. Accordingly, we adopt the reasoning of the Bureau Order and incorporate the same here, with the additional comments below. 3. GTE asserts that the U. S. Supreme Court issued a settlement decree between the United States and Alabama “for the purpose[] of determining the Submerged Lands Act grant to the State of Alabama” 2 that delineated the contours of the Alabama coastline to include Sand Island. Furthermore, GTE avers that the State of Alabama itself claims that Sand Island falls on the Alabama side of “the border dividing the area over which Alabama controls the mineral and mining rights and the area over which the federal government controls the mineral and mining rights.” 3 GTE contends that the Enforcement Bureau ignored those findings and argues that Alabama’s 1 See Bachow/ Coastel, L. L. C. v. GTE Wireless of the South, Inc., Order, DA 00- 420 (rel. Feb. 29, 2000) (“ Bureau Order”). 2 See United States v. Louisiana, 507 U. S. 7, 9 (1993). 3 See GTE Application for Review at 13, Mar. 16, 2000. 1 Federal Communications Commission FCC 01- 59 2 borders, thus defined by the Supreme Court and the State of Alabama, should also establish the boundary between the parties’ respective CGSAs. We disagree. The Commission has previously established that the service area boundary for the Gulf of Mexico is at the coastline. 4 Evidence as to the borders of the State of Alabama or the grants that Alabama receives under Submerged Land Act proceedings, therefore, while instructive, are not dispositive to our determination of this issue. Furthermore, in the case upon which GTE relies, the Supreme Court granted a jointly filed supplemental decree to set the baseline for determining the Submerged Lands Act grant to the State of Alabama. The Court did not apply the definition of “coastline” when it accepted the settlement. 5 Therefore, given our conclusion that the appropriate CGSA demarcation is the “coastline” as defined by the Commission, we find that the Bureau correctly applied the Commission’s standards in establishing the boundary between GTE’s CGSA and Bachow’s CGSA. 6 4. In PetroCom, as referenced above, the Commission affirmed a Common Carrier decision to utilize previously developed definitions of “coastline” and “inland waters” in establishing the geographic limitations for the Gulf of Mexico cellular licenses. 7 Accordingly, the Commission defines “coastline” as “the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters” and “inland waters” to include “bays, historic inland waters, and waters circumscribed by a fringe of islands within the immediate vicinity of the shoreline.” Thus in order for the Commission to extend GTE’s Mobile, Alabama CGSA, we must conclude that a bay, historic inland water, or fringe islands constitutes part of the Alabama coastline south of Dauphin Island and Mobile Point. 5. GTE asserts that Sand Island is an island that forms part of the Alabama coastline. However, whether Sand Island is an island to be considered part of the coastline depends on whether it is submerged at high tide. 8 GTE argues that the Enforcement Bureau should have relied on a 1982 U. S. Geological Survey (“ USGS”) map, instead of the 1970 USGS map cited in the Bureau Order. 9 Based on our review of the record, we agree that the 1970 map is not the most recent evidence in the record. Neither, however, is the 1982 map. The record also contains a 1997 map from National Oceanic and Atmospheric Administration. This most recent map indicates that Sand Island is submerged even at low tide and, thus, is not an “island” which could constitute an island for the 4 See In re Applications of Petroleum Communications, Inc., and Gulf Cellular Associates, 1 FCC Rcd. 511, ¶ 5 (rel. Nov. 7, 1986) (“ PetroCom”). 5 See United States v. Louisiana, 507 U. S. at 7– 9. 6 See Bureau Order at ¶¶ 3, 12. 7 See PetroCom at ¶¶ 16- 17 (relying on Supreme Court precedent in United States v. Louisiana, 363 U. S. 1, 66- 67, n. 108 (1960). That case involved both the Submerged Lands Act and the Convention on the Territorial Sea and the Contiguous Zone. See Submerged Lands Act, 43 U. S. C. §§ 1301– 1364; see also Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 10( 1), 15 U. S. T. 1606, 516 U. N. T. S. 205). See also United States v. Louisiana, 470 U. S. 93 (1985), part of the line of cases arising from the original ruling by the Supreme Court in 1960. 8 See Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 10( 1), 15 U. S. T. 1606, 516 U. N. T. S. 205 (the term “island” is defined as “a naturally formed area of land, surrounded by water, which is above water at high tide”). See also Bureau Order at ¶ 12. 9 See Bureau Order at ¶ 12. 2 Federal Communications Commission FCC 01- 59 3 purpose of establishing the coastline. 