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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 ) ) AB Fillins ) ) Petition for a Declaratory Ruling) Preempting the Authority of the Tohono O'odham)File No.-- CWD 96-15 Legislative Council to Regulate the Entry of) Commercial Mobile Radio Service to the Sells) Reservation Within the Tucson MSA,) Market No. 77 ) ) Application for Phase 1 ) Major Modification )File No. -- 06436-CL-MP-95 Tucson, AZ MSA ) Mkt. No. 77 (B2) ) ) Tohono O'odham Utility ) Authority ) ) Application for a Construction Permit) to Construct and Operate a Cellular Radio) Telephone System in the Domestic Public)File No.-- MSD-94-9 Cellular Radio Telecommunications Service in) the Unserved Area in the Tucson, Arizona) Metropolitan Statistical Area, Market No. 77,) Request for Waiver of Section 22.31) MEMORANDUM OPINION AND ORDER Adopted:July 2, 1997 Released:August 1, 1997 By the Commission: TABLE OF CONTENTS Paragraph I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . .1 II. EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . .3 III. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . 10 IV. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . 10 A. AB Fillins' Petition for Declaratory Ruling . . . . . 10 B. TOUA's Request for Waiver of the Commission's Mutual Exclusivity and Random Selection Rules . . . . . . . . . . . . . . . 19 C. Modification Application of AB Fillins. . . . . . . . 33 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 VI. ORDERING CLAUSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 I. INTRODUCTION 1. This Order addresses a Request for a Declaratory Ruling filed by AB Fillins asking that the Commission preempt the authority of the Tohono O'odham Legislative Council (the Council) and its Utility Authority (TOUA) to regulate the entry of any Commercial Mobile Radio Service (CMRS) to the Sells Indian Reservation. The Sells Reservation lies within the unserved area in the Tucson Metropolitan Statistical Area (MSA) No. 77B. This Order also addresses two outstanding issues related to this request: TOUA's 1994 request for waiver of the Commission's mutual exclusivity and random selection rules for cellular, and TOUA's Petition to Dismiss or Deny AB Fillins' pending Application for Phase 1 Major Modification for Tucson MSA No. 77B. For the reasons discussed below, we deny AB Fillins' Petition for Declaratory Ruling, deny TOUA's Request for Waiver, and grant in substantial part TOUA's Petition to Dismiss or Deny AB Fillins' Modification Application. II. EXECUTIVE SUMMARY 2. AB Fillins filed a Request for a Declaratory Ruling asking the Commission to preempt the authority of the Tohono O'odham Legislative Council and its Utility Authority (TOUA) to regulate the entry of any CMRS to the Sells Indian Reservation. The Sells Reservation lies within the unserved area in the Tucson Metropolitan Statistical Area (MSA) No. 77B. In related filings also addressed in the Order, TOUA requested waiver of the Commission's mutual exclusivity and random selection rules for cellular, and filed a Petition to Dismiss or Deny AB Fillins' pending Application for Phase 1 Major Modification for Tucson MSA No. 77B. In the Memorandum Opinion and Order: We deny AB Fillins' Petition for Declaratory Ruling on the ground that the Tohono O'odham Legislative Council is neither a state nor a local government under the preemption provisions of the Communications Act. We deny TOUA's Request for Waiver because the request does not meet our public interest standard and such a grant would fundamentally undermine the Commission's well established and carefully conceived cellular licensing framework. We grant in substantial part TOUA's Petition to Dismiss or Deny AB Fillins' Modification Application to the extent that it requests us to deny authorization for AB Fillins to construct three proposed sites located on TOUA's tribal lands. III. BACKGROUND 3. In adopting our cellular rules, including those related to the provision of service in unserved areas, our overriding goal was the creation of a seamless and integrated nationwide cellular service. In addition, we strove to make cellular service available to the public as expeditiously as possible, while at the same time ensuring the integrity of our licensing process and providing the widest possible opportunity for participation by all qualified candidates. We adopted rules through a series of proceedings which we believe struck a fair balance to accomplish all of those goals. 4. The Tohono O'odham Nation (the Nation) is a federally recognized Indian tribe organized under Section 16 of the Indian Reorganization Act of 1934, 25 U.S.C.  476. The legislative authority of the Nation is vested in its governing body, the Council. The Nation has sovereign authority over all lands within the Sells Reservation, a 5,000 square mile reservation in south central Arizona. Title to the tribal lands comprising the Reservation is held in trust by the United States for the benefit of the tribe. If a non-member wishes to lease these lands, tribal procedure dictates that approval must be obtained from the local tribal district council, the Legislative Council, and the Secretary of the U.S. Department of the Interior. 