FCC Record, Volume 2, No. 9, Pages 2437 to 2750, April 27 - May 8, 1987 Page: 2,494
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Federal Communications Commission Record
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2 FC dVl. 9Estanding to put itself into the competitive interplay between
the wireline permittee and non-wireline selectee
for Galveston.
7. As to HCTC's allegation of a change in the CGSA,
GTE says that it has submitted an FCC Form 489 revising
the power output from the Galveston cell site and putting
the 39 dBu contour totally within the authorized CGSA.'
GTE also states that the FCC Form 489 was filed within
60 days prior to the date provision of service to the public
is anticipated, and that a clarification issued by the Commission
did not affect the published waiver policy. Moreover.
GTE says that construction of the cell began after
permission to construct was given and, further. construction
is on schedule.
8. GTE states that it offered to allow roaming on its
Houston-Galveston system to any HCTC subscriber requesting
such service but that HCTC rejected the offer
and demanded roaming under terms and conditions dictated
by HCTC. GTE says that as far as reseller/number
transfer agreements are concerned. HCTC's headstart petition
should be dismissed because HCTC is not the nonwireline
permittee for the Galveston MSA. GTE says that
it has agreed in principle with the non-wireline selectee
in Galveston as to reseller/number transfer agreements
and is currently negotiating such terms and conditions.
GTE also alleges previous HCTC filings reflecting repeated
attempts to delay or deny the provision of cellular
service to the public and also claims that HCTC has
threatened GTE with petitions against all GTE filings
unless HCTC acquiesces to HCTC's demands and commits
to entering into agreements on terms and conditions
satisfactory to HCTC.
DISCUSSION
9. We reject HCTC's arguments. The Commission has
concluded that the public interest would best be served by
initiating service as soon as possible. Cellular Communications
Systems, 86 FCC 2d 469. 491 n.57 (1981), modified
on reconsideration. 89 FCC 2d 58, 72, 74-5 (1982). The
Commission made one limited exception to this doctrine,
however:
If . . . a non
wireline applicant can demonstrate
that permitting an early entry into the market
would not be in the public interest, we would
consider a request for a brief moratorium on
wireline cellular service. We should emphasize,
however, that general unsupported allegations of
harm will not be sufficient to delay service to the
public. [citations omitted and emphasis supplied] 89
FCC 2d at 491, n.57. The Commission also stated
that "any party requesting such a moratorium bears
a heavy burden of demonstrating that such action
would be in the public interest." 89 FCC 2d at 75,
n.32. That burden must be sustained by "specific
and compelling evidence that early wireline entry
will foreclose development of a competitive market."
89 FCC 2d at 75, CincinnatiSMSA Limited
Partnership, FCC Mimeo No. 640, at para. 11, released
Nov. 5, 1984.10. We find that HCTC is not the proper party to
submit a petition to dismiss, deny, or defer GTE's application
for a covering license in the Galveston MSA.
The headstart doctrine is intended to permit the nonwireline
licensee in Galveston to show that competition
with the wireline licensee in Galveston would be irreparably
harmed by the wireline's provision of service
earlier than the non-wireline applicant. HCTC is neither
the non-wireline tentative selectee nor an applicant for
Galveston.6
11. With respect to HCTC's allegations that GTE Mobilnet
has failed to enter into appropriate resale/roamer/and
NXX agreements, this proceeding is not the appropriate
forum in which to make such charges. The Commission
adopted resale as a safeguard to promote competition
between the wireline and non-wireline operators authorized
to serve a given market, and in doing so, it prohibited
restrictions on resale and required that the wireline
licensee "provide system capacity to non-affiliated retailers
or resellers on a non-discriminatory basis and on the
same terms and conditions as Ito] its own distribution
arm." Cellular Communications Systems. 86 FCC 2d at
510-11.7 In this case. HCTC is neither the non-wireline
tentative selectee nor an applicant for Galveston. Therefore.
to the extent that HCTC as a reseller deems that the
rates. terms. and conditions of the resale agreement proposed
by GTE violate these standards, it may submit a
formal complaint with the Commission requesting relief
under Section 208 of the Communications Act of 1934, as
amended, and Section 1.721. et seq.. of the Commission's
Rules.
12. As to whether GTE is proposing a major modification
that is subject to prior Commission authorization,
GTE's FCC Form 489 was submitted to notify the Commission
that construction had been completed, in accordance
with the construction permit and that it was ready
to commence operation of the system. The Commission
has permitted notification to be filed if the construction
permit has been partially completed. In this case, one of
the three sites previously authorized had been completed
and was ready to be place in operation; the third site was
being modified. The FCC Form 489 had a request for
amendment of one site. Permissive changes or minor
modifications of authorizations may be made without
prior Commission authorization whereas only notification
is merely required. This may be accomplished by filing a
FCC Form 489 no later than the date on which a station
starts operating with the modification. In the case of
Cellular Radio Service, a change to, or addition of a cell
site is permitted as long as the composite 39 dbu contours
remain totally within the CGSA.
13. In the case of this filing, while an error was made,
we conclude that it is of no decisional significance. It
appears that a site was being moved approximately one
mile. The antenna height was being increased, and the
power was decreased. The overall action would not have
changed the CGSA. However, when filed, the effective
radiated power ("ERP") was shown to be the same (100
Watts) as at the original site. In another section of the
amendment, it showed the ERP to be 45 Watts, which
would have kept the composite 39dbu contour inside the
CGSA. Thus, the intent to conform was there but the
mechanics were wrong. Ultimately, a correction was filed
which changed the ERP in all sections of the request for
modification to 45 Watts. (See footnote 5, supra). Thus,
there was no violation of the Rules.
14. HCTC found fault with the retention of the 100
Watts ERP, which did produce a 39 dbu contour thatexceeded the original CGSA. This resulted in an area of a
little over 9 square miles beyond the CGSA. The increase
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United States. Federal Communications Commission. FCC Record, Volume 2, No. 9, Pages 2437 to 2750, April 27 - May 8, 1987, book, May 1987; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1602/m1/63/: accessed May 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.