**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Applications of | *  | File No. 01558-CL-MP-95      |
|                                  | *) |                              |
| SAGIR, INC.                      | ** | File No.                     |
|                                  |    | 10189-CL-P-1533-A-94         |
| For the Modification of Domestic | *  |                              |
| Public                           | *) | File No. 0000086223          |
|                                  | ** |                              |
| Cellular Station KNKN383 in the  |    | File No. 0000599542          |
| Nebraska 1 -                     | *  |                              |
|                                  | *) |                              |
| Sioux Rural Service Area, Market | ** |                              |
| No. 533A                         |    |                              |
|                                  | *  |                              |
| N.E. COLORADO CELLULAR, INC.     | *) |                              |
|                                  | ** |                              |
| For Authority to Establish a New |    |                              |
| Station                          | *  |                              |
|                                  | *) |                              |
| in the Cellular Radiotelephone   | ** |                              |
| Service                          |    |                              |
|                                  | *  |                              |
| in the Nebraska 1 -- Sioux Rural | *) |                              |
| Service Area,                    | ** |                              |
|                                  |    |                              |
| Market No. 533A as a Phase I     | *  |                              |
| Unserved Area                    | *) |                              |
|                                  | ** |                              |
| Applicant                        |    |                              |
|                                  | *  |                              |
| N.E. COLORADO CELLULAR, INC.     | *) |                              |
|                                  | ** |                              |
| For Authority to Establish a New |    |                              |
| Station                          | *  |                              |
|                                  | *) |                              |
| in the Cellular Radiotelephone   | ** |                              |
| Service                          |    |                              |
|                                  | *  |                              |
| in the Nebraska 1 -- Sioux Rural | *) |                              |
| Service Area,                    | ** |                              |
|                                  |    |                              |
| Market No. 533A as a Phase II    | *  |                              |
| Unserved Area                    | *) |                              |
|                                  | ** |                              |
| Applicant                        |    |                              |
|                                  | *  |                              |
| N.E. COLORADO CELLULAR, INC.     | *) |                              |
|                                  | ** |                              |
| For Authority to Establish a New |    |                              |
| Station                          | *  |                              |
|                                  | *) |                              |
| in the Cellular Radiotelephone   | ** |                              |
| Service                          |    |                              |
|                                  | *  |                              |
| in the Nebraska 1 -- Sioux Rural | *) |                              |
| Service Area,                    | ** |                              |
|                                  |    |                              |
| Market No. 533A as a Phase II    | *  |                              |
| Unserved Area                    | *) |                              |
|                                  | ** |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: July 17, 2003 Released: July 23, 2003**

By the Commission:

# introduction

1.  In this Memorandum Opinion and Order, we consolidate and resolve two
    related petitions for reconsideration and a pending cellular
    radiotelephone service (cellular) unserved area application filed by
    N.E. Colorado Cellular, Inc. (NECC) and opposed by Sagir, Inc.
    (Sagir). For the reasons stated below, we dismiss both of NECC's
    reconsideration petitions in part and otherwise deny the petitions,
    and we dismiss NECC's unserved area application as defective.

# BACKGROUND

2.  These matters arise from NECC's challenge of the Wireless
    Telecommunications Bureau's (Bureau) April 7, 1995 grant of a
    modified cellular license to Sagir for the Nebraska 1 -- Sioux RSA
    (Sioux RSA), Market 533A, and the Bureau's dismissals of conflicting
    unserved area applications filed by NECC. The 1995 license
    modification expanded the contours of Sagir's cellular geographic
    service area (CGSA) for the Sioux RSA based on its filing of an
    alternative CGSA showing pursuant to the Commission's cellular
    licensing rules.[^1] NECC, a licensee holding *inter alia* the
    immediately adjacent Colorado 2 -- Logan RSA, Market 349A, cellular
    license, claims that the Commission should reconsider the 1995
    modification and redraw Sagir's CGSA back to its original contours
    based on the Commission's primary method for CGSA
    determinations.[^2] NECC has filed three unserved area applications
    in succession that overlap portions of Sagir's modified CGSA,
    claiming that these areas within the CGSA are not reliably served by
    Sagir and therefore constitute "unserved areas" available for
    licensing under the Commission's unserved area licensing
    process.[^3]

3.  In a prior order, we upheld the Bureau's grant of the modified Sioux
    RSA license to Sagir and its dismissal of NECC's first application,
    a Phase I unserved area application filed in 1994.[^4] In the first
    petition now before us, NECC seeks reconsideration of the *Sagir I
    MO&O* on the basis of purported new facts regarding Sagir's
    qualifications and compliance with Commission transfer of control
    rules that NECC has raised in a separate, unrelated challenge to the
    pending renewal of Sagir's cellular license for the Sioux RSA.[^5]
    In the second petition before us, NECC seeks reconsideration on the
    same grounds of the Bureau's dismissal of NECC's second application,
    a Phase II unserved area application filed in 2000.[^6] Most
    recently, NECC has filed its third application, also under the
    cellular Phase II unserved area rules, as a "replacement" for its
    previously dismissed second application, and this third application
    remains pending before the Bureau.[^7] Because of the overlapping
    issues involved in NECC's two reconsideration petitions and its
    latest unserved area application, we address all of these matters in
    this consolidated order.[^8]

