**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Progressive Cellular III B-2 )

) File No. 10008-CL-P-317-A-88

Application for Authorization to Construct )

a New Domestic Public Cellular Radio System )

for the Alaska 3-Haines RSA )

(Market No. 317A) )

**ORDER**

**Adopted: January 21, 2000 Released: January 24, 2000**

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

1\. In this Order, we address the Request for Dismissal of Application
(Dismissal Request) and request for approval of settlement agreement
filed by Progressive Cellular III B-2 (Progressive) on December 12,
1995. For the reasons discussed below, we approve the settlement
agreement and grant Progressive's request for dismissal with prejudice
of its application for a construction permit to operate on frequency
block A in the Alaska 3-Haines Area RSA.[^1]

2\. Pursuant to an Agreement dated June 23, 1995 (Agreement) [^2] among
Progressive, Alaska-3 Cellular Corporation (Alaska--3) [^3] and
Progressive Cellular III B-3,[^4] the parties have resolved certain
long-standing issues regarding the status of the Alaska 3-Haines RSA
authorization.[^5]

3\. Since the filing of Progressive's application, the Commission has
rewritten Part 22 of the Commission's rules.[^6] Section 22.959[^7]
specifically provides that pending applications for authority to operate
the first cellular system on a channel block in an MSA or RSA market
continue to be processed under the rules governing the processing of
such applications that were in effect when those applications were
filed, unless the Commission determines otherwise in a particular case.
Pursuant to section 22.959 and the Commission's 1996 decision in
[Western California Cellular Partners]{.underline},[^8] we will apply
former section 22.29,[^9] which was in effect at the time of the filing
of Progressive's application for an initial cellular system, in our
review of the proposed settlement agreement. Under former section 22.29,
parties that, under a settlement agreement, apply to the Commission for
the amendment or dismissal of either pleadings or applications shall at
the time of the filing notify the Commission that such filing is the
result of an agreement or understanding. The parties here have complied
with the notification requirement that was in effect at the time of the
initial application filing. We conclude that the parties' proposed
settlement satisfies the requirements of former section 22.29 and that
approval of the settlement agreement is in the public

interest. [^10]

4\. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 309
of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, and
section 0.331 of the Commission\'s rules, 47 C.F.R. § 0.331, the Request
for Dismissal of Application and request for approval of settlement
agreement IS GRANTED.

5\. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, and sections
0.331 and 1.934(a)(1)(i) of the Commission\'s rules, 47 C.F.R. §§ 0.331,
1.934(a)(1)(i), the application filed by Progressive Cellular III B-2
(File No. 10008-CL-P-317-A-88) is DISMISSED with prejudice.

6\. IT IS FURTHER 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 May 25, 1990 Petition for Reconsideration filed by Progressive
Cellular III B-2 and the January 7, 1993 Petition for Reconsideration
filed by RJL Cellular Partnership are DISMISSED AS MOOT.

FEDERAL COMMUNICATIONS COMMISSION

William W. Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: ^?^ Progressive's application was assigned FCC File No.
    10008-CL-P-317-A-88.

[^2]: ^?^ A copy of the Agreement is attached to Progressive's Dismissal
    Request as Exhibit 1.

[^3]: ^?^ Alaska--3 is the current non-wireline licensee for the Alaska
    3-Haines RSA (Market No. 317A), having been assigned the
    authorization by RJL Cellular Partnership (RJL), the re-lottery
    winner in the Alaska 3-Haines RSA. *See Public Notice*, Report No.
    CL-95-5 (released October 21, 1994).

[^4]: ^?^ Progressive Cellular III B-3 was the winner of the lottery
    held for the Oklahoma 4-Nowato RSA (Market No. 599A). Progressive
    Cellular III B-3, in a separate pleading, has requested Commission
    approval of a settlement with unrelated parties to resolve
    outstanding issues regarding the authorization in the Oklahoma
    4-Nowato RSA, which will be addressed in a separate order.

[^5]: ^?^ The factual history regarding the Commission's licensing of
    the Alaska 3-Haines RSA is set forth in the substantial Commission
    record in this matter. *See, e.g.*, In Re Application of Kent S.
    Foster, *Memorandum Opinion and Order,* 7 FCC Rcd 7971 (1992)
    (wherein Progressive's application under File No.
    10008-CL-P-317-A-88 was reinstated to pending status); In Re
    Application of Progressive Cellular III B-2, *Memorandum Opinion and
    Order,* 5 FCC Rcd 2772 (1990) (denial of Progressive's July 28, 1989
    Application for Review); In Re Application of Progressive Cellular
    III B-2, *Memorandum Opinion and Order*, 4 FCC Rcd 5254 (1989)
    (denial of Progressive's Petition for Reconsideration and
    Reinstatement after Commission dismissed Progressive's application
    for violation of the firm financial commitment rule). As
    Progressive's application for the Alaska 3-Haines RSA is being
    dismissed pursuant to this Order, we dismiss as moot RJL's January
    7, 1993 Petition for Reconsideration of the Commission's 1992
    reinstatement of Progressive's application to pending status. For
    the same reason, we dismiss as moot Progressive's May 25, 1990
    Petition for Reconsideration of the Commission's denial of its
    Application for Review.

[^6]: ^?^ Revision of Part 22 of the Commission's Rules Governing the
    Public Mobile Services, *Report and Order*, 9 FCC Rcd 6513 (1994).

[^7]: ^?^ 47 C.F.R. § 22.959 (1998).

[^8]: ^?^ In Re Applications of Western California Cellular Partners and
    MTEL Cellular, Inc., *Order,* 11 FCC Rcd 5705 (1996).

[^9]: ^?^ 47 C.F.R. § 22.29 (1988).

[^10]: ^?^ We decline to apply the rule against "greenmail," 47 C.F.R. §
    22.129, which was intended to deter speculative filings, as there is
    nothing in the history of this proceeding to indicate that the
    application for initial cellular service authorization was filed as
    part of a speculative venture. Section 22.129 was renumbered as
    current rule section 1.935 in the Commission's adoption of the
    Universal Licensing System rules. *See* In the Matter of Biennial
    Regulatory Review -- Amendment of Parts 0, 1, 13, 22, 24, 26, 27,
    80, 87, 90, 95, 97, and 101 of the Commission's Rules To Facilitate
    the Development and Use of the Universal Licensing System in the
    Wireless Telecommunications Services, *Report and Order*, 13 FCC Rcd
    21027 (1998).