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, Inc.,  | ) |                               |
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| Defendant.                        | ) |                               |
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## ORDER

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  **Adopted:** February 28, 2000      **Released:** February 29, 2000

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By the Chief, Enforcement Bureau:

**[I.]{.smallcaps} INTRODUCTION**

1 In this order, the Enforcement Bureau grants the formal complaint
filed by Bachow/Coastel, L.L.C. ("Bachow"), against GTE Wireless of the
South, Inc. ("GTE"), pursuant to section 208 of the Communications Act
of 1934, as amended (the "Act").[^1] Bachow is a cellular radiotelephone
carrier licensed to operate in the Gulf of Mexico Metropolitan
Statistical Area ("GMSA"). GTE is a cellular radiotelephone carrier
licensed in the adjacent Mobile, Alabama, Metropolitan Statistical Area
("MSA"). Bachow contends that the Service Area Boundaries ("SABs") for
three of GTE\'s cell sites overlap Bachow's protected Cellular
Geographic Service Area ("CGSA"). Bachow seeks an order directing GTE to
modify the three cell sites to eliminate these overlaps. We find that
GTE has violated sections 22.911(d) and 22.912 of the Commission's rules
by having the SABs of the three cell sites overlap the Gulf of Mexico
CGSA and we direct GTE to modify the three cell sites to eliminate the
unlawful SAB extensions.

**[II. REGULATORY]{.smallcaps} Background**

2 The regulatory background supporting this proceeding is complex and
merits a brief discussion to understand the legal basis for this order.
For over 15 years, land-based and water-based cellular service providers
have been in conflict over which carriers should serve the coastal areas
along the Gulf of Mexico. In 1985, the Commission granted cellular
licenses for both the A Block and the B Block to two water-based
cellular carriers in the Gulf of Mexico and established the GMSA,
similar to the MSAs already in existence for land-based carriers.

3 After a series of rulemakings and petitions from water-based cellular
carriers in the 1980s, the Commission determined that the "coastline"
would serve as the border between the GMSA and all of the land-based
MSAs adjacent to the Gulf of Mexico. The Commission defines the term
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."[^2]

4 In 1992, in two rulemaking orders,[^3] the Commission changed the
CGSAs for all cellular licensees to resemble areas of reliable service
more closely. The Commission implemented this change by redefining the
SABs for cell sites with a 32 dBu contour-based formula, instead of a
39 dBu formula, and then limiting CGSAs to areas of reliable service as
delineated by the new SABs. Before the formula change, CGSAs were
coterminous with MSAs. In applying the new formula to the Gulf of
Mexico, the CGSAs for the Gulf licensees were no longer coterminous with
the GMSA. In addition, the Commission rejected petitions of the Gulf
licensees that asked the Commission to implement a special formula for
water-based cellular systems to account for the differences in
propagation characteristics over water.

5 In December 1992, the Gulf licensees challenged the Commission's
decision limiting the CGSAs to the area of reliable service, arguing
that the Commission had ignored the unique operating circumstances
facing Gulf of Mexico cellular licensees. On May 13, 1994, the United
States Court of Appeals for the District of Columbia Circuit agreed with
the licensees and ordered the Commission to vacate its rules regarding
the limits of CGSAs in the Gulf, stating that water-based CGSAs
warranted a more flexible definition than land-based CGSAs.[^4]
Accordingly, the Commission's rules now include a notation that "the
authorized CGSAs of the cellular systems licensed to serve the GMSA are
those which were authorized prior to January 11, 1993."[^5]
Consequently, Bachow's CGSA is currently defined as coterminous with the
GMSA, with the coastline serving as the border between Bachow's CGSA and
the adjacent MSA where GTE operates its cellular system.