5. The Council created the TOUA in the 1970s to provide utility services within the boundaries of the Sells Reservation. In January 1992, the Council entrusted the TOUA with the exclusive power to initiate, operate, provide, and acquire cellular radio services and facilities within the Sells Reservation. No cellular service is currently being provided to the major portions of the Sells Reservation. 6. TOUA and AB Fillins filed applications during the Phase 1 licensing window to obtain licenses to provide cellular service in the unserved area of Tucson MSA No. 77B, within which the Sells Reservation lies. In a Petition for Waiver filed in February 1994, TOUA claimed that almost half of the applications filed during the Phase I licensing window proposed unauthorized cell sites on its tribal lands, and that the remaining applicants could not offer service on the Sells Reservation. Arguing that, therefore, no other applicant proposed valid service contours mutually exclusive with the TOUA proposal, TOUA sought waiver of then existing Sections 22.31 and 22.33 of the Commission's Rules, which required the Commission to use random selection to choose among mutually exclusive applications for licenses. Alternatively, TOUA sought interim operating authorization to allow it to construct a cellular system and provide much-needed cellular service to the residents of the Sells Reservation. TOUA's petition was opposed by two groups of cellular applicants for the Tucson MSA unserved area. 7. The Commission conducted a lottery for the Tucson MSA No. 77B unserved area license in November 1994. AB Fillins was the lottery winner, and its application for a construction permit was granted by the Commission in May 1995 without objection by TOUA. 8. AB Fillins filed a timely Application for Major Modification for authorization to modify its cellular system by adding eight cell sites. Three of the sites proposed by AB Fillins in its application are located within the Sells Reservation. TOUA filed a Petition to Dismiss or Deny AB Fillins' modification application in January 1996 as to the three sites located on tribal lands. 9. On April 11, 1996, we granted special temporary authority to AB Fillins to operate two cell sites located outside the Sells Reservation. We understand that AB Fillins has recently commenced operations in portions of the Tucson MSA No. 77B under this authority. In June 1996, in an effort to complete its cellular system and settle the above pending issues, AB Fillins filed a Petition for Declaratory Ruling requesting that the Commission preempt the authority of the Legislative Council to regulate the entry of any CMRS to the Sells Reservation. TOUA opposed this Petition. IV. DISCUSSION A. AB Fillins' Petition for Declaratory Ruling 10. On June 3, 1996, AB Fillins filed a Petition for Declaratory Ruling requesting that the Commission issue a declaratory ruling preempting the authority of the Tohono O'Odham Legislative Council to regulate the entry of any CMRS to the Sells Reservation. 11. We find that the Legislative Council is neither a state nor a local government under the preemption provisions of the Communications Act. Thus, the Legislative Council's decision to prevent the location of cell sites on Reservation lands is within its authority as a landowner. As discussed further below, federal policies and related case law favoring self-government and economic development for Native Americans support the sanctity of tribal possessory rights. Pursuant to these principles, the lands of the Sells Reservation, a tribal asset, can ordinarily rightfully be leased only upon reaching agreement with the tribe. We believe that nothing in the Communications Act displaces these established principles of law. 12. AB Fillins argues that Section 332(c)(3)(A) of the Communications Act, as enacted in 1993, preempts state and local entry regulation of CMRS, and that Section 332(c)(7)(B), as amended by Section 704 of the 1996 Telecommunications Act, prohibits any state or local regulation of the placement of transmitting facilities that serves to prohibit the provision of personal wireless services. 47 U.S.C.  332(c)(3)(A), 332(c)(7)(B). AB Fillins reasons that the Council's authority to exclude cellular providers from Reservation lands is divested expressly by Section 332, as amended, or alternatively, by implication as a result of the comprehensive national regulatory scheme underlying the provision of cellular service. In addition, AB Fillins cites new Section 253(a), added by the 1996 Act, and argues that in this provision, Congress gave the Commission the express authority to preempt any regulation or requirement that prohibits the provision of telecommunications services. 47 U.S.C  253(a). 13. AB Fillins argues that Native American sovereign rights are subject to Congressional power and can be divested by federal law or when the exercise of sovereignty "would be inconsistent with the overriding interests of the National Government," citing Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 153 (1980). AB Fillins also argues that Native American tribal governments are subject to the Commission's plenary jurisdiction under Title III of the Communications Act, and that notions of tribal sovereignty do not exempt these bodies from the Commission's rules. Indeed, AB Fillins notes that the Nation itself, acting through TOUA, has invoked both the Commission's licensing and adjudicatory processes. 