Before the

Federal Communications Commission

**Washington, D.C. 20554**

In the Matter of: )

)

Amendment of Section 22.949 of the ) RM-8647

Commission's Rules to Provide for a )

Moratorium on Acceptance of Unserved )

Area Cellular Applications Within the )

National Radio Quiet Zone )

**ORDER**

Adopted: February 8, 2000 Released: February 9, 2000

**By the Deputy Chief, Wireless Telecommunications Bureau:**

**[I. INTRODUCTION]{.underline}**

1 In this Order, we address a Petition for Rulemaking (Petition) filed
by Easterbrooke Cellular Corporation (Easterbrooke) and United States
Cellular Corporation (USCC) (collectively, Petitioners) on May 4, 1995.
Petitioners request that the Commission amend section 22.949 of its
rules[^1] to preclude the filing of Phase I or Phase II cellular
unserved area applications that propose coverage within the National
Radio Quiet Zone (Quiet Zone).[^2] On May 24, 1995, the Commission
accepted the Petition for filing and requested comments on the
Petition.[^3] For the reasons set forth below, we deny the Petition, but
on our own motion, grant Petitioners a waiver of the Commission's
cellular buildout requirements in areas where cellular construction is
precluded by Quiet Zone rules.

**[II. BACKGROUND]{.underline}**

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.[^4] 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."[^5]

3 Petitioners, directly or through affiliates, hold licenses to offer
cellular service in several West Virginia and Virginia Rural Service
Areas (RSAs) that include portions of the Quiet Zone.[^6] Petitioners
argue 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.[^7] As a result of this unique restriction, Petitioners
argue that they have been precluded from extending coverage in portions
of their RSAs.[^8] Because their ability to expand has been restricted,
Petitioners contend that they should be given the first opportunity to
expand their 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.[^9]
Petitioners therefore request that the Commission amend section 22.949
of its rules to prevent the filing by other parties of Phase I or Phase
II applications in their RSAs that propose Service Area Boundaries that
extend, in whole or in part, into the Quiet Zone.[^10] Petitioners argue
that such a provision would ensure that the initial licensees in markets
overlapping the Quiet Zone could take advantage of any future relaxation
of the NRAO's interference protection standards or cellular
technological developments which would allow improved coverage while
complying with Quiet Zone restrictions.[^11]

**[III DISCUSSION]{.underline}**

4 We agree with Petitioners that due to the unique circumstances
encountered in the Quiet Zone, application of the cellular buildout and
unserved area rules to Petitioners does not serve the purposes of those
rules and is not in the public interest. Petitioners have shown that the
Commission's rules governing operations in the Quiet Zone have prevented
them from offering service to significant portions of their licensed
areas.[^12] Under these circumstances, we believe that enforcing the
existing buildout and unserved area rules would serve no useful purpose
and would potentially encourage the filing of speculative applications.

5 We disagree, however, that a rulemaking proceeding is the best method
to address this situation. Under section 1.925 of the Commission's
rules, rules associated with licenses in the Wireless Radio Services,
including cellular, may be waived when (1) the underlying purpose of the
rule(s) would not be served or would be frustrated by application to the
instant case, and a grant of the requested waiver would be in the public
interest; or (2) in view of unique or unusual factual circumstances,
application of the rule(s) would be inequitable, unduly burdensome or
contrary to the public interest, or the applicant has no reasonable
alternative.[^13] As discussed in the previous paragraph, these
standards are satisfied here. In particular, we note that although
several cellular service areas extend into the Quiet Zone, it appears
from our database that few, if any, licensees other than Petitioners
have substantial unserved areas within the Quiet Zone that could become
subject to unserved area applications by nonincumbents under section
22.949.[^14] We therefore believe that a limited waiver granted to the
Petitioners will sufficiently address the situation.[^15]

6 We therefore deny the Petition, and instead grant on our own motion a
limited waiver of sections 22.947 and 22.949 of the Commission's rules.
Specifically, we waive sections 22.947 and 22.949 to the extent
necessary to permit Petitioners to continue to construct facilities
within the Quiet Zone beyond the expiration of the five-year buildout
period for call signs KNKN739, KNKN640, KNKQ323, and KNKN747, 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 these licenses. Under the terms of this waiver, Petitioners
may continue to construct facilities for which they hold licenses within
the Quiet Zone, notwithstanding the expiration of the five-year buildout
period, subject to compliance with section 1.924(a) and other relevant
provisions of the Commission's rules. In addition, facilities that
Petitioners are currently operating pursuant to the special temporary
authority within the Quiet Zone may be converted to full licensed status
upon proper application therefor.

