WPCT- 2MBVRKZ3|j7jC:,3Xj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4Si -7130- leftHPLAS4SI.PRSXj\  P6G;\ uXP2> K Z3|j"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNR>CxxxxxxxxxxCCjݭR[ӭ⭭RCRnxRjxjxjRxxCCxCxxxxR[Cxxxxjs0sR>nRRR>RRRRRRRRxCjjjjjӜjjjjjRCRCRCRCxxxxxxxxxxjxvxxxxjjjjjjjjjjxxxxxRCRxRRRxxC`RRCxxxxxӭRRR[[[eCnxxxxxx⭭jjjxRx[Rx>xxP+PWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNVVnxRjxxxxxCMxHMxHRRjjxRRxx듶VVȆRjxH"x𐋂x됐x"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""R>CxxxxxxxxxxRRx⭞[x⭻𭭞RCRxRxjjRxCRCʆxj[Rxxxj`5`}R>}RRR>RRRRRRxRCxxxxxjjjjjYCYCYCYCxxxxxxxxxxxxxjj}jjjjjxxx}x[C[[R[†}}ClR`Cxxjjj[[[}zR}jjjR[Rx>xxPAPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNVVxRxxxxxxHRxHRxHRRxxxRRxxVVȆRxxH"x𐎂x됐x2(K{ K Kf \"i~'^#)0<USVI claims that it needs the additional cell to provide more reliable service to certain of its  X- xcustomers.jH {Od-ԍxSee, e.g., USVI Opposition to Petition at ii.j Boatphone, the provider of service to the British Virgin Islands, alleges that a grant  X- xof USVI's application would cause interference to Boatphone's cellular system.?ZH yO-ԍxPetition at 1.? For the reasons discussed below, we grant USVI's application and deny Boatphone's petition.  X- 3#II. Background  Xx-  Xa -  x2. Boatphone, a corporation organized under the laws of the British Virgin Islands,Ea H {O%-ԍxId. at 1, n.1.E  xprovides cellular service to the British Virgin Islands and its surrounding waters pursuant to"J!|,))ZZ "  X- x\authority from the government of the British Virgin Islands.@ {Oy-ԍxId. at 3.@ Boatphone claims that USVI's  X- xproposal would cause substantial interference to its service area.@Z {O-ԍxId. at 1.@ Boatphone alleges that USVI  xis illegally extending its service into the British Virgin Islands and that the small amount of  xcustomers it would gain in its own service area does not justify the substantial harm it would do  X- xto Boatphone.< yOA -ԍxReply at 1.< Specifically, Boatphone claims that the proposed cell will cut into revenues it  xreceives from the tourist industry from charter boats and cruise ships based on the island of  Xv-Tortola and international travelers in the Drake Channel.@v| {O -ԍxId. at 6.@   x3. USVI responds that a grant of its application is necessary so that it may adequately  xserve its subscribers that are situated at the eastern end of the island of St. John as well as boaters  X - xnavigating in U.S. waters off that portion of the island.B  yO-ԍxOpposition at ii.B It further states that the extremely  xrugged terrain of the Virgin Islands necessitates the cell site at Mamey Peak to ensure that  xUSVI's signal penetrates the natural shielding of the numerous valleys and coves at the eastern  X - x/end of St. John.:  {O$-ԍxId.: USVI acknowledges that an "inevitable consequence of USVI's efforts to  x.provide ubiquitous service within RSA Market No. 730 is that USVI will not be able to confine  x[its signal" so as not to overlap portions of the island of Tortola, where Boatphone is presently  X- xauthorized by the government of the British Virgin Islands to provide service.C 0  yOq-ԍxOpposition at iii.C USVI maintains  x[that because of the topography of the Virgin Islands, some slight encroachment is inevitable if  Xb- xit is to adequately serve its customers on the eastern end of the island.@ b  {O-ԍxId. at 3.@ USVI also questions  xwhether Boatphone, as a foreign corporation, and not a U.S. licensee subject to the  X4-Communications Act,E 4R  {O7!-ԍxId. at 3, n.2.E has standing to file a petition to deny under the Commission's rules.: 4 {O"-ԍxId.:   x4. Since the conclusion of the pleading cycle, two settlement conferences with the parties  xwere held on April 19, 1995 and August 25, 1995. As a result, on August 15, 1995 and February  x12, 1996, the Commercial Wireless Division granted two Special Temporary Authorities to USVI  xfor the purpose of allowing the parties to conduct engineering tests to settle their dispute. The"v ,-(-(ZZ"  xparties have been unable to settle. On April 26, 1996, USVI reported on its test results and  X- xZrequested that the Division expedite a grant of its application. {Ob-ԍxSee Letter from Jay L. Birnbaum to William F. Caton, April 26, 1996 ("April 26, 1996 Letter"). USVI claims that at the requested  x35 watt power level, USVI's signal will not interfere with Boatphone's cellular service to its  X- xcustomers.LZ {O-ԍxId. at 1.L According to USVI, the testing demonstrated that the currently authorized facility  xat Mamey Peak, which uses a reflectorized antenna and operated at 8.9 Watts ERP, provides a  X- xPsporadic signal at best for USVI.