[Federal Register Volume 68, Number 137 (Thursday, July 17, 2003)]
[Rules and Regulations]
[Pages 42290-42295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18095]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 22

[WT Docket No. 97-112, CC Docket No. 90-6; FCC 03-130]


Public Mobile Services

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission resolves petitions for

[[Page 42291]]

reconsideration filed against the Report and Order in WT Docket No. 97-
112 and CC Docket No. 90-6, in which the Commission modified rules 
affecting cellular service in the Gulf of Mexico. The Commission 
reinstates certain co-location applications that were inadvertently 
dismissed pursuant to the Gulf Report and Order, and modifies Sec.  
22.912 of the Commission's rules to clarify that land-based cellular 
carriers are precluded from extending their service area boundaries 
into any part of the Gulf of Mexico Exclusive Zone without the 
applicable Gulf carrier's consent. The Commission also affirms that the 
market boundaries of Personal Communications Service (PCS) licensees 
adjacent to the Gulf of Mexico are co-extensive with county boundaries.

DATES: Effective September 15, 2003.

FOR FURTHER INFORMATION CONTACT: Roger Noel or Linda Chang, Wireless 
Telecommunications Bureau, at (202) 418-0620.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, in WT Docket 97-112 and CC Docket No. 90-6, FCC 03-
130, adopted June 10, 2003, and released June 27, 2003. The full text 
of the Order on Reconsideration is available for public inspection 
during regular business hours at the FCC Reference Information Center, 
445 12th St., SW., Room CY-A257, Washington, DC 20554. The complete 
text may be purchased from the Commission's duplicating contractor: 
Qualex International, 445 12th Street, SW., Room CY-B402, Washington, 
DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail 
at [email protected].

Synopsis of Order on Reconsideration

I. Background

    1. In January 2002, the Commission released a Report and Order in 
WT Docket No. 97-112 and CC Docket 90-6 (Gulf Report and Order), in 
which it established a comprehensive regulatory scheme for the Gulf of 
Mexico designed to facilitate the provision of cellular service to 
unserved areas of the Gulf region and resolve operational conflicts 
between Gulf and land carriers, while minimizing the disturbance to 
existing operations and contractual relationships. 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. 
97-112, Report and Order, 67 FR 9596 (March 4, 2002) (Gulf Report and 
Order). As part of this licensing scheme, the Commission adopted a 
bifurcated approach for the Gulf that reflected the differences in 
deployment of cellular service in the Eastern Gulf and the Western 
Gulf. The Commission determined that the entirety of the Western Gulf 
would be included within the Gulf of Mexico Exclusive Zone (GMEZ) in 
which the Gulf carriers would not be subject to use-or-lose rules, but 
would have full flexibility to build, relocate, modify and remove 
offshore facilities without any impact on their rights to provide 
service to ``unserved'' areas. In the Eastern Gulf, the lack of 
offshore cellular deployment led the Commission to designate a Gulf of 
Mexico Coastal Zone (GMCZ) extending from the shoreline seaward twelve 
nautical miles, in which unserved area licensing rules would apply, 
while the remainder of the Eastern Gulf was included in the GMEZ, 
giving Gulf carriers full flexibility to operate beyond the twelve 
nautical mile limit.
    2. By using the existing rules as the basis for its decision in the 
Western Gulf, the Commission reaffirmed the coastline as the legal 
demarcation line for the Western Gulf separating the service areas of 
Gulf and land-based cellular carriers. The Gulf Report and Order 
continued to bar land-based carriers from extending their service area 
boundaries (SABs) over any portion of the Western Gulf without the 
consent of the relevant Gulf carrier, regardless of whether the Gulf 
carrier is serving that portion of the Gulf from an offshore site. 
Conversely, the Gulf carriers are prohibited in the Western Gulf from 
extending contours over land that would encroach on areas served by 
land-based carriers, absent consent. The Commission also determined 
that because of the different propagation characteristics of radio 
signals transmitted over land and water, it would continue to use 
different formulas to determine the SABs of land and water-based sites. 
Accordingly, the Commission retained the rule that determined the 
reliable service area of Gulf-based sites using a 28 dB[mu]V/m contour, 
while using a 32 dB[mu]V/m contour to determine the reliable service 
area of land-based sites.
    3. The Gulf Report and Order also addressed the issue of non-
cellular commercial mobile radio services (CMRS) services in the Gulf. 
The Commission declined to create a Gulf licensing area for non-
cellular services, noting the lack of support for this alternative in 
the record. However, the Commission clarified that in CMRS services 
that do not have a separately licensed Gulf market, licensees serving 
areas adjacent to the Gulf of Mexico were entitled to extend their 
coverage offshore. Because most non-cellular services use licensing 
areas based on county boundaries, which typically extend a specified 
distance over water pursuant to state law, the Gulf Report and Order 
clarified that such Commission licensing areas were co-extensive with 
county boundaries. The Gulf Report and Order also stated that licensees 
could extend service further into the Gulf on a secondary basis, 
provided they did not cause interference to others.

