**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. 0000959496          |
|                                  | *) |                              |
| Settlement Agreement and Request | ** | File No. 0000959430          |
| for Waiver                       |    |                              |
|                                  | *  | File No. 0000922001          |
| Of Section 1.935 of the          | *) |                              |
| Commission's Rules               | ** | File No. 0000913369          |
|                                  |    |                              |
| WWC License L.L.C.               | *  | File No. 0000959846          |
|                                  | *) |                              |
| Alltel Communications of the     | ** | File No. 0000960815          |
| Southwest                        |    |                              |
|                                  | *  | File No. 0000959387          |
| Limited Partnership              | *) |                              |
|                                  | ** |                              |
| Commnet Wireless, LLC            |    |                              |
|                                  | *  |                              |
| McElroy Electronics Corporation  | *) |                              |
|                                  | ** |                              |
| McElroy Electronics Corporation  |    |                              |
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| Smith Bagley, Inc.               | *) |                              |
|                                  | ** |                              |
| Phase II Unserved Area           |    |                              |
| Applications                     | *  |                              |
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| For New Mexico 3 RSA (Catron)    | ** |                              |
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| Market No. 555, Block A          | *  |                              |
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| AND                              | ** |                              |
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| WWC License L.L.C.               | *  |                              |
|                                  | *) |                              |
| Phase II Unserved Area           | ** |                              |
| Applications                     |    |                              |
|                                  | *  |                              |
| For New Mexico 6 RSA (Lincoln)   | *) |                              |
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| Market No. 558, Block A          |    |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: February 28, 2007 Released: February 28, 2007**

By the Assistant Chief, Mobility Division, Wireless Telecommunications
Bureau:

# introduction

1.  In this Order, we address the "Joint Request for Waiver, Approval of
    Settlement Agreement, Dismissal of Pleadings and Certain
    Applications, and Grant of Application" filed on February 8, 2007
    (Joint Request), by Alltel Communications of the Southwest Limited
    Partnership (Alltel), Commnet Wireless, LLC (Commnet), McElroy
    Electronics Corporation (McElroy), Smith Bagley, Inc. (Smith
    Bagley), and WWC License, L.L.C. (WWC) (collectively, "Joint
    Parties" or "Parties").[^1] The Joint Request seeks Commission
    approval of the Settlement Agreement that the Parties have entered
    into to resolve certain long-standing issues regarding the pending
    above-captioned mutually exclusive Phase II cellular unserved area
    applications filed in the New Mexico 3 RSA (Catron). Upon approval
    of the Joint Request and Settlement Agreement, the Parties request
    dismissal of McElroy's pending Application for Review filed on
    March 10, 2005,[^2] seeking review of an Order that the Mobility
    Division (Division) released on February 8, 2005 (*Division
    Order*),[^3] as well as the responsive pleadings to that Application
    for Review. For the following reasons, we grant the Joint Request
    and approve the Settlement Agreement.

# background

2.  The Joint Parties filed the applications at issue in this proceeding
    in response to a Public Notice inviting interested parties to submit
    Phase II unserved area applications for the New Mexico 3 RSA[^4]
    after the Commission revoked the license granted to Alee Cellular
    Communications (Alee) for Station KNKN271.[^5] McElroy filed the
    first application on June 4, 2002, FCC File No. 0000913369, after
    which the Division released a public notice establishing a notice
    and cut-off period for filing competing applications.[^6] Commnet
    submitted its application, FCC File No. 0000922001, on June 12,
    2002; Alltel filed its modification application, FCC File No.
    0000959430, on July 11, 2002; WWC also filed its application, FCC
    File No. 0000959496, on July 11, 2002 (WWC NM3 Application); and
    Smith Bagley filed its competing application, FCC File No.
    0000960815, on July 12, 2002, the last day of the notice and cut-off
    period.

