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A. 1. a.(1)(a) i) a) 1. 1. i.(1)(a)(i) 1) a)ِ yO-X(##Xw PE37[hXP# Ċ#G4  pQ# X(# ) DA 96710X(#7sBefore the  FEDERAL COMMUNICATIONS COMMISSION jWashington, D.C. 20554 TP  Y3-#XP\  P6Q[hXP#In re Applications of hh@h) x` `  hh@h)  Y -WESTERN CALIFORNIA CELLULAR@h)ppFile No. 10184CLP709A88  Y -PARTNERS` `  hh@h) x` `  hh@h)  Y -xand` `  hh@h) x` `  hh@h)  Y-MTEL CELLULAR, INC.hh@h)ppFile No. 10349CLP709A88 x` `  hh@h)  Yd-for Authorization to Constructhh@h)pp  YM-and Operate a New Domestic Public @h)  Y6-Cellular Radio Telecommunications @h)  Y-Service on Frequency Block A tohh@h)  Y-serve Market No. 709hh@h)  Y-Wisconsin RSA No. 2 Bayfieldhh@h)  X-#XU4  pQsX#  X-: ORDER TP  Y~-#XP\  P6Q[hXP#Adopted: May 8, 1996hh@hReleased: May 8, 1996  YP-By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau:#XU4  pQsX#  X"-l  I. INTRODUCTION AND BACKGROUND ĐTP  Y- ` "#XP\  P6Q[hXP#x1. ` ` In this order, we address a Joint Motion for Approval of Settlement Agreement  x(Joint Motion) filed by Western California Cellular Partners (Western) and MTEL Cellular, Inc.  xz(MTEL) on September 8, 1995. The parties request that the Commission approve their  xJsettlement agreement, the withdrawal of their respective Petitions to Deny (Petitions) the other  x;party's application and the dismissal of MTEL's application and their request for waiver of the  xpartial settlement and antialienation rules. For the reasons discussed below, we approve the  Yj$- xJoint Motion, and grant the withdrawal of their respective Petitions, the dismissal of MTEL's application and the waiver request of our partial settlement and antialienation rules.  Y%'- ` #x2. ` ` The parties' applications for Market 709A, Wisconsin RSA No. 2 Bayfield  x("Wisconsin 2") were filed in September of 1988. The Commission selected Western's"(0*0*0*("  Y- xapplication in a lottery held on March 15, 1989 for Wisconsin 2.p zPy-#C\  P6QP#э See Public Notice, Report No. CL89108, released March 16, 1989. ī The Common Carrier Bureau,  Y- xwMobile Services   Division dismissed the application on May 5, 1989,Zp zP-#C\  P6QP#э See Western California Cellular Partners, 5 FCC Rcd 2932,  1 (1990). because Western failed to  xsubmit a proper map of its proposed Cellular Geographic Service Area pursuant to 47 C.F.R.  22.903(a)(1) and 22.913(a)(2). In reconsidering that decision, the Common Carrier Bureau  Y- x-did 8ep X-W  FEDERAL COMMUNICATIONS COMMISSION X-TPDA 96710 X(#P______________________________________________________________________________8not rely upon the defects in Western's map, but affirmed the dismissal because Western  xfailed to demonstrate that it had a firm financial commitment for funds upon which it could rely  xto construct and operate its proposed cellular system for one year as required by Section  Yc- x22.917(c)jcp xP -#C\  P6QP#э 47 C.F.R.  22.917(c).j of the Commission's rules. The Commission reinstated Western's application on  YL- xDecember 8, 1992Lp zP -#C\  P6QP#э  Kent Foster, 7 FCC Rcd 7971, 7972,  5 (1992). concluding that the requirement in Section 22.917(c) that applicants for  xinitial cellular facilities must demonstrate that they have a firm financial commitment was  x+ unenforceable against this application because the Commission violated the Paperwork Reduction  Y -Act of 1980n %p xP-#C\  P6QP#э 44 U.S.C.  35013520.n when the rule was adopted.~ p zPm-#C\  P6QP#э Kent Foster, 7 FCC Rcd at 7972,  4.