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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 ) ) Colorado RSA 7B(2) Limited ) File No. 01131-CL-P2-96 Partnership ) ) Phase II Unserved Area Application) for Market Nos. 354(B), Colorado 7 - ) Saguache RSA, and 356(B) Colorado 9 - ) Costilla RSA ) ORDER Adopted: September 4, 1998 Released: September 4, 1998 By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we grant the Petition to Dismiss or Deny ("Petition") filed on January 30, 1996, by CommNet Cellular Inc. ("CommNet") and its wholly owned subsidiary, Cellular Inc. Network Corporation ("CINC") (collectively, "Petitioner") to dismiss or deny the captioned Phase II cellular unserved area application of Colorado RSA 7B(2) Limited Partnership ("7B(2) Partnership"). In this Order, we also dismiss 7B(2) Partnership's Motion for a Finding that Petitioner's Petition is a Strike Petition. For the reasons set forth below, we grant the Petition, dismiss the application and dismiss the Motion. II. BACKGROUND 2. Colorado 7 Partnership is the licensee of Market 354(B)(1). 7B(2) Partnership is the licensee of Market 354B(2). On January 14, 1993, Colorado 7 Partnership filed a minor modification application for its Alamosa-Colorado and Monte Vista-Colorado cell sites. This modification established the cellular geographic service area ("CGSA") for these two protected sites within Colorado 7 Partnership's market, the Colorado 7 - Saguache RSA. The cell contour of this modification contains Antonito, Colorado. The Phase II unserved area filing period began on October 15, 1994 for Market 354(B). 3. On November 20, 1995, 7B(2) Partnership filed a Phase II cellular unserved area application ("Application") seeking authority to construct a new cellular system at Antonito, Colorado. On January 30, 1996, Petitioner filed its Petition. Petitioner alleges that: (1) the proposed Antonito Cell Site would be physically located within Colorado 7 Partnership's authorized CGSA, and, as a result, 7B(2) Partnership's proposed CGSA would substantially overlap Colorado 7 Partnership's Alamosa-Colorado and Monte-Vista- Colorado cell sites; and (2) the Application is in violation of section 22.942 of the Commission's rules because, if granted, 7B(2) Partnership would hold an equity interest in both the Colorado 7 Partnership's license and the Antonito cell site. 4. On February 2, 1996, the Licensing and Technical Analysis Branch granted the Application. On February 9, 1996, the Application was returned to pending status when we determined that the Petition had been filed with respect to the Application. In response, on February 13, 1996, 7B(2) Partnership filed its Motion, claiming, in part, that the Petition was filed merely to obstruct the processing of the Application. III. DISCUSSION 5. 7B(2) Partnership argues that because Petitioner indicated that its Petition was filed pursuant to section 22.130, but filed more than thirty days after the date of the Public Notice listing the filing, the Petition is untimely and must be dismissed pursuant to section 22.130(c). In response, Petitioner argues that the Petition was filed as an informal objection pursuant to section 1.41 of the Commission's rules and that because it filed its Petition prior to the grant of the Application, we are required to address the Petition. 6. Section 22.130(a)(4) of the Commission's rules requires formal petitions to deny to be filed within thirty days after the date of Public Notice listing the application as accepted for filing. Petitioner filed its Petition on January 30, 1996, more than thirty days after the Application was listed as accepted for filing. Therefore, if the Petition is to be considered a formal petition, the Petition is untimely and may be dismissed, pursuant to section 22.130(c) of the Commission's rules. However, because Petitioner also filed its Petition pursuant to section 1.41 of the Commission's rules, we may accept its Petition as an informal objection. Because we may consider informal objections, we will treat Petitioner's filing as an informal request under section 1.41 of the Commission's rules. 7. Petitioner argues that the Application should be dismissed for violating section 22.942 of the Commission's rules. 7B(2) Partnership argues that this position is without merit. Section 22.942 prohibits any person from having a direct or indirect ownership interest in licensees for both channel blocks in overlapping CGSAs, unless such interests pose no substantial threat to competition. Thus, it applies where one entity has ownership interests in both channel blocks (i.e. ownership interests in both the A and B Blocks) in the same market. 7B(2) Partnership correctly argues that section 22.942 does not apply. Here, all of the ownership interests in question involve licenses in the B Block. Colorado 7 Partnership's license for Cellular Radiotelephone Service Station KNKN288, and 7B(2) Partnership's proposed Application for a license for a new station at RSA 354B(2), Colorado 7-Saguache RSA, at Antonito, Colorado, are both in the B Block. Accordingly, no ownership interests in the A Block are implicated. Therefore, because Colorado 7 Partnership's license and the Application's proposed license are located in the same block (Block B), section 22.942 of the Commission's rules does not apply. 