14. TOUA notes in opposition that it has never questioned the Commission's licensing authority. It therefore argues that AB Fillins' petition should be dismissed as failing to show the existence of a "case or controversy." TOUA also claims that AB Fillins confuses the Council's actions as a landowner with what AB Fillins mistakenly portrays as "regulation" of CMRS market entry. TOUA explains that tribal lands are either held in trust by the United States for the benefit of the tribe or are held directly by the tribe. In either case, the lands cannot be leased without the consent of the tribe. Therefore, TOUA argues, even if it were considered a State or local government under the Communications Act, its actions are not similar to the zoning regulations and decisions that are governed by Section 332(c)(7). Rather, the more relevant provision is Section 704(c) of the 1996 Act, under which States are merely "encouraged" to make property that they control available for siting purposes. Finally, TOUA observes that the Courts, not the Commission, are given jurisdiction over most disputes arising under Section 332(c)(7). 15. It is undisputed that several sections of the Communications Act preempt State and local authority. Under Section 332(c)(3)(A), State and local governments may not regulate the entry of CMRS. Under Section 332(c)(7), State or local regulation of the placement of transmitting facilities may not operate to prohibit the provision of personal wireless services. In addition, under new Section 253, added by the 1996 Act, Congress directed us to preempt any State or local regulation or requirement that prohibits any entity from providing any telecommunications service. 16. While the Commission has not yet had the opportunity to fully interpret these preemption provisions, it is clear that each of them applies only to actions by state and local governments. Section 332(c)(3)(A) refers to "State and local governments." 47 U.S.C.  332(c)(3)(A). Section 332(c)(7) refers to the authority of a "State or local government or instrumentality thereof." 47 U.S.C.  332(c)(7). Section 253(a) refers to "State or local statute or regulation, or other State or local legal requirement." 47 U.S.C.  253(a). The term "State" is defined in Section 3(40) as including "the District of Columbia and the Territories and possessions." 47 U.S.C.  153(40). The term "local government" is not defined in the Act. Significantly, nothing in the text of the Act or its legislative history suggests that either of these terms was intended to include Indian reservations or tribal lands. 17. We have never addressed the specific question of whether tribal governments are "state or local governments" under the Communications Act. However, in construing whether Congress intended the "State-conducted" exception to the general lottery prohibition in 18 U.S.C.  1307(a) to apply to lotteries conducted by Indian tribal authorities, the Commission found that Indian reservations and tribal governments do not come within the definition of the term "state." We are unaware of any case in which the courts have construed an Indian reservation or its tribal authority to be a "state or local government." 18. It is well settled that Congress has the plenary political power to displace Native American jurisdiction over tribal relations and tribal territory. Nowhere in the Communications Act or any other statute, however, has Congress expressed the intent either to preempt tribal regulation of cellular service or to give the Commission the power to do so. To the contrary, to the extent that Sections 332(c)(3), 332(c)(7)(B), and 253 expressly preempt certain regulation, as noted above, they do so only with respect to "State or local government." 47 U.S.C.  332(c)(3), 332(c)(7)(B), 253. In general, federal policy favors the strengthening of tribal self-government. Thus, "a proper respect both for tribal sovereignty itself and for the plenary authority of Congress" has caused the courts to hesitate to imply any preemption of tribal authority absent an express statement of legislative intent. The same principles of respect for tribal and Congressional authority lead us, in the absence of a clear Congressional authorization, to decline to preempt Native American power over tribal lands. For these reasons, we deny AB Fillins' request for declaratory ruling. B. TOUA's Request for Waiver of the Commission's Mutual Exclusivity and Random Selection Rules (formerly 47 U.S.C.  22.31 and 22.33) 19. On February 16, 1994, TOUA filed a Request for Waiver asking us to waive then-existing Sections 22.31 and 22.33 of our Rules, 47 C.F.R.  22.31, 22.33, and grant its pending application to construct and operate a cellular system on the Sells Reservation in the unserved area of Tucson MSA No. 77B. In the alternative, TOUA requested interim operating authority to provide cellular service to the Reservation. This waiver request was put on Public Notice on March 1, 1994. Based on TOUA's exclusive right, as granted to it by the Council, to provide cellular service to the Reservation, TOUA requests waiver of the mutual exclusivity and random selection rules, removal of its application from the lottery, and grant of its application to provide cellular service to the Reservation. TOUA argues that grant of its waiver request will not frustrate the Commission's goals and will have no effect on those applicants not proposing a site on the lands belonging to the Sells Reservation. 