~  Y - ` "x3. ` ` Before the reinstatement of Western's application, the Commission conducted a  Y - xsecond lottery of Wisconsin 2 on July 31, 1990. G p zP-#C\  P6QP#э See Public Notice, Report No. CL90267, released August 1, 1990. The Commission's selection of another lottery  xxwinner as the tentative selectee was conditioned upon the outcome of Western's Petition for  Y- xReconsideration of the dismissal of its application. p zP-#C\  P6QP#э Lottery Notice, No. 3497, released June 8, 1990; See Kent Foster, 7 FCC Rcd at 7972 n.9. The Commission subsequently announced  Y}- xMTEL as the tentative selectee on September 21, 1990. }k p zP-#C\  P6QP#э See Public Notice, Report No. CL90308, released September 21, 1990. Because of the reinstatement of  xJWestern's application in 1992, the Commission announced Western as the tentative selectee on  YO- xZFebruary 21, 1995. ZO p zP - x#C\  P6QP#э See Public Notice, Report No. CL9557, released February 21, 1995. We note that the grant of Western's  x[application on February 10, 1995 was rescinded pursuant to Section 1.113 of the Commission's rules because the applicant's selection as a tentative selectee was not placed on public notice before the grant of the authorization. MTEL and Western each filed cross petitions against the other party's application.  Y - ` x4. ` ` In an effort to end the litigation involving the license for Wisconsin 2, the parties  Y- xhave submitted the Joint Motion to the Commission for approval of their settlement. The parties  xhave agreed to withdraw their respective petitions and to merge their interests to form a general  Y- x/partnership, Wisconsin II Venture.p p zP)-#C\  P6QP#э Joint Motion at 3,  5.p As part of the settlement, MTEL will dismiss its" ,,,"  xapplication while Western amends its application to substitute Wisconsin II Venture as the  Y- xapplicant.  zPy-#C\  P6QP##C\  P6QP##C\  P6QP#э Id. Ĩ Finally, the parties seek a waiver of the Commission's partial settlement and antialienation rules in order to implement the settlement.  X- II. DISCUSSION TP  Yv- ` x5. ` ` Since the filing of the parties' applications, the Commission has rewritten Part  Y_- x[22 of the Commission's rules in the Part 22 Rewrite proceeding.2 _q zP - x#C\  P6QP#э Revision of Part 22 of the Commission's Rules Governing the Public Mobile Services, Report and Order,  zPK -CC Docket No. 92115, 9 FCC Rcd 6513 (1994) (Part 22 Rewrite Order).2 The parties argue that  xalthough the Commission must apply the rules in effect when the applications were filed, they  xshall voluntarily comply with the current, more rigorous requirements of Section 22.129 as  Y - xrevised by the Part 22 Rewrite Order.q  zP-#C\  P6QP#э Joint Motion at 3,  6.q We also recognize that in Section 22.959 of the Part  Y - x22 Rewrite Order, the Commission specifically provides that an application for an initial cellular  x;system shall be processed under the rules governing the processing of cellular applications that  Y - xwere in effect when the application was filed unless the Commission determines otherwise. _ xP-#C\  P6QP##C\  P6QP#э 47 C.F.R.  22.959.Ě  xhSince these applications for an initial cellular system were filed in 1988, we must process these  xxapplications under the rules that were in effect in 1988 unless we determine otherwise. The  Y- xpurpose of Section 22.129 zP6-#C\  P6QP#э 47 C.F.R.  22.129 is the Part 22 Rewrite Order successor to 47 C.F.R.  22.29. is to discourage the filing of speculative applications and litigious  xpleadings designed solely to extract money from sincere applicants, while still providing some  xincentive for legitimate petitioners and applicants to withdraw from proceedings and thus  YQ- xexpedite service to the public.Q zP-#C\  P6QP#э Part 22 Rewrite Order, 9 FCC Rcd 6513, 6550, Appendix A, Section 22.129. We see no reason to apply our current rules to these  xapplications. Nothing in the history of this proceeding indicates that either party applied for  Y#- xWisconsin 2 as part of a speculative venture. Accordingly, we will apply Section 22.29#  xP-#C\  P6QP#э 47 C.F.R.  22.29 (1988) is contained in the Appendix.