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Packet for BZA 07-28-97
Carmel Board of Zoning Appeals Application for Special Use Docket No. UV-30-97 750 East 106th Street Westel-Indianapolis Company d/b/a Cellular One July 28, 1997 APPLICATION FOR SPECIAL USE Westel-Indianapolis Company d/b/a Cellular One ■ Westel-Indianapolis Company d/b/a Cellular One ■ Public Utility Providing Commercial Mobile Radio Communication Services ■ Licensed by Federal Communications Commission (FCC) ■ Certified by Indiana Utility Regulatory Commission (IURC) ■ Law Requires Adequate/Reliable Service ■ Need For And Location Of Antenna Is Dictated By Use/Engineering Requirements ■ Present Today James A.L. Buddenbaum, Parr Richey Obremskey & Morton Jeffrey Kellerman, Westel-Indianapolis Company d/b/a Cellular One CITY OF CARMEL-CLAY TOWNSHIP HAMILTON COUNTY, INDIANA APPLICATION FOR BOARD OF ZONING APPEALS ACTION SPECIAL USE APPROVAL REQUEST DOCKET NO.: UV-30-97 DATE RECEIVED: 1) Applicant: WESTEL-INDIANAPOLIS COMPANY, d/b/a CELLULAR ONE Address: 8888 Keystone Crossing, Suite 300, Indianapolis, Indiana, 46250 2) Project Name: N/A Phone: (317)581-2507 Engineer/Architect: Weihe Engineers, Inc. Phone: (317)846-6611 Attorney: Larry J. Wallace/ Phone: (317)269-2500 James A.L. Buddenbaum, Fax: (317)269-2514 3) Applicant's Status: (Check the appropriate response) X (a) The applicant's name is on the deed to the property (b) The applicant is the contract purchaser of the property (c) Other: 4) If Item 3) (c) is checked, please complete the following: Owner of the property involved: Westel-Indianapolis Company, d/b/a Cellular One Owner's address: 8888 Keystone Crossing, Suite 300 Phone: (317)581-2507 Indianapolis, Indiana 46250 5) Record of Ownership: Deed Book No./Instrument No. Instrument#9653499 Page: n/a Purchase Date: December 9,.1996 6) Common address of the property involved: 750 East 106th Street Legal description: Land Description Parcel I: Lot 126 in Orin Jessup Land Company's Addition to Home Place, in Hamilton County, Indiana, as per plat thereof, recorded in Deed Record 103, page 21 in the Office of the Recorder of Hamilton County, Indiana. Parcel II: Lot 127 in Orin Jessup Land Company's Addition to Home Place in Hamilton County, Indiana, as per plat thereof, recorded in Deed Record 103, page 21 in the Office of the Recorder of Hamilton County, Indiana. EXCEPT nine and one-half(91/2) feet by parallel lines off the entire West side thereof. Subject to a statutory easement for the Home Place Regulated Drain. Subject to all legal easements and rights-of-ways. Tax Map Parcel No.: 17-13-01-03-06-013.000; 17-13-01-03-06-012.000 7) State explanation of requested Special Page 1 of 8-Special Use Application Use.: Applicant is a federally licensed and State of Indiana certified provider of public utility mobile radio communications service to the public. Applicant filed an application for a variance of use (Docket No. UV-30-97) on March 6, 1997 and sought variance from Sections 13.1 and 13.2 (B-2/Business District) of the City of Carmel Zoning Ordinance for the construction and maintenance of an 80' commercial radio antenna structure and fully automated radio equipment building. The Variance of Use application was originally scheduled to be heard, after proper notice to the public and adjacent property owners, on April 28, 1997. On April 28, 1997, the application was tabled by the Board of Zoning Appeals pending the consideration and adoption by the Common Council of the City of Carmel of an ordinance to regulate the siting of wireless telecommunications facilities. On July 11, 1997, the Common Council of the City of Carmel passed Ordinance No. Z-320, which amended the City of Carmel Zoning Ordinance to regulate the siting of wireless telecommunications facilities in conformity with the Federal Telecommunications Act of 1996 and the 2020 Vision Comprehensive Plan. Section 23.13.5 of the amended Zoning Ordinance provides that any applicant for a variance of use to erect a tower which is pending before the Board of Zoning Appeals on the effective date of the amendatory ordinance may request that the board treat such variance application as if it were a special use or special exception application in accordance with Section 21.4.1 (special uses) or Section 21.4.2 (special exceptions), as added by the amendatory ordinance. On July 15, 1997, applicant made formal request of the Board of Zoning Appeals that it treat its previously filed Application for Variance of Use, Docket No. UV-30-97, as an Application for Special Use as permitted under Zoning Ordinance Section 23.13.5. Applicant requests that the Board of Zoning Appeals, in accordance with Section 21.4.1 of the City of Carmel Zoning Ordinance, consider and approve this Application for Special Use for the construction and maintenance of an 80' commercial radio antenna structure and fully automated radio equipment building as a "tower" which is a permitted Special Use in B-2 Business Districts under Section 13.2 of the City of Carmel Zoning Ordinance, as amended by Ordinance No. Z-320. 