II. Discussion

A. Two-Formula Approach

    4. Petroleum Communications, Inc. (PetroCom) contends that the 
Commission's decision to continue using different formulas to determine 
the SABs of land and Gulf-based transmitters gives land-based carriers 
a signal strength advantage over Gulf carriers, thereby enabling land-
based carriers to encroach into the Gulf and capture water-based 
cellular traffic. PetroCom maintains that either Gulf carriers should 
be entitled to use the 32 dB[mu]V/m land-based formula to determine 
their predicted signal strength at the coastal boundary, or 
alternatively that the 28 dB[mu]V/m water-based formula should be used 
by land-based as well as Gulf carriers. PetroCom also asserts that the 
Commission's adoption of the two-formula approach lacks adequate basis 
in the record and is procedurally flawed.
    5. The Commission affirms its decision to use the two-formula 
approach in calculating service area contours for land-based and Gulf 
carriers. This approach recognizes a basic fact of signal propagation: 
due to the absence of path obstructions and typically quieter RF 
environment, a signal transmitted over water is likely to be stronger 
than a signal transmitted over land at the equivalent distance from the 
transmitter. The 32 dB[mu]V/m land-based formula incorporates factors 
that typically affect propagation of signals over land, such as rolling 
terrain. The land formula also assumes a noisier environment and that 
the subscriber will be using a mobile handset near ground level. On the 
other hand, assumptions factored into the 28 dB[mu]V/m water formula 
are quite different. The water formula assumes that a signal in the 
Gulf will not have the same path obstructions encountered

[[Page 42292]]

