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Cotton Center Independent School District EBS Renewal Denial Order

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Released: March 28, 2014

Federal Communications Commission

DA 14-422

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
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)

COTTON CENTER INDEPENDENT SCHOOL
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DISTRICT
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Late-Filed Application For Renewal of
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File No. 0005162893
Educational Broadband Service Station WLX429
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Request for Waiver of Section 1.949(a) of the
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Commission’s Rules
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Notification of Completion of Construction of
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File No. 0005173389
Educational Broadband Service Station WLX429
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MEMORANDUM OPINION AND ORDER

Adopted: March 28, 2014

Released: March 28, 2014
By the Deputy Chief, Broadband Division, Wireless Telecommunications Bureau:

I.

INTRODUCTION

1. This Memorandum Opinion and Order denies a request for waiver to allow late filing of an
application for renewal of an Educational Broadband Service (EBS) license. We conclude that the
licensee has not met the standard for a waiver. We also dismiss as moot a construction notification filed
for the same station.

II.

BACKGROUND

2. The license for EBS Station WLX429, licensed to Cotton Center Independent School District
(Cotton Center), was last renewed on February 19, 2002, and expired on February 19, 2012.1 A renewal
reminder notice was sent to Cotton Center on November 28, 2011.2 Section 1.949(a) of the
Commission’s Rules requires licensees to file renewal applications no later than the expiration dates of
licenses.3 Cotton Center failed to do so, not filing until April 12, 2012,4 and requesting that Section
1.949(a) of the Commission’s Rules be waived to allow acceptance of Cotton Center’s late-filed
application.

1 See File No. BRIF-20011002AAG (granted Feb. 19, 2002).
2 Renewal Reminder Letter, Ref. No. 5261663 (Nov. 28, 2011).
3 47 C.F.R. § 1.949(a).
4 File No. 0005173389 (filed Apr. 12, 2012) (Renewal Application).

Federal Communications Commission

DA 14-422

3. Cotton Center indicates that it missed the filing deadline because of a “miscommunication
and tracking error.”5 Cotton Center acknowledges that as the licensee it is responsible for submitting a
timely renewal application, and it claims it has taken corrective measures to prevent future deadlines from
being missed.6
4. All EBS licensees were required to demonstrate substantial service on or before November 1,
2011.7 The Commission defines substantial service as a level of service, which is sound, favorable, and
substantially above a level of mediocre service which just might minimally warrant renewal.8 A BRS or
EBS licensee may make a showing based on meeting the definition of substantial service or based on
meeting one of the general safe harbors provided by the Commission in Section 27.14(o)(1) of the
Commission’s Rules.9 In addition, an EBS licensee may make a showing under the educational “safe
harbor” the Commission specifically adopted for EBS licensees in Section 27.14(o)(2) of the
Commission’s Rules.10 Many EBS licensees have demonstrated substantial service by meeting this safe
harbor.
5. Cotton Center received extensions until April 29, 2012 to demonstrate substantial service.11
On April 20, 2012, Cotton Center filed a demonstration of substantial service for Station WLX429.12
Cotton Center, with the assistance of its lease partner, Utopian Wireless Corporation, has built and is
operating a point-to-point link on WLX429’s licensed channels.13 The link is being used to provide high-
speed data connectivity in Cotton Center’s school district between its main school building and its
administration building.14 The link allows Cotton Center to more widely distribute access to its own
internal network(s) and the public internet to faculty, students and other authorized users.15

5 Renewal Application, Cotton Center Independent School District, License Renewal Waiver Request (Waiver
Request).
6 Id.
7 See National EBS Association and Catholic Television Network, Memorandum Opinion and Order, 26 FCC Rcd
4021 (WTB 2011).
8 47 C.F.R. § 27.14(o).
9 An EBS or a BRS licensee could meet the substantial service requirement by showing that it meets one or more of
the following five general safe harbors: that it constructed six permanent links per one million people for licensees
providing fixed point-to-point services; that it provided coverage of at least 30 percent of the population of the
licensed area for licensees providing mobile services or fixed point-to-multipoint services; that it provided service to
“rural areas” or areas with limited access to telecommunications services; that it provided specialized or
technologically sophisticated service; or that it provided service to niche markets. 47 C.F.R. § 27.14(o)(1).
10 Under the educational “safe harbor,” an EBS licensee is deemed to be providing substantial service with respect to
all channels it holds if: it is using its spectrum (or spectrum to which its educational services are shifted) to provide
educational services within its GSA; the services it provides are actually being used to serve the educational mission
of one or more accredited public or private schools, colleges or universities providing formal educational and
cultural development to enrolled students; and the level of service it provides meets or exceeds the minimum usage
requirements specified in the Commission’s rules. 47 C.F.R. § 27.14(o)(2).
11 See File Nos. 0004935720 (granted Dec. 19, 2012), 0005010122 (granted Jan. 4, 2012).
12 File No. 0005173389 (filed Apr. 20, 2012) (Substantial Service Notification).
13 Substantial Service Notification, WLX429 Demonstration of Substantial Service at 2.
14 Id.
15 Id.
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Federal Communications Commission

DA 14-422

III.