III. **PROCEDURAL HISTORY**

     6 This matter involves three B Block cell sites operated by GTE
     within the Mobile, Alabama, MSA and one B Block cell site operated
     by Bachow in the adjacent GMSA. On September 15, 1995, GTE notified
     the Commission that GTE had added the Dauphin Island, Alabama, cell
     site. On March 4, 1997, GTE notified the Commission that GTE had
     modified its existing Gulf Shores, Alabama, cell site by changing
     the antenna and the effective radiated power. On June 6, 1997, GTE
     notified the Commission that GTE had added the Gulf Shores Beach,
     Alabama, cell site. As for the GMSA cell site, Bachow notified the
     Commission that Bachow had added a cell site in the Viosca Knoll
     Block 124 ("VK-124") on November 4, 1997.

     7 In its complaint, Bachow alleges that the SABs for the three GTE
     cell sites overlap the Gulf CGSA where Bachow operates the VK-124
     cell site. On November 10, 1997, Bachow requested that GTE withdraw
     the SAB extensions in accordance with section 22.911(d)(2)(i) of
     our rules.[^6] Over the next few months, Bachow and GTE engaged in
     discussions concerning possible means of resolving this matter. On
     July 28, 1998, after discussions ended without a resolution, Bachow
     again asked GTE to withdraw the SAB extensions of the three cell
     sites. On August 6, 1998, GTE denied Bachow's request. On August
     20, 1998, Bachow filed this formal complaint alleging that GTE has
     violated section 22.911(d) and 22.912(a) of the Commission's
     rules.[^7]

IV. **DISCUSSION**

    8 We find that the SABs of the cell sites located at Dauphin Island,
    Gulf Shores, and Gulf Shores Beach unlawfully overlap the Gulf of
    Mexico CGSA. Sections 22.911(d) and 22.912 of the Commission's rules
    protect cellular systems from interference and capture of subscriber
    traffic by adjacent systems on the same channel block. The rules
    specify these protections:

    \[C\]ellular systems are entitled to protection from co-channel and
    first-adjacent channel interference and from capture of subscriber
    traffic by adjacent systems on the same channel. ... Subscriber
    traffic is captured if an SAB of one cellular system overlaps the
    CGSA of another operating cellular system. ... However, cellular
    licensees may continue to operate existing facilities that produce
    an SAB overlapping a subsequently authorized portion of the CGSA of
    another system on the same channel block until the licensee of that
    system requests that the SAB be removed from its CGSA. ... In the
    event such request is made, the licensee of the overlapping system
    must reduce transmitting power or antenna height (or both) at the
    pertinent cell site as necessary to remove the SAB from the CGSA of
    the other system, unless written consent from the licensee of the
    other system allowing the SAB to remain is obtained.[^8]

    GTE added or modified cell sites so that its system overlapped
    Bachow's CGSA. Bachow twice asked GTE to roll back the SAB
    extensions of its co-channel cell sites and both times GTE refused
    to do so. We recognize that GTE and Bachow did engage in
    discussions, albeit unsuccessfully, to effect a settlement of their
    overlap issues after Bachow made its first request. The rules
    indicate that private arrangements between parties would permit the
    SAB from one cellular operator to overlap the CGSA of an adjacent
    co-channel cellular operator.[^9] Because GTE and Bachow did not
    reach such an agreement, we find that GTE is in violation of the
    rules.

    9 In an effort to protect cellular system operators from losing
    customers, the regulations established a bright-line rule that
    subscriber traffic is considered captured when the SAB of the first
    system overlaps the CGSA of the second system. GTE argues in its
    December 6, 1999, Motion to Dismiss that eliminating the overlap of
    its cell sites and the VK-124 cell site SAB satisfies this
    requirement. We disagree with GTE because the rule requires removal
    of GTE's SABs from Bachow's CGSA, not merely the VK-124 SAB. As we
    discussed above, Bachow's CGSA is coterminous with the GMSA, which
    starts at the coastline. In order to comply with this rule, GTE
    would have to roll back the three SABs so they do not cross the
    coastline.