# Discussion

4.  We find that several portions of NECC's petitions do not meet the
    requirements for filing petitions for reconsideration because they
    rely on new facts not previously presented to the Commission, and we
    therefore, dismiss these petitions in part. To the extent we
    consider these petitions on the merits, we deny NECC's arguments as
    either repetitive or unrelated and collateral to this proceeding. In
    addition, we dismiss NECC's latest Phase II unserved area
    application as defective under our rules.[^9]

5.  By dismissing or denying on the above grounds, we do not reach the
    substance of NECC's new allegations regarding Sagir's qualifications
    or compliance with Commission rules. Furthermore, we do not address
    any of the issues raised in NECC's separate challenge to the renewal
    of Sagir's cellular license for the Sioux RSA. These allegations and
    issues are not relevant to the resolution of the reconsideration
    petitions and application addressed by this order, and will be
    addressed in a separate proceeding.[^10]

## Petition for Reconsideration of the *Sagir I MO&O* 

6.  [Background]{.underline}. In the *Sagir I MO&O*, the Commission
    upheld the Bureau's dismissal of a petition filed by NECC seeking
    reconsideration of the Bureau's grant of Sagir's 1995 license
    modification. The Commission found that the Bureau properly
    dismissed NECC's reconsideration petition as procedurally defective
    under Section 1.106(b)(1) of the rules because NECC did not
    demonstrate good reason why it had not raised any objection to
    Sagir's modification application at the time it was filed.[^11] The
    Commission did not find any basis in NECC's March 30^th^ AFR upon
    which to exercise the discretion necessary to consider NECC's
    procedurally defective 1995 Petition.[^12] Accordingly, the
    Commission upheld the Bureau's dismissal of NECC's Phase I
    application based on the fact that it conflicted with the CGSA of
    Sagir's modified license.[^13]

7.  In its May 3^rd^ Petition, NECC urges the Commission to vacate the
    *Sagir I MO&O*, revoke the modified license grant, and reinstate
    NECC's Phase I application pending adjudication of alleged "recently
    uncovered facts" regarding Sagir's compliance with Commission rules
    and qualifications to be a Commission licensee that NECC has raised
    in its separate challenge to the renewal of Sagir's cellular
    license.[^14] Specifically, NECC alleges that Sagir engaged in an
    unauthorized transfer of control of its license and then made
    misrepresentations and attempted to deceive the Commission regarding
    the transaction.[^15] As a separate basis for its reconsideration
    petition, NECC also argues briefly that new data exists
    demonstrating that Sagir is not providing service to portions of its
    CGSA authorized by its modified license.[^16]

8.  [Discussion]{.underline}. We dismiss NECC's May 3^rd^ Petition in
    part and otherwise deny NECC the relief it seeks.[^17] As discussed
    below, we find that NECC's claims provide no basis to postpone our
    review of prior actions on the instant applications and therefore
    deny the bulk of NECC's May 3^rd^ Petition. We find that NECC's
    remaining claims based on an additional drive test on March 12, 2001
    could have previously been presented and are therefore subject to
    dismissal for failure to comply with Section 1.106(b)(2)(ii) of the
    Commission's rules.[^18]

9.  We first address NECC's contention that its new factual allegations
    regarding an unauthorized transfer of Sagir's control provide a
    sufficient basis to reserve judgment at this time because success on
    the merits would warrant our exercising discretion to accept NECC's
    procedurally defective 1995 Petition.[^19] Although we agree with
    NECC that it could not have reasonably raised the facts regarding
    Sagir's transfer of control earlier in this proceeding,[^20] we
    disagree that these facts could form a basis for changing our prior
    findings and conclusions in the *Sagir I MO&O*. Notwithstanding
    Sagir's claims that these are unsupported allegations based on
    inferences from publicly available documents,[^21] we conclude that
    even if NECC's claims regarding Sagir's non-compliance were
    eventually to be found meritorious, the appropriate response would
    *not* be to exercise the discretion required to address the merits
    of NECC's 1995 Petition against the grant of Sagir's alternative
    CGSA application. The proper avenue for NECC's claims is to file a
    petition against Sagir's transfer notification, which NECC has
    already done,[^22] with the potential that the transfer will be
    disallowed and, if appropriate, sanctions imposed. In addition, as
    NECC has already done,[^23] these issues regarding Sagir's basic
    qualifications and compliance with Commission rules could form the
    basis for a petition against the renewal of Sagir's cellular
    license. NECC's allegations regarding Sagir's control, if true,
    would result in the appropriate Commission action(s), if any, in
    those contexts.[^24]