DISCUSSION

6. The Commission’s policy regarding reinstatement procedures in the Wireless Radio Services
is as follows: Renewal applications that are filed up to thirty days after the expiration date of the license
will be granted nunc pro tunc if the application is otherwise sufficient under the Commission's Rules, but
the licensee may be subject to an enforcement action for untimely filing and unauthorized operation
during the time between the expiration of the license and the untimely renewal filing.16 Applicants who
file renewal applications more than thirty days after the license expiration date may also request renewal
of the license nunc pro tunc, but such requests will not be routinely granted, will be subject to stricter
review, and also may be accompanied by enforcement action, including more significant fines or
forfeitures.17 In determining whether to reinstate a license, we consider all of the facts and circumstances,
including the length of the delay in filing, the reasons for the failure to timely file, the potential
consequences to the public if the license should terminate, and the performance record of the licensee.18
Taking into account all the facts and circumstances of the instant matter, including the specific factors set
forth by the Commission, we conclude that Cotton Center’s Waiver Request should be denied.19
7. Under the Commission’s rules, licensees must file renewal applications no later than the
expiration date of the license for which renewal is sought.20 In fact, licenses automatically terminate upon
the expiration date, unless a timely application for renewal is filed.21 Applicants may, however, file an
application for renewal and request for waiver of the filing deadline if the renewal application is not filed
in a timely manner. A waiver of the Commission’s rules may be granted where the applicant
demonstrates that (1) the underlying purpose of the rule would not be served or 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.22
8. Cotton Center’s excuse that there was a miscommunication and tracking error does not justify
a waiver. The Commission has repeatedly held that each licensee is solely responsible for knowing the
term of its license and submitting a renewal application in a timely manner.23 Accordingly, we find that
Cotton Center has not offered justification for a waiver.

16 Biennial Regulatory Review - Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the
Commission's Rules to Facilitate the Development and Use of the Universal Licensing System in the Wireless
Telecommunications Services, Memorandum Opinion and Order on Reconsideration, WT Docket No. 98-20, 14
FCC Rcd 11476, 11485 ¶ 22 (1999) (ULS MO&O).
17 Id. at 11486 ¶ 22.
18 Id. at 11485 ¶ 22.
19 See, e.g., WSYX Licensee, Inc., Order, 15 FCC Rcd 19084 (WTB PSPWD 2000) (denying a request for waiver of
Section 1.949 of the Commission’s Rules to allow submission of late-filed renewal applications after the licenses
expired, and dismissing the subject applications).
20 47 C.F.R. § 1.949(a).
21 47 C.F.R. § 1.955(a)(1).
22 47 C.F.R. § 1.925(b)(3).
23 See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of Fixed and
Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands,
Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 03-66, 19 FCC Rcd 14165, 14248 ¶
217 (2004) (“As an initial matter, the Commission has stated that each licensee is fully responsible for knowing the
term of its license and for filing a timely renewal application.”); Daniel Goodman, Receiver, Dr. Robert Chan,
Petition for Waiver of Sections 90.633(c) and 1.1102 of the Commission's Rules, Memorandum Opinion and Order
on Reconsideration
, 13 FCC Rcd 21944, 21972-21973 ¶ 53 (1998) (holding that “[i]t is the responsibility of each
(continued....)
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Federal Communications Commission