@ {O* -ԍxId. at 2.@ USVI states that there is no indication that the  xomnidirectional antenna operating at 35 watts caused objectionable interference at any of the  X_-locations where Boatphone's representative requested that test measurements be conducted.;_~ {O -ԍxId. ;   ^x5. Specifically, USVI claims that its testing reveals that USVI's signal was stronger in  xa few scattered areas of Tortola but nowhere near the extent that Boatphone's signal dominates  xon St. John. USVI states that it also tested at the 100 watt level, but found that 35 watts enabled  xxit "to provide sufficient signal strength on St. John and the surrounding waters to overcome some  X - xzof Boatphone's significant incursions in [USVI's service area.]"@  {O-ԍxId. at 3.@ Based upon these results,  xUSVI asks the Commission to expedite the grant for the 35 watt facility at Mamey Peak as set  X -forth in its 1992 application.@  {O-ԍxId. at 5.@  Xy-  x6. Boatphone responded to USVI's April 26 letter on May 6, 1996,y4  {O^- čxSee Letter from Thomas Gutierrez to William F. Caton, May 6, 1996. ("May 6, 1996 Letter"). stating that it  Xb- x"disputes or objects to virtually every meaningful factual allegation presented therein."@b  {O-ԍxId. at 1.@  xBoatphone criticizes USVI's testing methods and the data obtained as a result of those tests, and  xkchallenges USVI's assertion that the grant of its application would serve the public interest.  xBoatphone further alleges that USVI has failed to support its propagation analysis with competent  X- xtestimony.@X  {O#-ԍxId. at 2.@ It further claims that USVI's April 26 letter was not a report but an additional  X- x<request for relief,@ {O%-ԍxId. at 3.@ and that it has requested the Minister of Communications of the British Virgin"|,-(-(ZZE"  X-Islands to provide input to the Commission. {Oy-ԍxId. at 4. We have not received any such input from the Minister of Communications. x  X- ]# III. Discussion ă x  X-  x7. Section 309(d) of the Communications Act of 1934, as amended,GZ yO-ԍx47 U.S.C.  309(d).G and as implemented  X- xby Section 22.130 of the Commission's rules,M yO( -ԍx47 C.F.R.  22.130(a)(3).M provides that "Petitions to deny any major filing  Xv- xmay be filed by parties able to demonstrate standing to file such petitions."qvz {O -ԍxId. (Major filings are defined in 47 C.F.R.  22.123).q Section  x22.130(a)(3) requires that the petitioner: (i) be a party in interest and (ii) show that the grant of  XH- x-the application would be prima facie inconsistent with the public interest.H  {O-  ԍx47 C.F.R.  1.30(a)(3). BellSouth Mobility, Inc., 3 FCC Rcd 6902, 6903  10 (1988); Brian L. O'Neill,  {O-6 FCC Rcd 2572, 2574,  20 (1991); Danbury Cellular Telephone Co., 8 FCC Rcd 7047,  2 (1993);  {O- xwsee also 47 U.S.C.  309(d); Petition for Rulemaking to Establish Standards for Determining the Standing of a Party  {Oc- xto Petition to Deny a Broadcast Application, Memorandum Opinion and Order, 82 F.C.C. 2d 89, 9596,  19 (1980)  {O--(hereinafter #C*f9 xQ B[X#NAB Petition for Rulemaking# C\  P6QɓP#).   The Commission has  xheld that in determining whether a petitioner qualifies as a "party in interest," it should apply  X -judicial standing principles.  {O-ԍx#C*f9 xQ B[X#NAB Petition for Rulemaking,# C\  P6QɓP# 82 F.C.C. 2d at 95 (1980).  X -  x8. There is a two part test for determining standing.d X  {O-  .ԍxAir Courier Conference of America v. American Postal Workers Union, AFLCIO, 498 U.S. 517, 523 (1991)  {O- x("Air Courier"); Barlow v. Collins, 397 U.S. 159, 164 (1970); Assoc. of Data Process Services v. Camp, 397 U.S.  x150 (1970); Application for Transfer of Control of the Telesis Corporation from the Trustees of the CentralStates,  xSoutheast and Southwest Areas Pension Fund to the Equitable Life Assurance Society of the United States,  {O- xMemorandum Opinion and Order, 68 F.C.C.2d 696, 698699,  8 (hereinafter Telesis Corp.) (citing United States  {O-v. SCRAP, 412 U.S. 669 (1973); NAB Petition for Rulemaking, 82 F.C.C.2d at 9596,  19. d First, the petitioner must establish  xthat it has suffered a legal wrong or been adversely affected or "aggrieved by agency action" or  X - xjshow an "injury in fact" resulting from the challenged action.