by radio signals over land. The water formula does not factor in 
rolling terrain, presumes a quieter noise environment, and also takes 
into account the different characteristics of water-borne cellular 
receivers, which are typically mast-mounted and therefore able to 
receive a signal at a greater distance from the transmitter. Thus, the 
water formula assumes that the typical Gulf subscriber operating on a 
boat or drilling platform will have a receive unit with a mast-mounted 
antenna at a height of approximately 30 feet.
    6. Indeed, using 28 dB[mu]V/m as the basis for defining reliable 
service over water was originally proposed by PetroCom itself, which 
contended that it more accurately approximated actual coverage in the 
Gulf. PetroCom previously argued that 28 dB[mu]V/m more accurately 
predicted reliable service in the Gulf due to the stronger propagation 
characteristics of over-water transmissions. In support of this 
argument, PetroCom submitted actual received power measurements from 
Gulf facilities to what it characterized as a typical mobile unit for a 
Gulf subscriber. The Commission concluded that PetroCom's technical 
exhibit provided a convincing demonstration of the service range of 
typical cellular facilities found in the Gulf, and therefore 
established the formula based on the data submitted by PetroCom.
    7. The Commission also rejects PetroCom's argument that a single 
formula will ``equalize'' the signal strengths of land-based and Gulf 
carriers at the shoreline. If the Commission was to apply the land-
based formula to establish the SABs of both land-based and Gulf 
carriers, as PetroCom proposes, the actual signal strength of the Gulf 
carrier's signal at the shoreline would very likely be higher than 32 
dB[mu]V/m. Because the land formula assumes rolling terrain that is not 
encountered over water, it will tend to underestimate the actual 
strength of a signal transmitted over water at the SAB radial distance. 
Thus, while the land formula will indicate that the Gulf carrier's SAB 
does not encroach on land, the Gulf carrier's actual 32 dB[mu]V/m 
contour is likely to extend inland. Accordingly, use of the land 
formula over water could result in the Gulf carrier having an actual 
signal strength at the boundary that is greater than that of the 
adjacent land carrier, thereby leading to potential capture of the land 
carrier's customers. Alternatively, if the Commission were to apply the 
water formula to both land-based and Gulf carriers, the result would 
likely be dead spots and undesired carrier capture along the coastline. 
The water formula does not take into account variations in terrain that 
are present in over-land transmissions; accordingly, although use of 
the formula may make it appear that the land carrier has an adequate 
signal at the shoreline, in fact the signal may well be substantially 
weaker. In contrast, the Gulf carrier would be operating at a signal 
strength sufficient to provide reliable service. The use of the water 
formula by all parties would therefore likely lead to capture of land 
traffic by the Gulf carrier because of the stronger Gulf signal.
    8. PetroCom argues that using different formulas for land-based and 
Gulf carriers gives a signal strength advantage to land carriers and 
thereby will cause subscriber capture problems for Gulf carriers. The 
Commission agrees that the two-formula approach will not prevent 
subscriber capture in all situations, and that capture of Gulf traffic 
by land carriers may occur on occasion. The Commission has always 
acknowledged that these formulas are theoretical models that 
approximate but do not precisely predict the extent of actual coverage 
provided by carriers beyond their respective sides of the coastline. 
However, in situations where the majority of the signal path is over a 
single medium--land or water--the two-formula approach provides the 
most reasonable estimate of a given station's service area. The 
Commission concludes that the PetroCom's proposal does not provide a 
better solution to subscriber capture than the two-formula approach, 
and that it is more likely to exacerbate capture problems in comparison 
to the two-formula approach.
    9. PetroCom further argues that the two-formula approach does not 
preserve the status quo, but actually gives land-based carriers a 
bargaining advantage in negotiating agreements with Gulf carriers. 
However, because the Gulf Report and Order prohibits land carriers from 
extending their SAB contours anywhere into the Western Gulf, a land 
carrier seeking to place a site close to the boundary has no choice but 
to negotiate with the applicable Gulf carrier, regardless of whether 
the Gulf carrier has a facility in the area.
    10. PetroCom also notes that it has negotiated agreements with 
land-based carriers in which both parties agreed to use of the land 
formula. This is not an argument for adopting the land formula as an 
across-the-board rule. The Commission found that land and Gulf carriers 
had been using the existing formulas and had been successful in 
reaching negotiated agreements under the existing framework. The 
Commission consequently found that changing the SAB definitions could 
lead to one side or the other unilaterally increasing their transmitter 
power under the revised definitions, which could upset existing 
agreements and create new conflicts. Parties remain free to negotiate 
alternative arrangements. PetroCom's current extension and co-location 
agreements with land carriers (where PetroCom has filed applications 
showing a 32 dB[mu]V/m contour) were the end result of negotiations, 
rather than the starting points.
    11. PetroCom further argues that in Petroleum Communications, Inc. 
v. FCC, 22 F.3d 1164 (DC Cir. 1994) (PetroCom), the DC Circuit Court 
vacated the water formula, and reinstated the original cellular rule 
that defined reliable service, which was based on a 39 dB[mu]V/m 
contour. Accordingly, PetroCom argues, it is entitled under the 
``status quo'' to a signal strength of 39 dB[mu]V/m at the coastline, a 
significantly stronger signal than either 28 or 32 dB[mu]V/m. The 
Commission disagrees with PetroCom's characterization of the effect of 
the remand on this issue. The issue that the Gulf carriers raised and 
which the DC Circuit Court remanded was whether the Gulf carriers 
should be limited to areas of actual service in light of their 
dependence on itinerant offshore platforms as sites for their 
transmitters. The Court held that the Commission had not addressed why 
it was treating land and Gulf carriers in the same manner (i.e., 
limiting both land and Gulf carriers to areas of actual service) even 
though the Gulf carriers are dependent on oil and gas rigs as 
transmitter sites.
    12. Accordingly, the Court remanded ``this issue to the Commission 
with instructions to vacate Sec.  22.903(a) [now Sec.  22.911(a)] 
insofar as it applies to [Gulf of Mexico Service Area (GMSA)] licensees 
pending reconsideration.'' Pending resolution of the remand, the 
Commission adopted a note to paragraph (a) of the rule, in which it 
identified the status quo: ``[U]ntil further notice, the authorized 
CGSAs of the cellular systems licensed to serve the GMSA are those 
which were authorized prior to January 11, 1993.'' The Commission 
believed then, and continues to believe now that the Court's intent was 
to direct the Commission to vacate only that portion of former Sec.  
22.903(a) that limited Gulf licensees' CGSAs to their existing areas of 
actual service--the only issue as to which the Court was remanding--and 
not to compel the Commission to also vacate the formula it had adopted 
for determining reliable service in the Gulf, as to which no objection 
had been made