Đ of the Commission's rules which were in effect in 1988.  Y- ` Ox6. ` ` Under former Section 22.29, parties who under a settlement agreement apply to  xthe Commission for ownership changes or for the amendment or dismissal of either pleadings  xor applications shall, at the time of filing the amendment or dismissal, notify the Commission  Y- xthat such filing is the result of an agreement or understanding.p  xP%-#C\  P6QP#э 47 C.F.R.  22.29(b) (1988).p The parties have complied with"3 ,T'T'33"  xwthe notification requirement and are not required to submit the agreement or affidavits certified  Y-by responsible parties as is required by Section 22.129g xPb-#C\  P6QP#э 47 C.F.R.  22.129.g of the Part 22 Rewrite Order.  Y- ` x7. ` ` The parties have requested a waiver of our partial settlementZX xP- x#C\  P6QP#э A partial settlement is any arrangement among fewer than all of the applicants in a market that provides  zP- x.reciprocal interests in the applications of the parties to the arrangement. Columbia Cellular Partnership, 4 FCC Rcd 6432, 6433 n.1 (1989). and antialienation  Y- xrules.z xP -#C\  P6QP#э 47 C.F.R.  22.33(b)(2), 22.922(a) (1988). As previously stated, throughout this Order, we shall apply the rules in effect when the  Y- xjparties filed their applications.  zPJ -#C\  P6QP#э See 47 C.F.R.  22.959 of the Part 22 Rewrite Order. In 1988, the Commission prohibited nonwireline partial  Yx- x;settlements of RSAsx zP- xx#C\  P6QP##C\  P6QP##C\  P6QP#э In the Matter of Amendment of the Commission's Rules for Rural Cellular Service, Third Report and Order,  zP-CC Docket No. 85388, 4 FCC Rcd 2440, 2441,  14 (1988) ("Third Report and Order"); 47 C.F.R.  22.33(b)(2). as well as the alienation of any interest in an RSA application before the  Ya-grant of a construction authorization.a  xP -#C\  P6QP##C\  P6QP#э Third Report and Order, 4 FCC Rcd at 2444,  30; 47 C.F.R.  22.922. #C\  P6QP#  Y3- ` x8. ` ` The Commission adopted the partial settlement prohibition rule because partial  xsettlements "slowed down [the] processing of applications and delayed the institution of service,  x. . . extended the headstart enjoyed by the wirelines in many markets. . ." and attracted  Y - xspeculators who did not intend to construct and operate a cellular facility.  zP'-#C\  P6QP##C\  P6QP#э Third Report and Order, 4 FCC Rcd at 2442,  17. The Commission  xsought to "promote a regulatory environment in which applications filed reflect[ed] a genuine  Y - xintention to construct and operate the cellular facilities as proposed."  zP-#C\  P6QP##C\  P6QP##C\  P6QP#э Id. at 2440,  7. Both rules were intended  Y -to deter speculative applications, and to eliminate processing problems and service delays.  zP- x.#C\  P6QP##C\  P6QP#э #C\  P6QP#Third Report and Order, 4 FCC Rcd 2440, 2442,  17; See also Vitelcom Cellular, Inc., 5 FCC Rcd 5204,  zP- 7 (1990); Modoc RSA Limited Partnership, 4 FCC Rcd 3996,  3 (1989).  Y{- ` x9. ` ` The Commission imposes a strict burden on any party seeking to waive its rules.^{ zP4#- x=#C\  P6QP##C\  P6QP#э Thomas Radio Co. v. FCC, 716 F.2d 921, 924 (D.C. Cir. 1983); #C*f9 xQX#Florida Cellular Mobil Communications  zP#- x=Corporation#C\  P6QP#, 6 FCC Rcd 6910,  5 (1991), aff'd Florida Cellular Mobil Communications Corporation v. FCC, 28  zP$-F.3d 191 (D.C. Cir. 1994), cert. denied, 115 S.Ct. 1357 (1995).  See #C*f9 xQX#also, #C\  P6QP#47 C.F.R.  22.19.  