8) State reasons supporting the Special Use: (Additionally, complete the attached question sheet entitled "Findings of Fact -Special Use").: See Attached Detailed Description of Proposed Special Use. 9) Present zoning of the property (give exact classification): B-2 I Business 10) Present use of the property: Light Commercial Industrial Warehouse Type Building 11) Size of lot/parcel in question: .2513 acres 12 Describe the proposed use of the property: See Attached Detailed Description of Proposed Special Use. 13) Is the Property: Owner occupied Yes Renter occupied Other 14) Are there any restrictions, laws, covenants, variances, special uses, or appeals filed in connection with this property that would affect its use for the specific purpose of this application? If yes, give date and docket number, decision rendered and pertinent explanation. This Application for Special Use was filed as an Application for Variance of Use, Docket No. UV-30- 97, on March 6, 1997. In addition, an Application for Appeal Request, Docket No. A-33-97, pertaining to an administrative determination, was filed on March 6, 1997. Both the Application for Variance of Use and Application for Appeal Request were tabled by the Board of Zoning Appeals at its April 28, 1997 meeting. On July 15, 1997, applicant formally requested that the Board of Zoning Appeals treat the Application for Variance of Use as an Application for Special Use, as permitted pursuant to Page 2 of 8-Special Use Application Section 25.13.5 of the City of Cannel Zoning Ordinance, as amended by Ordinance Z-320. 15) Has work for which this application is being filed already started? If answer is yes, give details: No. Building Permit Number: N/A Builder: N/A 16) If proposed special use is granted,when will the work commence? 30 days after approval 17) If the proposed use is granted, who will operate and/or use the proposed improvement for which this application has been filed? Westel-Indianapolis Company, d/b/a Cellular One. PARR RICHEY OBREMSKEY & MORTON DAVID S. RICHEY ATTORNEYS AT LAW W.H. PARR (1876-1967) PETER L. 0eREMSKEY ALLEN PARR (1910-1959) Don F. MORTON 1000 MARKET TowER W.H. PARR, JR. (1903-1988) KENT M. FRANDSEN TEN WEST MARXET STREET CHARLES W. RITZ PAUL S. KRUSE I.N'DIn.NAP0LIS, INDIANA 46204.2970 Lebanon Office CAROL SPARKS DRAKE 225 WEST MAIN STREET (31 ) 209•2500 OR 4113.3427 LARRY J. WALLACE POST OFFICE BOX 668 JAMES A. L. BUDOENBAUM FAX(3I7) 21)N•25I4 ANTHONY W. PATTERSON LEBANON, INDIANA 4 60 5 2-06 6 8 RANO D. RICHEY pnlnundpI parrlaw.com (765) 482-01 10 OR (317) 269-2509 July 15, 1997 FAX (765) 483-3444 pr a end.parrlaw.con, Carmel/Clay Board of Zoning Appeals c/o Mr. Steven C. Engelking, Director Department of Community Services FILE One Civic Square Carmel. Indiana 46032 RE: Request for Treatment of Application for Variance, Docket No. UV-30-97 as an Application for Special Use Dear Board Members: On behalf of Westel-Indianapolis Company, dfb/a Cellular One, petitioner in the matter of the Application for Variance. Docket No. UV-30-97, I hereby request that the aforementioned application be treated as an Application for Special Use as permitted under Zoning. Ordinance Section 23.13.5. If you have any questions or comments. please call Very truly yours, PARR RI HEY OBREMSKEY & MORTON By: V- J. Wa11ac JALB:rgh cc: Department of Community Services Jeffery Kellerman (via facsimile) Docket No. UV-30-97 750 East 106th Street DETAILED DESCRIPTION OF PROPOSED SPECIAL USE Applicant, Westel-Indianapolis Company, d/b/a Cellular One, is a public utility licensed by the Federal Communications Commission ("FCC") and certified by the Indiana Utility Regulatory Commission ("IURC"), pursuant to IND. CODE § 8-1-2-88, for the provision of commercial mobile radio telecommunications service to the public in and around the Carmel community. As a public utility, Applicant is required to provide adequate and reliable commercial mobile radio telecommunications service which, in turn, requires the construction and operation of telecommunications transmitting and receiving relay antennas throughout its service area at locations dictated by customer use and system engineering requirements. By this Application, Applicant proposes to construct and maintain an 80-ft. self-supporting "monopole" with radio relay antenna and an adjacent fully automated (unstaffed) 12' x 22' radio equipment building. Applicant previously submitted an Application for Variance of Use. Pursuant to Zoning Ordinance 25.13.5, Applicant has requested that the City of Carmel Board of Zoning Appeals alternately treat the Application for Variance of Use as an Application for a Permitted Special Use. Applicant requests a permitted special use as provided in § 13.2 (B-2 / Business) of the City of Carmel Zoning Ordinance, as amended. Applicant asks the Board of Zoning Appeals to find that the proposed telecommunications tower is necessary and appropriate because the proposed public utility mobile radio telecommunications use is in significant demand in the Carmel area and this tower is required for the adequate and reliable provision of that service. 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J Nottrgnem Rood - - I �• Elio e ; �t. aE I '. . a Tr a 'a • :i A 4•�1 or __ ,,,Irr___ I 4,,, a I •ty ,„ens, i( _ 111 i it".