3.  All of the applications propose service coverage similar to that
    previously provided by Alee running in a north-to-south direction
    along Interstate-25. McElroy and WWC, however, also each proposed
    three additional sites in their initial applications, Magdalena,
    Datil, and Quemado, extending due west of the former Alee service
    area. The Magdalena site is the eastern-most site and the Quemado
    site is farthest west, with Datil located between the two. The
    underlying *Division Order* addressed issues stemming from these
    three proposed sites, and these issues are the subject of the
    pending appeal in this proceeding. Specifically, McElroy and WWC
    each proposed a site at the Datil, New Mexico location unaware that
    the site was in fact already licensed to Smith Bagley under Call
    Sign KNKR315.[^7]

4.  McElroy discovered the error over the course of the notice and
    cut-off period and on July 11, 2002, the 29^th^ day of the notice
    and cut-off period, amended its first-filed application to delete
    the proposed Datil site. Without the Datil site, the Quemado
    location also could not be included in the proposed CGSA in
    McElroy's initial application and it too was deleted. On the same
    day it amended its initial application, McElroy therefore separately
    filed a second Phase II unserved area application, FCC File No.
    0000959846, for the Quemado site. Thus, McElroy has pending two
    mutually exclusive applications in this proceeding.

5.  WWC's application, which initially proposed service at the
    Magdalena, Datil, and Quemado sites, shared the same defect as
    McElroy's initial application before it was amended to delete the
    Datil and Quemado sites. On July 25, 2002, the Division returned
    WWC's application directing WWC to demonstrate that its proposal
    would not cause unlawful interference to the Datil site authorized
    under Smith Bagley's license for Station KNKR315.[^8] On September
    5, 2002, WWC amended its application to delete the Datil site, which
    left a gap in the service area proposed in WWC's initial
    application, resulting in a distinct CGSA for the proposed Quemado
    site. Rather than submitting a separate application for the Quemado
    site, WWC requested a waiver of Section 22.949(b)(3) of the
    Commission's Rules, which permits only one CGSA per application.[^9]
    On September 25, 2002, McElroy filed an informal objection to
    dismiss WWC's amended application as defective.[^10]

6.  On February 8, 2005, the Mobility Division released its Order
    addressing the issues raised by the applications that included
    proposed cell sites at Datil, New Mexico. The *Division Order*, in
    relevant part granted WWC's waiver request and accepted WWC's
    amended application, which included two separate CGSAs.[^11] In
    response, McElroy filed its Application for Review, seeking review
    of the grant of WWC's request for waiver. On March 24, 2005, Commnet
    filed Comments on McElroy's Application for Review, asking the
    Commission to move forward to auction on the pending mutually
    exclusive applications without ruling on the Application for
    Review.[^12] WWC filed its Opposition to McElroy's Application for
    Review on March 25, 2005,[^13] and McElroy filed its Reply both to
    Commnet's Comments and WWC's Opposition on April 4, 2005.[^14]

7.  Finally, while not addressed in the underlying proceeding, WWC filed
    an application, FCC File No. 0000959387, on July 11, 2002, to modify
    its Station KNKN217 located in the New Mexico 6 RSA (Lincoln) (WWC
    NM6 Application). WWC asserts in its application that the proposed
    service area, which overlaps into the New Mexico 3 RSA, is mutually
    exclusive with McElroy's first-filed application, FCC File No.
    0000913369, and Commnet's application, File No. 0000922001.[^15]

8.  While the applications and pleadings remain pending in this
    proceeding, the Joint Parties have entered into a Settlement
    Agreement dated February 8, 2007, in an effort to resolve their
    differences. The Parties seek approval of the Settlement Agreement
    and grant of WWC's NM3 Application and NM6 Application. Upon
    approval of the Settlement Agreement, the Parties request dismissal
    of the remaining mutually exclusive applications, and the
    Application for Review and responsive pleadings.