20. We find that TOUA's waiver request does not meet our public interest standard. TOUA's request for waiver essentially asks that we allow TOUA to override the established licensing process and redefine the existing MSA and RSA markets. Grant of the waiver in this case thus would fundamentally undermine the Commission's well-established and carefully conceived cellular licensing framework. 21. In its request, TOUA argues for a waiver of then-existing Sections 22.31 and 22.33 of the Commission's Rules. Under these Commission rules, the MSA No. 77B unserved area applications were deemed mutually exclusive and subject to licensing by random selection. TOUA seeks exemption from the mutual exclusivity and random selection rules under the waiver standard of then-existing Section 22.19 of the Commission's rules, arguing that 1) grant of the request will not frustrate the purposes of the rules, 2) the public interest supports grant of the waiver, and 3) the unique circumstances surrounding the use of tribal land warrant grant of the waiver. 22. TOUA's argument is based on the theory that many of the applicants for the unserved area proposed cell sites located on the Sells Reservation. TOUA notes that these sites are unavailable to these applicants under the Legislative Council's 1992 action granting TOUA the exclusive right to provide cellular service on the Reservation. As a result, TOUA reasons that none of these applicants can obtain reasonable assurance of cell sites on the Reservation as required by then-existing Section 22.15(a)(1) of the Commission's Rules. By affidavit, TOUA notes that it has expressly denied every request for such sites. TOUA argues that the competing applications should therefore be dismissed as defective. 23. Comments opposing the waiver request were filed by two groups of unserved area cellular applicants for Tucson MSA No. 77B (the "Cell Tel Applicants" and the "AB Fillins Applicants"). Comments in support of the waiver request were filed by US WEST NewVector Group, Inc., the general partner of the TuCell Limited Partnership, the licensee of the block B cellular system in the Tucson MSA and an unserved area applicant in Tucson MSA No. 77B; and also by Valley Telecommunications Company, general partner of the Southeast Arizona Cellular Wireless Limited Partnership (SACWLP), the licensee of the block B cellular system in Arizona RSA No. 6 and an unserved area applicant in Tucson MSA No. 77B. 24. The Cell Tel Applicants argue that they share TOUA's desire to serve the Sells Reservation and other unserved portions of Tucson MSA No. 77B. Thus, they argue that all the applications pending before the Commission for this market must be deemed mutually exclusive. These applicants argue that the Nation's decision to grant exclusive authority to TOUA to provide cellular service on the Reservation is inconsistent with the Communications Act, which grants the FCC exclusive authority to regulate transmission of radio signals, and with the Commission's cellular licensing structure. They also argue that the Commission has a statutory obligation under Ashbacker Radio Corporation v. FCC, 326 U.S. 327 (1945) (Ashbacker) to accord equal treatment to similarly situated applicants. In addition, they claim that TOUA's assumption that a cell site on the Reservation is necessary to serve the area is flawed. The applicants request denial of TOUA's waiver request or, alternatively, that a Commission decision be held in abeyance pending the Commission's final decision regarding competitive bidding rules for unserved areas and designation of a tentative selectee for the Tucson MSA No. 77B unserved area. 25. Similarly, the AB Fillins Applicants argue that the Tohono O'odham Nation lacks the statutory power to grant a cellular franchise to TOUA and that the Nation's actions are subject to federal preemption. They also raise Ashbacker concerns. Furthermore, they claim that TOUA will not provide crucial roaming service. They therefore argue that grant of the request would be detrimental to the public interest as the cellular regulatory structure was intended to provide seamless nationwide coverage to roamers as well as local subscribers. 