10. We will not upset administrative finality here by considering the
    unrelated merits of the procedurally-defective 1995 Petition's
    contentions that Sagir's application for an alternative CGSA should
    not be granted.[^25] In the *Sagir I MO&O*, we determined that
    NECC's allegations that there are "dead spots" within Sagir's
    alternative CGSA did not present the kind of serious injury to the
    public sufficient to outweigh considerations of administrative
    finality.[^26] Although an unauthorized transfer of the sort alleged
    by NECC could constitute a more serious injury to the public,[^27]
    in this particular case, it would not outweigh considerations of
    administrative finality given the nature of that injury and the fact
    that it is unrelated to NECC's underlying arguments against the
    validity of Sagir's alternative CGSA application. NECC's allegations
    regarding an unauthorized transfer of Sagir's control are simply not
    relevant and have no bearing on whether there is any injury to the
    public from Sagir's modified license such that we should consider
    the merits of NECC's procedurally-defective 1995 Petition. We find
    that there would be no benefit to awaiting a final disposition in
    the unrelated Sagir renewal proceeding before making our
    determination here on NECC's challenge to the *Sagir I MO&O*, as
    nothing in NECC's May 3^rd^ Petition could lead us to reconsider our
    prior determination not to exercise our discretion and review NECC's
    procedurally-defective 1995 Petition.[^28]

11. Furthermore, we find that these allegations contained in NECC's May
    3^rd^ Petition amount to nothing more than an improper collateral
    attack on the Commission\'s grant of Sagir's transfer notification.
    We agree with Sagir that such a line of argument is not
    appropriately raised in a proceeding to determine whether the 1995
    grant of Sagir's modified CGSA (and the concomitant dismissal of
    NECC's Phase I unserved area application) will inevitably be
    upheld.[^29] Much if not all of NECC's argument in its May 3^rd^
    Petition repeats its petition against the grant of Sagir's transfer
    notification and its pleadings in the unrelated Sagir renewal
    proceeding. Accordingly, we will not consider here matters relating
    to those proceedings.[^30] As explained above, NECC has already
    availed itself of the proper procedures by filing petitions against
    Sagir's transfer notification and license renewal.[^31]

12. We next address NECC's claim that new data from an additional drive
    test in March 2001 documents Sagir's failure to serve portions of
    its modified CGSA, and, we find that this argument does not meet the
    threshold requirements of Section 1.106(b)(2)(ii) of the
    Commission's rules for petitions for reconsideration.[^32] We do not
    believe that this argument relies on new facts that could not have
    been learned through the exercise of ordinary diligence prior to its
    March 30^th^ AFR. NECC's pleadings are silent on this issue and do
    not demonstrate any inability to reasonably obtain and submit this
    drive test data prior to March 30, 2000.[^33] NECC makes no attempt
    to explain how actions taken or not taken by Sagir, the lack of
    publicly available information, or any other factor demonstrates
    that only extraordinary diligence could have revealed this new drive
    test data before NECC's last opportunity to present such matters in
    its March 30^th^ AFR. Accordingly, we dismiss this portion of NECC's
    petition for lack of compliance with our rules.[^34]

## Petition for Reconsideration of Dismissed Phase II Unserved Area Application

13. [Background]{.underline}. On April 6, 2001, the Bureau dismissed
    NECC's Phase II application as defective because the service area
    boundary (SAB) of each proposed cell site impermissibly extended
    into the CGSA authorized to be served by Sagir, regardless of the
    extent of service being provided by Sagir within the portions of its
    CGSA authorized by grant of the alternative CGSA modification.[^35]
    The Bureau stated that nothing in the record would make it
    appropriate to reconsider the grant of Sagir's modified CGSA in a
    proceeding regarding whether NECC's Phase II application met the
    Commission's rules for unserved area licensing.[^36]

14. In its May 7^th^ Petition, NECC alleges that the same facts raised
    in its May 3^rd^ Petition (*i.e.*, the "facts recently raised in the
    Sagir renewal proceeding . . . \[regarding\] Sagir's basic
    qualifications to hold a license" and new drive test data)[^37]
    provide a basis to reconsider the Bureau's decision in the *Sagir II
    MO&O* and return its dismissed Phase II application to pending
    status.[^38] NECC alleges that consideration of these new facts is
    required in the public interest pursuant to Section 1.106(c)(2) of
    the Commission's rules.[^39] In addition, NECC seeks reconsideration
    of its Phase II application's dismissal by stating that "NECC has
    opposed Sagir's alternative CGSA since it was applied for in
    November, 1994."[^40] On the basis of its previously submitted data
    from a drive test in March 2000,[^41] as well as its repeated
    arguments that "gaps in Sagir's coverage. . . . are more than . . .
    'dead spots'" and represent unserved area in the Sioux RSA which its
    Phase II application purports to serve,[^42] NECC insists that the
    Bureau erred when it concluded it was not appropriate to revisit the
    grant of Sagir's modified CGSA.[^43]

