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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 the Matter of ) ) BACHOW/COASTEL, L.L.C., ) Complainant, ) ) v. ) File No. WB/ENF-F-97-013 ) MOBILETEL, INC., ) Defendant. ) MEMORANDUM OPINION AND ORDER Adopted: April 6, 1999Released: April 7, 1999 By the Chief, Compliance and Litigation Branch, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau: I. Introduction 1. The Chief, Compliance and Litigation Branch, Enforcement and Consumer Information Division, Wireless Telecommunications Bureau, has under consideration: (a) a formal complaint, filed on June 23, 1997, by Bachow/Coastal, L.L.C. ("Bachow/Coastal") against MobileTel, Inc. ("MobileTel"); (b) an answer thereto, filed on August 18, 1997, by MobileTel; (c) a reply, filed on August 28, 1997, by Bachow/Coastal; and (d) a Motion for Voluntary Dismissal without Prejudice filed on February 10, 1999, by Bachow/Coastal. As discussed below, Bachow/Coastel's complaint, which concerns alleged unlawful extensions into its service area boundary ("SAB") of its cellular geographic service area ("CGSA") by MobileTel, will be dismissed without prejudice. II. Background 2. Complainant, Bachow/Coastal, is a cellular radiotelephone licensee in the Gulf of Mexico MSA. In 1990, MobileTel was awarded, via lottery, the Block B cellular license for, among other areas, the Louisiana 9-Plaquemines ("Louisiana 9") RSA. BellSouth Mobility, Inc. ("BellSouth"), a competing applicant for the RSA, sought reconsideration of the grant to MobileTel. On August 14, 1996, after MobileTel had commenced service to the public, the Commission granted BellSouth's petition for reconsideration and rescinded MobileTel's cellular license for the Louisiana 9 RSA. The Commission, however, afforded MobileTel interim authority to continue operations until a qualified applicant was licensed and ready to commence service in the Louisiana 9 RSA. 3. On June 23, 1997, Bachow/Coastal filed the instant formal complaint against MobileTel alleging violations of Sections 22.911(d)(2)(1) and 22.912(a)(1) of the Commission's Rules. Bachow/Coastal maintained that MobileTel had not withdrawn its SAB extensions into Bachow/Coastel's CGSA thereby causing interference in the operation of Bachow/Coastel's cellular system. Thereafter, on December 2, 1997, over MobileTel's objections, the Wireless Telecommunications Bureau granted BellSouth's application to serve the Louisiana 9 RSA on a permanent basis. On December 22, 1997 MobileTel filed an Application for Review of the Bureau action. That Application for Review remains pending before the Commission. 4. On February 10, 1999, Bachow/Coastal filed the instant Motion for Voluntary Dismissal of the subject formal complaint. In support of its motion, Bachow/Coastal acknowledges that MobileTel is no longer licensed or otherwise authorized by the Commission to provide cellular service from facilities located in the Louisiana 9 RSA. Bachow/Coastal seeks dismissal without prejudice to protect its interests in the event the Commission grants the pending Application for Review and restores MobileTel's authority to provide cellular service in the Louisiana 9 RSA. The motion to dismiss is unopposed. III. Discussion 5. Bachow/Coastel's formal complaint alleges that MobileTel has violated Sections 22.911(d)(2)(i) and 22.912(a)(1) of the Commission's rules by causing extensions into the Bachow/Coastal CGSA in the Gulf of Mexico of the service area boundaries of cell sites that MobileTel operated as part of its cellular system in the Louisiana 9 RSA. Bachow/Coastal claims the extensions by MobileTel caused interference that reduced the quality of cellular telephone service that its customers received, including the dropping of calls. 6. We believe that it would serve the public interest to grant Bachow/Coastel's request for dismissal of its formal complaint, given that MobileTel is no longer the licensee of the cellular RSA in question. MobileTel has not interposed any objection to dismissal of the formal complaint. We note, however, that MobileTel's Application for Review of the grant to BellSouth of permanent authority to serve the Louisiana 9 RSA remains pending before the Commission. Given that the license grant to BellSouth has not become final, we will grant Bachow/Coastel's request to dismiss the instant formal complaint without prejudice to Bachow/Coastel's right to file a new formal complaint (along with appropriate fees) against MobileTel in the event MobileTel is reinstated as the licensee of the Louisiana 9 RSA. IV. Conclusion and Ordering Clauses 7. Based on the foregoing, we will grant Bachow/Coastel's motion to dismiss its formal complaint. The grant will be without prejudice to Bachow/Coastel's right to file a new formal complaint against MobileTel (along with appropriate fees) in the event MobileTel is successful in reclaiming its prior authorization to operate the B-Block cellular system in the Louisiana 9 RSA. 8. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 4(i), 4(j) and 208 of the Communications Act of 1934, as amended, and Section 0.331 of the Commission Rules, the Motion for Voluntary Dismissal, filed on February 10, 1999, by Bachow/Coastal, L.L.C., IS GRANTED. 9. IT IS FURTHER ORDERED that, the above-captioned formal complaint, filed on June 23, 1997, by Bachow/Coastal, L.L.C. IS DISMISSED WITHOUT PREJUDICE. 10. IT IS FURTHER ORDERED that, the above-captioned formal complaint proceeding IS TERMINATED. 11. IT IS FURTHER ORDERED that a copy of this Order SHALL BE SENT to Michelle M. Mundt, Esq., Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel of record for MobileTel, Inc., and Stuart Feldstein, Esq., Fleischman and Walsh, L.L.P., counsel of record for Bachow/Coastal, L.L.C., by Certified Mail, Return Receipt Requested. FEDERAL COMMUNICATIONS COMMISSION Gary P. Schonman Chief, Compliance and Litigation Branch Enforcement and Consumer Information Division Wireless Telecommunications Bureau