7\. In granting this waiver, we note that there are potential
circumstances that could cause us to reevaluate the waiver granted here.
For example if the Commission were to modify its Quiet Zone rules, or if
technological advances were to make construction in the Quiet Zone
feasible, we expect that Petitioners would take the necessary steps to
expand their coverage. If they did not do so after a reasonable
opportunity, we would consider reinstatement of unserved area licensing
procedures to enable these parties to enter the market. Therefore, this
waiver will remain in effect to permit new facilities to be constructed
and brought into operation until such time as it may be terminated by
the Commission or on proper exercise of delegated authority.

**[IV. ORDERING CLAUSES]{.underline}**

7 Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 303(r)
of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 303(r), and
sections 0.331 and 1.407 of the Commission's rules, 47 C.F.R. §§ 0.331,
1.407, the Petition for Rulemaking filed by Easterbrooke Cellular
Corporation and United States Cellular Corporation on May 4, 1995, IS
HEREBY DENIED.

8 IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 303(r) of
the Communications Act, as amended, 47 U.S.C. §§ 154(i), and 303(r), and
sections 0.331 and 1.925 of the Commission's rules, 47 C.F.R. §§ 0.331,
1.925, a waiver of sections 22.947 and 22.949 of the Commission's rules
to the extent discussed above IS HEREBY GRANTED.

9 IT IS FURTHER ORDERED that, pursuant to section 4(i) of the
Communications Act, as amended, 47 U.S.C. § 154(i), and section 0.331 of
the Commission's rules, 47 C.F.R. § 0.331, the request for stay filed by
Easterbrooke Cellular Corporation and United States Cellular Corporation
on May 4, 1995, IS HEREBY DISMISSED as moot.

FEDERAL COMMUNICATIONS COMMISSION

> James D. Schlichting
>
> Deputy Chief, Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 22.949.

[^2]: *See* 47 C.F.R. § 1.924. Petitioners also filed a request for stay
    during the pendency of their Petition of the acceptance of any
    unserved area applications proposing Service Area Boundary coverage
    of any portion of the Quiet Zone.

[^3]: *See Public Notice*, Report No. 2074 (rel. May 24, 1995). Comments
    were filed by Virginia RSA 6 Cellular Limited Partnership, Sprint
    Cellular, GTE Mobilnet, and Cellular Telephone Industry Association,
    all in favor of the proposed rule change.

[^4]: 47 C.F.R. § 1.924(a). This provision was formerly codified at 47
    C.F.R. § 22.369.

[^5]: 47 C.F.R. § 1.924(a)(3).

[^6]: Specifically, Easterbrooke is the non-wireline cellular licensee
    in West Virginia RSA 5 -- Tucker. USCC is the parent company of the
    wireline licensees in West Virginia RSA 5 -- Tucker, West Virginia
    RSA 3 -- Monongalia, West Virginia RSA 4 -- Grant, and West Virginia
    RSA 7 -- Raleigh, and the non-wireline licensees in Virginia RSA 4
    -- Bedford, Virginia RSA 5 -- Bath, Virginia RSA 7 -- Buckingham,
    and West Virginia RSA 2 -- Wetzel.

[^7]: Petition at 3-4.

[^8]: *Id*. at 7.

[^9]: *Id.*

[^10]: *Id* at 9. Specifically, Petitioners request that section 22.949
    be amended by the addition of a new paragraph, paragraph (e), which
    would provide as follows: "(e) Quiet Zone Provisions.
    Notwithstanding the provisions of section 22.949(a)-(d), no Phase I
    or Phase II unserved area applications for RSAs will be accepted
    which propose Service Area Boundaries which extend into, in whole or
    in part, the "Quiet Zone" described in section 22.369(a) of the
    Rules. Licensees of those RSAs, during their license terms, will be
    permitted to file applications to serve areas within the Quiet Zone
    in accordance with the rules applicable to system expansion during
    the five-year buildout period."

[^11]: *Id.*

[^12]: For example, 67% of Easterbrooke's and 47% of USCC's service
    areas in West Virginia RSA #5 -- Tucker, are currently unserved due
    to Quiet Zone restrictions.

[^13]: 47 C.F.R. § 1.925.

[^14]: We further note that there appear to be no substantial unserved
    areas within the protected zones surrounding Table Mountain,
    Colorado, and Arecibo Observatory, Puerto Rico. *See* 47 C.F.R. §
    1.924(b), (d).

[^15]: To the extent other licensees are similarly situated, we will
    consider separate petitions for waiver on their behalf.