15. [Discussion]{.underline}. We dismiss NECC's May 7^th^ Petition in
    part and otherwise deny NECC the relief it seeks. We find that
    NECC's petition is deficient both procedurally and substantively.
    There would be no benefit to the public interest under Section
    1.106(c)(2) by considering NECC's claims based on alleged new facts
    against Sagir when the only relevant issue in this particular matter
    is whether NECC's Phase II application was properly dismissed as
    defective under Commission rules.[^44] Furthermore, NECC's remaining
    arguments were not only considered and clearly disposed of by the
    Bureau in the *Sagir II MO&O*, but we rejected substantially similar
    arguments in the earlier *Sagir I MO&O*. For these reasons, we
    uphold the Bureau's dismissal of NECC's Phase II application under
    Section 22.912(a) of the Commission's rules.[^45]

16. We dismiss the portion of NECC's May 7^th^ Petition that relies on
    new facts not previously presented in this proceeding,[^46] because
    it fails to meet the requirements of our rules governing petitions
    for reconsideration.[^47] NECC fails to justify why the public
    interest requires a consideration of these facts in the context of a
    proceeding to determine whether an application filed by NECC is
    defective.[^48] Even if, as NECC generally alleges, "the public
    interest demands" a review of "Sagir's basic qualifications to hold
    a license,"[^49] a review of such facts is not required in order to
    make our determination in the instant case. In addition, we note
    that drive test data about Sagir's quality of service is not
    relevant to NECC's proposed CGSA in its Phase II application. We
    agree with statements made by Sagir that "the instant proceeding
    relates solely to whether NECC's application is defective."[^50]
    NECC has already presented its alleged new facts at multiple
    occasions, including in its outstanding petitions against Sagir's
    transfer notification and license renewal,[^51] as well as in its
    May 3^rd^ Petition against the *Sagir I MO&O*.[^52] The Bureau
    explained that it would not be appropriate to revisit the grant of
    Sagir's alternative CGSA application in the context of NECC's Phase
    II application,[^53] and we agree. Because we find that NECC's
    claims based on new allegations against Sagir cannot cure the
    shortcomings in its Phase II unserved area application,[^54] we
    conclude that it is not required in the public interest to consider
    these portions of NECC's May 7^th^ Petition.[^55]

17. We deny the claims in the remaining portions of NECC's May 7^th^
    Petition.[^56] NECC's May 7^th^ Petition repeats arguments that
    areas within Sagir's alternative CGSA are without reliable coverage
    and that these areas represent unserved areas and not dead
    spots.[^57] As the Bureau explained in the *Sagir II MO&O*, such
    issues are irrelevant for purposes of determining the CGSA
    authorized to Sagir and within which NECC was not permitted to
    propose SAB extensions from its cell sites in its Phase II
    application.[^58] We note that prior to filing these portions of its
    May 7^th^ Petition, we had denied the same arguments in the context
    of Sagir's Phase I unserved area application. In the *Sagir I MO&O*,
    we specifically denied NECC's challenge to the propriety of Sagir's
    alternative CGSA and explained that the cellular rules considered
    service to be provided in all areas, including dead spots, of an
    alternative CGSA.[^59] We therefore find NECC's arguments here
    entirely repetitive and without merit.[^60]

## Pending "Replacement" Phase II Unserved Area Application

18. [Background]{.underline}. On September 21, 2001, NECC filed its
    "Replacement" Phase II application for the same areas within the
    Sioux RSA as those filed for in its Phase II application that was
    dismissed in the *Sagir II MO&O*.[^61] NECC claims that it filed its
    application as a "means of restoring an improperly deleted
    application to the Commission's licensing database."[^62]

19. [Discussion]{.underline}. We dismiss NECC's "Replacement" Phase II
    application as defective under Commission rules.[^63] Our dismissal
    follows directly from NECC's admission that its "Replacement" Phase
    II application is identical to its previously dismissed Phase II
    unserved area application.[^64] To the extent that NECC attempts to
    characterize this application as a corrective filing "to restore its
    prior application to active status where there has not been a final
    decision on the merits,"[^65] we find this explanation to be without
    merit as no provision in the Commission\'s rules permits applicants
    to return such dismissed applications to pending status by filing a
    \"replacement\" application.[^66] Furthermore, contrary to NECC's
    assertions, the Commission did not purge or delete NECC's previously
    dismissed Phase II unserved area application from the Universal
    Licensing System (ULS).[^67] Moreover, our rules clearly state that
    the filing of a petition for reconsideration does not stay or
    postpone the effectiveness of the dismissal of NECC's Phase II
    application.[^68] For these reasons, we find that NECC's
    "replacement" submission is defective.[^69]

# Ordering clauses

20. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405
    of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 405, and
    Section 1.106 of the Commission's rules, 47 C.F.R. § 1.106, the
    Petition for Reconsideration filed by N.E. Colorado Cellular, Inc.
    on May 3, 2001 in the above-captioned matter is DISMISSED as
    indicated to the extent above, and otherwise DENIED.

21. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the
    Communications Act, as amended, 47 U.S.C. §§ 154(i), 405, and
    Section 1.106 of the Commission's rules, 47 C.F.R. § 1.106, the
    Petition for Reconsideration filed by N.E. Colorado Cellular, Inc.
    on May 7, 2001 in the above-captioned matter is DISMISSED as
    indicated to the extent above, and otherwise DENIED.

22. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 309(d) of
    the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309(d), and
    Sections 1.934(d)(2), 1.937(c), 1.939, 22.912(a) and 22.949(b) of
    the Commission's rules, 47 C.F.R. §§ 1.934(d)(2), 1.937(c), 1.939
    and 22.912(a) and 22.949(b), the above-captioned Phase II unserved
    area application filed by N.E. Colorado Cellular, Inc. on September
    21, 2001 is DISMISSED as defective.

23. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 309(d) of
    the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309(d), and
    Sections 1.934(d)(2), 1.937(c), 1.939, 22.912(a) and 22.949(b) of
    the Commission's rules, 47 C.F.R. §§ 1.934(d)(2), 1.937(c), 1.939,
    22.912(a), and 22.949(b), the Petition to Dismiss or Deny filed by
    Sagir, Inc. on October 26, 2001 in the above-captioned matter is
    DISMISSED as moot.

24. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 309(d) of
    the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309(d), and
    Sections 1.934(d)(2), 1.937(c), 1.939, 22.912(a) and 22.949(b) of
    the Commission's rules, 47 C.F.R. §§ 1.934(d)(2), 1.937(c), 1.939,
    22.912(a), and 22.949(b), the Petition to Dismiss or Deny filed by
    WWC License L.L.C. on October 26, 2001 in the above-captioned matter
    is DISMISSED as moot.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *See* 47 C.F.R. § 22.903(b) (1994); *see also* 47 C.F.R. §
    22.911(b) (renumbered current rule on alternative CGSA
    determinations).

[^2]: *See* 47 C.F.R. § 22.911(a).

[^3]: *See generally id.* § 22.949 ("This section sets forth the process
    for licensing unserved areas in cellular markets for which the five
    year build-out has expired. This process has two phases: Phase I and
    Phase II.").

[^4]: *See* Sagir, Inc., *Memorandum Opinion and Order*, 16 FCC Rcd.
    8159 (2001) (*Sagir I MO&O*).

[^5]: In this first petition for reconsideration filed on May 3, 2001
    ("May 3^rd^ Petition"), NECC seeks to vacate the *Sagir I MO&O*
    until "basic qualification questions are resolved" in the Sagir
    renewal proceeding. NECC May 3^rd^ Petition at 12, 14.

[^6]: *See* Sagir, Inc., *Memorandum Opinion and Order*, 16 FCC Rcd.
    7880 (Commercial Wireless Division 2001) (*Sagir II MO&O*). In this
    second petition for reconsideration filed on May 7, 2001 ("May 7^th^
    Petition"), NECC seeks the reinstatement of its Phase II application
    to pending status until "a meaningful review by the Commission" is
    conducted into the new "facts recently raised in the Sagir renewal
    proceeding." NECC May 7^th^ Petition at 2; NECC June 6^th^ Reply at
    3.

[^7]: NECC filed this third unserved area application on September 21,
    2001 for the same areas within the Sioux RSA as those filed for in
    its second unserved area application that was dismissed in the
    *Sagir II MO&O*.

[^8]: *See, e.g.,* 47 C.F.R. § 1.106(a)(1) ("Petitions requesting
    reconsideration of other final actions taken pursuant to delegated
    authority will be acted on by the designated authority or referred
    by such authority to the Commission.")

[^9]: Because NECC's pending unserved area application is defective, we
    also dismiss as moot two separate Petitions to Dismiss or Deny File
    No. 0000599542, and all related responsive pleadings, filed by Sagir
    and WWC License L.L.C. (WWC) on October 26, 2001. *See* 47 C.F.R. §
    1.939(g).

[^10]: NECC raises these allegations in its challenges to the renewal
    (and *pro forma* transfer of control) of Sagir's cellular license
    for the Sioux RSA. Sagir filed a renewal application for the Sioux
    RSA on August 31, 2000. NECC filed a competing application on
    September 29, 2000. Sagir filed its renewal expectancy showing on
    February 16, 2001. On March 19, 2001, NECC filed a petition to deny
    Sagir's renewal application in which it first alleged that there may
    have been an unauthorized transfer of the control of Sagir. On April
    3, 2001, Sagir filed a notification of a *pro forma* transfer of
    control of its cellular license for the Sioux RSA. On April 17,
    2001, NECC filed a petition for reconsideration of Sagir's
    notification in which NECC first asserts the allegations that it now
    argues constitute new facts in the instant proceeding upon which to
    reconsider the Commission's decision in the *Sagir I MO&O*.