[[Page 42293]]

and which played no role in defining the previous CGSA which was 
reinstated during the interim as a result of the Court's decision.
    13. Following the PetroCom remand, the Commission has applied the 
28 dB[mu]V/m water formula as the applicable standard for Gulf 
carriers. This is consistent with its policy that, to the extent that 
Gulf carriers are allowed to serve up to the boundary of the GMSA, 
i.e., the shoreline, they are permitted to operate at a height and 
power sufficient to provide reliable service at the shoreline. The use 
of the 39 dB[mu]V/m field strength by Gulf carriers is inappropriate 
because it is clearly counter to data submitted to the Commission 
regarding the field strength necessary for reliable service by either 
land or water carriers. Indeed, carriers other than PetroCom have 
understood that the Gulf carriers were subject to the water formula. 
For example, Bachow/Coastel, the B-Block Gulf carrier, engineered its 
systems using the water formula as the applicable standard, and entered 
into agreements based on that formula.

B. ``Hybrid'' Formula Proposal

    14. In the Gulf Report and Order, the Commission declined to adopt 
its proposal to create a Coastal Zone that would encompass coastal 
waters in both the Eastern and Western Gulf, and proposed to develop a 
``hybrid'' propagation formula that would be used by both land-based 
and Gulf carriers to measure service area contours within the Coastal 
Zone. The Commission noted that the record reflected little support for 
a hybrid formula, and found that it would be difficult to establish a 
single formula that would accurately account for the variations in 
signal propagation over both land and water. The Commission finds no 
merit in PetroCom's contention that the Commission erred in rejecting a 
hybrid approach in favor of retaining the two-formula approach. First, 
the proposal to create a hybrid formula was linked to the proposal to 
establish a Coastal Zone that could be served by both land and Gulf 
carriers, which the Commission ultimately did not adopt. Once the 
Commission decided to retain existing rules rather than establish a 
Coastal Zone in both the Eastern and Western Gulf, there was no longer 
a need to pursue development of a hybrid signal propagation formula as 
previously proposed. Second, the Commission rejects PetroCom's 
contention that there was a sufficient record to justify, much less 
compel, adoption of a hybrid formula. Although there were indeed some 
commenters who supported use of a hybrid formula, others did not. 
Moreover, few commenters actually proposed specific technical criteria 
for the development of such a formula, and the Commission found that 
those who did failed to provide the type of detailed technical analysis 
or supporting data (such as measurements) necessary to support their 
proposals. Given these and other factors, the Commission continues to 
believe that a hybrid formula would be very difficult to develop, and 
that the benefits of such a formula do not outweigh the costs and 
complications involved in establishing and employing one.

