Subject: [NEXTEL-1] Re: HELP!! Licensing whoops!!

From: Marcel <[email-masked]>
Date: Fri, 31 Jan 2003 15:10:12 -0500

------- Original Message --------
   From: [email-masked]
Subject: Re: HELP!! Licensing whoops!!

In a message dated 1/31/2003 10:21:56 AM Eastern Standard Time,

> A city has asked for some assistance in getting its frequencies back.
> They had a number of 800 MHz general category channels.  Due to their
> own overesight they did not renew on time and now the FCC says they
> cannot relicense them due to the freeze.  Catch 22 is that they can't
> shut down municipal radio systems even though they have no license.
> Does anyone know of any waivers issued by the FCC for such problems?
> Any of you Washington types that wish, please contact me and I will
> give you the specifics.

The FCC has been much more strict about this since ULS was implemented.  Yes, there have
been waivers, but it is VERY fact specific, so whether it is possible in your case in
unknown without all of the dirty details.  In brief, the overwhelming vast majority of
these cases have been denied in the past two years, but there are exceptions, particularly
when you're public safety, and when there's some other kind of foul-up that was nobody (or
the FCC's) fault, and particularly when the overlay licensee (hint, hint, hint) agrees to
the reinstatement.

Come to our booth at IWCE, and I'll show you how never to miss another renewal deadline
(or construction date, etc.) again...........

Below is a "half-win" that we got for a client (non-PS in this case) which we are hopeful
will result in a "full-win" as the result of a reconsideration petition:

Mr. Alan S. Tilles
Shulman, Rogers, Gandal,
  Pordy & Ecker, P.A.
11921 Rockville Pike, Third Floor
Rockville, MD  20852

Re: Waiver Request and Renewal Application
Michael W. Monroe, File Number 0000404130
Call Sign KNHH631 (800 MHz)

Dear Mr. Tilles:

The authorization of Michael W. Monroe (Monroe) for station KNHH631 expired on October 31,
2000, pursuant to section 1.955(a) of the Commission's rules, 47 C.F.R. § 1.955(a)(1),
which provides that a license automatically terminates on its expiration date unless a
timely application for renewal is filed.  On March 22, 2001, Monroe filed the
above-captioned untimely application to renew the authorization, along with a request to
waive section 1.949(a) of the Commission's rules, 47 C.F.R. § 1.949(a), which requires
that renewal applications be filed prior to license expiration.  We also note that Nextel
Communications, Inc. (Nextel) and Southern Communications Services, Inc. are the
geographic area licensees on the same 800 MHz frequencies in this area.   For the reasons
discussed below, we grant Monroe a limited waiver of section 1.949(a) of the Commission's
rules.

Pursuant to section 1.925 of the Commission's rules, 47 C.F.R. § 1.925, a waiver request
may be granted if it is shown that: (1) the underlying purpose of the rule would not be
served or would be frustrated by application to the instant case, and that a grant of the
requested waiver would be in the public interest; or (2) in view of unique or unusual
factual circumstances of the instant case, application of the rule would be inequitable,
unduly burdensome or contrary to the public interest, or the applicant has no reasonable
alternative.  Where a renewal application is filed before the end of thirty days after the
license expiration date, a waiver of the filing deadline and the renewal application will
be granted as long as the application is otherwise sufficient under Commission rules.  In
cases where the renewal application is filed more than thirty days after the license
expiration date, the waiver request is subject to stricter review, and also may be
accompanied by enforcement action.  In determining whether to grant a waiver request filed
more than thirty days after the license expiration date, the Commission takes into
consideration all of the facts and circumstances involved, including the length in delay
of filing, the licensee's performance record, the reasons for the failure to timely file,
and the potential consequences to the public if the license were terminated.  Because
Monroe filed his renewal application over four months after the license expired, his
request for a waiver is subject to this stricter level of review.

As already explained, Monroe's authorization expired on October 31, 2000.  Prior to that
date, Monroe entered into a frequency relocation agreement with Nextel, and Monroe filed a
modification application for station KNHH631 to facilitate the frequency relocation.
While the modification application was granted on August 1, 2000, the expiration date for
the modified license remained the same as the original expiration date,  October 31,
2000.  In his waiver request, Monroe states that he did not timely file a renewal
application because he believed that, in situations where a modified license is granted
within six months of the original license's expiration date, the Commission's standard
procedure was to issue the modified license for a full license term commencing on the
issue date.   Monroe's explanation as to why he did not timely file his renewal
application does not provide an adequate basis for the grant of a waiver.  Each licensee
is solely responsible for knowing the terms of its license and for submitting a renewal
application to the Commission in a timely manner.   A licensee's misunderstanding
regarding the Commission's license renewal procedures is not sufficient in itself to
warrant the grant of a waiver.

Nevertheless, we grant Monroe a limited waiver of section 1.949(a) of the Commission's
rules, because Monroe demonstrates that he provides critical service to emergency service
entities.  Monroe provides primary service to the Ware County Police and Fire Departments,
the Pierce County Emergency Medical Services, and numerous county and city agencies, such
as the Ware County Public Works Department.  Because Monroe provides necessary and vital
service to emergency service entities, we find that it is in the public interest to grant
Monroe a limited waiver.  This action is consistent with our recent decision in Billy
Williford d/b/a Jasper Mobil Phone, where we granted a similar limited waiver.

To ensure that the public interest is served by granting Monroe a limited waiver, we
impose the following conditions: (1) any license granted to Monroe pursuant to this waiver
will have secondary status to the ultimate geographic area licensee for the economic area
(EA) of which any of Monroe's current interference contour is a part; and (2) upon
receiving notice from the geographic area licensee that it intends, within ninety days, to
initiate operation of a facility, where the facility's service contour will overlap with
the interference contour of any transmitter licensed pursuant to this waiver, Monroe
shall, within ninety days of receiving notice, either cease operation of the transmitter
in question or change its technical parameters to eliminate its overlapping interference
contour.  The delay in filing his renewal application and the fact that there are
alternative service providers in the area support conditioning the waiver and any license
granted to Monroe based on his renewal application.

To facilitate this decision, if the conditions set forth in this letter are acceptable to
Monroe, he shall electronically file an amendment to his application within 30 days of the
date of this letter indicating that he will accept these conditions.  Upon receipt of his
submission, the Licensing and Technical Analysis Branch will process the application in
accordance with this letter and Commission rules and procedures, notwithstanding the
deadline for filing renewal applications.

We note that Monroe is currently operating under special temporary authority, which
expires on October 16, 2002.  If Monroe does not file an amendment to his application
within the requisite 30-day period, Monroe will not be authorized to provide service after
October 16, 2002, and shall cease all operations under call sign KNHH631 by that date.
Monroe shall notify the Commission that he has stopped operations and shall provide the
date upon which the station operations ceased, which in no event can be after October 16,
2002.

If you have any questions, please contact Gary Devlin at 717-338-2618.

Sincerely,

Paul D'Ari
Chief, Policy & Rules Branch
Commercial Wireless Division
Wireless Telecommunications Bureau