**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  |                              |
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| Verizon Wireless                 | ** |                              |
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| Request for Limited Waiver of    | *  |                              |
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| Sections 22.947 and 22.949 of    | ** |                              |
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| The Commission's Rules           | *  |                              |
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**ORDER**

**Adopted: September 19, 2002 Released: September 20, 2002**

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

# introduction

1.  On January 29, 2002, Verizon Wireless filed the above-captioned
    request for a limited waiver of sections 22.947 and 22.949 of the
    Commission's rules[^1] (Waiver Request) to preclude the filing of
    Phase I or Phase II cellular unserved area applications that propose
    coverage in its existing cellular markets within the National Radio
    Quiet Zone (Quiet Zone).[^2] For the reasons discussed below, we
    grant Verizon Wireless's Waiver Request.

# background

2.  The Quiet Zone, which encompasses an area of approximately 13, 000
    square miles, was created to minimize possible harmful interference
    to the National Radio Astronomy Observatory (NRAO), located at Green
    Bank, West Virginia, and the Naval Radio Research Observatory
    (NRRO), located at Sugar Grove, West Virginia. Section 1.924(a) of
    the Commission's rules requires that the NRAO be notified of any
    proposed construction and operation of a new or modified station at
    a permanent fixed location within the Quiet Zone.[^3] If the NRAO
    objects to the proposed facility, on behalf of itself or the NRRO,
    the Commission, pursuant to section 1.924(a)(3) of its rules, "will,
    after consideration of the record, take whatever action is deemed
    appropriate."[^4]

3.  Verizon Wireless, directly or through affiliates, holds licenses to
    offer cellular service in two Virginia Rural Service Areas (RSAs)
    and one Virginia Metropolitan Service Area (MSA) that include
    portions of the Quiet Zone.[^5] In its Waiver Request, Verizon
    Wireless states that because the Commission typically defers to the
    NRAO's position, the standards employed by the NRAO to prevent or
    minimize possible harmful interference to the observatories have had
    the effect of absolutely barring placement of cellular facilities in
    portions of the Quiet Zone and of imposing severe restrictions on
    nearby facilities.[^6] As a result of these restrictions, Verizon
    argues that it has been precluded from extending coverage in
    portions of its MSA and RSAs.[^7]

4.  Verizon therefore seeks a limited waiver of Section 22.947 and
    22.949 of the Commission's rules for the purpose of providing
    service within the Quiet Zone after expiration of the five-year
    build-out period in each market. Section 22.947 provides the initial
    licensee in each cellular market a five-year period during which the
    licensee has an exclusive right to expand its system within the
    market.[^8] Section 22.949 sets forth a two-part process, Phase I
    and Phase II, that allows individuals other than the original
    licensee to submit applications for licenses in areas in cellular
    markets that remain unserved after the five-year build-out period
    expires.[^9] Because its ability to expand coverage in the Quiet
    Zone has been restricted, Verizon Wireless contends that it should
    be given the first opportunity to expand its coverage if the
    Commission, in the future, relaxes its Quiet Zone restrictions or if
    new engineering techniques are developed that would permit a greater
    degree of Quiet Zone coverage.[^10] Verizon Wireless also asks that
    we preclude other individuals from submitting applications under the
    Commission's unserved area licensing rules once the five-year
    build-out period expires in each relevant market.[^11]

# discussion

5.  Because of the unique restrictions that limit construction in the
    Quiet Zone, we grant Verizon Wireless a limited waiver of the
    Commission's cellular five-year build-out and unserved area
    licensing rules. Section 1.925 of the Commission's rules provides
    that a waiver may be granted if it is shown that: (1) the underlying
    purpose of the rule would not be served or would be frustrated by
    application to the instant case, and that a grant of the requested
    waiver would be in the public interest; or (2) in view of unique or
    unusual factual circumstances of the instant case, application of
    the rule would be inequitable, unduly burdensome or contrary to the
    public interest, or the applicant has no reasonable
    alternative.[^12] We agree with Verizon Wireless that because of the
    unique circumstances encountered in the Quiet Zone, application of
    the cellular buildout and unserved area rules in this case would not
    serve the purposes of those rules and, therefore, would not be in
    the public interest. Verizon has shown that the Commission's rules
    governing operations in the Quiet Zone have prevented it from
    offering service to significant portions of its licensed area. Under
    these circumstances, we believe that enforcing the existing
    build-out and unserved area rules would serve no useful purpose and
    would potentially encourage the filing of speculative applications.

