Subject: [NEXTEL-1] Request for Extension of Time to Construct an Industrial/Business Radio Service Trunked Station Call Sign WPNZ964

From: [email-masked]
Date: Thu, 23 Oct 2003 20:13:13 -0400

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

Request for Extension of Time to Construct an Industrial/Business Radio Service
Trunked Station Call Sign WPNZ964

ULS File No. 0000356906

Memorandum Opinion and Order

   Adopted:  October 22, 2003 Released:  October 23, 2003

By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications
Bureau:

I. INTRODUCTION
1. In this Memorandum Opinion and Order, we address the petition for
reconsideration filed by Hilltop Communications, Inc. (Hilltop).   Hilltop seeks
reconsideration of a July 29, 2002 letter of the Licensing and Technical Analysis
Branch (“the Branch”) of the Commercial Wireless Division dismissing the captioned
request for extension of time to construct a trunked station in the
Industrial/Business radio service.  For the reasons stated below, we deny
Hilltop’s petition.

II. BACKGROUND
2. On August 17, 1999, the Commission granted authorization to operate a license
in the Industrial/Business Pool, Trunked service (I/B service) in Prescott,
Wisconsin, and St. Paul, Lake City, and Cannon Falls, Minnesota, under call sign
WPNZ964.  The license authorized operation on certain UHF channels, with emissions
limited to 6 kHz bandwidth.  Pursuant to the Commission’s rules in effect when
this license was granted, the Commission required that all stations authorized
under Part 90 of the Commission’s rules, with certain exceptions inapplicable to
this case, must be placed into operation within eight (8) months from the date of
grant.   Moreover, pursuant to relevant rule, the Part 90 authorization is
cancelled automatically if the construction and operation deadlines are not met,
unless an extension of time is granted.   Accordingly, station WPNZ964 was
required to be operational by April 17, 2000.
3. Claiming that it was unable to obtain mobile equipment in order to construct
its system in accord with Commission rules, and thus in danger of having its
license automatically cancel, Hilltop filed, on October 20, 1999 a request for
Special Temporary Authority (STA) to operate its system with 11.25 kHz of
bandwidth until such time as mobile equipment became commercially available.  On
October 26, 1999, the Branch released a letter denying Hilltop’s STA request.
4. On February 2, 2001, Hilltop filed the above captioned Request for Extension of
Time to Construct an Industrial/Business Radio Service Trunked Station, Call Sign
WPNZ964 (Extension Request), asking that the construction deadline be extended for
over three years (i.e., from April 17, 2000 to December 1, 2003).   On August 20,
2001, Hilltop filed two waiver requests that were associated with the Extension
Request.  In the first waiver request, Hilltop requested a waiver of the
Commission’s rules to the extent it was necessary to allow the Commission to act
on the Extension Request given that the construction deadline had already passed.
In the second waiver request, Hilltop requested a waiver of section 90.155(a) of
the Commission’s rules, to extend the construction deadline.
5. On July 29, 2002, the Branch released a letter dismissing the Extension Request
and its associated waiver requests.   In its Petition, Hilltop contends that at
the time it filed its application, no UHF mobile equipment was commercially
available for 6 kHz bandwidth emissions.   Contending that it could not construct
its licensed system in accord with Commission rules without UHF mobile equipment,
Hilltop filed its Extension Request  arguing that the Letter Decision is arbitrary
and capricious because the Wireless Telecommunications Bureau (WTB) has granted
extensions of construction deadlines to others in the past.   Hilltop claims that
WTB’s earlier grants of extensions required no proof beyond the verified
statements in the extension requests themselves and that WTB requires a higher
standard of proof from Hilltop than from other applicants.  Specifically, Hilltop
contends that both FCI 900, Inc. and Neoworld License Holdings, Inc. applied for
and were granted extensions of their construction deadlines due to the alleged
absence of 900 MHz equipment.  Hilltop asserts that, by dismissing its request,
WTB has imposed on it an unreasonable standard of proof to justify its Extension
Request.

III. DISCUSSION
6. In reviewing the Branch’s decision to dismiss the Extension Request, we first
address the timeliness of the Extension Request and its associated waiver
requests.  Section 1.946(e) of the Commission’s rules states that a request for
extension must be filed before the expiration of the construction period.   In the
instant case, the Branch found that the Extension Request was filed nearly ten
months after the construction deadline of April 17, 2000.  Based on the record,
the Branch found that the license for Station WPNZ964 cancelled automatically for
failure to construct.   Because Station WPNZ964 automatically cancelled for
failure to construct, approximately ten months before Hilltop filed its Extension
Request, the Branch dismissed the Extension Request as moot.  We agree with the
Branch’s analysis and find nothing in the record or in the Petition that would
cause us to reverse the Branch’s decision.  Moreover, because the license
automatically cancelled approximately 16 months before the waiver requests were
filed, we likewise agree with the Branch’s decision to dismiss those requests as
moot.   Unlike the applications filed by FCI 900, Inc. and Neoworld License
Holdings, Inc. (Neoworld), Hilltop filed its Extension Request after the
construction deadline had past.   The Branch never had to reach the merits of
Hilltop’s arguments because its Extension Request was clearly untimely filed.
7. Furthermore, even had the Extension Request and associated waiver requests been
timely, we find no basis in the record for extending or waiving the construction
deadline for Station WPNZ964.  A party seeking waiver of a Commission rule must
show that “[t]he underlying purpose of the rule(s) 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 . . . .”   Alternatively, a party must show
that “[i]n in view of unique or unusual factual circumstances of the instant case,
application of the rule(s) would be inequitable, unduly burdensome, or contrary to
the public interest, or the applicant has no reasonable alternative.”   When
seeking to deviate from the general rule, an applicant faces a heavy burden.   In
order to obtain a waiver, an applicant must plead with particularity the facts and
circumstances which warrant such action.
8. Hilltop argues that it could not comply with the Section 90.155(a) because no
mobile equipment was available that complied with a condition placed on this
license.   We find this reason alone, however, is insufficient to allow Hilltop to
hold the spectrum until equipment finally becomes available.  Significantly,
Hilltop provides no information as to how long it may take for equipment to become
available.  Without some idea of when equipment will become available, we cannot
even be sure that grant of a limited waiver in this case will provide relief to
Hilltop.  Finally, we disagree with Hilltop’s assertion that it is similarly
situated to FCI 900, Inc. and Neoworld.  FCI 900 Inc. and Neoworld were granted
relief in order to allow time for digital equipment to become available.   Unlike
Hilltop’s situation, FCI 900, Inc. provided assurances from an equipment
manufacturer that digital equipment would be available shortly, even though only
analog (but not digital) equipment was available at that time.  In contrast,
Hilltop provides no plan for obtaining equipment and no certainty of when, if
ever, equipment will be available to meet their needs.

IV. ORDERING CLAUSE
9. ACCORDINGLY, IT IS ORDERED, THAT the petition for reconsideration filed by
Hilltop Communications, Inc. seeking reconsideration of the Licensing and
Technical Analysis Branch’s letter of July 29, 2002, dismissing Hilltop’s request
for an extension of time to construct an Industrial/Business Radio Service Trunked
Station, Call Sign WPNZ964, IS DENIED.

     FEDERAL COMMUNICATIONS COMMISSION

      Roger S. Noel
      Deputy Chief, Commercial Wireless Division
Wireless Telecommunications Bureau

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-3343A1.pdf
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