WPC 2MB<RK Z3|X Times New RomanTimes New Roman BoldTimes New Roman Italic"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""unserved area application for the Minneapolis MSA under 47 C.F.R.  1.65. In its amended  xapplication, McElroy updated its financial qualification showing by replacing the original  xfinancial commitment of NovAtel with a $2 million commitment from NovAtel's successor, the  X6-Harris Access Division of Harris, Inc.X6 yO-  ԍx On September 16, 1994, McElroy moved the Commission for leave to amend its application to reflect an  xjagreement reached with McCaw that would reduce interference between McCaw's existing cells and McElroy's proposed cells. In its December 4, 1996 amended application, McElroy withdrew this prior amendment.   X- III. DISCUSSION ă  X-  3x7. At the outset, we note that McElroy is the sole remaining applicant in the  x=Minneapolis MSA. CGSAMinneapolis and McCaw have long since abandoned their original  xapplications. Nevertheless, because CGSAMinneapolis's Petition and and McCaw's Comments  x]remain pending, we address the issues raised therein with respect to McElroy's financial qualifications. "P ,N(N(ZZ"  X-   x8. First, in reviewing McElroy's 1989 application, under Sections 22.913(a)(7) and  xL22.917 of the Commission's Rules, we are satisfied that McElroy was financially qualified when  X- x-it originally filed.  yOK-  0ԍx47 C.F.R.  22.913(a)(7) & 22.917 (former rules) (now codified at 47 C.F.R.  937 (1995)). These  xwsections were amended effective January 1, 1995 as part of the Commission's revision of its Part 22 Rules. Revision  {O- xof Part 22 of the Commission's Rules Governing the Public Mobile Services, Report and Order, CC Docket No. 92 x 115, 9 FCC Rcd 6513 (1994). The present Rule 22.959 provides that "[p]ending applications for authority to operate  xthe first cellular system on a channel block in an MSA or RSA market continue to be processed under the rules  xgoverning the processing of such applications that were in effect when those applications were filed, unless the  xZCommission determines otherwise in a particular case." 47 C.F.R.  22.959 (1995). Since McElroy first applied  {O - xfor this license in 1989, we review McElroy's application under the former version of the Rules, i.e., 47 C.F.R.  22.913(a) & 22.917 (former rules). The Commission generally requires applicants to provide either a "reasonable  xzassurance" of the availability of funds or a firm financial commitment. In this case, McElroy  xsupplied a firm financial commitment letter for $2 million from NovAtel. The $2 million  xcommitment made to McElroy was fully independent of other commitments NovAtel had in other  Xv- xRSAs.^v yO-  ԍxStatement of John C. McElroy, Jr. at 1 ("NovAtel provided me with a commitment letter for each market  {O- x specifically earmarking funds for [the Minneapolis and Phoenix applications].") (Attached to Reply). See also Letters  xifrom AGT President and CEO, M.M. Meldner, to NovAtel Chairman, John W. Burrows, dated Dec. 1, 1989, and  xhfrom NovAtel Executive Vice President, S.W.R. Moore, to McElroy Electronics Corporation, Mark McElroy, dated Jan. 5, 1989 (attached to Reply).^ In addition, NovAtel's parent had assets ($2.3 billion) that more than covered the  X_- xZproposed cost of constructing McElroy's proposed cellular system.Y_N  yO^-ԍxStatement of John C. McElroy, Jr. at 1. Y Neither CGSAMinneapolis  x[nor McCaw has raised any specific allegation of fact that would cause us to conclude that this original financial commitment was defective.   x9. Aside from McElroy's original financial showing, in its amended application,  xjMcElroy has provided an updated commitment letter from the Harris Wireless Access Division  xZ("Harris"), the successor to NovAtel. Neither CGSAMinneapolis nor McCaw has challenged the  xability of Harris to finance the cellular system proposed by McElroy. We further find that  xLMcElroy should be permitted to amend its application to update its financial commitment letter  xZand to name Harris as its financial backer. Given the unique circumstances surrounding this case,  x>the length of the application's pendency and the successive Court appeals, we believe that  Xb- xsubstitution is proper and does not render McElroy's application defective.Zb {O -  =ԍxSee, e.g., Fair Oaks Cellular Partners, FCC 95339, Order, 10 FCC 9980, 9982  18 (1995) (finding no basis  xxto conclude that tentative licensee's original financial commitment letter was invalid, but allowing substitution of financial commitment letter because of "unique circumstances" ). We believe that  xMcElroy will have adequate financing to build its proposed system, and that the grant of the  xlicense to McElroy is in the public interest. In addition, we find that CGSAMinneapolis's Petition and McCaw's Comments are now moot. ",N(N(ZZ"  X-  x10. Therefore, IT IS ORDERED that, pursuant to Sections 4(i) and 309(a) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  154(i), 309(a), and by delegated  x\authority under Section 0.331 of the Commission's Rules, 47 C.F.R.  0.331, the application  x[of McElroy Electronics Corporation is GRANTED, the Petition to Deny filed by CGSA Cellular  xPartnershipMinneapolis on March 9, 1989 is DENIED, and the Comments of McCaw Cellular Communications, Inc. filed on March 9, 1989 are DISMISSED. x x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMichele C. Farquhar x` `  hhChief, Wireless Telecommunications Bureau