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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In Re Application of ) ) ROSEBUD SIOUX TRIBE ) File No. 10220-CL-P/-639-B2-95 ) Phase I Unserved Area Application ) for Market No. 639(B), South ) Dakota 6 - Haakon RSA, CRS ) Station KNKR 217 ) ) Petition to Dismiss or Deny ) ORDER Adopted: January 27, 1997 Released: January 27, 1997 By the Chief, Commercial Wireless Division: I. INTRODUCTION AND BACKGROUND 1. In this order, we dismiss the application for Phase I Unserved Area for RSA Market No. 639B2-South Dakota 6 - Haakon filed by Rosebud Sioux Tribe (Rosebud) on April 28, 1995. Rosebud's application appeared on public notice as "accepted for filing" in May 1995. On June 22, 1995, South Dakota 6 - Haakon Limited Partnership (Petitioner) filed a Petition to Dismiss or Deny the Phase I application under Section 22.130 of the Commission's rules. On July 6, 1995, Nebraska Cellular Telephone Corporation (NCTC) filed a letter requesting that the Phase I application filed by Rosebud be dismissed. On December 7, 1995, Rosebud and Petitioner filed a Joint Motion for Approval of Settlement Agreement and Related Relief (Settlement Agreement). For the reasons discussed below, we consider NCTC's letter as an informal request for Commission action (hereinafter referred to as "Letter"), grant the relief requested in the Letter, dismiss the application, and dismiss as moot the Settlement Agreement and the Petition to Dismiss or Deny. II. DISCUSSION 2. We accept NCTC's Letter as an informal request under Section 1.41 of the Commission's rules, as it was untimely filed to be considered as a petition to deny. In its Letter, NCTC contends that Rosebud's application is in contravention of Section 22.949(a)(1)(iii) of the Commission's rules in that the Phase 1 application proposes de minimis or contract service area extensions into its Cellular Geographic Service Area (CGSA). NCTC's CGSA extends into Petitioner's RSA Market No. 639B pursuant to a service area boundary extension into Petitioner's unserved area market. Such extension was annexed to NCTC's CGSA in accordance with Sections 22.911(c) and 22.947(c) of the Commission's rules. NCTC contends that as a result, Rosebud's Phase 1 application does not constitute an unserved area as defined in Section 22.99 of the Commission's rules because an unserved area is defined as "area outside of all existing CGSAs (on either of the channel blocks)" and Rosebud's Phase 1 unserved area application extends into NCTC's CGSA. Petitioner raised the same objections as NCTC did but since Petitioner and Rosebud have settled, we are dismissing the Petition to Dismiss or Deny as moot. 3. Upon our review of Rosebud's application and NCTC's allegations contained in its Letter, we determine that Rosebud's application is defective in that it does not comply with Section 22.949(a)(1)(iii) of the Commission's rules. A portion of Rosebud's application for Phase I Unserved Area extends into NCTC's CGSA. Therefore, we grant the relief requested in NCTC's Letter and dismiss Rosebud's application. With the dismissal of Rosebud's application, the matters raised in the Petition to Dismiss or Deny, and the request for approval of the Settlement Agreement are moot. III. CONCLUSIONS AND ORDERING CLAUSES 4. For the reasons set forth above, we grant the relief requested in NCTC's Letter, dismiss Rosebud's application, and dismiss the Petition to Dismiss or Deny and the Settlement Agreement as moot. 5. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 303(f), and 307 of the Communications Act of 1934 as amended, 47 U.S.C.  154(i), 303(f), and 307, and Sections 0.331 and 1.41 of the Commission's rules, 47 CFR  0.331 and 1.41, that the relief requested in Nebraska Cellular Telephone Corporation's Letter IS GRANTED. 6. IT IS FURTHER ORDERED, pursuant to Sections 154, 303, and 332 of the Communications Act of 1934 as amended, 47 U.S.C.  154, 303, and 332, and Sections 0.331 and 22.128(d) of the Commission's rules, 47 C.F.R.  0.331 and 22.128(d), that the application filed by Rosebud Sioux Tribe IS DISMISSED AS DEFECTIVE. 7. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 303(f), and 307 of the Communications Act of 1934 as amended, 47 U.S.C.  154(i), 303(f), and 307, and Sections 0.331 and 22.130 of the Commission's rules, 47 C.F.R.  0.331 and 22.130, that South Dakota 6 - Haakon Limited Partnership's Petition to Dismiss or Deny IS DISMISSED AS MOOT. 8. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 303(f), and 307 of the Communications Act of 1934 as amended, 47 U.S.C.  154(i), 303(f), and 307, and Sections 0.331 and 22.129 of the Commission's rules, 47 C.F.R.  0.331 and 22.129, that the Joint Motion for Approval of the Settlement Agreement and Related Relief filed by South Dakota 6 -Haakon Limited Partnership and Rosebud Sioux Tribe IS DISMISSED AS MOOT. FEDERAL COMMUNICATIONS COMMISSION David L. Furth Chief, Commercial Wireless Division Wireless Telecommunications Bureau