DA 14-422

9. We recognize that Cotton Center is currently using the station to provide high speed data
connectivity between two buildings. We find that Cotton Center’s use of the station does not support a
waiver for two reasons. First, Cotton Center did not file its Substantial Service Notification until two
months after its license expired. It therefore appears that Cotton Center voluntarily assumed the risk of
constructing facilities on an expired license. Second, the point-to-point link in question is very short.24
Cotton Center therefore could use several spectrum bands other than EBS to maintain the link, including
microwave spectrum licensed under Part 101 of the Commission’s rules, or unlicensed spectrum.
10. We recognize that the Broadband Division (Division) has issued a series of orders granting
waivers to allow processing of late-filed EBS renewal applications. This case is distinguishable from
those cases. For example, in 2007, the Division granted waivers for 41 late-filed EBS renewal
applications because granting the waivers would facilitate the transition of EBS and the Broadband Radio
Service to the new band plan adopted by the Commission in 2004.25 That rationale is no longer
applicable because the transition to the new band plan has been successful and is virtually complete. In
2009, the Division granted waivers for 116 late-filed EBS renewals.26 The waivers were based on the fact
that the Mass Media Bureau had a policy of not accepting renewal applications from unconstructed
stations and that while the Wireless Telecommunications Bureau had changed that policy, it had not
notified applicants of that policy change.27 That rationale is no longer applicable because the policy
change occurred ten years ago and all existing EBS licensees have filed renewal applications since the
policy change. Furthermore, since 2009, most EBS stations have been able to demonstrate substantial
service and are actively using their stations to provide a variety of broadband and educational services.
Given those changes in circumstances, we do not view the rationale in the orders issued in 2007 or 2009
to be applicable today. Finally, Cotton Center’s situation is distinguishable from applicants who filed
timely renewal applications but had those applications dismissed for failure to respond to return letters.
In those cases, we were able to conclude that the licensees had overall been diligent.28
11. In view of the foregoing, we find that grant of Cotton Center’s requested waiver is not in the
public interest. We therefore deny its request for waiver of Section 1.949(a) of the Commission’s rules
and direct dismissal of its Renewal Application. A license automatically terminates without further
Commission action if it expires and is not renewed.29 We therefore order dismissal of the Substantial
Service Notification as moot.

(...continued from previous page)
licensee to apply for renewal of its license prior to the expiration date of the license,” and that “failure of a licensee
to receive a [renewal form] from the Commission is no excuse for failure to file a renewal application.”)
24 Based on the coordinates provided in the Substantial Service Notification, the link in question is slightly over 200
feet long.
25 See Forty-one Late-Filed Applications For Renewal of Educational Broadband Service Stations, Memorandum
Opinion and Order
, 22 FCC Rcd 879, 882-883 ¶ 7 (WTB BD 2007).
26 See 116 Late-Filed Applications For Renewal of Educational Broadband Service Stations, Memorandum Opinion
and Order
, 24 FCC Rcd 8108 (WTB BD 2009).
27 Id. at 8116-8117 ¶ 24.
28 See Unified School District #298, Memorandum Opinion and Order, DA 14-190 (WTB BD rel. Feb. 12, 2014);
Unified School District #392, Memorandum Opinion and Order, 28 FCC Rcd 6373 (WTB BD 2013); Burlington
College, Memorandum Opinion and Order, 27 FCC Rcd 15267 (WTB BD 2012); Garnett Unified School District
#365, Memorandum Opinion and Order, 27 FCC Rcd 13086 (WTB BD 2012); Somerville Independent School
District, Order on Reconsideration, 27 FCC Rcd 6063 (WTB BD 2012).
29 See 47 C.F.R. § 1.955(a)(1).
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DA 14-422

IV.

CONCLUSION AND ORDERING CLAUSES

12.
For the reasons discussed above, we find that Cotton Center has not justified a waiver of
Section 1.949(a) of the Commission’s rules to allow consideration of its late-filed renewal application.
We therefore deny the Waiver Request and direct dismissal of the Renewal Application and the
Substantial Service Notification.
13. Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Sections 1.925 and 1.949(a) of the Commission’s
rules, 47 C.F.R. §§ 1.925, 1.949(a), that the request for waiver filed by Cotton Center Independent School
District on April 12, 2012 in connection with File No. 0005162893 IS DENIED.
14. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act
of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Sections 1.946 and 1.949 of the Commission’s rules,
47 C.F.R. §§ 1.946, 1.949, that the licensing staff of the Broadband Division SHALL DISMISS the
application for renewal of Educational Broadband Service Station WLX429 filed by Cotton Center
Independent School District on April 12, 2012 (File No. 0005162893) and the notification of completion
of construction filed by Cotton Center Independent School District on April 12, 2012 (File No.
0005173389) in accordance with this Memorandum Opinion and Order and the Commission’s rules and
policies.
15. These actions are taken under delegated authority pursuant to Sections 0.131 and 0.331 of the
Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331.
FEDERAL COMMUNICATIONS COMMISSION
John J. Schauble
Deputy Chief, Broadband Division
Wireless Telecommunications Bureau
5

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