xA party must show "[t]hat the underlying purpose of the rule will not be served, or would be"d.,T'T'33v"  xfrustrated by its application in a particular case," or "[t]hat the unique facts and circumstances  xof a particular case render the rule inequitable, unduly burdensome or otherwise contrary to the  Y- xpublic interest." xPK-#C\  P6QP##C\  P6QP##C\  P6QP##C\  P6QP#э#C\  P6QP# 47 C.F.R.  22.19(a)(i), (ii) (1988). The Joint Motion notes that both parties are lottery winners and that applying  xthe rules will not deter speculative applications since no such applications remain to be filed for  Y- xthis market.X zP-#C\  P6QP##C\  P6QP#э Joint Motion at 6,  12. We agree. As discussed below, a denial of the waiver request is not in the public  x interest because a denial will actually prolong litigation in this matter, delay service to the public  xand have no effect on deterring the filing of speculative applications. In sum, the underlying  Ya-purpose of the rules will not be served by applying them to the facts of this particular case. a xP -#C\  P6QP##C\  P6QP#э 47 C.F.R.  22.19(a)(i).  Y3- ` x 10. ` ` In #XP*f9 xQ/3XX#Amendment of Section 22.922 to Permit Limited Transfers and Assignments of  Y - xwApplications in RSAs,#XP\  P6Q[hXP#! z xPI-#C\  P6QP##C\  P6QP##C\  P6QP#э#C\  P6QP# CC Docket No. 90258, 7 FCC Rcd 7539 (1992). we noted that, although Section 22.922 had been an effective deterrent  Y - xto the filing of speculative applications,"  zP-#C\  P6QP##C\  P6QP#э Id. at 7540,  11. we were at the virtual end of the licensing process for  Y - xthe RSAs.#  zP?-#C\  P6QP##C\  P6QP##C\  P6QP##C\  P6QP#э Id. at 7541 n.11. Moreover, as is the case with the partial settlement rule, granting a waiver in this  xinstance would conserve our resources and those of the parties by ending litigation that has  Y - x,already gone on for six years.$ .  zP-#C\  P6QP##C\  P6QP#č #C*f9 xQX#Joint Motion#C\  P6QP# at 6,  14. Such litigation between these two parties who are determined  xto provide cellular service through a permanent authorization to Wisconsin 2 should not be  xencouraged. Given the prior history of this proceeding, nothing in the record suggests that any  xspeculation was involved. We find that application of the partial settlement rule and the anti Yh- xalienation rule under these unique facts and circumstances is contrary to the public interestw%h  zP-#C\  P6QP#э See 47 C.F.R.  22.19(a)(ii).w and  YQ-would not serve the underlying purpose of the Commission's rules.l&QR  xPT -#C\  P6QP#э 47 C.F.R.  22.19(a)(i).l  Y#- ` 1x 11. ` ` In light of our determination that a waiver of the partial settlement rule and the  xwantialienation rule is in the public interest, we must determine whether the Commission should  xapprove the Joint Motion and related documents. After a thorough review of the Joint Motion,"&,T'T'33"  Y- xwe conclude that the documentation meets the requirements of Section 22.29,f' xPy-#C\  P6QP#э 47 C.F.R.  22.29.f which was applicable in 1988. Accordingly, we approve the settlement.  Y- ` x 12. ` ` Finally, the parties assert that the "substitution of the settlement partnership as the  Y- xcellular applicant is a minor amendment which requires no exemption from the cutoff rule"q(X zP-#C\  P6QP#э Joint Motion at 7, 15.q  Y- xin Section 22.31.m) xP( -#C\  P6QP#э 47 C.F.R.  22.31 (1988).m We agree and find that the parties have met the requirements of Sections  Yv- x22.23m*vz xP -#C\  P6QP#э 47 C.F.R.  22.23 (1988).m and 22.918.n+v  xP1-#C\  P6QP#э 47 C.F.R.  22.918 (1988).n These sections provide the Commission's rules for processing  xamendments for cellular applications. Section 22.23(c) classifies all amendments as minor  YH- xexcept for certain specified exceptions listed in Section 22.23(c)(1) (4).p,H xP-#C\  P6QP#э 47 C.F.R.  22.23(c) (1988).p Of all the exceptions  xlisted in Section 22.23(c) only the change in ownership or control exception under Section  x.22.23(c)(4) is applicable to this situation. The change in ownership or control exception  xprovides that any amendment which specifies a substantial change in beneficial ownership or  xcontrol of an applicant shall be deemed a major amendment subject to the provisions of Sections  Y -22.27 and 22.31.