# discussion

9.  The Commission codified certain policies in Section 1.935 of its
    rules for parties that file mutually exclusive applications and then
    enter into an agreement to resolve that mutual exclusivity by
    withdrawing or requesting dismissal of the applications, as well as
    parties that have filed pleadings against an application and then
    seek to withdraw or request dismissal of the pleading in exchange
    for financial consideration.[^16] Those parties that wish to
    withdraw or dismiss their applications, as well as those who wish to
    withdraw or dismiss their pleadings in exchange for financial
    consideration must first obtain the approval of the Commission.[^17]
    The rule section further provides that parties withdrawing or
    requesting dismissal of their applications or pleadings must submit
    to the Commission a request for approval of the withdrawal or
    dismissal, a copy of the written agreement, and an affidavit setting
    forth a certification that the parties have not received any money
    or consideration in excess of the legitimate and prudent expenses
    incurred in preparing and prosecuting the application or
    pleading.[^18]

10. The Joint Request complies with the rule section, but states that
    "\[n\]one of the Joint Parties nor their principals has paid or
    received, or will pay or receive, any consideration in exchange for
    the dismissal of applications or pleadings other than as set forth
    in the Settlement Agreement."[^19] The Request then "seeks waiver of
    the limitation on consideration in Section 1.935 (formerly Section
    22.129) of the Commission's rules" ... "\[i\]n as much as the
    parties will receive monetary consideration under the Settlement
    Agreement to dismiss pleadings and ... applications."[^20] The
    Request argues that grant of the waiver is consistent with
    Commission precedent where the Commission has waived portions of the
    settlement rule in an effort to resolve long-standing disputed
    licensing proceedings; and where it is evident that applications
    were not filed with the intent to secure payment for their
    withdrawal, and where resolution of the proceeding would enable
    service to be provided to consumers.[^21]

11. We find that a limited waiver of Section 1.935 of the Commission's
    rules under the specific facts of this proceeding is warranted to
    the extent the rule limits settlement amounts because to do
    otherwise would not serve the underlying purpose of the rule.[^22]
    As the Commission explained in *Algreg Cellular Engineering*,
    Section 1.935 "reflects a balancing of our efforts to discourage the
    filing of speculative applications and pleadings designed solely to
    extract money from applicants, while still providing some incentive
    for legitimate petitioners and applicants to withdraw from
    proceedings and thus expedite service to the public."[^23] We find
    no evidence that any of the Parties who filed applications or
    pleadings in this proceeding had any expectation of profiting from
    their filings. Rather, each Party filed competing applications
    within the notice and cut-off period established by McElroy's
    first-filed application in a timely manner. In the certifications
    attached to the Settlement Agreement, each Party states that its
    application was "filed in good faith fully with the intent to obtain
    the licenses and operate the stations, and were not filed with the
    intent to obtain a monetary settlement or other form of
    consideration." In terms of the petitions filed that resulted in the
    *Division Order*, several new and complex issues arose over Smith
    Bagley's licensed Datil site that the Parties litigated in good
    faith. The pleadings were filed in a timely manner, all raising
    legitimate issues rather than frivolous complaints in an attempt to
    abuse Commission processes.[^24] Many of the same issues and some
    new are at issue in the appeal pending in McElroy's Application for
    Review and WWC's Opposition to that filing. Grant of the Joint
    Parties' request for waiver would therefore serve the underlying
    purpose of the rule because it does not reward improper speculation
    or encourage the filing of abusive pleadings.[^25]

12. We also find that limited waiver of Section 1.935 is in the public
    interest because it would permit the resolution of a long-standing
    and litigious dispute among the Joint Parties and would expedite
    cellular service to consumers in New Mexico. The Parties filed their
    initial applications more than five years ago. The Wireless
    Telecommunications Bureau (Bureau) has found the length of a
    proceeding relevant, in part, in determining whether to grant a
    waiver of Section 1.935. In 1999, the Bureau issued a limited waiver
    during a settlement window allowing parties to resolve contested
    licensing proceedings, some of which were more than five years old,
    without limitation on the consideration promised, paid, or
    received.[^26] In that proceeding, the Bureau found that granting a
    limited waiver of Section 1.935 would allow parties to resolve the
    disputes where the cost and delay of protracted litigation would
    further hamper the provision of wireless service to the public.[^27]
    Similarly, a waiver would serve the public interest in the instant
    case by removing the uncertainty surrounding the applications at
    issue in this proceeding stemming from McElroy's Application for
    Review and the responsive pleadings and expedite service to the
    public.