[^11]: Sagir filed its major modification application to increase the
    size of its CGSA through the utilization of an alternative CGSA
    showing on November 19, 1994. On December 21, 1994, NECC filed its
    Phase I unserved area application for portions of the Sioux RSA that
    Sagir had previously applied to serve in its major modification
    application for an alternative CGSA. NECC did not file a petition to
    deny Sagir's application. On April 7, 1995, while NECC's Phase I
    application was pending, the Commission granted Sagir's earlier
    filed alternative CGSA application. NECC filed a petition for
    reconsideration on May 8, 1995 ("1995 Petition"). On February 29,
    2000, the Bureau dismissed NECC's 1995 Petition because NECC did not
    demonstrate good reason for its failure to participate earlier in
    the proceeding as required by Section 1.106(b)(1) of the
    Commission's rules. *See* Sagir, Inc., *Order*, 15 FCC Rcd. 4466,
    4468 ¶ 4 (Policy and Rules Branch 2000) (*Sagir I Order*); 47 C.F.R.
    § 1.106(b)(1). On March 30, 2000, NECC filed an application for
    review of the Bureau's decision ("March 30^th^ AFR").

[^12]: *See Sagir I MO&O*, 16 FCC Rcd. at 8161-62 ¶¶ 3-4 (declining to
    exercise discretion to accept NECC's belated assertion of its
    interest in the Sagir modification application for an alternative
    CGSA and finding that the Bureau's dismissal of NECC's 1995 Petition
    for failure to meet the requirements of Section 1.106(b)(1) was
    proper). In addition to determining that NECC's allegation that
    there are "dead spots" within Sagir's alternative CGSA did not
    present the kind of serious injury to the public sufficient to
    outweigh considerations of administrative finality, the Commission
    observed that Section 22.911(b) of the Commission's rules provides
    that "service is considered to be provided in all areas, including
    'dead spots'" of an alternative CGSA. *Id*. at 8161 ¶ 4 (quoting 47
    C.F.R. § 22.911(b)).

[^13]: The Commission found that the Bureau properly determined that the
    area applied for by NECC was not available because the grant of
    Sagir's alternative CGSA application authorized Sagir to serve the
    area. *See* *Sagir I MO&O*, 16 FCC Rcd. at 8162-63 ¶ 6 ("The area
    that NECC proposed to serve in its Phase I application was
    unavailable within the meaning of Section 22.949 by virtue of the
    grant of Sagir's alternative CGSA modification application."). In
    the *Sagir I Order*, the Bureau had dismissed NECC's Phase I
    application as defective "because it seeks to provide service in an
    area that is presently not unserved." *See Sagir I Order*, 15 FCC
    Rcd. at 4468 ¶ 5 (finding that NECC's application failed to comply
    with Section 22.949 of the Commission's rules because its proposed
    CGSA was covered entirely by Sagir's authorized CGSA).

[^14]: NECC May 3^rd^ Petition at 2; *see* *id*. at 12 ("\[T\]he
    Commission should vacate \[the *Sagir I MO&O*\] . . . in light of
    these allegations and should await the Commission's determinations
    regarding Sagir's transfer of control application and application
    for renewal prior to making a final determination \[here\]." NECC
    apparently believes that an "evidentiary hearing" into Sagir's
    qualifications and level of service in its modified CGSA could
    result in the reduction of Sagir's CGSA (via a revocation of the
    1995 grant of Sagir's alternative CGSA application) such that the
    area in the Sioux RSA applied for by NECC becomes available under
    the unserved area licensing process and its Phase I application
    would be grantable. NECC June 6^th^ Reply at 6.

[^15]: NECC May 3^rd^ Petition at 2, 8, 13. Because our decisions here
    are tied significantly to our discretion as opposed to an evaluation
    or determination on the substance of NECC's claims, *see infra* note
    30, we do not detail the variety of allegations that NECC has made
    against Sagir and which will be addressed in a separate proceeding.

[^16]: *Id*. at 13.

[^17]: We uphold our prior determination in the *Sagir I MO&O*. *See*
    *Sagir I MO&O*, 16 FCC Rcd. at 8161-63 ¶¶ 4, 6. Thus, the Bureau's
    dismissal of NECC's 1995 Petition and its Phase I application for
    failure to meet the requirements of Sections 1.106(b)(1) and 22.949
    of the rules stands.

[^18]: 47 C.F.R. § 1.106(b)(2)(ii). We note that the Bureau dismissed
    NECC's 1995 Petition on procedural grounds, and we did not make any
    determinations regarding the level of service provided by Sagir in
    the *Sagir I MO&O*. *See* *Sagir I MO&O*, 16 FCC Rcd. at 8162 ¶ 4
    n.21. Because we are dismissing this portion of NECC's May 3^rd^
    Petition for procedural reasons, we do not address the substance of
    NECC's March 2001 drive test data and related service quality
    claims.

[^19]: In its May 3^rd^ Petition, NECC's states: "It is premature for
    the Commission to enter a decision in favor of Sagir prior to the
    conclusion of the renewal proceeding . . .. Sagir's basic
    qualifications to hold a license are in jeopardy, and this
    application cannot be granted until these basic qualification
    questions are resolved." NECC May 3^rd^ Petition at 13-14.

[^20]: We agree with NECC that it could not have raised the facts
    regarding Sagir's control earlier in this proceeding without
    exercising more than ordinary diligence, as Sagir did not file its
    notification of a *pro forma* transfer of control of its cellular
    license for the Sioux RSA until April 3, 2001. *See supra* note 10.

