PUBLIC NOTICE Federal Communications Commission 445 12th St., S.W. Washington, D.C. 20554 News Media Information 202 / 418-0500 Internet: http://www.fcc.gov TTY: 1-888-835-5322 DA 13-44 Released: February 5, 2013 COMMENT SOUGHT ON AT&T REQUESTS FOR WAIVER OF CELLULAR LICENSE APPLICATION RULES CONCERNING SERVICE AREA BOUNDARY EXTENSIONS WT Docket No. 13-10 Comment Date: February 20, 2013 Reply Comment Date: March 6, 2013 By this Public Notice, the Wireless Telecommunications Bureau (“Bureau”) seeks comment on multiple requests for waiver of Sections 1.923(a)1 and 22.911(d)2 of the Commission’s Rules, filed by AT&T Mobility, LLC, a subsidiary of AT&T, Inc. (“AT&T”).3 We have received numerous applications seeking to modify existing cellular facilities licensed to AT&T.4 Each modification application involves at least one cell site with an associated SAB extension that either already overlaps or is proposed to overlap at least one existing CGSA of a neighboring cellular licensee on the same channel block. AT&T does not, however, have in hand all the requisite SAB extension agreements. AT&T asserts that it has pursued negotiations with the neighboring licensees, some resulting in an impasse (Group I applications), others with promise of success but no resolution thus far (Group II applications).5 AT&T has filed a Petition for Waiver (“Waiver Request”) with each of these applications seeking permission to continue to 1 47 C.F.R. § 1.923(a). Section 1.923(a) establishes a requirement that wireless radio service applications include “all information requested on the applicable form and any additional information required by . . . any rules pertaining to the specific service for which the application is filed.” 2 47 C.F.R. § 22.911(d). Section 22.911(d) prohibits a cellular licensee from commencing operation of any facility that would cause a service area boundary (“SAB”) “to overlap the existing [Cellular Geographic Service Area (“CGSA”)] of another cellular system on the same channel block, without first obtaining the written consent of the licensee of that system.” Section 22.911(d) permits continued operation of “existing facilities that produce an SAB overlapping a subsequently-authorized portion of the CGSA of another cellular system on the same channel block until the licensee of that system requests that the SAB be removed from its CGSA.” 3 For the purposes of this proceeding, we use the term “AT&T” herein to include all entities controlled by AT&T, Inc. that hold the licenses at issue. 4 See Appendices I and II, attached. 5 AT&T reports that the majority of SAB negotiations for applications involve proposed extensions (notably in Group I), but some involve extensions “that have existed without complaint or concern, such as may occur when AT&T seeks to document prior consents for which the written agreement cannot be found and is unable to confirm that the overlap occurs in an area that was subsequently-authorized for the affected licensee.” Group I Waiver Request at 4. See also Group II Waiver Request at 3. 2extend its existing SABs into the CGSAs of the affected neighboring licensees and to file all the applications without having the extension agreements in hand.6 Because the rule sections at issue and AT&T’s key arguments in support of the Waiver Requests are identical for every application, the Bureau is consolidating its review of the Waiver Requests and seeking comment on all of them through this Public Notice. Parties are asked to specify the AT&T application(s) (by FCC file number and call sign(s)) to which their comments pertain. Certain particulars of the Waiver Requests are outlined below. For each application in Group I, AT&T’s Petition for Waiver (“Group I Waiver Request”) contends that, despite AT&T’s repeated negotiation efforts regarding its SAB extensions, it has not been able to reach agreement with the following four licensees:7 C-Spire, including its affiliates (collectively “C-Spire”); East Kentucky Network, LLC d/b/a Appalachian Wireless (“EKN”); NE Colorado Cellular, Inc. (“NE Colorado Cellular”); and Wilkes Cellular, Inc. (“Wilkes”). AT&T describes the SAB overlaps at issue and proffers narrative summaries as well as exhibits with detailed chronologies of its communications with each of these four licensees, including the purported responses from each of them.8 For Group II, AT&T’s Petition for Waiver (“Group II Waiver Request”) claims that the modification applications reflect “existing SAB extensions that AT&T continues to negotiate . . . ,” and adds that it “does not contemplate that any technical issues will impede the execution of [the] agreements.”9 AT&T states that it has filed the subject applications while negotiations are still ongoing “in an attempt to get the cellular licenses updated as quickly as possible.”10 The neighboring licensees involved in the Group II applications are: Verizon Wireless, including entities it controls (collectively, “Verizon Wireless”); Broadpoint License Co. (“Broadpoint”); and Smith Bagley, Inc. (“Smith Bagley”). Procedural Matters Comments on the request are due no later than February 20, 2013. Reply comments are due no later than March 6, 2013. All filings should reference the docket number of this proceeding, WT 13-10. This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules.11 Persons making ex parte presentations must file a copy 6 The Commission may grant a waiver if (1) the underlying purpose of the rule would not be served or would be frustrated by application to the instant case, and that grant of the waiver would be in the public interest, or (2) because of unique or unusual factual circumstances, application of the rule would be inequitable, unduly burdensome, or contrary to the public interest, or the applicant has no reasonable alternative. 47 C.F.R. § 1.925(b). 7 Group I Waiver Request at 4. 8 See id. at 5-8 and Exhs. B (NE Colorado Cellular), C (Wilkes), D (EKN), and E (C-Spire). 9 Group II Waiver Request at 1, 4. 10 Id. at 3. 11 See 47 C.F.R. §§ 1.1200(a), 1.1206. 3of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 Fed. Reg. 24121 (1998). Comments filed through the ECFS can be sent as an electronic file via the Internet to http:// www.fcc.gov/cgb/ecfs/. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first- class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. · Effective December 28, 2009, all hand-delivered paper filings for the Commission’s Secretary must be delivered to FCC Headquarters at 445 12th St., S.W., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Envelopes must be disposed of before entering the building. The filing hours at this location are 8:00 a.m. to 7:00 p.m. 4PLEASE NOTE: The Commission’s former filing location at 236 Massachusetts Ave., N.E. is permanently closed. · Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. · U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, S.W., Washington, DC 20554. Parties are requested to send one copy of their comments and reply comments to Best Copy and Printing, Inc., Portals II, 445 12th Street, S.W., Room CY-B402, Washington, DC 20554, (800) 378-3160, e-mail FCC@BCPIWEB.com. The request, and comments and reply comments filed in response to this Public Notice are available for viewing via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number, WT 13-10. The documents also will be available for public inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. They may also be purchased from Best Copy and Printing, Inc., telephone (800) 378-3160, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail FCC@BCPIWEB.com. Alternate formats of this Public Notice (computer diskette, large print, audio recording, and Braille) are available to persons with disabilities by contacting the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY), or send an e- mail to fcc504@fcc.gov. For further information, contact