Before the

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, DC 20554**

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| Bachow/Coastel, L.L.C.,         | ) | > File No. WB/ENF-F-98-005     |
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| Complainant,                    | ) |                                |
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| GTE Wireless of the South,      | ) |                                |
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| Defendant.                      |   |                                |
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## ORDER ON REVIEW

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  **Adopted:** February 14, 2001      **Released:** February 22, 2001

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By the Commission:

1 In this order, we affirm a February 29, 2000, Order of the Enforcement
Bureau that ruled GTE Wireless of the South, Inc. ("GTE") had violated
our regulations by having the service area boundaries ("SABs") of three
cellular towers overlap the cellular geographic service area ("CGSA")
licensed to Bachow/Coastel L.L.C. ("Bachow") in the Gulf of Mexico.[^1]
We also affirm the *Bureau Order*'s ruling that directed GTE to modify
the signal strength of these cell sites to eliminate the unlawful SAB
extensions. Therefore, we deny the Application for Review that GTE filed
on March 16, 2000.

2 While GTE disputes the Enforcement Bureau's interpretation of various
portions of the record, GTE has not persuaded us that the Bureau erred
in its findings that Sand Island does not extend the southern boundary
of GTE's CGSA and that GTE's CGSA does not extend beyond the "coastline"
into the Gulf of Mexico CGSA. Accordingly, we adopt the reasoning of the
*Bureau Order* and incorporate the same here, with the additional
comments below.

3 GTE asserts that the U.S. Supreme Court issued a settlement decree
between the United States and Alabama "for the purpose\[\] of
determining the Submerged Lands Act grant to the State of Alabama"[^2]
that delineated the contours of the Alabama coastline to include Sand
Island. Furthermore, GTE avers that the State of Alabama itself claims
that Sand Island falls on the Alabama side of "the border dividing the
area over which Alabama controls the mineral and mining rights and the
area over which the federal government controls the mineral and mining
rights."[^3] GTE contends that the Enforcement Bureau ignored those
findings and argues that Alabama's borders, thus defined by the Supreme
Court and the State of Alabama, should also establish the boundary
between the parties' respective CGSAs. We disagree. The Commission has
previously established that the service area boundary for the Gulf of
Mexico is at the coastline.[^4] Evidence as to the borders of the State
of Alabama or the grants that Alabama receives under Submerged Land Act
proceedings, therefore, while instructive, are not dispositive to our
determination of this issue. Furthermore, in the case upon which GTE
relies, the Supreme Court granted a jointly filed supplemental decree to
set the baseline for determining the Submerged Lands Act grant to the
State of Alabama. The Court did not apply the definition of "coastline"
when it accepted the settlement.[^5] Therefore, given our conclusion
that the appropriate CGSA demarcation is the "coastline" as defined by
the Commission, we find that the Bureau correctly applied the
Commission's standards in establishing the boundary between GTE's CGSA
and Bachow's CGSA.[^6]

4 In *PetroCom*, as referenced above, the Commission affirmed a Common
Carrier decision to utilize previously developed definitions of
"coastline" and "inland waters" in establishing the geographic
limitations for the Gulf of Mexico cellular licenses.[^7] Accordingly,
the Commission defines "coastline" as "the line of ordinary low water
along that portion of the coast which is in direct contact with the open
sea and the line marking the seaward limit of inland waters" and "inland
waters" to include "bays, historic inland waters, and waters
circumscribed by a fringe of islands within the immediate vicinity of
the shoreline." Thus in order for the Commission to extend GTE's Mobile,
Alabama CGSA, we must conclude that a bay, historic inland water, or
fringe islands constitutes part of the Alabama coastline south of
Dauphin Island and Mobile Point.

5 GTE asserts that Sand Island is an island that forms part of the
Alabama coastline. However, whether Sand Island is an island to be
considered part of the coastline depends on whether it is submerged at
high tide.[^8] GTE argues that the Enforcement Bureau should have relied
on a 1982 U.S. Geological Survey ("USGS") map, instead of the 1970 USGS
map cited in the *Bureau Order*.[^9] Based on our review of the record,
we agree that the 1970 map is not the most recent evidence in the
record. Neither, however, is the 1982 map. The record also contains a
1997 map from National Oceanic and Atmospheric Administration. This most
recent map indicates that Sand Island is submerged even at low tide and,
thus, is not an "island" which could constitute an island for the
purpose of establishing the coastline.[^10] In addition, we take
judicial notice of a photograph taken by the U.S. Geological Survey on
July 17, 1996, which also indicates that Sand Island is below water at
high tide.[^11] In light of the most recent map and the photograph, we
agree with the Bureau's conclusion that Sand Island is not an island
that can be used to establish the Alabama coastline and, thus, Sand
Island does not extend GTE's CGSA.[^12]

6 Alternatively, GTE argues that the Commission should use an island
with a lighthouse on it, located even farther from the mainland than
Sand Island, to draw the border between the Bachow CGSA and the GTE
CGSA. GTE states that even though the lighthouse island is submerged at
high tide, "the coastline may be drawn to include the lighthouse
island."[^13] GTE asserts that Article 4 of the Convention on the
Territorial Sea and the Contiguous Zone permits these coastline
determinations to be made with low-tide elevations (*i.e.*, portions of
land that are submerged at high tide but exposed at low tide) when
"lighthouses or similar installations which are permanently above sea
level have been built on them."[^14] Indeed, we acknowledge that the
Convention may, as a matter of international law, give this Commission
the latitude to use the lighthouse island when determining the coastline
boundary between Bachow's CGSA and GTE's CGSA. GTE, however, fails to
demonstrate that the Commission *must* use the lighthouse island to draw
the coastline for the purpose of determining the boundary between
Bachow's CGSA and GTE's CGSA and we decline to do so. In particular,
lighthouses can come and go for a variety of reasons, especially one
located on an island that is submerged at high tide. Because we believe
that CGSA boundaries should be as stable as possible, we conclude,
therefore, that the lighthouse island is not an appropriate landmark to
draw the boundary between Bachow's CGSA and GTE's CGSA.

7 As another alternative, GTE contends that the lighthouse island, Sand
Island, and a third island circumscribe "inland waters" (*i.e.*, Pelican
Bay) that results in all three islands becoming part of the Alabama
coastline.[^15] GTE proffers four methods for determining when a body of
water constitutes inland waters: "(1) if the waters are circumscribed by
a fringe of islands within the immediate vicinity of the shoreline; (2)
if the body of water is on the landward side of a baseline establishing
the coastline; (3) if the body of water constitutes a historic bay; and
(4) if the body of water constitutes a juridical bay."[^16] Even giving
wide latitude to GTE's argument regarding inland waters, we conclude
that the geographic features of Pelican Bay do not provide the stability
licensees require for their CGSA boundaries. Because Sand Island and the
lighthouse island have already been determined not to be islands for
purposes of determining the coastline, GTE cannot viably contend that
they constitute fringe islands for establishing inland waters. Likewise,
GTE cannot prevail under its second rationale that Pelican Bay is on the
landward side of a baseline establishing the coastline and is thus an
inland water, because GTE draws its coastline baseline through Sand
Island and the lighthouse island which we have already concluded are
insufficient themselves to be considered part of the coastline. GTE's
third and fourth arguments are that this particular body of water
constitutes a juridical or historic bay and is consequently an inland
water that forms part of the coastline. Article 7 of the Convention
defines a juridical bay as "a well-marked *indentation* whose
penetration is in such proportion to the width of its mouth as to
contain *landlocked* waters and constitute more than a mere curvature of
the coast."[^17] Given that Pelican Bay extends *outward into* the Gulf
of Mexico south of Dauphin Island and Mobile Point and is not landlocked
on any side, we cannot conclude that it satisfies the definition of
juridical bay. While the Convention did not define the term "historic
bay," as noted by GTE, the Supreme Court did consider the issue in
*United States v. Louisiana*.[^18] The Supreme Court there, however, did
not reach the threshold question of "how unlike a juridical bay a body
of water can be and still qualify as a historic bay."[^19] Although the
Supreme Court stated that a "historic bay need not conform to the
geographic tests for a juridical bay," it also concluded that the body
of water at issue in that case closely resembled one.[^20] In this
matter, however, we find that the configuration of Pelican Bay is
sufficiently dissimilar to a juridical bay to not constitute a bay at
all. The determination of whether Pelican Bay constitutes an historical
bay allows the Commission to consider factors such as the geographic
configuration of the islands that potentially frame the inland waters.
As we have already described, the geographic configuration of Pelican
Bay does not have sufficiently stable features to warrant their use in
this determination. Thus, we reiterate that the discretion to adopt a
different standard for determining the coastline boundary between
Bachow's CGSA and GTE's CGSA does not *require* us to do so. We find
that the Bureau's decision to base its coastline determination on stable
geographical features, as described above and in the *Bureau Order*, was
appropriate for the purposes of determining CGSA boundaries.

8 Finally, GTE contends that the Bureau failed to address the argument
that the Commission had authorized GTE to extend its CGSA into the Gulf
of Mexico when the Commission approved the Gulf Shores cell site in
September 1987. While we agree that the Bureau did not directly address
this issue in the *Bureau Order*, we believe that the crux of the
*Bureau Order* and the regulations promulgated by this Commission
refutes the notion that two licensees may have overlapping CGSAs.[^21]
As discussed in the *Bureau Order*, the Bachow CGSA is currently defined
as coterminous with the entire Gulf of Mexico Metropolitan Statistical
Area ("GMSA").[^22] In fact, GTE even admitted in its answer that "under
FCC's current Rules, the entire GMSA is the CGSA of Complainant."[^23]
In any event, our review of the record indicates that GTE has not
adequately supported its assertion that its CGSA was, in fact,
authorized into the Gulf of Mexico prior to the establishment of the
GMSA.

9 To support its assertion, GTE mainly relies on a Gulf Shores contour
map from a July 2, 1987, Form 489 minor modification application that
allegedly depicts GTE's authorized CGSA as extending into the Gulf. This
1987 map, however, depicts a different CGSA boundary than the one
initially presented to the Commission in the Foley cell site
construction permit application on March 8, 1983.[^24] GTE outlines the
circumstances that caused the Foley cell site to evolve into the Gulf
Shores cell site with various Form 401 and 489 applications for the two
sites. GTE does not, however, include any maps with these applications,
let alone a map that could demonstrate possible changes in the location
of cell site contour or the CGSA boundary associated with moving the
cell site location from Foley to Gulf Shores.[^25] Standing alone, the
uncorroborated 1987 map does not offer a complete picture as to the CGSA
boundary. Thus, we find that GTE has not adequately supported its
assertion that its CGSA extends into the Gulf of Mexico.

10 Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
154(i), 154(j), 208, that the Application for Review filed by GTE IS
DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: *See Bachow/Coastel, L.L.C. v. GTE Wireless of the South, Inc.*,
    Order, DA 00-420 (rel. Feb. 29, 2000) ("*Bureau Order*").

[^2]: *See* *United States v. Louisiana*, 507 U.S. 7, 9 (1993).

[^3]: *See GTE Application for Review* at 13, Mar. 16, 2000.

[^4]: *See In re Applications of Petroleum Communications, Inc., and
    Gulf Cellular Associates*, 1 FCC Rcd. 511, ¶ 5 (rel. Nov. 7, 1986)
    ("*PetroCom*").

[^5]: *See United States v. Louisiana*, 507 U.S. at 7--9.

[^6]: *See Bureau Order* at ¶¶ 3, 12.

[^7]: *See* *PetroCom* at ¶¶ 16-17 (relying on Supreme Court precedent
    in *United States v. Louisiana*, 363 U.S. 1, 66-67, n.108 (1960).
    That case involved both the Submerged Lands Act and the Convention
    on the Territorial Sea and the Contiguous Zone. *See* Submerged
    Lands Act, 43 U.S.C. §§ 1301--1364; *see also* Convention on the
    Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 10(1),
    15 U.S.T. 1606, 516 U.N.T.S. 205). *See also* *United States v.
    Louisiana*, 470 U.S. 93 (1985), part of the line of cases arising
    from the original ruling by the Supreme Court in 1960.