[^21]: Sagir filed an Opposition to Petition for Reconsideration on May
    22, 2001 ("May 22^nd^ Opposition").

[^22]: *See supra* note 10.

[^23]: *Id*.

[^24]: Finally, if these avenues for relief had not been available, NECC
    would have always been free to file a Section 1.41 informal request
    for Commission action. *See* 47 C.F.R. § 1.41.

[^25]: As we indicated above, *see supra* para. 9, even if Sagir's basic
    qualifications and compliance with the Commission's transfer rules
    are of the sort alleged by NECC, the proper remedy would not be to
    permit NECC to contest Sagir's right to serve its CGSA as modified
    by the grant of its alternative CGSA showing.

[^26]: In the *Sagir I MO&O*, we held that NECC failed to meet the
    standard set forth in Section 1.106(b)(1). *See* *Sagir I MO&O*, 16
    FCC Rcd. at 8161 ¶ 3. In addition, we found no basis to exercise our
    discretion and consider the substance of NECC's 1995 Petition. *Id.*
    at 8161-62 ¶ 4 (acknowledging that "Commission precedent reveals
    decisions on both sides of this issue").

[^27]: For example, NECC alleges that it has discovered "a pattern of
    violation of the Commission's rules on transfers of control by Sagir
    which Sagir has apparently been concealing for over six years." NECC
    May 3^rd^ Petition at 2.

[^28]: *See* *Sagir I MO&O*, 16 FCC Rcd. at 8161-62 ¶ 4.

[^29]: *See, e.g.*, Sagir May 22^nd^ Opposition at i, 2.

[^30]: Although we decline to exercise our discretion to afford NECC the
    relief it requests, we emphasize that we do not make any
    determinations regarding these issues as raised by NECC in these
    other proceedings. We only determine that NECC's allegations in this
    regard, regardless of merit, would be of no consequence to any
    decision whether to reconsider the grant of Sagir's modified CGSA
    and dismissal of NECC's Phase I application.

[^31]: *See supra* para. 9.

[^32]: *See* 47 C.F.R. § 1.106(b)(2(ii).

[^33]: Although NECC's pleadings generally claim that these tests are
    new facts that only recently came to light in the context of the
    Sagir license renewal proceeding, NECC May 3^rd^ Petition at 2, NECC
    June 6^th^ Reply at 2, its pleadings are limited to explaining that
    "NECC could not have raised these facts \[*regarding Sagir's
    control*\] earlier because they were not publicly available or had
    not been confirmed by Sagir," NECC June 6^th^ Reply at 2.

[^34]: Although NECC's pleadings again claim these new drive test data
    evidence "dead spots" in Sagir's alternative CGSA, *see, e.g.*, NECC
    June 6^th^ Reply at 6, we previously noted that "Section 22.911(b)
    of the Commission's rules provides that 'service is considered to be
    provided in all areas, including 'dead spots'' of an alternative
    CGSA," *Sagir I MO&O*, 16 FCC Rcd. at 8161 ¶ 4 (quoting 47 C.F.R. §
    22.911(b)). *See supra* note 12. Dead spots are defined as
    "\[s\]mall areas within a service area where the field strength is
    lower than the minimum level for reliable service." 47 C.F.R. §
    22.99.

[^35]: On February 29, 2000, NECC filed its Phase II unserved area
    application seeking *inter alia* authority for areas within the
    Sioux RSA. On April 6, 2001, the Bureau dismissed the application as
    defective under Section 22.912(a) of the Commission's rules. *See
    Sagir II MO&O*, 16 FCC Rcd. at 7881-82 ¶ 5. The Bureau noted Section
    22.911(b) of the Commission's rules to explain that for the
    licensing of alternative CGSAs, service is considered to be provided
    in all areas of an alternative CGSA, including dead spots. *See id.*
    at 7881 ¶ 5.

[^36]: To the extent that NECC sought to "shrink \[Sagir's\] CGSA" by
    reconsideration of the grant of Sagir's modified CGSA, *id.* at 7881
    ¶ 3, the Bureau stated that nothing in the record of the proceeding,
    including claims based on drive test data and allegations of
    purported "dead spots" in Sagir's modified CGSA, warranted
    revisiting the grant of Sagir's alternative CGSA previously upheld
    by the Commission in the *Sagir I MO&O*, *id.* at 7881-82 ¶¶ 4-5.

[^37]: NECC May 7^th^ Petition at 2, 4.

[^38]: *Id.* at 2, 5. As discussed above, *see supra* para. 7, these
    additional facts relate to alleged "violations of the FCC's rules on
    transfers of control by Sagir" and "drive test results \[that\]
    demonstrate that \[Sagir's\] alternative CGSA bears no resemblance
    to Sagir's actual coverage," NECC May 7^th^ Petition at 3, 4. In
    addition to these alleged new facts regarding Sagir's coverage and
    compliance with Commission rules, NECC also presents its argument
    against the Bureau's basis for its conclusion that it would not be
    appropriate to revisit the grant of Sagir's modified CGSA. NECC May
    7^th^ Petition at 1-2.