Ms. Nina Shafran of the Mobility Division, Wireless Telecommunications Bureau, at (202) 418-2781 or via e-mail at nina.shafran@fcc.gov. Action by the Chief, Mobility Division, Wireless Telecommunications Bureau. - FCC - 5Appendix I Group I Applications (See Group I Waiver Request, Appendix A) C-Spire Application File No. AT&T Call Sign AT&T CMA No. Block AT&T CMA Name Neighbor Call Sign Neighbor CMA No. Neighbor CMA Name 4432369 KNKA262 CMA041 B Birmingham KNKN904 CMA307 AL 1 - Franklin 4353129 KNKA392 CMA120 B Huntsville KNKN904 CMA307 AL 1 - Franklin 4353137 KNKA403 CMA106 B Jackson KNKN995 CMA497 MS 5 - Washington 4361548 KNKN614 CMA460 B LA 7-West Feliciana KNKN757 CMA503 MS 11 - Lamar KNKN644 CMA500 MS 8 - Claiborne 4356579 KNKN761 CMA309 B AL 3 - Lamar KNKQ257 CMA498 MS 6- Montgomery 4571996 KNKN878 CMA501 B1 MS 9 - Copiah KNKQ311 CMA502 MS 10 - Smith KNKN757 CMA503 MS 11 - Lamar KNKN644 CMA500 MS 8 - Claiborne 4848163 KNKN961 CMA495 B2 MS 3 - Bolivar KNKN885 CMA495 MS 3 - Bolivar 4365241 KNKQ269 CMA496 B1 MS 4 - Yalobusha KNKQ257 CMA498 MS 6- Montgomery 4353773 KNKQ394 CMA496 B2 MS 4 - Yalobusha KNKN885 KNKQ300 CMA495 CMA493 MS 3 – Bolivar MS 1 - Tunica 4402257 KNKQ276 CMA307 B2 AL 1 - Franklin KNKN904 CMA307 AL 1 - Franklin 4595564 KNKQ309 CMA498 B1 MS 6 - Montgomery KNKQ257 CMA498 MS 6- Montgomery 4353427 KNKQ368 CMA502 B2 MS 10 - Smith KNKQ311 CMA502 MS 10 - Smith 4345837 KNKQ395 CMA500 B2 MS 8 - Claiborne KNKN644 CMA500 MS 8 - Claiborne EKN Application File No. AT&T Call Sign AT&T CMA No. Block AT&T CMA Name Neighbor Call Sign Neighbor CMA No. Neighbor CMA Name 4862565 KNKN791 CMA681 B VA 1 - Lee KNKN880 CMA451 KY 9 - Elliott KNKN809 CMA452 KY 10 - Powell NE Colorado Cellular Application File No. AT&T Call Sign AT&T CMA No. Block AT&T CMA Name Neighbor Call Sign Neighbor CMA No. Neighbor CMA Name 4360447 KNKA348 CMA019 A Denver - Boulder KNKN327 CMA349 CO 2 - Logan KNKR307 CMA352 CO 5 - Elbert 4352640 KNKA649 CMA243 A Greeley KNKN327 CMA349 CO 2 - Logan 4952609 KNKN448 CMA352 A CO 5 - Elbert KNKN327 CMA349 CO 2 - Logan KNKR307 CMA352 CO 5 - Elbert Wilkes Application File No. AT&T Call Sign AT&T CMA No. Block AT&T CMA Name Neighbor Call Sign Neighbor CMA No. Neighbor CMA Name 4366187 KNKN875 CMA374 B3 GA 4 - Jasper KNKN874 CMA374 GA 4 - Jasper 4359553 KNKN901 CMA377 B1 GA 7 - Hancock KNKN874 CMA374 GA 4 - Jasper 4361591 KNKN958 CMA374 B1 GA 4 - Jasper KNKN874 CMA374 GA 4 - Jasper 6Appendix II Group II Applications (See Group II Waiver Request, Appendix A) App. No. AT&TCall Sign AT&T CMA No. Block AT&T CMA Name Neighbor Call Sign Neighbor CMA No. Neighbor CMA Name Neighbor 4973763 KNKA472 CMA096 A Fort Wayne, IN KNKA707 KNKN852 CMA158 CMA588 Lima, OH OH 4-Mercer Verizon Wireless 5029109 KNKA605 CMA285 A Las Cruces, NM KNKA321 WQGM465 CMA081 CMA555 El Paso, TX NM 3-Catron Verizon Wireless 4984411 KNKA686 CMA184 A Houma KNKA411 CMA306 Gulf of Mexico Broadpoint 4857416 KNKA823 CMA207 A Jackson, MI KNKA244 KNKA365 CMA005 CMA078 Detroit/Ann Arbor, MI Lansing-E. Lansing, MI Verizon Wireless 5029092 KNKN206 CMA322 A AZ 5–Gila KNKA340 KNKR292 KNKQ379 CMA077 CMA077 CMA319 Tucson, AZ Tucson, AZ AZ 2-Coconino Verizon Wireless 5052335 KNKN214 CMA544 A NV 2-Lander KNKN224 CMA543 NV 1-Humboldt Verizon Wireless 4952600 KNKN283 CMA530 A MT 8- Beaverhead KNKR311 CMA720 WY 3-Lincoln Verizon Wireless 5000972 KNKN286 CMA678 A UT 6-Piute KNKQ379 CMA319 AZ 2-Coconino Verizon Wireless 4917209 KNKN296 CMA405 A IN 3-Huntington KNKA707 KNKN852 CMA158 CMA588 Lima, OH OH 4-Mercer Verizon Wireless 4930384 KNKN312 CMA718 A WY 1-Park KNKR311 CMA720 WY 3-Lincoln Verizon Wireless 5029078 KNKN409 CMA356 A CO 9-Costilla KNKA764 CMA241 Pueblo, CO Verizon Wireless 4957751 KNKN432 CMA526 A MT 4-Daniels KNKR256 CMA525 MT 3 - Phillips Verizon Wireless 5069758 KNKN440 CMA408 A IN 6-Randolph KNKA344 CMA040 Dayton, OH Verizon Wireless 5021516 KNKN270 CMA553 A NM 1-San Juan KNKR316 CMA553 NM 1 - San Juan Smith Bagley