6.  We note that our decision here is consistent with the *Quiet Zone
    Waiver Order*, which granted, on our own motion, a limited waiver of
    sections 22.947 and 22.949 of the Commission's rules to allow
    Easterbrooke Cellular Corporation and United States Cellular
    Corporation to continue to construct facilities within the Quiet
    Zone beyond the expiration of the five-year buildout period, and to
    preclude other parties from filing unserved area applications to
    serve areas within the Quiet Zone on the channel blocks and in the
    RSAs covered by their licenses. [^13]

7.  We therefore grant Verizon Wireless a limited waiver of sections
    22.947 and 22.949 of the Commission's rules. Specifically, we waive
    section 22.947 to permit Verizon Wireless to continue to construct
    facilities within the Quiet Zone beyond the expiration of the
    five-year buildout period for call signs KNKN919, KNKQ314, and
    KNKA441, subject to compliance with section 1.924(a) and other
    relevant provisions of the Commission's rules. We also waive section
    22.949 of the Commission's rules to preclude other parties from
    filing unserved area applications to serve areas within the Quiet
    Zone on the channel blocks and in the two RSAs and one MSA covered
    by these licenses.

8.  In granting this waiver, we note that potential circumstances could
    cause us to reevaluate the waiver granted here. For example, if the
    Commission did modify its Quiet Zone rules, or if technological
    advances were to make construction in the Quiet Zone feasible, we
    expect that Verizon Wireless would take the necessary steps to
    expand its coverage. If Verizon Wireless did not do so after a
    reasonable opportunity, we would consider reinstating unserved area
    licensing procedures to enable other parties to enter the market.
    Thus, this waiver will remain in effect to permit Verizon Wireless
    to construct and bring into operation new facilities until the
    Commission or a Commission official on proper exercise of delegated
    authority terminates the waiver.

# ordering clause

9.  Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and
    303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§154(i), 303(r), and sections 0.331 and 1.925 of the Commission's
    rules, 47 C.F.R. §§ 0.331, 1.925, the request of Verizon Wireless
    for a waiver of sections 22.947 and 22.949 of the Commission's rules
    to the extent provided in this order IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Paul D'Ari

Chief, Policy and Rules Branch

Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: 47 C.F.R. §§ 22.947, 22.949.

[^2]: Petition for Waiver of Verizon Wireless (Jan. 29, 2002).

[^3]: 47 C.F.R. § 1.924(a).

[^4]: 47 C.F.R. § 1.924(a)(3).

[^5]: Specifically, Virginia RSA Limited Partnership is the B block
    cellular licensee in Virginia RSA 5 -- Bath, call sign KNKN919.
    Southern & Central Wireless, LLC is the B block cellular licensee in
    Virginia RSA 6 -- Highland, call sign KNKQ314. Cellco Partnership is
    the B block cellular licensee in the Roanoke, Virginia MSA, call
    sign KNKA441. Waiver Request at 2, n.3.

[^6]: Waiver Request at 2.

[^7]: Waiver Request at 2.

[^8]: 47 C.F.R. § 22.947.

[^9]: 47 C.F.R. § 22.949.

[^10]: Waiver Request at 3.

[^11]: Waiver Request at 3.

[^12]: 47 C.F.R. § 1.925.

[^13]: In the Matter of Amendment of Section 22.949 of the Commission's
    Rules to Provide for a Moratorium on Acceptance of Unserved Area
    Cellular Applications Within the National Radio Quiet Zone, *Order*,
    15 FCC Rcd 2728, 2730 ¶ 6 (WTB 2000) (*Quiet Zone Waiver Order*).