*E ., t p n • c � 4 C) Hamilton iii` r° \ I* i 0 a a d / m c ee,v or r � W �.... , a Id a Q eMro alga.d r i����fi� ' v — v v s _f. lair 99 `fr j i W106M,�t 's 8 � / � �� �yY'� �. 9 - L-,..,.,_____-__m-....iai-R, wiTysmr-iiim . . es o Amami. .32 -n 31 - �. \ vssa•"� �^ E� rkrnaen d a,ir• a , «Ck __/�, P A r 4 Atli @ d \ 1111 _ v .378 l'r r-\ /‘ ' :P‘c" ''79! _ z• no":\111:,4 1 .• I i is C 11 ,\/'' Ws s a i ems, .• SEARCH AREA SITE 99 �. T\\ *lime JEFF KELLERMAN ij _- u 111' ' is, - P kwor --� g t s 7/17/97 CY at fi ^..‘4 w d R •• ' 39-556.32N ieula E 86-08.41 W otZ •a• •, `, • HAMILTON COUNTY %j -� `"`.�a t ■ Road i ,4 z Etta', ow ati TOWER HEIGHT: ' E.... A SEARCH RADIUS: .5 MILES II / W Bata s� `! 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U Great Lakes Region 2300 East Devon Avenue U.S. Department Illinois,Indiana,Michigan Des Plaines,Illinois 60018 of Transportation Minnesota,North Dakota, Ohio,South Dakota, Federal Aviation Wisconsin Administration ACKNOWLEDGEMENT OF NOTICE OF PROPOSED CONSTRUCTION OR ALTERATION - - - --- - -- -- ------- ---- ----- --------- ----------- ------------- - ------ - --- --- CITY STATE LATITUDE/LONGITUDE MSL AGL AMSL HOME PLACE, IN 39-56-32 . 00 086-08-41 . 00 844 , 95 939 WESTEL-INDIANAPOLIS COMPANY AERONAUTICAL STUDY MINDY PITTARD No: 96-AGL-3277-OE 8888 KEYSTONE CROSSING #300 INDIANAPOLIS, IN 46240 Type Structure: COMM TOWER The Federal Aviation Administration hereby acknowledges receipt of notice dated 09/18/96 concerning the proposed construction or alteration contained herein. The proposed structure does not require notice to the FAA. Obstruction marking and lighting are not necessary. If the structure is subject to the licensing authority of the FCC, a copy of this acknowledgement will be sent to that Agency. SIGNED— 7u< ecialist, Systems Management Branch Ge ene Mc Dono h (847) 294-7568 ISSUED IN: DesPlaines, IL 10/17/96 i INDIANA DEPARTMENT OF TRANSPORTATION C' �� 100 North Senate Avenue 0 Room N755 T Indianapolis, Indiana 46204-2249 (317) 232-5533 FAX: (317) 232-0238 EVAN BAYH, Governor STAN C. SMITH, Commissioner Writer's Direct Line: (317)232-1494 October 30, 1996 Westel - Indianapolis Company Mindy Pittard 8888 Keystone Crossing #300 Indianapolis, IN 46240 Subj.: FAA Aeronautical Study # 96-AGL-3277-OE Tall Structure Application Dear Sir/Ma'am: Your proposal is not within the provisions of the Indiana Regulation of Tall Structures Act and does not require Department of Transportation approval. If you have an questions, please contact me at (317) 232-1494 or send any response to: Indiana Department of Transportation, Aeronautics Section, Room N901, 100 N. Senate Ave., Indianapolis, Indiana, 46204 Sincerely, N. )i.LL- -G `- Troy yl len Project Manager Printed on Recycled Paper • An Equal Opportunity Employer SteCOM 413481.,OSSV yooyi 1 1enwe5 'uesutnw uod so5oueyr tyn 'caw --EP-J3‘tf welsouls •uotpouuoJuI leuoqipoe peau Jc suoisenb due envy no!yc moux aui vet anew 1taM so ajnynl att;ul Maugna ;ualituJoo t{lm nolc ap& cud op of yduw2;e Ilw, I 'ROM eow's Jno ultpur, eq o; J80 e OJC Jingo au; Jo auoN -uogonrsuoo ocJoua sedum;puno Eoapun Jno alvool of puys!O ayy xzewoo pinoys sJadoianap 'papaau you si wood's Jamas l.Jeyues onto aYamoi aup atl^Ifd'J pans lu{xds 'Iowadde Joy UY3ct oy oauuigns aq oy ApeaJ ale sued •wya!awca s fealnal buuaau15ue:ouystO £ uoRospB`ttc:mom yr$+sd :E pue r suolzas 'a&pte uo fed owap of papuu»d aq inm c3uawwoo nnsutai 6uuee1.115ue w4w1O Jo: paPOligns wow,SUltid JD stes auanyyp OMI IHY;stugllPM 'smudge Jo!r13a tx weld 6u!puas oumo oy=ad pauru ons aq o; peeu Ilan uooccalddb' •MawwJ 5uuesut5ue 6uio6Japun ale Pus PalUwans u'eq anew sueld uonswpgng rbp{ld ofbsa3 &�tpltnq oN sueld o sari 'tenoudoe lip laid yntupun y!turad a+u L W Pall;aq of spaai uoneogddd =WO Jnl FeWwgns suetd oN .moo aosuOdJOJ leuueo :awe eowues s,=u3s13 ew; a ale t tMw szsaloid asat,q uo asn Inch( lo) buuwogo; a41 Ja}Jo I 'bulyaaw 3'dl L661. '61. uoJeK a4:Jo; sump tspua5e a1.44 bwpJer:aa DUBIN ReC1 11W►SJt'd VIA ZEt19t. NI 'sakUJ stenos ati*au° aao miss dz!unwwoo Jo 10Y, puue✓j "W uoK'wen Cal '8l L Jrri £OZ61 s {LIE) :xtrA 0036-M (LIE) 8£90-Ot' 9b AII 'St7OdhNt/IQK Ua B fuumi Jap 5 twor SE9Ob XOE 'O•d sPlwi?3 fi r Aalrn t XVY4 •.Jal�D 94Pa140,1 3L.SVMYM IVP101O� lwrT1 bowl 'on; newcuYaun:D euQ �P'�;d 'nonsa4°l3 d&HS MMOI. AVID • �.sc a\i- DEP.--‘ R7,,v '21--/11(.\7, pi--:": -- ‘C ---, ),__D / - • •I'wh t (4 it::. ;1--s-7:::: -.7-.. (�'` ( g 7 - ;IL .16, .1 ' �: /�i ram'• jr- — _ 1. J /-;, : Y •-�/4.1 .N �. .-/ .� \ram --";'' C , ��—_ --^, 1 -o ` \ i March 19, 1997 (J James A. L. Buddenbaum Parr Richey Obremskey & Morton Attorneys At Law 1600 Market Tower Ten West Market Street Indianapolis,IN 46204-2970 RE: Cellular One Tower N. of 106th St./E. of College Ave. Clay Township Dear Mr. Buddenbaum: This letter serves to acknowledge receipt of an information packet for this project. The following. comments apply: 1. The access drive will need to be permitted though this office as a utility access drive. 2. Any incidental construction required within our right-of-way will require a permit from this office. Should you have any questions or comments regarding. this project, please call me at 773-7770. Sincerely, 7,...