10 In addition, we take judicial notice of a photograph taken by the U. S. Geological Survey on July 17, 1996, which also indicates that Sand Island is below water at high tide. 11 In light of the most recent map and the photograph, we agree with the Bureau’s conclusion that Sand Island is not an island that can be used to establish the Alabama coastline and, thus, Sand Island does not extend GTE’s CGSA. 12 6. Alternatively, GTE argues that the Commission should use an island with a lighthouse on it, located even farther from the mainland than Sand Island, to draw the border between the Bachow CGSA and the GTE CGSA. GTE states that even though the lighthouse island is submerged at high tide, “the coastline may be drawn to include the lighthouse island.” 13 GTE asserts that Article 4 of the Convention on the Territorial Sea and the Contiguous Zone permits these coastline determinations to be made with low- tide elevations (i. e., portions of land that are submerged at high tide but exposed at low tide) when “lighthouses or similar installations which are permanently above sea level have been built on them.” 14 Indeed, we acknowledge that the Convention may, as a matter of international law, give this Commission the latitude to use the lighthouse island when determining the coastline boundary between Bachow’s CGSA and GTE’s CGSA. GTE, however, fails to demonstrate that the Commission must use the lighthouse island to draw the coastline for the purpose of determining the boundary between Bachow’s CGSA and GTE’s CGSA and we decline to do so. In particular, lighthouses can come and go for a variety of reasons, especially one located on an island that is submerged at high tide. Because we believe that CGSA boundaries should be as stable as possible, we conclude, therefore, that the lighthouse island is not an appropriate landmark to draw the boundary between Bachow’s CGSA and GTE’s CGSA. 7. As another alternative, GTE contends that the lighthouse island, Sand Island, and a third island circumscribe “inland waters” (i. e., Pelican Bay) that results in all three islands becoming part of the Alabama coastline. 15 GTE proffers four methods for determining when a body of water constitutes inland waters: “( 1) if the waters are circumscribed by a fringe of islands within the immediate vicinity of the shoreline; (2) if the body of water is on the landward side of a baseline establishing the coastline; (3) if the body of water constitutes a historic bay; and (4) if the body of water constitutes a juridical bay.” 16 Even giving wide latitude to GTE’s argument regarding inland 10 See Bachow Legal Brief on Requested Issues, Exhibit U, Reproductions of Portions of December 1997 Map Distributed by National Oceanographic and Atmospheric Administration, Oct. 5, 1998. 11 See Aerial Photograph, United States Geological Survey, July 17, 1996. See also 47 C. F. R. § 1. 361; see also FED. R. EVID. 201. 12 See Bureau Order at ¶ 12. The fact that Sand Island is now submerged at high tide further underscores the need for the Commission to base its CGSA boundaries on land masses not so readily subject to change. 13 GTE Application for Review at 8. While GTE argues that the lighthouse island is above the high- water mark in 1981, it has not convincingly demonstrated that such is the case today. Given the more recent map and photograph of Sand Island referenced above, we are not persuaded that anything except the lighthouse itself is above the high- water mark. 14 Id. (quoting Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 4( 3), 15 U. S. T. 1606, 516 U. N. T. S. 205). 15 This third island is Pelican Island. Bachow does not contest whether Pelican Island is an “island.” 16 GTE Application for Review at 9. 3 Federal Communications Commission FCC 01- 59 4 waters, we conclude that the geographic features of Pelican Bay do not provide the stabilit y licensees require for their CGSA boundaries. Because Sand Island and the lighthouse island have already been determined not to be islands for purposes of determining the coastline, GTE cannot viably contend that they constitute fringe islands for establishing inland waters. Likewise, GTE cannot prevail under its second rationale that Pelican Bay is on the landward side of a baseline establishing the coastline and is thus an inland water, because GTE draws its coastline baseline through Sand Island and the lighthouse island which we have already concluded are insufficient themselves to be considered part of the coastline. GTE’s third and fourth arguments are that this particular body of water constitutes a juridical or historic bay and is consequently an inland water that forms part of the coastline. Article 7 of the Convention defines a juridical bay as “a well- marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast.” 17 Given that Pelican Bay extends outward into the Gulf of Mexico south of Dauphin Island and Mobile Point and is not landlocked on any side, we cannot conclude that it satisfies the definition of juridical bay. While the Convention did not define the term “historic bay,” as noted by GTE, the Supreme Court did consider the issue in United States v. Louisiana. 