**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. 00557-CL-MP-95      |
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| SAGIR, INC                       | ) |                              |
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| For Authority to Modify          | * |                              |
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| the Facilities for Station       | * |                              |
| KNKN383                          | * |                              |
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| Serving the Nebraska 1 -- Sioux  | * |                              |
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| RSA Market No. 533A              |   |                              |
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**ORDER**

**Adopted:** February 28, 2000 **Released:** March 1, 2000

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

1.  In this order, we address N.E. Colorado Cellular, Inc.'s ("NECC")
    Petition to Deny ("Petition") the above-captioned major modification
    application of Sagir, Inc. ("Sagir") for authority to modify a cell
    site at Chappell, Nebraska. NECC alleges that Sagir's proposed
    service area boundary ("SAB") extends into NECC's Cellular
    Geographic Service Area ("CGSA")[^1] in violation of section 22.912
    of the Commission's rules.[^2] In its opposition, Sagir claims that
    NECC has an unauthorized extension into Sagir's CGSA and that its
    attempts to negotiate an agreement with NECC have been
    unsuccessful.[^3] Sagir also requests a waiver of Section 22.912 of
    the Commission's rules.[^4]

2.  Section 22.912(a) provides in part that a licensee may extend its
    SAB into adjacent cellular markets if the extension is *de minimis*,
    and demonstrably unavoidable for technical reasons and does not
    extend into the CGSA of any other licensee unless it obtains consent
    from the other licensee.[^5] We have examined the record in this
    proceeding and conclude that Sagir's proposed SAB extension is
    defective pursuant to Section 22.912 because it overlaps NECC's CGSA
    without NECC's consent. We therefore dismiss Sagir's major
    modification application and grant NECC's Petition.

    3\. In addition, we will not consider Sagir's assertion that NECC
    has an unauthorized extension into Sagir's CGSA. The issue in this
    proceeding concerns Sagir's pending application to modify a cell
    site at Chappell, Nebraska. Because the issue of whether NECC has an
    unauthorized extension into Sagir's CGSA is not relevant to our
    consideration of Sagir's above-captioned application, we dismiss
    this argument.

    4\. We also deny Sagir's request for waiver of Section 22.912 of the
    Commission's rules. A request for a waiver of Commission rules must
    "set forth the reasons in support thereof including a showing that
    unique circumstances are involved and that there is no reasonable
    alternative within the existing rules."[^6] Sagir claims a waiver is
    warranted because NECC failed to negotiate with Sagir in good faith.
    Sagir also states that with a waiver it will not be able to
    adequately serve its subscribers.[^7] On the basis of the record
    before us, we are not persuaded that Sagir has presented unique
    circumstances sufficient to justify grant of its waiver request. We
    therefore deny Sagir's request.

    5\. Accordingly, IT IS ORDERED, pursuant to Section 309(d) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 309(d), and
    Sections 0.331 and 22.130 of the Commission's rules, 47 C.F.R. §§
    0.331 and 22.130, the Petition to Deny, filed by N.E. Colorado
    Cellular, Inc., on February 7, 1995, IS GRANTED.

    6\. IT IS FURTHER ORDERED, pursuant to Section 309(a) of the
    Communications Act of 1934, as amended 47 U.S.C. § 309(a), and
    Sections 0.331 and 22.912 of the Commission's rules, 47 C.F.R. §
    0.331 and 22.912, the application for Major Modification of
    Facilities for Station KNKN383 filed by Sagir, Inc., on October 20,
    1994, IS DENIED.

    7\. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Commissions Act of 1934, 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
    waiver filed by Sagir, Inc. on February 17, 1995, IS DENIED.

#  

#  Federal Communications Commission

Paul D'Ari

Chief, Policy and Rules Branch

Commercial Wireless Division

Wireless Telecommunications Branch

[^1]: Petition at 2.

[^2]: 47 C.F.R. § 22.912. The Petition cites to the recodified Part 22,
    effective January 1, 1995.

[^3]: Opposition at 2.

[^4]: *Id.* at 4. Sagir filed a complaint on June 8, 1995, against NECC
    alleging an improper extension into its CGSA. The Commission granted
    Sagir's request for relief and ordered NECC to remove the
    unauthorized extension*. See, Sagir, Inc. v N.E. Colorado Cellular,
    Inc.* 13 FCC Rcd 23762(1998).

[^5]: 47 C.F.R. § 22.912(a).

[^6]: 47 C.F.R. § 1.3; *Wait Radio v FCC,* 418 F.2d1153 (D.C. Cir.
    1969*), cert. denied,* 409 U.S. 1027 (1972).

[^7]: *Id*