**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

)

BIG TEX COMMUNICATIONS, LTD. )

) File No. 10129-CL-P-173-B2-93

For Authority to Establish a New Station )

in the Cellular Radiotelephone Service in )

Market 173-B, Biloxi-Gulfport, Mississippi )

MSA as a Phase I Unserved Area )

Applicant )

**ORDER**

**Adopted: February 3, 2000 Released: February 4, 2000**

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

1\. In this Order, we dismiss as defective the Phase I unserved area
application of Big Tex Communications, Ltd. (Big Tex) for authority to
establish a new station in the Cellular Radiotelephone Service in Market
173-B, Biloxi-Gulfport, Mississippi Metropolitan Service Area
(Biloxi-Gulfport MSA).

2\. Cellular Holding, Inc. (CHI) is the licensee of Station KNKN 757 in
the Cellular Radiotelephone Service on Channel Block B in Market
503B-Mississippi 11-Lamar, Mississippi Rural Service Area (Mississippi
RSA 11). On January 12, 1993, CHI filed a System Information Update
(SIU) that shows that its Picayune and Hillsdale cell sites extend into
the Biloxi-Gulfport MSA and accordingly became part of CHI's Cellular
Geographic Service Area (CGSA).[^1] Three months later, on April 5,
1993, Big Tex filed a Phase I unserved area initial application for
authority to construct a new station in the Biloxi-Gulfport MSA. The
Commission named Big Tex as the tentative selectee on January 31,
1995[^2] and granted Big Tex's application on May 23, 1995.[^3] CHI
filed a petition to set aside the grant on May 26, 1995.[^4] On June 2,
1995, Big Tex requested that we return its application to pending
status.[^5] On June 9, 1995, we set aside the grant pursuant to section
1.113 of the Commission\'s rules[^6] and returned Big Tex\'s application
to pending status to permit a more comprehensive review of the
application.[^7]

3\. CHI alleges in its Petition that Big Tex\'s application proposes to
establish a cellular station operating on the same channel block as CHI
in the Biloxi-Gulfport MSA that would cause harmful interference within
CHI\'s Cellular Geographic Service Area (CGSA).[^8] Accordingly, CHI
asks the Commission to dismiss the application as defective.[^9]

4\. We have analyzed the engineering data submitted by the parties and
agree with CHI that Big Tex\'s application does not comply with former
section 22.903(d)(3) of the Commission\'s rules and must, therefore, be
dismissed.[^10] Former section 22.903(d)(3) prohibited any initial Phase
I application from proposing any extension into the CGSA of an existing
licensee. The affidavit of CHI\'s consulting engineer, and our own
independent analysis, demonstrates prohibited extensions by Big Tex into
CHI\'s service area. Big Tex does not dispute the existence of the
extensions. Moreover, CHI\'s Hillsdale and Picayune cells produced
Service Area Boundary extensions into the Biloxi-Gulfport, Mississippi
MSA that became part of its CGSA, as reflected in CHI's
publicly-available FCC Forms 489 notifying the Commission that
construction for the Hillsdale and Picayune sites was complete on May
23, 1991 and June 16, 1992, respectively.[^11] Big Tex\'s failure to
consider these cells as a part of CHI\'s CGSA resulted in Big Tex's
proposing extensions into CHI's service area, which rendered its
unserved area application defective. We therefore dismiss Big Tex's
above-captioned unserved area application.

5\. Accordingly, IT IS ORDERED that pursuant to sections 4(i) and 308 of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 308,
and sections 0.331 and 22.28 of the Commission\'s Rules, 47 C.F.R. §§
0.331, 22.28 (1994), the Phase I unserved area application filed on
April 5, 1993 by Big Tex Communications, Ltd. IS DISMISSED.

6\. IT IS FURTHER ORDERED that pursuant to sections 4(i) and 308 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 308, and
section 0.331 of the Commission\'s Rules, 47 C.F.R. § 0.331, that the
Petition to Set Aside Grant of Application or Alternatively, Petition
for Reconsideration filed by Cellular Holding, Inc. on May 26, 1995 and
the Request for Temporary Suspension of Procedural Dates, or in the
Alternative, to Request to Return Application to Pending Status filed by
Big Tex Communications, Ltd. On June 2, 1995 ARE DISMISSED as moot.

FEDERAL COMMUNICATIONS COMMISSION

Paul D\'Ari

Chief, Policy and Rules Branch

Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]:     ^?^ 47 C.F.R. § 22.903(c)(2) (1994). *See* 47 C.F.R. § 22.925
    (1994) (requiring each cellular licensee to file an SIU sixty days
    before the end of its five year build-out period showing the extent
    of its CGSA, including any extensions into adjacent markets).

[^2]:     ^?^ Public Notice No. CL-95-42 (released January 31, 1995).

[^3]:     ^?^ Public Notice No. CL-95-97 (released May 23, 1995).

[^4]:     ^?^ Petition to Set Aside Grant of Application or,
    Alternatively, Petition for Reconsideration, filed by CHI on May 26,
    1995 (Petition).

[^5]:     ^?^ Request for Temporary Suspension of Procedural Dates, or
    in the Alternative, to Return Application to Pending Status, filed
    by Big Tex on June 2, 1995.

[^6]:     ^?^ 47 C.F.R. § 1.113(a) permits the Commercial Wireless
    Division to set aside an action within 30 days after public notice
    has been given of such action.

[^7]:     ^?^ Letter from Stephen L. Markendorff, Chief, Broadband
    Branch, Commercial Wireless Division, to Joseph Nocente, President,
    Big Tex Communications, Ltd. (June 9, 1995).

[^8]:     ^?^ Petition at 1-2.

[^9]:     ^?^ *Id.* at 6-7.

[^10]:     ^?^ 47 C.F.R. § 22.903(d)(3) (1994). *See Planters Rural
    Telephone Cooperative, Inc.,* 2 FCC Rcd. 2502 (1987) (Commission
    will not grant applications that may cause harmful interference to
    other licensed cellular operators). Pursuant to section 22.959 of
    the Commission\'s rules, 47 C.F.R. § 22.959, in processing Big Tex's
    application, we will apply the rules in effect prior to the adoption
    of the rules in the Part 22 Rewrite Order, Revision of Part 22 of
    the Commission\'s Rules Governing the Public Mobile Services,
    *Report and Order*, 9 FCC Rcd. 6513 (1994).

[^11]:     ^?^ *See* 47 C.F.R. § 22.43(c)(2)(i) (1994) (requiring the
    filing of FCC Form 489 notifications upon completion of construction
    of the cells).