----,5---- A-5")//Z.......-P James W.Neal, P.E. Transportation Development Engineer JN/jn:03-19-97.BB cc: Carmel DOCS Hamilton County Surveyor's Office Hamilton County SWCD 17 17 PLEASANT STREET NOBLESVILLE,INDIANA 46060 (317)773-7770 Cityof Carm Fire Department Headquarters 2 CIVIC SQUARE C _e-s:tev & G,R�J(FT ,INDIANA46032 317/571-2600 :Attu_ eys az Law Az_.'.: James A. L. Buddenbaum 1600 a,fa:kez Tom; _ - 62C4-29-7C RE: Cal LAR ON: ANTENNA 7E0 EAST 106 a STREET LETTER OF APPROVAL The undersigned has reviewed the proposed plans for Cellular One Antenna at 750 East 106th St. and has approved the Plans subject to the following: 1 . Would Westel-Indianapolis Co . be receptive to the City of Carmel installing a severe weather signaling device on this tower? If so, please address a letter of confirmation to Fire Chief Douglas Callahan. 2 . After review of this project, I have no additional requirements to be met at this time. 3 . 4 . 5 . 6 . Date: March 17 , 1997 By: Stanley Puckett, Fire Marshal Carmel Fire Department • Fire Prevention Saves Lives and Property City l of C Police Department Headquarters 3 CIVIC SQUARE CARMa,INDIANA 46032 3171571.2500 MAR 1 - 1997 March 17, 1997 James A.L. Buddenbaum Parr Richey Obremkey & Morton 1600 Market Tower Ten W. Market Street Indianapolis, IN 46204-2970 RE: 750 E. 106th Street Westel-Indianapolis Company d/b/a/ Cellular One ("Cellular One') Antenna Dear Mr. Buddenbaum: I have received and reviewed the site plans of the above mentioned project. At the present time, I see nothing in the plans that would hamper law enforcement efforts. If we can be of any further assistance to you, please contact us. Respectfully, Michael D. Fogarty( Chief of Police MDF:vb cc: Department of Community Services United States of America 4- Federal Communications Commission 0 oa L. RADIO STATION AUTHORIZATION s; Cellular Radiotelephone Service WESTEL- INDIANAPOLIS COMPANY 8888 KEYSTONE CROSSING INDIANAPOLIS, IN 46205 Call Sign: KNKA208 Market: 0028 Channel Block: A-1 SID: 0019 Market Name: INDIANAPOLIS, INDIANA The Licensee hereof is authorized, for the period indicated, to operate a radio transmitting station in accordance with the terms and conditions hereinafter described. This authorization is subject to the provisions of the Communications Act of 1934,as amended, subsequent Acts of Congress, international treaties and agreements to which the United States is a signatory, and all pertinent rules and regulations of the Federal Communications Commission,contained in Title 47 of the Code of Federal Regulations. Initial Grant Date January 12, 1984 Expiration Date October 01, 2004 WAIVERS / CONDITIONS: Pursuant to Section 309(h)of the Communications Act 1934, as amended,(47 U.S.C. § 309(h)), this authorization is subject to the following conditions: (1)This authorization does not vest in the licensee any right to operate a station nor any right in the use of the electromagnetic spectrum designated herein beyond the term thereof nor in any other manner than authorized herein. (2)Neither this license nor the right gianted thereunder shall be assigned or otherwise transfereed in violation of the Communications Act of 1934, as amended(47 U.S.C. § 151, et. seg). (3)This authorization is subject in terms to the right of use or control conferred by Section 706 of the Communications Act of 1934,as amended (47 U.S.C. § 606). This authorization does not convey to the licensee the right to receive protection from the capture of subscriber traffic, co-channel interference or first-adjacent-channel interference in any area outside of the authorized cellular geographic service area(CGSA)of the system. Moreover, any facility authorized herein with a service area boundary(SAB) extending into the CGSA of any other operating cellular system on the same channel block, regardless of when such other cellular system was authorized, is subject to the following condition: In the event that the licensee of the other cellular system requests that the SAB of the facilities authorized herein be removed from its CGSA, the licensee herein must reduce transmitting power or antenna height(or both)as necessary to remove the SAB from the CGSA, unless written consent from the licensee of the other cellular system, allowing the SAB extension to remain, is obtained. Issued by IFG on Wednesday January 29, 1997 FCC Form 463A Page: I of 9 ORIGINAL 1 STATE OF INDIANA PUBLIC SERVICE COMMISSION OF INDIANA IN THE MATTER OF THE PETITION OF ) INDIANAPOLIS TELEPHONE COMPANY ) FOR ITS CERTIFICATE OF TERRITORIAL ) AUTHORITY TO OFFER AND FURNISH ) DOMESTIC PUBLIC CELLULAR RADIO ) CAUSE NO. 37256 TELECOMMUNICATION SERVICE TO THE ) APPROVED: PUBLIC WITHIN THE INDIANA COUNTIES ) OCT 13 1983 OF MARION, HENDRICKS, BOONE, ) HAMILTON, HANCOCK, SHELBY, JOHNSON,) AND MORGAN AND FOR APPROVAL OF ) CERTAIN MATTERS PERTAINING THERETO.) BY THE COMMISSION: Harold R. Johnston, Administrative Law Judge On July 22, 1983, the Indianapolis Telephone Company (ITC or Petitioner) filed its petition with this Commission for a certificate of territorial authority to render cellular mobile telephone service to the public within