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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 USVI Cellular Telephone Corporation Station KNKN524, Market No. 730A Application for Major Modification of License ) ) File No. 05878-CL-MP-92 ) ) ) ) ) ) ORDER Adopted: December 11, 1996 Released: December 11, 1996 By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: I. Introduction 1. In this Order, we address a petition to deny ("Petition") filed by CCT Boatphone, Limited ("Boatphone") on June 26, 1992, against the major modification application of USVI Cellular Telephone Corp. ("USVI") to add an additional cell site in the United States Virgin Islands 1 - St. Thomas Island RSA (Market 730A) at a location designated as Mamey Peak. USVI claims that it needs the additional cell to provide more reliable service to certain of its customers. Boatphone, the provider of service to the British Virgin Islands, alleges that a grant of USVI's application would cause interference to Boatphone's cellular system. For the reasons discussed below, we grant USVI's application and deny Boatphone's petition. II. Background 2. Boatphone, a corporation organized under the laws of the British Virgin Islands, provides cellular service to the British Virgin Islands and its surrounding waters pursuant to authority from the government of the British Virgin Islands. Boatphone claims that USVI's proposal would cause substantial interference to its service area. Boatphone alleges that USVI is illegally extending its service into the British Virgin Islands and that the small amount of customers it would gain in its own service area does not justify the substantial harm it would do to Boatphone. Specifically, Boatphone claims that the proposed cell will cut into revenues it receives from the tourist industry from charter boats and cruise ships based on the island of Tortola and international travelers in the Drake Channel. 3. USVI responds that a grant of its application is necessary so that it may adequately serve its subscribers that are situated at the eastern end of the island of St. John as well as boaters navigating in U.S. waters off that portion of the island. It further states that the extremely rugged terrain of the Virgin Islands necessitates the cell site at Mamey Peak to ensure that USVI's signal penetrates the natural shielding of the numerous valleys and coves at the eastern end of St. John. USVI acknowledges that an "inevitable consequence of USVI's efforts to provide ubiquitous service within RSA Market No. 730 is that USVI will not be able to confine its signal" so as not to overlap portions of the island of Tortola, where Boatphone is presently authorized by the government of the British Virgin Islands to provide service. USVI maintains that because of the topography of the Virgin Islands, some slight encroachment is inevitable if it is to adequately serve its customers on the eastern end of the island. USVI also questions whether Boatphone, as a foreign corporation, and not a U.S. licensee subject to the Communications Act, has standing to file a petition to deny under the Commission's rules. 4. Since the conclusion of the pleading cycle, two settlement conferences with the parties were held on April 19, 1995 and August 25, 1995. As a result, on August 15, 1995 and February 12, 1996, the Commercial Wireless Division granted two Special Temporary Authorities to USVI for the purpose of allowing the parties to conduct engineering tests to settle their dispute. The parties have been unable to settle. On April 26, 1996, USVI reported on its test results and requested that the Division expedite a grant of its application. USVI claims that at the requested 35 watt power level, USVI's signal will not interfere with Boatphone's cellular service to its customers. According to USVI, the testing demonstrated that the currently authorized facility at Mamey Peak, which uses a reflectorized antenna and operated at 8.9 Watts ERP, provides a sporadic signal at best for USVI. USVI states that there is no indication that the omnidirectional antenna operating at 35 watts caused objectionable interference at any of the locations where Boatphone's representative requested that test measurements be conducted. 5. Specifically, USVI claims that its testing reveals that USVI's signal was stronger in a few scattered areas of Tortola but nowhere near the extent that Boatphone's signal dominates on St. John. USVI states that it also tested at the 100 watt level, but found that 35 watts enabled it "to provide sufficient signal strength on St. John and the surrounding waters to overcome some of Boatphone's significant incursions in [USVI's service area.]" Based upon these results, USVI asks the Commission to expedite the grant for the 35 watt facility at Mamey Peak as set forth in its 1992 application. 6. Boatphone responded to USVI's April 26 letter on May 6, 1996, stating that it "disputes or objects to virtually every meaningful factual allegation presented therein." Boatphone criticizes USVI's testing methods and the data obtained as a result of those tests, and challenges USVI's assertion that the grant of its application would serve the public interest. Boatphone further alleges that USVI has failed to support its propagation analysis with competent testimony. It further claims that USVI's April 26 letter was not a report but an additional request for relief, and that it has requested the Minister of Communications of the British Virgin Islands to provide input to the Commission. III. Discussion 7. Section 309(d) of the Communications Act of 1934, as amended, and as implemented by Section 22.130 of the Commission's rules, provides that "Petitions to deny any major filing may be filed by parties able to demonstrate standing to file such petitions." Section 22.130(a)(3) requires that the petitioner: (i) be a party in interest and (ii) show that the grant of the application would be prima facie inconsistent with the public interest. The Commission has held that in determining whether a petitioner qualifies as a "party in interest," it should apply judicial standing principles. 