C. Regulatory Flexibility Act Requirements

    15. PetroCom argues that the Commission violated the Regulatory 
Flexibility Act (RFA) because its Initial Regulatory Flexibility 
Analysis (IRFA) did not describe the potential impact on Gulf carriers 
of retaining the two-formula approach. PetroCom further argues that the 
Final Regulatory Flexibility Analysis (FRFA) in the Gulf Report and 
Order was flawed because it did not contain a description of the steps 
the Commission has taken to minimize the significant economic impact on 
the Gulf carriers of continuing to allow land carriers to utilize the 
land formula. PetroCom also contends that the Commission was required 
to include a statement in the FRFA why proposals for the use of ``an 
equal strength rule'' were rejected as alternatives.
    16. The RFA requires that agencies evaluate the effect that new 
regulations will have on small business entities. 5 U.S.C. 601 et seq. 
When proposing a new rule, agencies must perform an IRFA discussing the 
proposed new rule's impact on small entities. Further, when adopting a 
final rule, the agency must also perform a FRFA. The Commission 
complied with these requirements. PetroCom incorrectly asserts that as 
part of the RFA process, the Commission was required to analyze the 
effects that retaining existing rules would have on small entities. The 
Commission's decision to continue applying existing rules was not a new 
undertaking that falls under the provisions of the RFA. Instead, after 
reviewing alternatives, the Commission determined that, in light of the 
difficulties of adopting a single formula that would apply in all 
cases, the existing regulatory environment should be retained because 
of the flexibility provided by the Commission's rules for parties to 
enter into agreements that would allow carriers to choose for 
themselves which operating parameters to apply. This decision did not 
require additional discussion in the FRFA.

D. PetroCom Co-location Applications

    17. In December 1992, the Commission began accepting Phase II 
applications for unserved area licenses in the GMSA. However, following 
the PetroCom remand, the Commission suspended processing of these 
applications pending reconsideration of the Commission's policies in 
the Gulf region. Similarly, the Commission ceased processing de minimis 
extension requests along the Gulf coast due to uncertainty regarding 
the rules for the GMSA. In the Gulf Report and Order, the Commission 
dismissed all pending Phase II applications and extension requests (as 
well as associated petitions to deny). The Commission reasoned that in 
light of length of time since the applications had been filed, the 
fairest and most efficient resolution was to dismiss all pending 
applications and allow the carriers to reapply. In dismissing all 
pending Phase II and de minimis extension applications, however, the 
Commission erroneously dismissed a number of PetroCom's applications 
that were filed pursuant to agreements to co-license sites on land in 
markets adjacent to the Gulf of Mexico. A major goal of the Gulf Report 
and Order was to encourage parties to reach negotiated solutions to 
issues such as coverage, capture, and roaming rates. The policies set 
out in the Gulf Report and Order were also aimed at ensuring that 
existing contractual relationships are not disturbed. The dismissal of 
PetroCom's applications based on negotiated co-location agreements runs 
counter to that goal. Accordingly, the Commission reinstates the 
applications cited in PetroCom's petition to pending status.

E. Clarification Regarding Extensions Into the GMEZ

    18. In the Gulf Report and Order, the Commission gave the Gulf 
carriers full flexibility to build, relocate, modify, and remove 
offshore facilities throughout the GMEZ without seeking prior 
Commission approval or facing competing applications. Further, the 
Commission chose not to allow land carriers to make de minimis 
extensions into unserved areas of the GMEZ. The Commission agrees with 
PetroCom that the Commission's rules as currently worded may cause some 
confusion. Accordingly, the Commission clarifies that land-based 
carriers are precluded from extending their SABs into any part of the 
GMEZ, whether served by the applicable Gulf carrier or not, without

[[Page 42294]]

the Gulf carrier's consent, and amends rule Sec.  22.912 to reflect 
this fact.