Marion, Hendricks, Boone, Hamilton, Hancock, Shelby, Johnson, and Morgan Counties, Indiana. Pursuant to notice published as required by law, proof of which was incorporated into the record by reference and placed in the official files of the Commission, a public hearing was held in this cause on September 6, 1983, at 9:30 a.m. , Room 907, State Office Building, Indianapolis, Indiana. During the hearing, the Petitioner presented testimony and evidence in support of its petition. No appearance was made by the Office of the Utility Consumer Counselor, and no members of the general public appeared or sought to testify at these proceedings. At the close of the hearing, rulings had been made upon all pending motions and objections. The Commission, based upon the applicable law and all evidence of record in this cause, and being duly advised in the premises, now finds as follows: 1. Commission Jurisdiction. Proper notice of the hearing in this cause was given as required by law and the Commission has jurisdiction over the parties and the subject matter of this cause. 2. Petitioner's Characteristics. The Petitioner is an Indiana general partnership composed of Midwest MobilePhone Corporation, Celluar Mobile Systems of Indiana, Inc. , and Westel-Indianapolis Company. At the time of the hearing the Petitioner had purchased all necessary equipment, but the equipment had not been installed and cellular mobile telephone service had not commenced. ITC plans to begin operations on February 1, 1984. 3. Cellular Telephone Characteristics. The Petitioner's proposed service is a new and advanced form of communications known as celluar mobile telephone system. Cellular mobile systems are generally described as mobile radio systems with a high capacity to serve subscriber units due to the coordinated reuse of a group of radio channels. Such a communication system is a high capacity mobile telephone system in which the total available radio spectrum is divided into discreet channels that are assigned in groups to small geographic cells which provide coverage to a defined service area. The discrete channels can be reused in different cells without radio interference because the radio transmitters in the cells operate at relatively low power. It is therefore possible to travel from cell to cell without a break in transmission. The cellular telephones now used in this system are of two types: one type is designed for use in automobiles while the second may be carried in a briefcase and is fully portable. 4. Federal Authorization. Pursuant to the Communications Act of 1934, the Federal Communications Commission has asserted federal jurisdiction over the technical standards and competitive market structure for cellular telephone service. Each standard metropolitan statistical area has been allocated forty MHz radio spectrum for celluar telephone service, which is divided into two twenty MHz blocks; block A and block B. One is used for a wireline (telephone) company and the other for a non-wireline company. The FCC has determined that there is a national need for expanded two-way communications capacity. As noted in Memorandum Opinion and Order on Reconsideration, Common Carrier Docket No. 79-1318, 89 FCC 2d 58 (1982) : Based on voluminous pleadings, we have made a finding that there is an immediate need for cellular service, but cellular systems require twenty MHz to insure efficient reuse, and that the public will best be served by providing for up to two cellular systems per market. This is a new service which we desire to make available in all localities, irrespective of what other mobile services are currently offered or able to be offered, in order to achieve nationwide compatibility. More specifically, we have already determined "need" on a nationwide basis and have preempted the states from denying state certification based on the number of existing carriers in the market or the capacity of existing carriers to handle the demand for mobile services. . . The FCC is also interested in expanding the availability and convenience of telecommunication services. The cellular mobile telephone system allows each cellular customer to communicate with all other telephone customers. However, this requires that the cellular customers be able to place calls to telephones within the traditional landline telephone system, which in turn requires that the cellular system be connected to the landline system. The FCC has ordered that landline telephone companies provide interconnection facilities to cellular telephone companies. 