Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File No. 31973-CD-P/ML-96    |
|                                  | * |                              |
| Adams Telephone Cooperative      | ) |                              |
|                                  | * |                              |
| Applications for Paging          | * |                              |
| Radiotelephone                   |   |                              |
|                                  | * |                              |
| Service on 152.84 MHz at Quincy, | * |                              |
| Carthage, and Mt. Sterling,      | ) |                              |
| Illinois                         | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: March 30, 2001 Released: April 2, 2001**

By the Deputy Chief, Commercial Wireless Division, Wireless
Telecommunications Bureau:

1\. This order addresses the Petition for Further Reconsideration or
Waiver (Petition) filed by Adams Telephone Cooperative (Adams) on
November 19, 1999. Adams seeks further reconsideration of the Wireless
Telecommunications Bureau, Commercial Wireless Division's (Division)
decision dated October 20, 1999, which denied Adams's Petition for
Reconsideration of the dismissal of its paging application.[^1] For the
reasons discussed below, we deny Adams's Petition for Further
Reconsideration, but grant Adams a waiver of the current paging
application freeze in order to file an application for a license to
operate on a secondary basis.

2\. **Background.** On July 31, 1996, Adams filed an application
requesting authority to add new paging stations at Quincy, Mt. Sterling,
and Carthage, IL, and to operate each station at an effective radiated
power (ERP) in excess of 500 Watts. On May 21, 1997, the Division
dismissed, without prejudice, Adams's application as defective because
it did not contain an encompassment exhibit required pursuant to
Commission rule 22.559.[^2]

3\. On June 20, 1997, Adams filed a Petition for Reconsideration,
arguing that the Bureau erred in dismissing its application because an
encompassment exhibit was unnecessary where its proposed operations were
consistent with the height-power limits of Commission rule section
22.535(c), even where its proposed operation exceeded 500 Watts ERP.[^3]
Adams sought to have its application reinstated, or in the alternative,
sought leave to amend its dismissed application to conform to the 500
Watt limitation.[^4]

4\. On October 20, 1999, the Division denied Adams's Petition for
Reconsideration, stating that under rule section 22.559(b), an
encompassment exhibit is required where proposed operation exceeds the
basic power limits set forth in section 22.535(b), as well as for
applications that exceed the height-power limits of § 22.535(c).[^5] The
Division indicated that, under rule section 22.559, the exhibit must
show that the area within the interfering contour of the proposed
transmitter would be totally encompassed by interfering contours of
operating co-channel base transmitters controlled by the applicant.[^6]

5\. On November 19, 1999, Adams filed a Petition for Further
Reconsideration or Waiver. Adams argues that the Division erred in its
decision to dismiss its application, and failed to address Adams's
request for leave to amend its dismissed application to reflect a
maximum ERP of 500 Watts.[^7] In support of its request, Adams argues
that its misinterpretation of the rule was the result of ambiguities and
inconsistencies in sections 22.535(d) and 22.559(b), and it therefore
should be granted leave to amend.[^8] Adams also argues that a waiver is
appropriate in this case to permit amendment of its application, as the
underlying purpose of the rule will be frustrated if Adams is not
allowed to expand its system because citizens in an unserved area will
continue to go unserved.[^9]

6\. **Discussion.** We find that the Division properly dismissed Adams's
application, and that Adams should therefore not be granted leave to
amend to reflect primary operation at 500 Watts. Rule section 22.535
requires that basic power not exceed 500 Watts and height-power
combinations not exceed the amount that would result in an average
distance to the service contour of 32.2 kilometers (20 miles).[^10]
Adams argues that if it complies with the height-power limits, it need
not comply with the basic power limits.[^11] Adams's interpretation is
incorrect. Rule section 22.535 states that an application must comply
with [both]{.underline} the basic power limits and the height-power
limits, unless its interfering contour is totally encompassed by the
interfering contours of operating co-channel base transmitters operated
by the same licensee.[^12] The purpose of rule section 22.535 is to
require an applicant proposing a transmitter that would exceed
[either]{.underline} the basic power limits or height-power limits to
demonstrate that, in either situation, the interfering contour of the
proposed transmitter would not expand the applicant's existing composite
interference contour. In the *Division Order*, the Division reasoned
that if an applicant could avoid making a demonstration that exceeding
the basic power limit would not expand the applicant's composite
interference contour, because the proposed transmitter would not exceed
the height-power limit, the purpose of the rule would be defeated.[^13]
Adams's failure to include the required encompassment exhibit properly
resulted in the dismissal of its application. We are not persuaded that
Adams should be permitted to amend an application that was properly
dismissed. Under our rules, an applicant seeking to refile an
application that is dismissed without prejudice must file a new
application, which requires a new filing fee and the issuance of a new
application file number.[^14]

