**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Zephyr Tele-Link )

) File No. 11022-CL-P-599-A-89

Application for a Construction Permit to )

Establish a Cellular System Operating on )

Frequency Block A in the Domestic Public )

Cellular Radio Telecommunications Service )

To Serve the Oklahoma 4-Nowata Rural Service )

Area, Market No. 599A )

**ORDER**

**Adopted: February 22, 2000 Released: February 23, 2000**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

1\. In this Order, we address the "Request for Approval of Settlement
Agreement" filed by Zephyr Tele-Link (Zephyr) on September 15, 1999
(Zephyr Request I), the "Request for Approval of Settlement Agreement
and Grant of Application" filed by Zephyr on December 13, 1999 (Zephyr
Request II) and the "Conditional Request for Dismissal of Petition for
Reinstatement and Grant of Application, for Dismissal of Related
Pleadings and for Further Relief" (Conditional Request) filed by
Progressive Cellular III B-3 (Progressive)[^1] on September 15, 1999.
For the reasons discussed below, we approve Zephyr Request I, Zephyr
Request II, the Conditional Request and, subject to the condition set
forth in this Order,[^2] we grant Zephyr's application to provide
cellular service in the Oklahoma 4-Nowata Rural Service Area (RSA).[^3]

2\. Pursuant to an Agreement dated September 2, 1999 (Progressive
Agreement)[^4] among Zephyr,

Progressive and Alaska-3 Cellular Corporation (Alaska--3),[^5] and a
separate Agreement dated December 7,

1999 (AALA Agreement) between Zephyr and Applicants Against Lottery
Abuse (AALA),[^6] the parties have resolved certain long-standing issues
regarding the status of the Oklahoma 4-Nowata RSA authorization.[^7]

3\. Pursuant to section 22.959,[^8] the Commission's 1996 decision in
*Western California Cellular Partners*[^9] and our recent decision in
*Progressive Cellular III B-2*,[^10] we will evaluate Zephyr Request II
under former section 22.29,[^11] which was in effect at the time of the
filing of Progressive's application for an initial cellular system.
Under former section 22.29, parties that, under a settlement agreement,
apply to the

Commission for the amendment or dismissal of either pleadings or
applications shall at the time of the filing notify the Commission that
such filing is the result of an agreement or understanding. Zephyr and
AALA have complied with the notification requirement that was in effect
at the time of Zephyr's initial application filing. We approve Zephyr
Request II because it satisfies the requirements of former section
22.29, and we find that it is in the public interest pursuant to Section
309(d) of the Communications Act, as amended.[^12]

4\. Zephyr Request I and Progressive's Conditional Request were filed on
September 15, 1999, pursuant to the Commission's window extending the
waiver on limitations on payments in settlement agreements among parties
in contested proceedings,[^13] and therefore would not be subject to
Commission rule section 22.129.[^14] We have reviewed Zephyr Request I
and Progressive's Conditional Request and, pursuant to Section 309(d) of
the Communications Act, as amended, we find that the proposed
settlements are in the public interest.

5\. We therefore grant Zephyr's application requesting authority to
provide cellular service in the Oklahoma 4-Nowata RSA. Our grant of
Zephyr's application is conditioned upon Zephyr filing a minor
modification application within thirty days of the release of this Order
to conform its service area boundary (SAB) and cellular geographic
service area (CGSA) determination to comply with current Commission rule
section 22.911.[^15] Failure to submit the required modification
application in compliance with current rule 22.911, as set forth in the
special condition on the authorization, shall result in a set aside of
this Order and the automatic cancellation of the Zephyr's authorization
under File No. 11022-CL-P-599-A-89.

6\. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 309
of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, and
section 0.331 of the Commission\'s rules, 47 C.F.R. § 0.331, Zephyr
Tele-link's September 15, 1999 "Request for Approval of Settlement
Agreement," Zephyr Tele-Link's December 13, 1999 "Request for Approval
of Settlement Agreement and Grant of Application" and Progressive
Cellular III B-3's September 15, 1999 "Conditional Request for Dismissal
of Petition for Reinstatement and Grant of Application, for Dismissal of
Related Pleadings and for Further Relief" are hereby APPROVED.[^16]

7\. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, and section
0.331 of the Commission\'s rules, 47 C.F.R. § 0.331, Zephyr's
application (File No. 11022-CL-P-599-A-89) is hereby GRANTED, subject to
Zephyr's filing a minor modification application within thirty days of
the release of this Order for the purpose of conforming its service area
boundary (SAB) and cellular geographic service area (CGSA) determination
in compliance with current Commission rule section 22.911. Failure to
submit the required minor modification application within thirty days of
the release of this Order which complies with current rule 22.911, as
set forth in the special condition on the authorization, shall result in
a set aside of this Order and the automatic cancellation of the
authorization under File No. 11022-CL-P-599-A-89.

8\. IT IS FURTHER ORDERED that, pursuant to sections 4(i) of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), and section 1.2 of
the Commission\'s rules, 47 C.F.R. §1.2, the March 17, 1998 "Request for
Permission to Withdraw Motion for Declaratory Rulings and Related
Pleadings" filed by Zephyr is hereby GRANTED.

9\. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, and section
1.939 of the Commission\'s rules, 47 C.F.R. § 1.939,

the Petition to Deny filed by AALA on July 2, 1992 is hereby DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

Paul D'Ari

Chief, Policy and Rules Branch

Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: ^?^ Progressive Cellular III B-3 was the original winner of the
    lottery held for the Oklahoma 4-Nowata RSA, Market No. 599A. As set
    forth in footnote 7, *infra*, the Commission dismissed Progressive's
    application as defective and that dismissal was upheld after
    judicial review.

[^2]: ^?^ A special condition consistent with this Order will be placed
    on Zephyr's granted authorization under File No.
    11022-CL-P-599-A-89.

[^3]: ^?^ Zephyr is the re-lottery winner for the Oklahoma 4-Nowata RSA.

[^4]: ^?^ A copy of the Progressive Agreement is attached to Zephyr
    Request I as Exhibit 1.

[^5]: ^?^ Alaska--3 is the current non-wireline licensee for the Alaska
    3-Haines RSA (Market No. 317A), having been assigned the
    authorization by RJL Cellular Partnership (RJL), the re-lottery
    winner in the Alaska 3-Haines RSA. *See Public Notice*, Report No.
    CL-95-5 (rel. October 21, 1994).

[^6]: ^?^ On July 2, 1992, AALA filed a Petition to Deny Zephyr's
    application under File No. 11022-CL-P-599-A-89. AALA's Petition to
    Deny is being dismissed pursuant to the terms of the AALA Agreement.

[^7]: ^?^ The factual history regarding the Commission's licensing of
    the Oklahoma 4-Nowata RSA is set forth in the substantial Commission
    record in this matter. *See, e.g.*, In Re Application of Progressive
    Cellular III B-3, *Memorandum Opinion and Order,* 6 FCC Rcd 596
    (1991) (wherein Progressive's application for the Oklahoma 4-Nowata
    RSA under File No. 10570-CL-P-599-A-89 was dismissed); In Re
    Application of Progressive Cellular III B-3, *Memorandum Opinion and
    Order,* 6 FCC Rcd 7178 (1991) (denial of Progressive's Petition for
    Reconsideration of the dismissal of its application); In Re
    Application of Progressive Cellular III B-3, *Memorandum Opinion and
    Order*, 7 FCC Rcd 2080 (1992) (denial of Progressive's Request for
    Stay of Non-Wireline Lottery for Market 599); *Progressive Cellular
    III B-3 v. Federal Communications Commission*, 986 F.2d 546 (D.C.
    Cir. 1993), Rehearing En Banc denied April 7, 1993, *cert. denied*,
    114 S. Ct. 174 (1993) (U.S. Court of Appeals denial of Progressive's
    appeal of FCC order dismissing application); In the Matter of
    Cellular Rural Service Area Applications in Market Nos. 599A and
    672A, *Order on Reconsideration*, DA 99-1426 (released July 21,
    1999)(granting Zephyr's Petition for Reconsideration and reinstating
    its application for the Oklahoma 4 -- Nowata market to pending
    status).

[^8]: ^?^ 47 C.F.R § 22.959. Section 22.959 of the Commission's rules
    specifically provides that pending applications for authority to
    operate the first cellular system on a channel block in an MSA or
    RSA market continue to be processed under the rules governing the
    processing of such applications that were in effect when those
    applications were filed, unless the Commission determines otherwise
    in a particular case.

[^9]: ^?^ In Re Applications of Western California Cellular Partners and
    MTEL Cellular, Inc., *Order,* 11 FCC Rcd 5705 (1996).

[^10]: ^?^ In the Matter of Progressive Cellular III B-2, *Order*, DA
    00-115 (rel. January 24, 2000).

[^11]: ^?^ 47 C.F.R. § 22.29 (1988). Since the filing of Zephyr's
    application, the Commission has rewritten Part 22 of the
    Commission's rules. *See,* Revision of Part 22 of the Commission's
    Rules Governing the Public Mobile Services, *Report and Order*, 9
    FCC Rcd 6513 (1994).

[^12]: ^?^ Consistent with our decisions in *Western California Cellular
    Partners* and *Progressive Cellular III B-2*, we decline to apply
    the rule against "greenmail" in this case, as there is nothing in
    the history of this proceeding to indicate that AALA's Petition to
    Deny Zephyr's application in the Oklahoma 4 -- Nowata RSA was
    submitted for the purpose of extracting a settlement payment from
    Zephyr. *See* In Re Applications of Algreg Cellular Engineering,
    *Memorandum Opinion and Order*, FCC 99-281 (rel. October 18, 1999).

[^13]: ^?^ *See*, "Wireless Telecommunications Bureau Extends Waiver of
    Limitations on Payments in Settlement Agreements Among Parties in
    Contested Licensing Cases," *Public Notice*, DA 99-1734 (rel. August
    30, 1999).

[^14]: ^?^ Section 22.129 was renumbered as current rule section 1.935
    in the Commission's adoption of the Universal Licensing System
    rules. *See* In the Matter of Biennial Regulatory Review --
    Amendment of Parts 0, 1, 13, 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*, 13 FCC Rcd 21027 (1998).

[^15]: ^?^ 47 C.F.R. § 22.911. Zephyr's application was originally
    submitted in 1989 and the applicable rules governing determination
    of cellular geographic service area have been revised.

[^16]: ^?^ Progressive's Petition for Reinstatement and Grant of
    Application and Petition to Dismiss or Deny Zephyr's application
    will be dismissed by separate order in accordance with the terms of
    the Conditional Request.