2 5. Relief Recuested. The Petitioner requests that this Commission issue it a certificate of territorial authority pursuant to IC 8-1-2-88 (b) to offer and provide cellular mobile telephone service to the public within Marion, Hendricks, Boone, Hamilton, Hancock, Shelby, Johnson and Morgan Counties, Indiana. The issuance of a certificate of territorial authority must be based upon substantial evidence that the Petitioner possesses the requisite technical, managerial, and financial ability to render the proposed service, and that public convenience and necessity requires the proposed service. (a) Petitioner's Technical Ability. Evidence of the Petitioner's technical ability to provide the proposed mobile cellular telephone service was established by Petitioner's Exhibit B, the testimony of W. K. Kokorelis , President of Indianapolis Telephone Company. Mr. Kokorelis testified that the Petitioner has purchased from Motorola, Inc. , all equipment necessary to establish the cellular system, and that delivery of the equipment is to commence in October. The equipment will be a Motorola Dyn-A-Tac system, consisting of a mobile telephone switching office (MTSO) , a highly sophisticated type of computerized switching equipment, and sufficient broadcasting equipment including radio equipment, transmitters, receivers, and transmitting and receiving antennas for each of the proposed nine cells within the proposed service area. An additional requirement is that the MTSO be connected to all the cell sites. The Petitioner will purchase, install, and operate its own microwave system for communication between the MTSO and the cell sites. This microwave system will give the Petitioner considerable flexibility with traffic engineering and routing. The Petitioner's initial system is designed to serve up to 7,500 customers, with the ability to expand to serve additional customers by adding additional equipment. The Petitioner has purchased facilities to serve as its headquarters, business office and site of the MTSO. The other eight cell sites have been purchased or leased, and where the existing buildings are not appropriate for the cellular system, the Petitioner will build suitable structures for the equipment. Kokorelis testified that the Petitioner plans to have all necessary buildings by October 31, 1983. All equipment to be used in the cellular system will be installed by Motorola, Inc. , under a "turn key system". Motorola will engineer, furnish, and install a complete cellular communication system, including all switching, radio transmitting and receiving equipment. Motorola will also undertake any activities necessary to make the system fully operational. The Petitioner projects that commercial operations for the public will begin on February 1, 1984. No evidence was presented at the hearing contradicting the Petitioner's evidence on technical ability. Accordingly, based on the evidence, the Commission finds that the Petitioner possesses the requisite technical ability to provide the proposed cellular mobile telephone service. (b) Petitioner's Managerial Ability. The Petitioner's managerial ability to render the proposed cellular mobile telephone service is demonstrated in part by the history of this Company. Petitioner's Exhibit A, the testimony of Leon R. Perkinson, Chairman of the Petitioner's Partners Committee, laid out the evolution of Indianapolis Telephone Company. In 1981 and 1982, the Federal 3 Communications Commission established in a series of Orders the procedure for licensing cellular telephone systems. The FCC decided to accept application for cellular systems in the thirty largest metropolitan areas in the nation on June 7, 1982. The FCC further decided that within each metropolitan area there would be only two cellular licenses issued. One would be for a wireline license available only to landline telephone companies or their affiliates, and the other for a non-wireline license. Although only one non-wireline license would be available in the Indianapolis area, three Indianapolis companies applied for the license: Midwest Mobile Phone Corporation, Cellular Mobile Systems of Indiana, Inc. , and Westel-Indianapolis Company. Each of these companies has its own distinctive history. Midwest Mobile Phone Corporation was established in 1981 by investors from the Indianapolis area. The corporation was formed to enter into the cellular telephone business, and applications have been sought in Indianapolis and eleven other metropolitan areas. Cellular Mobile Systems of Indiana, Inc. , is a wholly-owned subsidiary of Cellular Mobile Systems, Inc. , which is itself a wholly-owned subsidiary of Graphic Scanning Corporation, which is a publicly owned company engaged in nationwide paging and mobile services. Westel-Indianapolis Company is owned by FMI Communications Corporation, Western Union Cellular Technologies, Inc. , American Cellular Communications Corporation, and several Indianapolis residents. The companies owning Westel-Indianapolis have lengthy experience in the communications field. FCC policy encourages settlements between companies competing for the same license, and the three companies in this case reached a settlement agreement which called for the formation of Indianapolis Telephone Company which would receive the cellular license for the Indianapolis area. This agreement was entered into evidence as Petitioner's Exhibit 1 and included copies of the settlement agreement filed with the FCC, and the companies' partnership agreement. By entering into such a settlement agreement, the three companies which formed a general partnership constituting the Petitioner avoided the long delay which would be the result of a competitive hearing process before the Federal Communications Commission. Further evidence of the Petitioner's managerial ability was