- *  zP-#C\  P6QP#э Id. 47 C.F.R.  22.27 (1988) provides the public notice requirements.  Y - ` x 13. ` ` The Commission's general Part 22 amendment processing rules must be construed  xin conjunction with our specific cellular rules for the amendment of applications. Section  Yy- x22.918(c)(1)t.y  xP-#C\  P6QP#э 47 C.F.R.  22.918(c)(1) (1988).t allows the filing of amendments in connection with partial settlements resulting  xwin a merger of interests between two or more mutually exclusive parties. Additionally, Section  YK- x-22.918(b)q/KL  xPH -#C\  P6QP#э 47 C.F.R.  22.918(b) (1988).q prohibits the filing of amendments before the conduct of the lottery for markets  xbelow the top90. In this situation, the substitution of Wisconsin II Venture, a general  x,partnership between Western and MTEL, does not constitute a substantial change in beneficial  xownership or control of the applicant and shall not be deemed a major amendment subject to the  xprovisions of Sections 22.27 and 22.31. The settlement agreement provides that Western will  xretain 77.5% of the ownership interests while MTEL will have 22.5% of ownership interests in  xthe partnership. Generally, the test for whether the interest to be transferred is "controlling" or"/,T'T'33"  x"substantial" is whether 50 percent or more of the stock is being transferred; and whether as a  xiresult of the transaction 50 percent or more of the outstanding stock will be held by persons  xwhose qualifications to be Commission licensees have not previously been approved of or  Y- x"passed upon".0 zP4-#C\  P6QP#э McCaw Cellular Communications, Inc., 4 FCC Rcd 3784, 37883789,  33 (1989) aff'd 4 FCC Rcd 4865 (1989). Clearly, Western did not transfer 50 percent or more of its interests. Pursuant  xto Section 22.918 the parties filed a post lottery amendment in connection with a partial  Y- xsettlement resulting in a merger of their interests.1" zP` -#C\  P6QP#э See Dana Communications, LTD., 6 FCC Rcd 5382, 5384 n.9 (1991). Accordingly, the amendment is minor and is not subject to Sections 22.27 and 22.31.  XH-X III. CONCLUSIONS TP  Y - ` Qx 14. ` ` We find that the Joint Motion satisfies the requirements of Section 22.29.  xAccordingly, we shall approve the Joint Motion. We further find that a waiver of the partial  x settlement and antialienation rules is in the public interest pursuant to Section 22.19.  xAdditionally, we find that substitution of Wisconsin II Venture as the applicant in Western's  xapplication is a minor amendment under Sections 22.23 and 22.918 that is not subject to cutoff and public notice rules.  Yy- ` 3x15. ` ` Furthermore, we find Wisconsin II Venture to be legally, technically and  x,otherwise qualified to construct and operate the proposed cellular system and that granting the instant application would serve the public interest, convenience and necessity.  Y- ` ?x16. ` ` In light of our findings, we shall approve the application of Wisconsin II Venture,  xjgrant the withdrawal request of the Petitions filed by Western and MTEL and dismiss all remaining mutually exclusive applications. x  Y-) IV. ORDERING CLAUSE S T  Y- ` TPx17. ` ` Accordingly, IT IS ORDERED that pursuant to Sections 4(i), 303(r) and 309(a)  xof the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r) and 309(a) and  xhSection 0.331 of the Commission's rules, 47 C.F.R. 0.331 that the application (File No. 10184 xCLP709A88) of Wisconsin II Venture IS GRANTED. This