    10 GTE further contends that the Commission authorized these
    overlaps into the Gulf of Mexico CGSA when adopting the 1992 rules
    changing the contour-based formula from 39 dBu to 32 dBu.[^10] In
    the *Second Report and Order*, the Commission stated that "new
    service area boundary extensions created *solely* by \[the contour\]
    change are considered de minimis and are hereby authorized."[^11]
    GTE does not proffer evidence that indicates the formula change was
    the only reason these SABs currently overlap the Gulf of Mexico
    CGSA. In fact, GTE modified or put into service all three cell sites
    over three years after the Commission discussed this de minimis
    exemption. GTE merely states that because two of the SABs fall
    within the 32 dBu contours of other cell sites that were authorized
    by the 1992 rules, the Commission should consider them as satisfying
    the de minimis exemption as well, even though they were not in
    service in 1992. For the Dauphin Island SAB, GTE relies on the
    32 dBu contour of the decommissioned Alabama Port cell site. For the
    Gulf Shores Beach SAB, GTE relies on the Gulf Shores cell site that
    GTE modified in 1997. As a result, we are not convinced that this
    evidence supports the conclusion that the SABs extend into the Gulf
    CGSA solely because of the formula change.

    11 GTE also claims that the SAB extensions into Bachow's CGSA are
    allowed as de minimis extensions under section 22.912(a) of the
    Commission's rules.[^12] As the rule indicates, however, de minimis
    extensions cannot "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) ... ."[^13] Bachow has
    clearly not consented to GTE's SAB extensions. GTE also argues that
    the public interest would not be served by requiring GTE to roll
    back the SAB extension even if Bachow has not consented. This
    argument must also fail. As the Commission has stated before in
    applying the same regulatory provision, "no discretion is accorded
    under the Rule to the licensee of the overlapping system to refuse
    to remove its SAB when this, in its opinion, would be unreasonable
    or not in the public interest."[^14] If GTE believes that GTE is
    better equipped to serve the GMSA, then GTE must obtain Bachow's
    consent to offer service there, in accordance with the Commission's
    rules.[^15]

    12 Months after GTE filed its original answer, GTE made a
    supplemental filing that contends the SAB of Dauphin Island does not
    overlap the Bachow CGSA. GTE states that the presence of Sand Island
    extends the "coastline" further into the Gulf of Mexico and,
    therefore, extends the Mobile MSA--GMSA border further into the
    Gulf. As a result, GTE argues that the entire Dauphin Island SAB
    falls within the Mobile MSA. We, however, do not agree with GTE's
    assessment of the coastline as it defines the Mobile MSA--GMSA
    border. According to the United States Geological Survey, all three
    islands that could be construed as Sand Island are below water at
    high tide. Maps issued by the Geological Survey indicate these
    islands with dotted lines.[^16] As we have stated above, the
    Commission has followed the United States Supreme Court by using
    definitions from the Convention on Territorial Sea and the
    Contiguous Zone. Under that Convention, the term island is defined
    as "a naturally formed area of land, surrounded by water, which is
    above water at high tide."[^17] Because Sand Island does not meet
    this definition of island, we do not believe that the waters between
    Sand Island and Dauphin Island constitute shoreline or coastal
    waters that would place them inside the Mobile MSA. We find that
    Sand Island is located within the GMSA.

V.  **WAIVER PETITION OF GTE**

    13 On October 19, 1998, GTE submitted a petition in this proceeding
    asking the Commission to waive sections 22.911(d) and 22.912(a)[^18]
    of the Commission's rules (the "Petition"). Because we believe that
    consideration of a waiver petition is not appropriate in the context
    of a formal complaint proceeding, we will dismiss the Petition
    without prejudice to GTE's ability to refile in the appropriate
    context to seek prospective relief.[^19]

VI. **CONCLUSION**

    14 For the reasons discussed above, we conclude that GTE has been
    violating sections 22.911(d) and 22.912 of the Commission's rules,
    47 C.F.R. §§ 22.911(d), 22.912, since August 6, 1998. We deny
    Bachow's request that we assess forfeitures against GTE in this
    proceeding. Section 208 of the Act provides for private remedies for
    individuals aggrieved by carriers, while section 503 gives the
    Commission the discretion to assess forfeitures. If the we determine
    that GTE's violations of the Commission's rules warrant the issuance
    of a Notice of Apparent Liability for Forfeiture under section 503,
    we will do so in a separate proceeding.[^20]

    15 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, and the authority delegated in sections
    0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111,
    0.311, that the above-referenced complaint filed by Bachow IS
    GRANTED.

