**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Applications of )

)

GAP Cellular, L.C. )

)

For Phase II Unserved Areas, )

Market No. 352(B), Colorado 5 - Elbert RSA ) File Nos. 02600-CL-CP-95

Station KNKR202 ) 02602-CL-CP-95

) 02614-CL-CP-95

)

Market No. 526(B), Montana 4 - Daniels RSA ) 02609-CL-CP-95

Station KNKR201 )

**ORDER**

**Adopted: March 2, 2000 Released: March 3, 2000**

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

**I. INTRODUCTION**

1\. In this Order, we address the following: a) the Petition for
Reconsideration filed by Smoky Hill Cellular of Colorado Limited
Partnership (Smoky Hill) on May 1, 1995 (Smoky Hill Petition) regarding
the Commission's grant of the three above-captioned applications filed
by GAP Cellular, L.C. (GAP) in the Colorado 5-Elbert RSA (Elbert RSA);
and b) the Petition for Reconsideration filed by Badlands Cellular of
North Dakota Limited Partnership (Badlands Cellular) on May 1, 1995
(Badlands Cellular Petition) regarding the Commission's grant of GAP's
above-captioned application in the Montana 4-Daniels RSA (Daniels RSA)
(collectively, Petitions). For the reasons discussed below, we dismiss
the Petitions as procedurally defective.

**II. BACKGROUND**

2\. On December 30, 1994, GAP filed three Phase II unserved area
applications for authority to construct and operate a cellular system in
the Daniels RSA, and on December 31, 1994, GAP filed a single Phase II
unserved area application for operation in the Elbert RSA (collectively,
the GAP Applications). The Commission accepted the GAP applications for
filing on February 10, 1995.[^1] No petitions to deny were filed and the
Commission granted the GAP Applications on March 31, 1995.[^2] On May 1,
1995, Smoky Hill, the incumbent cellular licensee for the Elbert RSA,
and Badlands Cellular, the incumbent cellular licensee for the Daniels
RSA (collectively, Petitioners), filed separate petitions for
reconsideration requesting the set-aside of the GAP Applications.
Petitioners allege that GAP's proposed facilities will result in
overlaps with Petitioners' existing cellular geographic service areas
(CGSAs), in violation of Commission rule sections 22.99, 22.911(d),
22.911(e), 22.912(d) and 22.949(b).[^3] In its Oppositions, GAP contends
that the Petitions should be dismissed as Petitioners failed to file
Petitions to Deny against the GAP Applications, although GAP served
copies of the respective applications on Petitioners.[^4]

**III. DISCUSSION**

3\. Commission rule section 22.130[^5] provides that petitions to deny
any major filing must be filed within 30 days after the date of the
Public Notice listing the major filing. Commission rule section
1.106(b)(1)[^6] provides that in instances where a petition for
reconsideration is filed by a person who is not a party to the
proceeding, the filer shall show good reason why it was not possible to
participate in the earlier stages of the proceeding. We find that
Petitioners have not satisfied the Commission's requirement to show good
cause why it was not possible to participate in the earlier stages of
this proceeding.

4\. Petitioners contend that they have demonstrated good cause to file
petitions for reconsideration because the GAP Applications failed to
reflect overlaps with Petitioners' CGSAs.[^7] However, the GAP
Applications were placed on Public Notice and Petitioners were served
with copies. Petitioners have failed to demonstrate sufficient cause for
their failure to file petitions to deny the GAP Applications. The
Petitions are therefore fatally defective and are dismissed for failure
to comply with Commission rule section 1.106(b).[^8]

5\. Notwithstanding our decision to dismiss the Petitions, we remind GAP
of its responsibilities under former Commission Rule 22.903,[^9] which
was in effect at the time of the filing of the GAP Applications. Rule
22.903(d)(3)(i)[^10] governs service area boundary extensions for
unserved area systems and provides that the "service area boundaries of
the cells must not extend into the CGSA of any other licensee's cellular
system on the same frequency block or into any adjacent MSA or RSA on a
frequency block for which the five year fill-in period has expired."
Further, Commission rule section 22.903 (f)(2)(i)[^11] provides that
"cellular licensees must not begin to operate any facility that would
produce a service area boundary extension into the existing CGSA of
another operating cellular system on the same frequency block without
first obtaining the written consent of the licensee of that system."
Finally, we note that a condition specified on GAP's authorizations
provides that:

> "any facility authorized herein with a service area boundary (SAB)
> extending into the CGSA of any other operating cellular system on the
> same channel block, regardless of when such other cellular system
> was/is authorized, is subject to the following condition: In the event
> that the licensee of the other cellular system requests that the SAB
> of the facilities authorized herein be removed from its CGSA, the
> licensee herein must reduce transmitting power or antenna height (or
> both) as necessary to remove the SAB from the CGSA, unless written
> consent from the licensee of the other cellular system, allowing the
> SAB extension, is obtained."

We caution that a licensee's failure to operate in accordance with the
terms and conditions of its authorization in violation of Commission
rules may result in appropriate enforcement action.

**IV. ORDERING CLAUSE**

6\. 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 and 1.106 of the Commission's rules, 47 C.F.R. §§ 0.331,
1.106, the petitions for reconsideration filed by Badlands Cellular of
North Dakota Limited Partnership and Smoky Hill Cellular of Colorado
Limited Partnership on May 1, 1995, are hereby DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

William W. Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]:     ^?^ *See Public Notice*, Report No. CL-95-67 (rel. Feb. 10,
    1995).

[^2]:     ^?^ *See Public Notice*, Report No. CL-95-71 (rel. Mar. 31,
    1995).

[^3]: ^?^ 47 C.F.R. §§ 22.99, 22.911(d), 22.912(d) and 22.949(b). *See*
    Smoky Hill Petition at 5-6; Badlands Cellular Petition at 5-6.

[^4]:     ^?^ GAP\'s Oppositions to Petitions for Reconsideration, filed
    May 15, 1995, at 1.

[^5]:     ^?^ 47 C.F.R. § 22.130 (1994). Current rule section 1.939, 47
    C.F.R. § 1.939, governs the filing of a Petition to Deny.

[^6]:     ^?^ 47 C.F.R. § 1.106(b)(1).

[^7]:     ^?^ Smokey Hill Petition at 2-3; Badlands Cellular Petition at
    3-4.

[^8]:     ^?^ *See,* In re Application of Iowa RSA \# 12 Limited
    Partnership*, Memorandum Opinion and Order,* 2 FCC Rcd 5306 (1991).

[^9]: ^?^ 47 C.F.R. § 22.903 (1994). Section 22.903 was renumbered as
    rule section 22.911 and 22.912 in the Commission's Part 22 Rewrite
    Order. *See* Revision of Part 22 of the Commission's Rules Governing
    the Public Mobile Services, *Report and Order*, 9 FCC Rcd 6513
    (1994).

[^10]:
    > 47 C.F.R. § 22.903 (d)(3)(i)(1994).

[^11]: ^?^ 47 C.F.R. § 22.903 (f)(2)(i)(1994).