18 The Supreme Court there, however, did not reach the threshold question of “how unlike a juridical bay a body of water can be and still qualify as a historic bay.” 19 Although the Supreme Court stated that a “historic bay need not conform to the geographic tests for a juridical bay,” it also concluded that the body of water at issue in that case closely resembled one. 20 In this matter, however, we find that the configuration of Pelican Bay is sufficiently dissimilar to a juridical bay to not constitute a bay at all. The determination of whether Pelican Bay constitutes an historical bay allows the Commission to consider factors such as the geographic configuration of the islands that potentially frame the inland waters. As we have already described, the geographic configuration of Pelican Bay does not have sufficiently stable features to warrant their use in this determination. Thus, we reiterate that the discretion to adopt a different standard for determining the coastline boundary between Bachow’s CGSA and GTE’s CGSA does not require us to do so. We find that the Bureau’s decision to base its coastline determination on stable geographical features, as described above and in the Bureau Order, was appropriate for the purposes of determining CGSA boundaries. 8. Finally, GTE contends that the Bureau failed to address the argument that the Commission had authorized GTE to extend its CGSA into the Gulf of Mexico when the Commission approved the Gulf Shores cell site in September 1987. While we agree that the Bureau did not directly address this issue in the Bureau Order, we believe that the crux of the Bureau Order and the regulations promulgated by this Commission refutes the notion that two licensees may have overlapping CGSAs. 21 As discussed in the Bureau Order, the Bachow CGSA is currently defined 17 Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 7, 15 U. S. T. 1606, 516 U. N. T. S. 205 (emphasis added). 18 See United States v. Louisiana, 470 U. S. 93, 102 (1985). 19 Id. at 102, n. 2. 20 Id. 21 See 47 C. F. R. §§ 22. 911( d), 22. 912. 4 Federal Communications Commission FCC 01- 59 5 as coterminous with the entire Gulf of Mexico Metropolitan Statistical Area (“ GMSA”). 22 In fact, GTE even admitted in its answer that “under FCC’s current Rules, the entire GMSA is the CGSA of Complainant.” 23 In any event, our review of the record indicates that GTE has not adequately supported its assertion that its CGSA was, in fact, authorized into the Gulf of Mexico prior to the establishment of the GMSA. 9. To support its assertion, GTE mainly relies on a Gulf Shores contour map from a July 2, 1987, Form 489 minor modification application that allegedly depicts GTE’s authorized CGSA as extending into the Gulf. This 1987 map, however, depicts a different CGSA boundary than the one initially presented to the Commission in the Foley cell site construction permit application on March 8, 1983. 24 GTE outlines the circumstances that caused the Foley cell site to evolve into the Gulf Shores cell site with various Form 401 and 489 applications for the two sites. GTE does not, however, include any maps with these applications, let alone a map that could demonstrate possible changes in the location of cell site contour or the CGSA boundary associated with moving the cell site location from Foley to Gulf Shores. 25 Standing alone, the uncorroborated 1987 map does not offer a complete picture as to the CGSA boundary. Thus, we find that GTE has not adequately supported its assertion that its CGSA extends into the Gulf of Mexico. 10. Accordingly, IT IS ORDERED, pursuant to sections 1, 4( i), 4( j), and 208 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 151, 154( i), 154( j), 208, that the Application for Review filed by GTE IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 22 See Bureau Order at ¶ 5. The Bureau’s decision was based on the current rules governing licensing of cellular service in the Gulf of Mexico. We note that in a pending rulemaking proceeding, the Commission has proposed certain prospective modifications to these rules. See Cellular Service and Other Commercial Mobile Radio Services in the Gulf of Mexico, WT Docket No. 97- 112, 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, CC Docket No. 90- 6, Second Further Notice of Proposed Rule Making, 12 FCC Rcd. 4516 (1997). Our conclusion in this Order on Review that the Bureau properly applied the current rules is in no way intended to prejudge the outcome of the pending rulemaking. 23 See GTE Answer at 22. 24 See GTE Application for Review at 17; see also Supplemental Information Submitted by GTE, Exhibit H, Oct. 5, 1998. 25 See GTE Application for Review at 16– 19; see also Supplemental Information Submitted by GTE at 19– 25, Exhibits H– P. GTE claims that the Public Notices issued by the Commission in the mid- 1980s regarding the Foley and Gulf Shores cell site gave GTE permission from the Commission to “increase the presently authorized CGSA.” See GTE Application for Review at 18. We believe that GTE mischaracterizes these Public Notices as dealing with the GMSA when they actually deal with possible de minimis extensions into the Pensacola, Florida, MSA. See Supplemental Information Submitted by GTE, Exhibits H– J, L, M. 5