13. We therefore waive the provisions of Section 1.935 of the
    Commission's rules that limit the consideration paid among parties
    to settlement agreements and approve the Joint Parties' Settlement
    Agreement. We further grant the Parties' requests to process WWC's
    NM3 and NM6 Applications, FCC File Nos. 0000959496 and 0000959387,
    and to dismiss McElroy's applications, FCC File Nos. 0000913369 and
    0000959846, Commnet's application, FCC File No. 0000922001, Alltel's
    application, FCC File No. 0000959430, and Smith Bagley's
    application, FCC File No. 0000960815. In addition, we grant the
    Joint Parties' request to dismiss McElroy's Application for Review,
    Commnet's Comments, WWC's Opposition, and McElroy's Reply.

14. Finally, on November 25, 2002, Alltel filed an application, FCC File
    No. 0001102638, requesting approval to provide interim operating
    authority (IOA), to an area identical to that proposed in its July
    11, 2002 Phase II cellular unserved application.[^28] Commnet and
    McElroy jointly filed a petition to deny the IOA application on
    January 3, 2002,[^29] and Alltel filed an opposition on January 16,
    2002.[^30] Similarly, on January 3, 2003, Smith Bagley filed an IOA
    application, FCC File No. 0001141871; and McElroy and Commnet
    jointly filed an IOA application, FCC File No. 0001141907. No
    petitions were filed against these two applications. The approval of
    the Settlement Agreement renders all three applications for IOA
    moot. We therefore dismiss the three applications as well as
    McElroy's and Commnet's joint petition to deny and Alltel's
    opposition as moot.

# ORDERING CLAUSES

15. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Sections 0.331, 1.925 and 1.935 of the Commission's
    rules, 47 C.F.R. §§ 0.331, 1.925, 1.935, the Joint Request for
    Waiver, Approval of Settlement Agreement, Dismissal of Pleadings and
    Certain Applications, and Grant of Application filed by Alltel
    Communications of the Southwest Limited Partnership, Commnet
    Wireless, LLC, McElroy Electronics Corporation, Smith Bagley, Inc.,
    and WWC License, L.L.C. on February 8, 2007, is GRANTED.

16. IT IS FURTHER 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 1.935 of the Commission's rules, 47
    C.F.R. §§ 0.331, 1.935, the Application, File Numbers 0000959496 and
    0000959387, filed by WWC License, L.L.C on July 11, 2002, be
    processed in accordance with Commission rules.

17. IT IS FURTHER 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 1.935 of the Commission's rules, 47
    C.F.R. §§ 0.331, 1.935, the Application, FCC File Nos. 0000913369
    and 0000959846, filed by McElroy Electronics Corporation on June 4,
    2002, and July 11, 2002, respectively; the Application, FCC File No.
    0000922001, filed by Commnet Wireless, LLC on June 12, 2002; the
    Application, FCC File No. 0000959430, filed by Alltel of the
    Southwest Limited Partnership on July 11, 2002; and the Application,
    FCC File No. 0000960815, filed by Smith Bagley, Inc. on July 12,
    2002, are DISMISSED.

18. IT IS FURTHER 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 1.935 of the Commission's rules, 47
    C.F.R. §§ 0.331, 1.935, the Application for Review filed by McElroy
    Electronics Corporation on March 10, 2005; the Comments on
    Application for Review filed by Commnet Wireless, LLC on March 24,
    2005; the Opposition to Application for Review filed by WWC License
    L.L.C. on March 25, 2005; and the Reply to Opposition, and Comments
    on, Application for Review filed by McElroy Electronics Corporation
    on April 4, 2005, are DISMISSED.