7\. Under section 1.925 of the Commission's rules, a waiver may be
granted if it is shown 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 that the applicant has
no reasonable alternative.[^15] As the paging application freeze remains
currently in effect, Adams is unable, in the absence of a waiver, to
submit a new application seeking authority to expand its existing
contour. However, we find that a waiver of the paging application freeze
to permit Adams to operate on a secondary basis, as discussed herein, is
in the public interest, as Adams proposes to provide needed paging
service to rural, sparsely populated areas. Consistent with our
decisions in *Acadian Ambulance*[^16] and *JSM Telepage*,[^17] we grant
Adams a waiver of the paging application freeze to file an application
for a license to extend its service area on a secondary basis, subject
to the following conditions: 1) any license granted to Adams pursuant to
this waiver will have secondary status to the ultimate geographic area
licensee for all Economic Areas (EAs) into which Adams's interference
contour extends; and 2) upon receiving notice from a geographic area
licensee that the geographic area licensee intends within 90 days to
initiate operation of a facility, the interference contour of which will
overlap with the interference contour of any transmitter licensed
pursuant to this waiver, Adams shall within 90 days either cease
operation of the transmitter in question or change its technical
parameters to eliminate the overlapping interference contour.

8\. Within 30 days of the effective date of this order, if the
conditions set forth herein are acceptable to Adams, Adams shall refile
the application that was previously dismissed by the Branch, together
with an indication in writing that it will accept these conditions. Upon
receipt of this submission, we will promptly place Adams's application
on public notice as accepted for filing and will process the application
in accordance with the Commission's rules and its customary procedures,
notwithstanding the paging application freeze.

9\. 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
sections 0.331, 1.106, and 1.925 of the Commission's rules, 47 C.F.R. §§
0.331, 1.106, and 1.925, the Petition for Further Reconsideration filed
by Adams Telephone Cooperative on November 19, 1999 IS DENIED.

10\. IT IS FURTHER ORDERED that, pursuant to the authority of Section 4
(i) of the Communications Act of 1934, as amended, 47 U.S.C. § 154 (i),
and Sections 0.331 and 1.925 (b)(3) of the Commission's rules, 47 C.F.R.
§§ 0.331 and 1.925 (b)(3), the request for waiver of the paging
application freeze filed by Adams Telephone Cooperative is GRANTED to
the extent stated herein.

FEDERAL COMMUNICATIONS COMMISSION

Jeffrey S. Steinberg

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: *See* Adams Telephone Cooperative Application for Paging
    Radiophone Service on 152.84 MHz at Quincy, Carthage, and Mt.
    Sterling, *Order*, October 20, 1999, 1999 WL 958580 (*Division
    Order*).

[^2]: 47 C.F.R. § 22.559 (1996). *See* Letter from James H. Bennett,
    Deputy Chief, Licensing and Technical Analysis Division, to Sylvia
    Lesse, Esq., dated May 21, 1997.

[^3]: *See* Adams Telephone Cooperative Petition for Reconsideration
    filed June 20, 1997.

[^4]: *Id.* at 5. Adams argued that, under Section 22.559(b), an
    encompassment exhibit is only necessary to operate a transmitter
    with an ERP exceeding [both]{.underline} the basic power limit
    [and]{.underline} the height-power limit of section 22.535.
    Assuming, *arguendo,* that Adams's argument had merit, Adams's
    application remained defective because it did not comply with
    Section 22.535(d), which provides that transmitters are exempt from
    basic power and height-power limits of this section if the area
    within their interfering contour is totally encompassed by the
    interfering contours of operating co-channel base transmitters
    controlled by the same licensee. By its own admission, Adams's
    application proposes transmitters that would expand its current
    interference contour.

[^5]: *Division* *Order* at 2.

[^6]: *Id.*

[^7]: Petition at 1-2.

[^8]: *Id.* at 4-6.

[^9]: *Id*. at 8-9.

[^10]: 47 C.F.R. § 22.535.

[^11]: Petition at 4. Adams does not seek further reconsideration on
    this issue if Adams's request for further reconsideration or waiver
    is granted on other grounds.

[^12]: 47 C.F.R. § 22.535.

[^13]: *Division Order* at 2.

[^14]: *See* former rule section 22.128, 47 C.F.R. § 22.128 (1997) and
    current rule section 1.934, 47 C.F.R. § 1.934.

[^15]: 47 C.F.R. § 1.925.

[^16]: *See* Acadian Ambulance Services, Inc., *Order*, 14 FCC Rcd 19310
    (1999).

[^17]: *See* JSM Tele-page, Inc., *Memorandum Opinion and Order*, 14 FCC
    Rcd 19516 (WTB 1999).