26. In reply, TOUA notes that it does not question the Commission's exclusive jurisdiction over licensing of radio facilities. TOUA acknowledges that the Tohono O'odham Nation has sought and continues to seek licensing authorization from the Commission. TOUA argues that it is properly exercising its sovereign property rights (as granted to it by the Legislative Council) and that it will give no other applicant an assurance of cell site availability on Reservation lands. TOUA rejects applicants' preemption claims, noting that unlike "states and municipalities," the Nation has sovereign property rights throughout the lands comprising the Sells Reservation. 27. In addition, TOUA disputes the applicants' claim that a licensee could serve virtually all of the Reservation from cell sites located outside the Reservation. Therefore, TOUA dismisses applicants' Ashbacker arguments, reiterating its claim that, because it alone can locate cell sites on Reservation land, no applicant is similarly situated with TOUA for purposes of an Ashbacker analysis. TOUA also rejects the applicants' claim that it will not provide service to roamers. In this respect, it urges the Commission to consider its cooperative involvement in common carriage service to and from the Reservation and its more recent involvement in a settlement concerning cellular service in Arizona RSA 5-Gila, an area that encompasses other tribal lands. 28. The Commission may waive any provision of its rules or orders if good cause is shown. A showing of good cause requires a petitioner to demonstrate special circumstances that warrant deviation from the rules or orders, and to show how such deviation would serve the public interest. Under the Commission's waiver rules, a petitioner must clearly demonstrate that the general rule is not in the public interest when applied to its particular case, that the grant of the waiver will not undermine the public policy served by the rule, and that the unique facts and circumstances presented render application of the rule inequitable. 29. We find that the record contains conflicting evidence as to whether the Sells Reservation can or cannot be served by cell sites located outside of its boundaries. However, as discussed below, under the public interest waiver standard, the Commission cannot grant TOUA's request, or TOUA's alternative request for interim operating authority. 30. While, as noted above, the Commission recognizes that federal statutes have fostered tribal self- government and economic development, these policies do not, by themselves, justify abrogation of the Communications Act or the rules adopted by the Commission pursuant to the Act. It is undisputed that under the Act the Commission has the sole authority to license and certify carriers wishing to operate cellular systems. Section 301 of the Act makes clear that a major purpose of the Act is to "maintain the control of the United States over the channels of radio transmission." In order to further these Congressional directives, the Commission promulgated its cellular unserved area rules, which provide that all applications specifying the same MSA or RSA are to be considered mutually exclusive and the licensee determined by lottery. 47 C.F.R.  22.131. 31. Under well-established case law construing Indian treaties and tribal self-government, it is clear that when Congress passes a law which is applicable nationwide, the law applies with equal force to Native Americans on reservations, subject to three well defined exceptions--Native Americans have the exclusive right to self-governance 1) over intramural matters; 2) where rights are guaranteed to them by treaty; and 3) if Congress expressly states that a law does not apply to them. None of these exceptions are applicable to radio frequency management, and more particularly the Commission's cellular licensing scheme. 32. To allow Native Americans to exercise independent spectrum management authority and exempt them from the national cellular licensing scheme would clearly thwart the legislative intent underlying the Communications Act and the policies served by our cellular licensing rules. It is not in the public interest for TOUA to carve an additional market out of the Tucson MSA made up of the lands encompassing the Sells Reservation. Under the principles of Ashbacker Radio Corp. v FCC, 326 U.S. 327 (1945) and its progeny, the Supreme Court has made clear that the Commission must use the same set of procedures to process the applications of all similarly situated persons who come before it seeking the same license. Although under existing law the Tohono O'odham Nation maintains authority to control the occupation and use of tribal lands, and therefore can deny cell sites to the Commission's licensee, it does not have the additional power to displace the Commission's licensing process. For these reasons, we deny TOUA's request for waiver and its alternative request for interim operating authorization. C. Modification Application of AB Fillins 33. After being named the lottery winner for MSA No. 77B and receiving a construction permit from the Commission, AB Fillins filed a timely Application for Phase I Major Modification. Three of the proposed cell sites in the modification application are located on Sells Reservation lands. On January 11, 1996, TOUA filed a Petition to Dismiss or Deny this modification application with respect to the three proposed cell sites on the Sells Reservation. TOUA claims that the modification application is defective and should be dismissed, arguing that AB Fillins lacked reasonable assurance of site availability for these three sites as required by Section 22.115(a)(1), 47 C.F.R  22.115(a)(1) (then-existing Section 22.15(a)(1), 47 C.F.R.  22.15(a)(1)), of the Commission's Rules. In its petition, TOUA also requests that the Commission take immediate action on its Request for Waiver, and reinstate nunc pro tunc, and process as a Phase II application, its March 24, 1993, application to construct and operate a cellular system in the portion of the unserved area of MSA No. 77B made up of tribal lands comprising the Sells Reservation. 