F. Clarification of Phase II Licensing in the GMSA

    19. The Commission also clarifies, on its own motion, the wording 
of Sec.  22.911(a)(2) to remove confusion. In the Gulf Report and 
Order, the Commission amended Sec.  22.911(a)(2) in order to reflect 
that areas of the GMCZ would be subject to Phase II licensing and open 
to all carriers. However, Sec.  22.911(a)(2) in its current form may be 
misread as applying only to the two original Gulf (GMEZ) carriers. The 
Commission therefore clarifies that the rule applies to all cell sites 
actually located in the GMSA (whether in the GMEZ or GMCZ), and not 
just to GMEZ carriers.

G. Grandfathering of Existing Gulf Carrier Operating Parameters

    20. PetroCom argues that it was material error for the Commission 
not to address an ex parte request made by PetroCom in October 2001, 
proposing that the Commission adopt a grandfathering rule that 
preserves the current operating parameters of all facilities that 
existed as of April 17, 1997. PetroCom argues that current operating 
parameters means the use of 32 dB[mu]V/m contours as calculated using 
the land formula at the coastline. According to this proposal, all 
operating parameters, including contour extensions that cross the 
coastline boundary, would be grandfathered using the land formula. 
PetroCom's proposal would allow a carrier to modify or construct a new 
site as long as any new cross-boundary extensions (also calculated 
using the land formula) remain within the extension of the originally 
grandfathered contour.
    21. The Commission declines to reconsider the grandfathering of 
existing cellular facilities as proposed by PetroCom. The Gulf Report 
and Order did not affect any existing operating parameters, including 
the use of the land formula by Gulf carriers or cross-boundary 
contours, that might have resulted from such agreements. However, while 
the Commission grandfathered such existing operations, it did not grant 
carriers, either land carrier or Gulf carrier, a permanent right to 
encroach across the coastline boundary or the right to Gulf carriers to 
calculate contours using the land formula in the absence of agreements 
permitting them to do so. As previously discussed, the use of the land 
formula by Gulf carriers has never been the status quo for the Gulf 
carriers. Instead, the Gulf carriers are required to operate using the 
water formula, absent an agreement with the applicable land carrier.

H. Market Boundaries of Personal Communications Service (PCS) Licensees 
Adjacent to the Gulf of Mexico Are Co-extensive With County Boundaries