provided by Petitioner's Exhibit B, the testimony of W.K. Kokorelis, President of the Indianapolis Telephone Company. Kokorelis is the Petitioner's Operating Officer, and has over ten years of experience with GTE Corporation in planning and development, and assisted in the creation of GTE's cellular subsidiary. He has also done work with the Federal Communications Commission to develop standards for cellular telephone systems. Kokorelis' testimony showed experience and knowledge about the operations of a cellular telephone system, and demonstrated that the Petitioner, in its negotiations for equipment and celluar sites possesses the managerial ability to provide the proposed service. The final indication of the Petitioner's managerial ability is that the FCC granted the Petitioner a construction permit on March 3, 1983, in FCC Docket No. 83-70, File No. 26172-CL-P-(11)-82 (1983) , to build a cellular mobile telephone system within the Indianapolis, Indiana standard metropolitan statistical area. The issuance of this 4 construction permit demonstrates that the FCC is satisfied with the Petitioner's ability to render the proposed service. The permit also demonstrates the Petitioner's experience and knowledge of the regulatory process, which is an integral feature of managerial ability. Based on the evidence, the Commission finds that the Petitioner possesses the requisite managerial ability to render the proposed celluar mobile telephone service in the Indianapolis area. (c) Petitioner's Financial Ability. In considering the Petitioner's application for a cellular license, the Federal Communications Commission conducted a thorough review of the Petitioner's financial condition. FCC Rules established in 47 C.F.R. Section No. 22.917 require that cellular system construction permits be based on evidence showing the estimated building and operation cost of the cellular system and the applicant's financial resources to meet those costs. Petitioner's Exhibit 2, the FCC Memorandum Opinion and Order, FCC Docket No. 83-70, March 3, 1983, shows that the FCC found that the Petitioner is financially qualified to render the proposed service. Further evidence of the Petitioner's financial ability was presented by the testimony of Leo R. Perkinson, contained in Petitioner's Exhibit A. Perkinson testified that the settlement agreement provides that each of the companies' three general partners has an equal obligation to provide money needed to build and operate the cellular system. Petitioner's Exhibit 1 consisted of written commitments by each partner, in which they agreed to each commit 1,666,667 to construct and operate the proposed cellular system, for a total of $5,000,000. No evidence was presented at the hearing countering the Petitioner's evidence of its financial ability. Accordingly, based on the evidence, the Commission finds that the Petitioner possesses the requisite financial ability to render the proposed service. (d) Public Convenience and Necessity. In support of its contention that public convenience and necessity requires the issuance of a certificate of territorial authority for cellular mobile telephone services, the Petitioner presented three studies of the Indianapolis market. These studies included Petitioner's Exhibit 6, a market survey performed for Cellular Mobile Systems of Indiana, Inc. , in June, 1982. Petitioner's Exhibit 4 consists of a survey of economic, demographic and land use characteristics in the Indianapolis standard metropolitan statistical area prepared in June, 1982 for Midwest Mobile Phone Corporation, and Exhibit 5, also prepared for Midwest Mobile Phone Corporation, is a market survey of current and projected mobile phone usage in Indianapolis prepared in January, 1982. Petitioner's Exhibit 8 consists of a cellular mobile telephone market study prepared for Westel-Indianapolis Company. Finally, Petitioner's Exhibit C consisted of the direct testimony of Professor Lucy L. Henke of the University of Kentucky, a market analyst who reviewed the Indianapolis cellular mobile telephone service market, and concluded that a substantial unsatisfied demand for cellular telephone service exists in the Indianapolis area. 5 The Commission notes that the Petitioner's proposed service is unique not only for Indianapolis, but also for the entire nation, as no cellular telephone system has yet been put into service. The service proposed by the Petitioner constitutes a substantial step forward in both convenience and efficiency for consumers of mobile communication services. President Kokorelis testified that the quality of the communications in the cellular system will be indistinguishable from the quality of a ordinary landline system. Additionally, the user of a mobile cellular system will not have to access the landline system through an operator, but will instead simply dial the desired number and be immediately linked into the landline system. The Petitioner's evidence on public convenience and necessity showed not only that there is a substantial unmet demand for mobile cellular telephone service within the Indianapolis area, but also that the proposed service is of a singularly advanced and improved