19. IT IS FURTHER 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 1.934 of the Commission's rules, 47
    C.F.R. §§ 0.331, 1.934, the Application, FCC File No. 0001102638,
    filed by Alltel Communications of the Southwest Limited Partnership
    on November 25, 2002; the Application, FCC File No. 0001141871,
    filed by Smith Bagley, Inc. on January 3, 2003; the Application, FCC
    File No. 0001141907, filed by McElroy Electronics Corporation and
    Commnet Wireless, LLC Joint Venture on January 3, 2002; and the
    Petition to Dismiss or Deny filed by Commnet Capital, LLC and
    McElroy Electronics Corporation on January 3, 2002; and Opposition
    to Petition to Dismiss or Deny filed by ALLTEL Communications of the
    Southwest Limited Partnership on January 16, 2002, are DIMISSED as
    moot.

    FEDERAL COMMUNICATIONS COMMISSION

Cyndi Thomas

Assistant Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: Joint Request for Waiver, Approval of Settlement Agreement,
    Dismissal of Pleadings and Certain Applications, and Grant of
    Application, filed by Alltel Communications of the Southwest Limited
    Partnership, Commnet Wireless, LLC , McElroy Electronics
    Corporation, Smith Bagley, Inc., and WWC License, L.L.C. (Feb. 8,
    2007).

[^2]: Application for Review of McElroy Electronics Corporation, filed
    by McElroy Electronics Corporation (Mar. 10, 2005).

[^3]: In re Applications of Smith-Bagley, Inc. & WWC License L.L.C.,
    Phase II Cellular Unserved Area Applications For New Mexico 3 RSA
    (Catron), Market No. 555, Block A, *Order*, 20 FCC Rcd 2361, 2374 ¶
    31 (MD 2005).

[^4]: Wireless Telecommunications Bureau Implements Revocation of
    Cellular Call Sign KNKN271 (NM3 RSA); Phase II Unserved Area
    Application Rules to be Applied, *Public Notice*, 17 FCC Rcd 10518
    (2002).

[^5]: In re Applications of ALGREG Cellular Engineering, *Memorandum
    Opinion and Order and Order on Reconsideration*, 14 FCC Rcd 18524
    18533-35 (1999), *aff'd*, *Alee Cellular Communications v. FCC*,
    slip op., No. 99-1460 (D.C. Cir. Jan. 30, 2001), *reh'g denied*,
    (D.C. Cir. Apr. 5, 2001), *cert. denied*, (S. Ct. Oct. 9, 2001). A
    letter issued on May 30, 2002, implementing the Commission's
    revocation of the license granted to Alee Cellular Communications
    (Alee) for Station KNKN271 initiated this proceeding. Letter to Alee
    Cellular Communications from Katherine M. Harris, Deputy Chief,
    Commercial Wireless Division, Wireless Telecommunications Bureau
    (May 30, 2002).

[^6]: The Division released the Public Notice on June 12, 2002, *Public
    Notice*, Report No. 1201 (June 12, 2002), establishing a cut-off
    deadline of July 12, 2002, for filing competing applications, 47
    C.F.R. § 22.131(b)(3).

[^7]: Smith Bagley is authorized to operate at a tower located
    approximately 9.7 miles northwest of Datil NM, at the location
    coordinates of 34-15-00.0 N, 107-57-17.0 W. McElroy and WWC proposed
    operations at the exact same location because at the time each Party
    filed their initial application, the Commission's Universal
    Licensing System showed the status for the license for Station
    KNKR315 as Terminated. Smith Bagley notified the Commission of the
    error on July 11, 2002. The licensing history that lead to McElroy
    and WWC including the proposals in their initial applications even
    though Smith Bagley was already licensed at the Datil site is
    outlined in the *Division Order*, 20 FCC Rcd at 2363, ¶¶ 5-6.

[^8]: Letter to William J. Hackett, Western Wireless Corporation, from
    Michael A. Ferrante, Chief, Licensing and Technical Analysis Branch,
    Commercial Wireless Division (July 25, 2002).