    22. The Commission found in the Gulf Report and Order that it was 
in the public interest to allow land-based CMRS carriers to extend 
their coverage offshore, both to increase coverage and service quality 
for land-based customers along the coastline and to offer service to 
coastal boating traffic. The Commission further noted that the 
geographic service area definitions used for most non-cellular CMRS 
services--including those for PCS--are based on county boundaries, 
which typically extend over water pursuant to state law. Accordingly, 
the Gulf Report and Order clarified that such Commission licensing 
areas are co-extensive with the county boundaries on which they are 
based. The Commission also stated that licensees could provide service 
extending beyond county boundaries and into the Gulf on a secondary 
basis so long as they comply with the technical limitations applicable 
to the radio service and do not cause co-channel or adjacent channel 
interference to others.
    23. VoiceStream Wireless Corp. (VoiceStream) argues that the Gulf 
Report and Order erroneously reduced the rights of existing PCS 
licensees along the Gulf coast to provide service extending out into 
the Gulf. VoiceStream and other commenters assert that by defining PCS 
licensing areas as co-extensive with county boundaries, allowing 
carriers to provide service in the Gulf beyond county boundaries only 
on a secondary basis, and leaving open the possibility of licensing 
separate PCS markets in the Gulf at a later date, the Gulf Report and 
Order has arbitrarily reduced the rights of existing PCS licensees. 
VoiceStream contends that PCS licensees bordering the Gulf should be 
expressly authorized to serve the entire Gulf area on a primary basis, 
and that the Commission should be precluded from establishing a 
separate PCS licensing area for the Gulf. Alternatively, VoiceStream 
requests that if the Commission concludes that PCS licensing areas 
along the Gulf coast are limited to county boundaries, the Commission 
should redefine the market area boundaries of PCS licensees extending 
into the Gulf based on the federally-defined Exclusive Economic Zone 
(EEZ) which extends 200 nautical miles into the Gulf of Mexico.
    24. The Commission has clearly stated in its rules and proceedings 
that PCS is licensed using Major Trading Areas (MTAs) and Basic Trading 
Areas (BTAs), as defined in the Rand McNally Commercial Atlas and 
Marketing Guide. See Rand McNally, 1992 Commercial Atlas & Marketing 
Guide, 123rd Edition, 1992 (Rand McNally). Similarly, the PCS technical 
rules regarding field strength limits at licensing area borders do not 
entitle licensees to extend service on a primary basis beyond the 
licensing areas specified on their authorizations. Nothing in the 
Commission's rules indicates that carriers may serve areas outside of 
their markets on a primary basis simply because there is no adjacent 
licensee. To the contrary, the Commission's rules state that the 
holding of an authorization does not create any rights beyond the 
terms, conditions and period specified in the authorization. The 
Commission rejects the argument that its conclusions represent a 
``reduction'' in the rights of PCS licensees, because primary rights to 
serve the Gulf beyond county boundaries were never granted as part of 
those licenses. The Commission also rejects the argument that it should 
grant land-based PCS licensees primary rights to serve the Gulf because 
PCS bidders allegedly relied on the lack of a separate PCS Gulf 
licensee in setting their bids. The Commission previously rejected a 
similar argument that bidders for Multipoint Distribution Service 
licenses along the Gulf coast could reasonably assume that there was no 
prospect of future licensing of the service in the Gulf. See Amendment 
of Parts 21 and 74 of the Commission's Rules With Regard to Licensing 
in the Multipoint Distribution Service and in the Instructional 
Television Fixed Service for the Gulf of Mexico, Notice of Proposed 
Rulemaking, WT Docket No. 02-68, RM-9718, 67 FR 35083 (May 17, 2002). 
Finally, the Commission sees no basis to adopt VoiceStream's request 
that the Commission change the geographic market definitions in PCS to 
extend existing Gulf coast markets 200 nautical miles into the Gulf 
based on the federally-defined Exclusive Economic Zone. The Commission 
adopted the specific market areas for PCS in 1993 after much debate 
over which type of service area is the most appropriate, and has 
repeatedly affirmed its decision to use such market areas on 
reconsideration.

III. Procedural Matters

A. Supplemental FRFA Certification

    25. The RFA requires that a regulatory flexibility analysis be 
prepared for

[[Page 42295]]

rulemaking proceedings, unless the agency certifies that ``the rule 
will not have a significant economic impact on a substantial number of 
small entities.'' 5 U.S.C. 605(b). The RFA generally defines ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' 5 
U.S.C. 601(b). In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. 5 U.S.C. 601(3) (incorporating by reference the definition of 
``small business concern'' in the Small Business Act, 15 U.S.C. 632). A 
small business concern is one which: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration. As required by the RFA, a FRFA was incorporated in the 
Gulf Report and Order. This Supplemental Final Regulatory Flexibility 
Analysis is limited to matters raised on reconsideration.
    26. Because this decision affects only the small number of carriers 
providing cellular service along the coastline adjacent to the Gulf of 
Mexico, the Commission concludes that this action will not affect a 
substantial number of small businesses. Further, the Order on 
Reconsideration affirms or codifies decisions previously made in the 
Gulf Report and Order. Accordingly, the Commission certifies that this 
decision will not have a significant economic impact on a substantial 
number of small entities. The Commission will send a copy of the Order 
on Reconsideration including a copy of this certification, in a report 
to Congress pursuant to the Congressional Review Act of 1996. See 5 
U.S.C. 801(a)(1)(A). In addition, the Order on Reconsideration and this 
certification will be sent to the Chief Counsel for Advocacy of the 
Small Business Administration, and will be published in the Federal 
Register. In this order, the Commission affirms the decision in the 
Gulf Report and Order to use different formulas for predicting the 
propagation of cellular signals over land and over water as the basis 
for determining the SABs of land-based and water-based cell sites in 
the Gulf of Mexico area. The Commission also affirms that the market 
boundaries of PCS licensees adjacent to the Gulf of Mexico are co-
extensive with county boundaries. The Commission also amends rule Sec.  
22.912 to codify the Commission's decision in the Gulf Report and Order 
that a land carrier may not extend its SABs into any part of the GMEZ, 
served or unserved, without the Gulf carrier's consent. Further, the 
Commission clarifies language in Sec.  22.911(a)(2) to more accurately 
reflect a rule change made in the Gulf Report and Order.