34. AB Fillins requests the dismissal of TOUA's petition. First, AB Fillins argues that TOUA lacks standing to challenge its modification application. AB Fillins notes that the Commission dismissed TOUA's Phase I application in May 1995. It argues that although TOUA later resubmitted its application, this resubmitted application does not form a basis for standing because it is defective on its face and cannot be accepted for filing. AB Fillins also notes that TOUA made no effort to plead the required elements of standing in its petition. Addressing the merits, AB Fillins claims that contrary to the assertions of TOUA, AB Fillins took the proper and required steps to obtain reasonable assurance of site availability. Indeed, it states further, by way of affidavit, that TOUA assisted AB Fillins in obtaining such assurance. Lastly, AB Fillins argues that Section 704 of the 1996 Telecommunications Act, 47 U.S.C  332(c)(7)(B)(i), preempts TOUA's authority to prohibit AB Fillins from constructing cellular facilities within the Sells Reservation. 35. Section 22.115 of the Commission's Rules, 47 C.F.R.  22.115(a)(1), requires that a cellular license applicant have reasonable assurance of the availability of its proposed cell sites at the time of filing its application. In construing this requirement, we have held that it is incumbent upon the applicant to determine that there is space available on an existing building or tower, or in the case of a new structure, that the property is available for such use and that it is reasonable to anticipate that such use will be permitted. To demonstrate a reasonableness of anticipation, the applicant must show that a firm understanding has been reached to permit use of the site in the event he or she is granted a license. At a minimum, "a meeting of the minds resulting in some firm understanding as to the site's availability is essential." 36. To allow an applicant to assume that a site is available without establishing the necessary contract or firm understanding would disrupt the Commission's licensing process and penalize those applicants who actually made arrangements or entered into agreements demonstrating reasonable assurance of site availability prior to filing their applications. Based on the record before us, we conclude that AB Fillins did not have reasonable assurance of site availability with respect to the three sites on tribal lands when it filed its application. For this reason and given the decisions we reach above with respect to AB Fillins' preemption claims, we grant TOUA's Petition to Dismiss or Deny AB Fillins' modification application to the extent that it requests us to deny authorization for AB Fillins to construct the three proposed sites located on TOUA's tribal lands. We therefore deny AB Fillins' Application for Phase I Major Modification. However, for the reasons discussed above with respect to TOUA's Request for Waiver, we deny TOUA's Petition to Dismiss or Deny to the extent it requests us to grant its Request for Waiver and reinstate its application to construct and operate a cellular system. V. CONCLUSION 37. We find that TOUA's decision to prevent the location of cellular sites on Reservation lands is within its authority as a landowner because the Tohono O'odham Nation (acting through TOUA) is neither a state nor a local government within the meaning of the Communications Act. However, we also find that allowing TOUA to exercise independent spectrum management authority and exempt the Sells Reservation from our national licensing scheme would thwart the legislative intent underlying the Communications Act. Accordingly, for the reasons discussed above, we deny AB Fillins' Petition for Declaratory Ruling, deny TOUA's Request for Waiver, grant TOUA's Petition to Dismiss or Deny AB Fillins' Modification Application to the extent it requests us to deny authorization for AB Fillins to construct the three proposed sites located on TOUA's tribal lands, and deny AB Fillins' Application for Phase I Major Modification. VI. ORDERING CLAUSES 38. Accordingly, IT IS ORDERED that AB Fillins' Petition for Declaratory Ruling is DENIED. 39. IT IS FURTHER ORDERED that TOUA's Request for Waiver of Sections 22.31 and 22.33 is DENIED. 40. IT IS FURTHER ORDERED that TOUA's Petition to Dismiss or Deny AB Fillins' Modification Application is GRANTED to the extent described above. 41. IT IS FURTHER ORDERED that AB Fillins' Application for Phase I Major Modification is DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary