Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | * | File No. 0000086223          |
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| N.E. COLORADO CELLULAR, INC.     | ) |                              |
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| For Authority to Establish a New | * |                              |
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| in the Cellular Radiotelephone   | * |                              |
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| in the Nebraska 1 -- Sioux Rural | * |                              |
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| Market No. 533A as a Phase II    | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: April 5, 2001 Released: April 6, 2001**

By the Chief, Commercial Wireless Division:

1.  The Commercial Wireless Division of the Wireless Telecommunications
    Bureau has before it a Petition to Dismiss or Deny (Petition) filed
    by Sagir, Inc. (Sagir) on April 7, 2000. Sagir requests that the
    above-captioned Phase II unserved area application of N.E. Colorado
    Cellular, Inc. (NECC) be dismissed or denied.[^1] For the reasons
    stated below, we grant Sagir's Petition and dismiss NECC's
    application.

2.  **[Background]{.underline}**. Sagir is the Block A licensee of
    Station KNKN-383 serving the Nebraska 1-Sioux RSA (Sioux RSA). NECC
    is the Block A licensee of Station KNKR-307 serving the Colorado
    2-Logan RSA, which is adjacent to the Sioux RSA. NECC filed the
    above-captioned Phase II unserved area application for a portion of
    the Sioux RSA on February 29, 2000.[^2] NECC's application was
    accepted for filing and placed on Public Notice on March 8,
    2000.[^3]

3.  In its Petition, Sagir states that the Service Area Boundary (SAB)
    of each of the ten cell sites proposed in NECC's application would
    impermissibly extend into Sagir's authorized cellular geographic
    service area (CGSA).[^4] Section 22.912(a) of the Commission's rules
    provides that "SABs may extend into adjacent cellular markets if
    such extensions are *de minimis*, are demonstrably unavoidable for
    technical reasons of sound engineering design, and do not extend
    into the CGSA of any other licensee\'s cellular system on the same
    channel block (unless the licensee of such other system consents to
    the extension) . . . ."[^5] Sagir states that NECC's application
    violates Section 22.912(a) because it did not consent to any of the
    SAB extensions into its authorized CGSA.[^6] In its Opposition, NECC
    states that its "proposed contours do not overlap Sagir's 32 dBu
    \[service area\] boundaries. They only overlap Sagir's *alternative*
    CGSA . . . ."[^7] NECC argues that the Commission should "force
    Sagir to shrink its CGSA to its original \[32 dBu\] boundary as
    predicted by the agency's standard formula,"[^8] and grant its Phase
    II application.

4.  **[Discussion]{.underline}.** We disagree with NECC. In *Sagir I*,
    the Commission denied NECC's challenge to the propriety of Sagir's
    alternative CGSA.[^9] Nothing in the record of this proceeding
    suggests that it would be appropriate to revisit the grant of
    Sagir's alternative CGSA. We reject NECC's allegation that Sagir's
    construction of eight fill-in sites within its alternative CGSA
    demonstrates that it "never actually provided coverage in these
    areas,"[^10] warranting redrawing its alternative CGSA. Section
    1.947(b) of the Commission's rules provides that licensees may add
    internal fill-in sites "as a matter of right without prior
    Commission approval."[^11] In light of the Commission's approval of
    the alternative CGSA in *Sagir I*, Sagir's construction of the
    fill-in sites was proper.

5.  NECC also claims that a March 2000 drive test shows that Sagir was
    not providing reliable service in its alternative CGSA, warranting
    redrawing its alternative CGSA. We note that a substantial portion
    of the area that NECC claimed Sagir did not serve actually is
    outside of Sagir's alternative CGSA.[^12] We also note 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.[^13] Thus, the mere fact that NECC's drive test
    purports to show dead spots within Sagir's alternative CGSA does not
    require us to redraw the CGSA. Accordingly, we conclude that NECC's
    application is defective under Section 22.912(a) of the Commission's
    rules because the SAB of each cell site it proposes impermissibly
    extends into Sagir's authorized CGSA.[^14]

6.  Accordingly, IT IS 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), 1.939, 22.912(a) and 22.949(a) of
    the Commission's rules, 47 C.F.R. §§ 1.934(d)(2), 1.939, 22.912(a),
    and 22.949(a), the Petition to Dismiss or Deny filed by Sagir, Inc.
    on April 30, 2000 in the above-captioned matter is GRANTED.

7.  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), 1.939, 22.912(a) and 22.949(a) of the
    Commission's rules, 47 C.F.R. §§ 1.934(d)(2), 1.939 and 22.912(a)
    and 22.949(a), the above-captioned Phase II unserved area
    application filed by N.E. Colorado Cellular, Inc. on February 29,
    2000 is DISMISSED as defective.

FEDERAL COMMUNICATIONS COMMISSION

William W. Kunze

Chief, Commercial Wireless Division

> Wireless Telecommunications Bureau

[^1]: NECC filed an Opposition to the Petition on April 17, 2000. Sagir
    filed a Reply to the Opposition on April 27, 2000.

[^2]: *See* 47 C.F.R. § 22.949(b) (Phase II unserved area rule).

[^3]: *See Public Notice*, Report No. 471 (rel. March 8, 2000).

[^4]: Sagir Petition at 2. *See* 47 C.F.R. § 22.912 ("SAB extensions are
    areas outside of the cellular market boundary, but within the
    service area as calculated using the methods of § 22.911(a).").

[^5]: 47 C.F.R. § 22.912(a).

[^6]: Sagir Petition at 3.

[^7]: NECC Opposition at 4 (emphasis in original).

[^8]: *Id.,* citing 47 C.F.R. § 22.911(a).

[^9]: Sagir, Inc., *Memorandum Opinion and Order,* FCC 01-115 (rel. Apr.
    3, 2001) (*Sagir I*).

[^10]: NECC Opposition at 3.

[^11]: 47 C.F.R. § 1.947(b).

[^12]: *See* Exhibit 4 to Declaration of John Roussos, attached as
    Exhibit A to Sagir Reply.

[^13]: 47 C.F.R. § 22.911(b). 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.

[^14]: *Branch Order*, 15 FCC Rcd. at 4468, ¶ 5.