^  {OG!-  \ԍxAir Courier, 498 U.S. at 523; Telesis Corp., 68 F.C.C.2d at 699 (citing United States v. SCRAP, 412 U.S.  {O"- xYat 751; Barlow v. Collins, 397 U.S. 159; Allen v. Wright, 468 U.S. 737, 751 (1984); NAB Petition for Rulemaking,  {O"-82 F.C.C.2d at 9596,  19; see also Administrative Procedure Act, 5 U.S.C.  702.   The threatened or actual injury  X - xmust be to the petitioner,a  {OV%-ԍxWorth v. Seldin, 422 U.S. 490, 499 (1975).a whether economic, aesthetic or otherwise,!  {O&-  /ԍxSierra Club v. Morton, 405 U.S. 727, 738 (1972); Assoc. of Data Process Services v. Camp, 397 U.S. at"& ,-(-(&" 154. and must be likely to be" X!,-(-(ZZ"  X- xprevented or redressed by a favorable decision.L"\X {O -  ԍxDuke Power Co. v. Carolina Environmental Study Group, Inc, 438 U.S. 59, 74 (1978); Simon v. Eastern  {O- xKentucky Welfare Rights Organization, 426 U.S. 26, 38 (1976); NAB Petition for Rulemaking, 82 F.C.C.2d at 96,  19.L Second, the petitioner must show that it is  X- x["within the zone of interests to be protected" or regulated.#^| {O-  ԍxAir Courier, 498 U.S. at 523; Assoc. of Data Process Services, 397 U.S. at 153; Barlow, 397 U.S. at 164;  {O- xUnited States v. SCRAP, 412 U.S. 669 (1973); Telesis Corp., 68 F.C.C.2d at 699,  8; NAB Petition for  {O -Rulemaking, 82 F.C.C.2d at 96,  19 n.50.  The zone of interest test denies a  xright of review if the petitioner's interests are so marginally related to or inconsistent with the  xpurposes implicit in the statute that it cannot be reasonably assumed that Congress intended to  X-permit the suit.t$ {O -ԍxClark v. Securities Industry Assn., 479 U.S. 388, 399 (1987).t   x9. In this case, we find that Boatphone has standing. USVI's requested modification, if  xgranted, will result in an incursion into Boatphone's service area which could cause interference.  xBecause Boatphone could be adversely affected by a grant of the modification, we find that it is  x"within the zone of interests to be protected" or regulated because Section 402(b)(6) permits  xpersons who are aggrieved or adversely affected by a licensing order of the Commission to appeal  X -the action.% 4  {O-  Mԍx47 U.S.C.  402(b)(6); Clark v. Securities Industry Assoc., 479 U.S. at 396; FCC v. Sanders Bros. Radio  {O-Station, 309 U.S. 470 (1940).   x10. Having determined that Boatphone has standing to contest USVI's application, we  x.now turn to the merits of that application. USVI's proposed application is likely to increase its  x.Service Area Boundary ("SAB") so that it partially extends into an area served by Boatphone.  x=Section 22.912 of the Commission's rules, in relevant part, provides that SABs may extend into  Xy- xadjacent cellular markets if such extensions are de minimis, are demonstrably unavoidable for  x=technical reasons of sound engineering design, and do not extend into the CGSA of any other  xlicensee's cellular system on the same channel block (unless the licensee of such other licensee's  X6- xcellular system consents to the extension).&6  {Ow -ԍx47 C.F.R. 22.912(a)(1995);  Great Lakes of Iowa, Inc., 8 FCC Rcd 5572 (1993). As we have previously stated, "[a] de minimis (SAB)  xextension is a relatively small overlap of the contour into a neighboring market which is  xnecessary for engineering reasons to serve adequately the area within the contour located inside  X- xjthe market of the licensee who proposes the extension."J'&" {O$-  kԍxGreat lakes of Iowa, Inc., 8 FCC Rcd at 5573 citing Amendment of Part 22 of the Commission's Rules to  xprovide for filing and processing of applications for unserved areas in the Cellular Service and to modify other  {OX&- xcellular rules in CC Docket No. 906, #C*f9 xQ B[X#First Report and Order and Memorandum Opinion and Order on  {O"'-Reconsideration, # C\  P6QɓP#6 FCC Rcd 6185, n.23 (1991).J De minimis extensions generally do"',-(-(ZZ"  xnot become part of the licensee's CGSA, are not entitled to interference protection, and must be  X-pulled back if objectionable interference occurs to adjacent licensees.k( {Ob-ԍxWestern Maine Cellular, Inc., 7 FCC Rcd 8648 (1992).k  X-  $x11. An evaluation of whether a contour extension is de minimis begins with a  X- xdetermination of whether the proposed contour is minimal in size.)