[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
0
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.
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(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.
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(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