[^9]: FCC File No. 0000959496, at Ex. 9, Request for Waiver of Section
    22.949(b)(3) at 2. In the alternative, WWC requested a waiver of the
    filing date requirement set forth under Section 22.131(b) of the
    Commission's rules to allow it to file a separate application for
    the Quemado site. WWC also stated that if the Commission denied its
    alternative waiver requests, it would withdraw its proposed Quemado
    site. *Id*. at 3.

[^10]: Petition to Dismiss or Deny of McElroy Electronics Corporation,
    filed by McElroy Electronics Corporation (Sept. 25, 2002).

[^11]: *Division* *Order*, 20 FCC Rcd at 2374 ¶ 31. On August 14, 2002,
    over a month after the close of the notice and cut-off window
    established by McElroy's first-filed application, Smith Bagley filed
    a separate Phase II unserved area application for a new cellular
    system at the Quemado site. FCC File No. 0000997158 (Aug. 14, 2002).
    Smith Bagley's second application was accepted for filing on August
    21, 2002. *Public Notice*, Report No. 1263 (Aug. 21, 2002).
    According to Smith Bagley, it filed its Quemado application within
    the 30-day period established by McElroy's separately filed Quemado
    application, which was accepted for filing on July 17, 2002. On
    September 20, 2002, McElroy and WWC filed individual petitions to
    dismiss Smith Bagley's Quemado application as defective, arguing
    that Smith Bagley filed the application outside of the 30-day notice
    and cut-off window established by McElroy's first-filed application.
    The *Division Order* dismissed Smith Bagley's August 14, 2002
    application for the Quemado site as defective. *Id*. at 2366-70, ¶¶
    11-19. That part of the decision was not appealed.

[^12]: Comments on Application for Review, filed by Commnet Wireless,
    LLC (Mar. 24, 2005).

[^13]: Opposition to Application for Review, filed by WWC License L.L.C.
    (Mar. 25, 2005).

[^14]: Reply to Opposition, and Comments on, Application for Review,
    filed by McElroy Electronics Corporation (Apr. 4, 2005).

[^15]: On August 31, 2005, WWC amended its NM3 Application to reflect
    that WWC had become a wholly owned, indirect subsidiary of Alltel
    Corporation as a consequence of the merger of Alltel Corporation and
    Western Wireless Corporation on August 1, 2005. Letter from Kenneth
    D. Patrich and Brian W. Higgins, Counsel for WWC License L.L.C. to
    Marlene H. Dortch, Secretary, FCC (Aug. 31, 2005). The same,
    however, has not been done for WWC's NM6 Application \[IS THIS A
    PROBLEM?\]. The Joint Request notes that Alltel Communications of
    the Southwest Limited Partnership is also a wholly owned, indirect
    subsidiary of Alltel Corporation. Joint Request at 1-2, n.1.

[^16]: 47 C.F.R. § 1.935. The rules were formerly found in Section
    22.129, *id*. § 22.129.

[^17]: 47 C.F.R. § 1.935.

[^18]: 47 C.F.R. § 1.935(a).

[^19]: Joint Request at 4.

[^20]: Joint Request at 4-5.

[^21]: Joint Request at 5-7.

[^22]: A waiver of the Commission's rules may be granted where the
    applicant demonstrates 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. 47 C.F.R. §
    1.925(b)(3).