    16 IT IS FURTHER 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, and the authority delegated in sections 0.111
    and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111, 0.311, that
    within thirty (30) days from the Release Date of this Order GTE must
    1) eliminate any SAB extensions into the GMSA from its Dauphin
    Island, Gulf Shores, and Gulf Shores Beach cell sites; 2) certify in
    writing to the Commission that the SABs of the three cell sites have
    been adjusted in accordance with this Order; and 3) notify the
    Commission of any resulting modifications to its license pursuant to
    47 C.F.R. § 1.947. In the alternative, GTE and Bachow may file a
    joint statement with the Commission within thirty (30) days from the
    Release Date of this Order indicating that Bachow consents to SAB
    extensions of one or more of the three GTE cell sites into the GMSA
    in accordance with 47 C.F.R. §§ 22.911(d) and 22.912(a). If the
    parties do not reach an agreement for a particular cell site, then
    GTE must comply with the three provisions above for each cell site
    not included in the joint statement.

    17 IT IS FURTHER 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, and the authority delegated in sections 0.111
    and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111, 0.311, that
    Defendant's Waiver Petition IS DISMISSED.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: *See* 47 U.S.C. § 208.

[^2]: *See* *In re Applications of Petroleum Communications, Inc., and
    Gulf Cellular Associates*, 1 FCC Rcd. 511, ¶¶ 16-17 (rel. Nov. 7,
    1986)*,* 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.

[^3]: *See In the Matter of 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, Second Report and Order*, 7 FCC Rcd. 2449 (rel. Apr. 9, 1992)
    \[hereinafter *Second Report and Order*\]; *see also id., Third
    Report and Order and Memorandum Opinion on Reconsideration*, 7 FCC
    Rcd. 7183 (rel. Nov. 4, 1992) \[hereinafter *Third Report and
    Order*\].

[^4]: *See Petroleum Communications, Inc. v. FCC*, 22 F.3d 1164 (D.C.
    Cir. 1994).

[^5]: 47 C.F.R. § 22.911(a).

[^6]: *See* 47 C.F.R. § 22.911(d).

[^7]: In November 1999, this proceeding was transferred from the
    Wireless Telecommunications Bureau to the Commission's newly
    established Enforcement Bureau.

[^8]: *See* 47 C.F.R. § 22.911(d)*.*

[^9]: *See id*.; *see also* 47 C.F.R. § 22.912(a).

[^10]: *See Second Report and Order*.

[^11]: *Id.* at ¶ 13, n.35 (emphasis added).

[^12]: *See* 47 C.F.R. § 22.912(a).

[^13]: *Id.*

[^14]: *See* *Sagir, Inc. v. N.E. Colorado Cellular, Inc.*, 12 FCC Rcd.
    1185, ¶ 18 (rel. Feb. 3, 1997).

[^15]: *See* 47 C.F.R. §§ 22.911(d), 22.912(a).

[^16]: *See* Bachow's *Reply to Answer*, Exhibit M (filed Sep. 14,
    1998).

[^17]: 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.

[^18]: 47 C.F.R. §§ 22.911(d), 22.912(a).

[^19]: *See* 47 C.F.R. §§ 1.3, 22.119(a).

[^20]: *See Halprin v. MCI Telecommunications Corp.*, 13 FCC Rcd. 22568,
    ¶ 31 (rel. Nov. 10, 1998); *see also* 47 U.S.C. §§ 208, 503((b);
    *see also* 47 C.F.R. § 1.80(e).