[^39]: NECC May 7^th^ Petition at 2; *see* 47 C.F.R. § 1.106(c)(2).

[^40]: NECC May 7^th^ Petition at 1. We note that NECC did not formally
    oppose Sagir's alternative CGSA application until it filed its 1995
    Petition in May of 1995.

[^41]: *Id*. at 2.

[^42]: *Id*.

[^43]: *Id*. at 1-2. Sagir filed an Opposition to Petition for
    Reconsideration on May 22, 2001 ("Second May 22^nd^ Opposition").

[^44]: We note that this presentation is also defective under the
    requirements of Section 1.106(c)(1), 47 C.F.R. § 1.106(c)(1), as any
    new drive test data could have previously been presented with
    ordinary diligence, *see supra* para. 12. To the extent the alleged
    new facts regarding Sagir's transfer of control could not have been
    raised earlier in this proceeding, we deny NECC the relief it
    requests for the same reasons explained above. *See supra* paras.
    9-11.

[^45]: *See* *Sagir II MO&O*, 16 FCC Rcd. at 7881-82 ¶ 5.

[^46]: *See* NECC May 7^th^ Petition at 2-5.

[^47]: *See* 47 C.F.R. § 1.106(c)(2); *see also* *supra* note 44.

[^48]: *See supra* para. 15.

[^49]: NECC May 7^th^ Petition at 2, 3.

[^50]: Sagir Second May 22^nd^ Opposition at 7.

[^51]: *See supra* para. 9.

[^52]: *See supra* para. 7.

[^53]: *See* *Sagir II MO&O*, 16 FCC Rcd. at 7881 ¶ 4.

[^54]: *See* Sagir Second May 22^nd^ Opposition at 7 ("NECC cannot cure
    the defects in its Phase II unserved area application.").

[^55]: Because we are dismissing this portion of NECC's petition for
    procedural reasons, we do not evaluate NECC's claims regarding
    Sagir's level of service, qualifications, or compliance with
    Commission rules.

[^56]: *See* NECC May 7^th^ Petition at 1-2.

[^57]: In addition, NECC's arguments regarding Sagir's fill-in
    applications are repetitive given the Bureau's detailed explanation
    and discussion in the *Sagir II MO&O*. *See* *Sagir II MO&O*, 16 FCC
    Rcd. at 7881-82 ¶¶ 4-5.

[^58]: *Id*.

[^59]: *See* *Sagir I MO&O*, 16 FCC Rcd. at 8161-62 ¶ 4. Although we
    find these arguments repetitive and deny them on the merits for the
    reasons previously stated by the Bureau, we note that further
    administrative filings and/or proceedings attempting to call into
    question the validity of Sagir's 1995 alternative CGSA grant could
    be deemed frivolous under Section 1.52 of the rules given our
    rejection of these arguments both here and in the *Sagir I MO&O*.
    *See* 47 C.F.R. § 1.52; *see also* Commission Taking Tough Measures
    against Frivolous Pleadings, *Public Notice*, 11 FCC Rcd 3030
    (1996). The Commission first, and Division second, left no doubt
    that such arguments had been specifically rejected, and given our
    decision here, there may no longer be any "good ground to support" a
    subsequent pleading or action that relies on these previously
    dismissed claims in substantially similar circumstances. *Id*.

[^60]: By this decision, we are not making any determinations regarding
    the level or quality of service provided by Sagir.

[^61]: On October 26, 2001, Sagir and WWC filed separate Petitions to
    Dismiss or Deny. NECC filed an Opposition to Petitions to Dismiss or
    Deny on November 19, 2001 ("November 19^th^ Opposition").

[^62]: NECC November 19^th^ Opposition at 4.

[^63]: 47 C.F.R. § 1.937(c); § 1.934(d)(2); § 22.912(a); *see also*
    supra note 9 (dismissing as moot petitions filed by Sagir and WWC).

[^64]: *See* NECC November 19^th^ Opposition at 5.

[^65]: *Id*.

[^66]: NECC does not reference any Commission rule or direction from
    Commission staff that would support its motivations to take such
    action.

[^67]: File No. 0000086223 still exists in ULS along with NECC's May
    7^th^ Petition.

[^68]: *See* 47 C.F.R. § 1.102(b).

[^69]: Although we dismiss NECC's "replacement" application as defective
    for the reasons stated, we remind NECC of our authority to dismiss
    with prejudice future applications that repeat recently acted upon
    matters, do not constitute an efficient use of Commission resources,
    and needlessly divert attention from other important matters needing
    resolution. Moreover, despite NECC's assertion that "\[n\]othing
    forbids the filing of an application if it merely is submitted to
    ensure that the application subject to appeal remains on file," NECC
    November 19^th^ Opposition at 5, we note that further attempts to
    reinstate a dismissed application to a pending status by
    resubmitting the same application could be considered a misuse of
    the Commission's licensing process.