8. Although not citing section 22.912 of the Commission's rules, Petitioner does argue that there is a prohibited overlap. Specifically, Petitioner argues that it would be aggrieved and its interests adversely affected by grant of the Application because it would: a) authorize 7B(2) Partnership to establish a CGSA that overlaps Colorado 7 Partnership's CGSA; b) authorize 7B(2) Partnership to provide cellular service in competition with Colorado 7 Partnership; c) potentially cause Colorado 7 Partnership to experience subscriber capture interference; and d) potentially cause Colorado 7 Partnership to experience a reduction in overall subscriber capacity. However, 7B(2) Partnership argues that the grant of its Application is authorized by section 22.912(b), (c) and (d) of the Commission's rules which permits service area boundary (SAB) extensions in certain situations. Section 22.912(b) and (c) of the Commission's rules, however, require the consent of the adjacent licensee for a SAB extension into its CGSA. Because 7B(2) Partnership has not demonstrated Colorado 7 Partnership's consent to the SAB extension, it has not met the requirements of section 22.912 of the Commission's rules. Consequently, the Application is defective under section 22.911(d)(2)(i) of the Commission's rules, which affords protection from capture of subscriber traffic in this situation, and requires written consent to overlap with an existing license area. Again, because neither party demonstrates that Colorado 7 Partnership has given written consent to the SAB extension, Colorado 7 Partnership is protected from a potential capture of subscriber traffic under section 22.911 of the Commission's rules. We conclude that Colorado 7 Partnership is afforded protection from the overlap, which would result if the Application were granted. Therefore, we dismiss the Application and grant the Petition. 9. Finally, we address 7B(2) Partnership's argument that the purpose of Petitioner's Petition was to delay processing of 7B(2) Partnership's Application and therefore should be characterized as a Strike Petition. A strike petition is a petition filed in bad faith for the primary purpose of blocking, impeding or delaying the grant of an application. The following factors from Radio Carrollton are used to determine whether a petition is a strike petition: (1) statements by the petitioner's principals or officers admitting the obstructive purpose; (2) the withholding of information relevant to disposition of the requested issues; (3) the absence of any reasonable basis for the adverse allegations in the petition; (4) economic motivation indicating a delaying purpose; and (5) other conduct of the petitioner. We conclude that because Petitioner has a meritorious claim, the Petition cannot be characterized as a Strike Petition. Thus, we deny 7B(2) Partnership's Motion for a Finding that Petitioner's Petition is a Strike Petition. IV. CONCLUSION 10. Having reviewed the pleadings filed in this matter, we conclude that the grant of the above captioned application would be in violation of section 22.911(d)(2)(i) of the Commission's rules. Accordingly, we grant Petitioner's Petition to Dismiss or Deny, dismiss 7B(2) Partnership's Phase II cellular unserved area application, and dismiss 7B(2) Partnership's Motion for a Finding that Petitioner's Petition is a Strike Petition. V. ORDERING CLAUSES 11. In view of the foregoing, IT IS ORDERED, that, pursuant to sections 4(i) and 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(d), and sections 1.41 and 22.130 of the Commission's Rules, 47 C.F.R.  1.41, 22.130, the Petition to Dismiss or Deny filed by CommNet Cellular Inc. and its wholly owned subsidiary, Cellular Inc. Network Corporation on January 30, 1996, IS HEREBY GRANTED. 12. IT IS FURTHER ORDERED, that, pursuant to sections 4(i) and 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 309(d), and sections 22.128 and 22.911 of the Commission's Rules, 47 C.F.R.  22.128, 22.911, the Application of Colorado RSA 7B(2) Limited Partnership for Phase II Unserved Area Application for Market Nos. 354(B), Colorado 7-Saguache RSA, and 356(B) Colorado 9-Costilla RSA filed on November 20, 1995, IS HEREBY DISMISSED. 13. IT IS FURTHER ORDERED that pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), Colorado RSA 7B(2) Limited Partnership's Motion for a Finding that CommNet Cellular Inc.'s Petition is a Strike Petition filed on February 13, 1996, IS DENIED. 14. This action is taken under delegated authority pursuant to section 0.331 of the Commission's rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Steven E. Weingarten Chief, Commercial Wireless Division Wireless Telecommunications Bureau