[^23]: In re Applications of Algreg Cellular Engineering For Facilities
    in the Domestic Public Cellular Telecommunications Radio Service on
    Frequency Block A, in Market 307, Alabama 1 -- Franklin, *Memorandum
    Opinion and Order and Order on Reconsideration*, 18 Communications
    Reg. (P&F) 301 (rel. Oct. 18, 1999) (*Algreg Cellular*). *Algreg
    Cellular* addresses former rule section 22.129, which was later
    recodified under Section 1.935. *See* In the Matter of Applications
    of California Water Service Company For Authority to Provide
    Multiple Address System Service in the States of California and
    Washington, *Memorandum Opinion and Order*, 18 FCC Rcd 11609,
    11617-18, ¶17 (2003) (citing Amendment of Parts 2 and 90 of the
    Commission's Rules to Provide for the Use of 200 Channels Outside
    the Designated Filing Areas in the 896-901 MHz and the 935-940 MHz
    Bands Allotted to the Specialized Mobile Radio Pool, *Order on
    Reconsideration and Seventh Report and Order*, 11 FCC Rcd 2639,
    2686, ¶ 126 (1995)) (explaining the purpose of Section 1.935:
    "\[t\]his rule deters frivolous protests, filed primarily for
    anticompetitive or abusive reasons and prevents the filing of
    speculative applications and pleadings (or threats of the same)
    designed to extract money from applicants"); Wireless
    Telecommunications Bureau Waives Limitations on Payments in
    Settlement Agreements Among Parties in Contested Cases, *Public
    Notice*, DA 99-745 (Apr. 16, 1999) (citing 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 Service, WT
    Docket No. 98-20, *Report and Order*, 13 FCC Rcd 21027 (1998)
    (explaining the purpose of Section 1.935: "\[t\]he rule is intended
    to decrease the potential for parties to abuse the Commission's
    processes by filing speculative applications and frivolous pleadings
    for the sole purpose of obtaining money and other consideration from
    other parties in exchange for withdrawing or seeking dismissal of
    applications and pleadings").

[^24]: For example, as discussed in footnote 11, *supra*, Smith Bagley
    filed a separate application for the Quemado site on August 14,
    2002, over a month after the close of the notice and cut-off window
    established by McElroy's first-filed application, arguing that the
    application was timely filed within the 30-day period established by
    McElroy's separately filed Quemado application, which was accepted
    for filing on July 17, 2002. McElroy and WWC both filed petitions to
    deny against Smith Bagley's Quemado application and the *Division
    Order* rejected several arguments before dismissing Smith Bagley's
    application as filed in an untimely manner. Similarly, the *Division
    Order* addressed several arguments, including the responsibility of
    applicants to know whether stations are in fact operational
    regardless of the status of the license in the Commission's
    Universal Licensing System database, before granting WWC's request
    of waiver of the Commission's rule limiting applications to one
    CGSA. Issues involving the grant of that waiver, including whether
    the Division improperly created a daisy chain effect by granting the
    waiver, remain pending because of the filing of McElroy's
    Application for Review.

[^25]: *Cf.* In the Matter of Zephyr Tele-Link, *Order*, 15 FCC Rcd
    4247, 4248 ¶ 3, n.12 (CWD 2000) (declining 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" (citing
    *Algreg Cellular Engineering*, FCC 99-281 (rel. Oct. 18, 1999)).

[^26]: Wireless Telecommunications Bureau Waives Limitations on Payments
    in Settlement Agreements Among Parties in Contested Cases, *Public
    Notice*, DA 99-745 (Apr. 16, 1999) (establishing 90-day period,
    effective upon publication of Public Notice in Federal Register);
    Waiver of Limitations on Payments in Settlement Agreements Among
    Parties in Contested Licensing Cases Expires on August 16, 1999,
    *Public Notice*, 14 FCC Rcd 7840 (WTB 1999); Wireless
    Telecommunications Bureau Extends Waiver of Limitations on Payments
    in Settlement Agreements Among Parties in Contested Licensing Cases,
    *Public Notice*, 14 FCC Rcd 13965 (WTB 1999)(extending settlement
    window to October 30, 1999).

[^27]: *Public Notice*, DA 99-745 at 1.

[^28]: FCC File No. 0001102638, filed by Alltel Communications of the
    Southwest Limited Partnership (Nov. 25, 2002).

[^29]: Petition to Dismiss or Deny, filed by Commnet Capital, LLC and
    McElroy Electronics Corporation (Jan. 3, 2002).

[^30]: Opposition to Petition to Dismiss or Deny, filed by ALLTEL
    Communications of the Southwest Limited Partnership (Jan. 16, 2002).