[^8]: *See* Convention on the Territorial Sea and the Contiguous Zone,
    Apr. 29, 1958, art. 10(1), 15 U.S.T. 1606, 516 U.N.T.S. 205 (the
    term "island" is defined as "a naturally formed area of land,
    surrounded by water, which is above water at high tide"). *See also*
    *Bureau Order* at ¶ 12.

[^9]: *See Bureau Order* at ¶ 12.

[^10]: *See Bachow Legal Brief on Requested Issues*, Exhibit U,
    Reproductions of Portions of December 1997 Map Distributed by
    National Oceanographic and Atmospheric Administration, Oct. 5, 1998.

[^11]: *See* Aerial Photograph, United States Geological Survey, July
    17, 1996. *See also* 47 C.F.R. § 1.361; *see also* [Fed. R.
    Evid.]{.smallcaps} 201.

[^12]: *See Bureau Order* at ¶ 12. The fact that Sand Island is now
    submerged at high tide further underscores the need for the
    Commission to base its CGSA boundaries on land masses not so readily
    subject to change.

[^13]: *GTE Application for Review* at 8. While GTE argues that the
    lighthouse island is above the high-water mark in 1981, it has not
    convincingly demonstrated that such is the case today. Given the
    more recent map and photograph of Sand Island referenced above, we
    are not persuaded that anything except the lighthouse itself is
    above the high-water mark.

[^14]: *Id.* (quoting Convention on the Territorial Sea and the
    Contiguous Zone, Apr. 29, 1958, art. 4(3), 15 U.S.T. 1606, 516
    U.N.T.S. 205).

[^15]: This third island is Pelican Island. Bachow does not contest
    whether Pelican Island is an "island."

[^16]: *GTE Application for Review* at 9.

[^17]: Convention on the Territorial Sea and the Contiguous Zone, Apr.
    29, 1958, art. 7, 15 U.S.T. 1606, 516 U.N.T.S. 205 (emphasis added).

[^18]: *See United States v. Louisiana*, 470 U.S. 93, 102 (1985).

[^19]: *Id*. at 102, n.2.

[^20]: *Id.*

[^21]: *See* 47 C.F.R. §§ 22.911(d), 22.912.

[^22]: *See* *Bureau Order* at ¶ 5. The Bureau's decision was based on
    the current rules governing licensing of cellular service in the
    Gulf of Mexico. We note that in a pending rulemaking proceeding, the
    Commission has proposed certain prospective modifications to these
    rules. *See Cellular Service and Other Commercial Mobile Radio
    Services in the Gulf of Mexico*, WT Docket No. 97-112, Amendment of
    Part 22 of the Commission's Rules to Provide for Filing and
    Processing of Applications for Unserved Areas in the Cellular
    Service and to Modify Other Cellular Rules, CC Docket No. 90-6,
    Second Further Notice of Proposed Rule Making, 12 FCC Rcd. 4516
    (1997). Our conclusion in this Order on Review that the Bureau
    properly applied the current rules is in no way intended to prejudge
    the outcome of the pending rulemaking.

[^23]: *See GTE Answer* at 22.

[^24]: *See GTE Application for Review* at 17; *see also Supplemental
    Information Submitted by GTE*, Exhibit H, Oct. 5, 1998.

[^25]: *See GTE Application for Review* at 16--19; *see also
    Supplemental Information Submitted by GTE* at 19--25, Exhibits H--P.
    GTE claims that the Public Notices issued by the Commission in the
    mid-1980s regarding the Foley and Gulf Shores cell site gave GTE
    permission from the Commission to "increase the presently authorized
    CGSA." *See GTE Application for Review* at 18. We believe that GTE
    mischaracterizes these Public Notices as dealing with the GMSA when
    they actually deal with possible *de minimis* extensions into the
    Pensacola, Florida, MSA. *See Supplemental Information Submitted by
    GTE*, Exhibits H--J, L, M.