B. Paperwork Reduction Act Analysis

    27. This Order on Reconsideration has been analyzed with respect to 
the Paperwork Reduction Act of 1995, Pub. L. 104-13, and found to 
impose no new or modified reporting and recordkeeping requirements or 
burdens on the public.

IV. Ordering Clauses

    28. Pursuant to sections 1, 4(i), 4(j), and 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 
and 405, and Sec.  1.429 of the Commission's rules, 47 CFR 1.429, the 
April 3, 2002 Petition for Partial Reconsideration filed by Petroleum 
Communications, Inc., is denied in part and granted in part.
    29. The February 22, 2002 Petition for Reconsideration filed by 
Petroleum Communications, Inc., is granted, and that File Nos. 02590-
CL-97, 02593-CL-97, 02594-CL-97, 02595-CL-97, 02596-CL-97, 02600-CL-P2-
97, and 02407-CL-P2-97 are reinstated and placed in pending status.
    30. The Petition for Reconsideration filed by VoiceStream Wireless 
Corporation is denied.
    31. The rule changes set forth below will become effective 
September 15, 2003.

List of Subjects in 47 CFR Part 22

    Public Mobile Services.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 22 as follows:

PART 22--PUBLIC MOBILE SERVICES

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1. The authority citation for part 22 continues to read as follows:


    Authority: 47 U.S.C. 154, 222, 303, 309 and 332.

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2. Section 22.911 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  22.911  Cellular geographic service area.

* * * * *
    (a) * * *
    (2) The distance from a cell transmitting antenna located in the 
Gulf of Mexico Service Area (GMSA) to its SAB along each cardinal 
radial is calculated as follows:


d = 6.895 x h0.30 x p0.15

Where:

d is the radial distance in kilometers
h is the radial antenna HAAT in meters
p is the radial ERP in Watts
* * * * *

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3. Section 22.912 is amended by revising paragraphs (a) and (b) to read 
as follows:


Sec.  22.912  Service area boundary extensions.

* * * * *
    (a) De minimis extensions. Except as otherwise provided in 
paragraphs (b) and (d) of this section, SABs may be extended into 
adjacent cellular markets if such extensions are de minimis, are 
demonstrably unavoidable for technical reasons of sound engineering 
design, and do not extend into the CGSA of any other licensee's 
cellular system on the same channel block, any part of the Gulf of 
Mexico Exclusive Zone (GMEZ), or into any adjacent cellular market on a 
channel block for which the five year build-out period has expired.
    (b) Contract extensions. Except as otherwise provided in paragraph 
(d) of this section, cellular system licensees may enter into contracts 
to allow SAB extensions as follows:
    (1) The licensee of any cellular system may, at any time, enter 
into a contract with an applicant for, or licensee of, a cellular 
system on the same channel block in an adjacent cellular market, to 
allow one or more SAB extensions into its CGSA only (not into unserved 
area).
    (2) The licensee of the first authorized cellular system on each 
channel block in the Gulf of Mexico Service Area (GMSA) may enter into 
a contract with an applicant for, or licensee of, a cellular system on 
the same channel block in an adjacent cellular market or in the Gulf of 
Mexico Coastal Zone (GMCZ), to allow one or more SAB extensions into 
the Gulf of Mexico Exclusive Zone.
    (3) The licensee of the first authorized cellular system on each 
channel block in each cellular market may enter into a contract with an 
applicant for or licensee of a cellular system on the same channel 
block in an adjacent cellular market, to allow one or more SAB 
extensions into its CGSA and/or unserved area in its cellular market, 
during its five year build-out period.
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[FR Doc. 03-18095 Filed 7-16-03; 8:45 am]
BILLING CODE 6712-01-P