form of mobile communications, and one which is not presently available in the Indianapolis area. Accordingly, based on the evidence, the Commission finds that public convenience and necessity requires the grant of the Petitioner's request for a certificate of territorial authority to offer cellular mobile telephone service within the Indianapolis area. 6. Landline Integration. The proposed cellular telephone system, by itself, would allow each cellular customer to communicate with any other cellular customer in the area. But for a cellular customer to communicate with the customers linked to the traditional landline system, there must be an intricate connection between the cellular system and the landline system. Both the Federal Communications Commission and the Public Service Commission of Indiana recognize the need to maximize the availability and convenience of telecommunication services. The Federal Communications Commission has ordered that the nation's landline systems provide interconnection facilities to cellular systems. This Commission concurs with the FCC that if the public interest is to be served, the Petitioner's cellular system must be interconnected with the existing landline systems. The evidence presented by the Petitioner on its technical ability to provide the proposed service shows that the Petitioner possesses the capability of being fully interconnected with the public landline telephone system and that this interconnection is essential to provide adequate service. Accordingly, the Commission finds that those landline telephone systems providing local exchange service within the Indianapolis standard metropolitan statistical area shall provide to the Petitioner, on a carrier to carrier basis, those interconnection facilities and arrangements, based upon terms and conditions mutually agreeable to the parties, necessary to integrate the Petitioner's cellular telephone system into the landline telephone system. 7. Test Period. The Petitioner suggested that because of the lack of experience by any company in offering cellular mobile telephone service, a test period would be necessary prior to the commencement of full commercial operations. The Petitioner has proposed a sixty day period in which certain users would be selected to be furnished with a cellular telephone and asked to cooperate with the Petitioner in the 6 test. The Petitioner would not charge these users for the communication services provided, except for any toll charges incurred. There was no cross-examination or opposition to this proposal. However, the Commission has insufficient information as to how the "certain" users are to be selected and the specific data that the test is supposed to collect to justify approval of this proposal. Accordingly, the Commission rejects the Petitioner's proposed test period. IT IS THEREFORE ORDERED BY THE PUBLIC SERVICE COMMISSION OF INDIANA THAT: 1. The Indianapolis Telephone Company, Petitioner herein, is hereby issued a Certificate of Territorial Authority to offer and furnish mobile cellular telephone service to the public within Marion, Hendricks, Boone, Hamilton, Shelby, Johnson, and Morgan Counties, Indiana. This Order shall be the sole evidence of that Certificate. 2. Prior to offering mobile cellular telephone service, the Petitioner shall file with the Engineering Department of this Commission a schedule of rates and charges and rules and regulations for service, which rates and charges and rules and regulations must be approved by the Engineering Department before the Petitioner can offer the cellular mobile telephone service approved herein. 3. All landline telephone companies offering service in Marion, Hendricks, Boone, Hamilton, Shelby, Johnson, and Morgan Counties , Indiana, provide Indianapolis Telephone Company, on a carrier to carrier basis, with such interconnection facilities and arrangements as are reasonably necessary, upon terms and conditions mutually agreeable to the parties, to interconnect Indianapolis Telephone Company's cellular telephone system into the public landline system. Copies of all written agreements pertaining to such interconnection shall be filed with the Engineering Department of this Commission. 4. A condition of the Petitioner's Certificate of Territorial Authority issued in this case is that the Petitioner commence cellular mobile telephone service operations pursuant to the authority granted herein within eighteen (18) months after the issuance of this Order. The Petitioner shall file a notice wit the Secretary of this Commission of its "in service" date. If the "in service" date does not fall within the allotted eighteen (18) months, the Petitioner shall provide to the Secretary of this Commission a written explanation of why the service has not been established, and may be required to appear before the Commission to show cause why the Certificate granted herein should not lapse for non-use. 5. This Order shall be effective on and after the date of its approval. 7 MONTGOMERY, HARRIS CONCUR; WALLACE NOT PARTICIPATING: APPROVED: ocr 16 19 3 I hereby certify that the above is a true and correct copy of the Order as approved. �� PLi- > -- SECRETARY 8