authorization does not include  xthe right to any interference protection in any areas outside the Wisconsin 2 RSA and is also  xconditioned upon coordinating with the current and future cochannel licensee(s) in the areas  xoutside the RSA. The licensee herein is put on notice that in the event current or future  xMSA/RSA licensees encounter interference from any extensions, the licensee herein will have  xto change frequencies in those cells or pull back its contours to eliminate any interference due to an extension. "!1,T'T'33""Ԍ Y- ` #x18. ` ` IT IS FURTHER ORDERED that pursuant to Sections 4(i), and 303(r) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  154(i),and 303(r) and Section 0.331  xJof the Commission's rules, 47 C.F.R.  0.331 that the Joint Motion for Approval of Settlement  xAgreement filed by Western California Cellular Partners and MTEL Cellular, Inc. on September 8, 1995 IS GRANTED.  Yv- ` #x19. ` ` IT IS FURTHER ORDERED that pursuant to Sections 4(i), and 303(r) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  154(i), and 303(r) and Section 0.331  xof the Commission's rules, 47 C.F.R.  0.331 that the waiver request of the partial settlement  xhrule under Section 22.33 and the antialienation rule under Section 22.922, 47 C.F.R.  22.922  xby Western California Cellular Partners and MTEL Cellular, Inc. on September 8, 1995 IS GRANTED.  Y - ` #x20. ` ` IT IS FURTHER ORDERED that pursuant to Sections 4(i), and 303(r) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  154(i), and 303(r) and Section 0.331  xhof the Commission's rules, 47 C.F.R.  0.331 that the minor amendment by Western California  x.Cellular Partners substituting Wisconsin II Venture as the applicant for Market No. 709, Wisconsin RSA No. 2 Bayfield in its application IS GRANTED.  YK- ` #x21. ` ` IT IS FURTHER ORDERED that pursuant to Sections 4(i), and 303(r) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  154(i), and 303(r) and Section 0.331  xof the Commission's rules, 47 C.F.R.  0.331 that all nonwireline cellular applications in the  xWisconsin RSA No. 2 Bayfield, other than the application of Wisconsin II Venture ARE HEREBY DISMISSED.  Y- ` x22. ` ` IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309(d) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  154(i) and 309(d) and Section 0.331  xof the Commission's rules, 47 C.F.R.  0.331 that the Request to Withdraw the Petition to  xDismiss or Hold in Abeyance filed by Western California Cellular Partners on November 7,  x1990 and the Petition to Dismiss or Deny filed by MTEL Cellular Inc. on April 5, 1995 IS GRANTED. x` `  hhCOMMERCIAL WIRELESS DIVISION x` `  hhDavid L. Furth x` `  hhChief, Commercial Wireless Division x` `  hhWireless Telecommunications Bureau"#1,T'T'33$" x X-. APPENDIX TP 47 C.F.R.  22.29 (1988)  Y-x(a) Applicability. This section applies to applicants and all other parties interested in pending applications who wish to resolve contested matters among themselves with a formal or an informal agreement or understanding. This section applies only when the agreement or understanding will result in: x` ` (1) A major change in the ownership of an applicant to which  22.23 and 22.23(g) apply, or x` ` (2) The individual or mutual withdrawal, amendment or dismissal of any pending application, amendment, petitioner or other pleading.  Y-x(b) Policy. Parties to contested proceedings are encouraged to settle their disputes among themselves. Parties which, under a settlement agreement, apply to the Commission for ownership changes or for the amendment or dismissal of either pleadings or applications, shall at the time of filing notify the Commission that such filing is the result of an agreement or understanding.