8. There is a two part test for determining standing. First, the petitioner must establish that it has suffered a legal wrong or been adversely affected or "aggrieved by agency action" or show an "injury in fact" resulting from the challenged action. The threatened or actual injury must be to the petitioner, whether economic, aesthetic or otherwise, and must be likely to be prevented or redressed by a favorable decision. Second, the petitioner must show that it is "within the zone of interests to be protected" or regulated. The zone of interest test denies a right of review if the petitioner's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be reasonably assumed that Congress intended to permit the suit. 9. In this case, we find that Boatphone has standing. USVI's requested modification, if granted, will result in an incursion into Boatphone's service area which could cause interference. Because Boatphone could be adversely affected by a grant of the modification, we find that it is "within the zone of interests to be protected" or regulated because Section 402(b)(6) permits persons who are aggrieved or adversely affected by a licensing order of the Commission to appeal the action. 10. Having determined that Boatphone has standing to contest USVI's application, we now turn to the merits of that application. USVI's proposed application is likely to increase its Service Area Boundary ("SAB") so that it partially extends into an area served by Boatphone. Section 22.912 of the Commission's rules, in relevant part, provides that SABs may extend into adjacent cellular markets if such extensions are de minimis, are demonstrably unavoidable for technical reasons of sound engineering design, and do not extend into the CGSA of any other licensee's cellular system on the same channel block (unless the licensee of such other licensee's cellular system consents to the extension). As we have previously stated, "[a] de minimis (SAB) extension is a relatively small overlap of the contour into a neighboring market which is necessary for engineering reasons to serve adequately the area within the contour located inside the market of the licensee who proposes the extension." De minimis extensions generally do not become part of the licensee's CGSA, are not entitled to interference protection, and must be pulled back if objectionable interference occurs to adjacent licensees. 11. An evaluation of whether a contour extension is de minimis begins with a determination of whether the proposed contour is minimal in size. Consideration must also be given to the percentage size of the extension relative to the total size of the licensee's market, whether the extension is the by-product of a system designed to cover areas inside the licensee's market rather than a system designed to reach areas outside the market, and whether the border of the market in the vicinity of the 32 dBu contour extension is irregular in shape. Although size is one consideration in determining whether a CGSA is de minimis, it is not the most important consideration. When a contour is minimal in size, the Bureau must determine whether any engineering justifications exist. Engineering factors include the terrain and population of the area in question, the shape of the adjoining boundary, and any extenuating engineering problems. 12. We have conducted our own examination of USVI's application and the supporting engineering data submitted by both parties and determined that USVI's plan to place an omnidirectional antenna at 35 watts on Mamey Peak is reasonable. The topography of the Virgin Islands is such that it cannot confine its signal to the eastern end of St. John within RSA Market 730. USVI's tests demonstrated that when it increased the power at its Mamey Peak facility from 8.9 to 35 watts and removed its reflector antenna, Boatphone remained the dominant cellular server along much of the major east-west highway on St. John and Coral Bay in the U.S. Virgin Islands as well as along the entire coast of Tortola in the British Virgin Islands. The increase in power did improve USVI's signal on the island of St. John, particularly along the western coast of Coral Bay as well as in the U.S. territorial waters off the island. Our examination of the data confirms USVI's claim that there is no evidence of objectionable interference at 35 watts in any of the locations where Boatphone's representative had requested that test measurements be taken. 13. We find that the public interest, convenience and necessity will be served by permitting USVI to provide more reliable service in its own service area including the elimination of roaming charges for USVI customers for calls placed in domestic "home" territory. This improved coverage will have minimal adverse effect on Boatphone's system or its ability to adequately serve its customers. While it is true that USVI's signal will extend into a small portion of Boatphone's service area, we note that Boatphone presently places a partial signal over USVI's entire service area. We believe that granting USVI's application will serve the public interest by allowing it to provide better service to its customers. Accordingly, we will grant USVI's application and dismiss Boatphone's petition to deny. IV. Ordering Clauses 14. Accordingly, IT IS ORDERED THAT pursuant to Section 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d), and the authority delegated under Section 0.331 of the Commission's rules, 47 C.F.R.  0.331 and Section 22.130 of the Commission's rules, 47 C.F.R.  22.130, that the Petition to Deny filed by CCT Boatphone Ltd on June 26, 1992, IS DISMISSED. 15. IT IS FURTHER ORDERED THAT pursuant to Section 309(a) of the Communications Act, as amended, 47 C.F.R.  309(a), that the application of USVI Cellular Telephone Corporation filed on May 7, 1992 IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION David L. Furth Chief, Commercial Wireless Division Wireless Telecommunications Burea