\Z yO-  ԍxWith regard to 39 dBu contour extensions, the Commission has already held that "[c]ase law guidelines for  {Oy- xservice area boundary de minimis extensions will be applied as adjusted for the [32dBu] formula. . . ." Western  {OC -Maine Cellular, Inc., 7 FCC Rcd at 8650 citing, 7 FCC Rcd 2449, 2456, n.35 (1992). ķ Consideration must also be  xgiven to the percentage size of the extension relative to the total size of the licensee's market,  x-whether the extension is the byproduct of a system designed to cover areas inside the licensee's  xmarket rather than a system designed to reach areas outside the market, and whether the border  XJ- xof the market in the vicinity of the 32 dBu contour extension is irregular in shape.*J~ {Oy-  MԍxRochester Telephone Mobile Communications, 5 FCC Rcd 3233 (1990); Florence Metronet, Inc., 5 FCC Rcd 1178 (1990). Although  X3- x{size is one consideration in determining whether a CGSA is de minimis, it is not the most  ximportant consideration. When a contour is minimal in size, the Bureau must determine whether  X - xany engineering justifications exist.g+  {O-ԍxWestern Maine Cellular, Inc., 7 FCC Rcd at 8650.g Engineering factors include the terrain and population of  xkthe area in question, the shape of the adjoining boundary, and any extenuating engineering  X -problems., j  {O-  ԍxWestern Florida Cellular Telephone Corp., 6 FCC Rcd 2032 (1991); Columbia Cellular Telephone  {O-Company, 6 FCC Rcd 1408 (1991);  Houston Cellular Telephone Company, 8 FCC Rcd 1641 (1993).   x12. We have conducted our own examination of USVI's application and the supporting  x0engineering data submitted by both parties and determined that USVI's plan to place an  xomnidirectional antenna at 35 watts on Mamey Peak is reasonable. The topography of the Virgin  xIslands is such that it cannot confine its signal to the eastern end of St. John within RSA Market  x730. USVI's tests demonstrated that when it increased the power at its Mamey Peak facility from  x8.9 to 35 watts and removed its reflector antenna, Boatphone remained the dominant cellular  x[server along much of the major eastwest highway on St. John and Coral Bay in the U.S. Virgin  X - x[Islands as well as along the entire coast of Tortola in the British Virgin Islands.L-   yO!-ԍxApril 26, 1996 Letter at 3.L The increase  x>in power did improve USVI's signal on the island of St. John, particularly along the western  X- xcoast of Coral Bay as well as in the U.S. territorial waters off the island.@.V  {O$-ԍxId. at 2.@ Our examination of  xthe data confirms USVI's claim that there is no evidence of objectionable interference at 35 watts  xin any of the locations where Boatphone's representative had requested that test measurements".,-(-(ZZ"  X-be taken.:/ {Oy-ԍxId.:  X- ` `   Ax13. We find that the public interest, convenience and necessity will be served by  xpermitting USVI to provide more reliable service in its own service area including the elimination  xof roaming charges for USVI customers for calls placed in domestic "home" territory. This  x/improved coverage will have minimal adverse effect on Boatphone's system or its ability to  xadequately serve its customers. While it is true that USVI's signal will extend into a small  xxportion of Boatphone's service area, we note that Boatphone presently places a partial signal over  xzUSVI's entire service area. We believe that granting USVI's application will serve the public  xkinterest by allowing it to provide better service to its customers. Accordingly, we will grant USVI's application and dismiss Boatphone's petition to deny.  X -*  IV. Ordering Clauses ă   4x14. Accordingly, IT IS ORDERED THAT pursuant to Section 309(d) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  309(d), and the authority delegated under  xSection 0.331 of the Commission's rules, 47 C.F.R.  0.331 and Section 22.130 of the  xCommission's rules, 47 C.F.R.  22.130, that the Petition to Deny filed by CCT Boatphone Ltd on June 26, 1992, IS DISMISSED.  X4-  S x15. IT IS FURTHER ORDERED THAT pursuant to Section 309(a) of the  xCommunications Act, as amended, 47 C.F.R.  309(a), that the application of USVI Cellular Telephone Corporation filed on May 7, 1992 IS GRANTED. x  X- hhFEDERAL COMMUNICATIONS COMMISSION  XN- hhDavid L. Furth  X7- hhChief, Commercial Wireless Division  X - hhWireless Telecommunications Bureauxx    X- 1. 1. 1. a.(1)(a) i) a) 1. 1.-*+xx x` `