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Federal Communications Commission

DA 10-318

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
FM Radio Service, LLC
)
FCC File No. 0001523859
Renewal Application and Waiver Request
)
Station WNXG464
)

MEMORANDUM OPINION AND ORDER

ADOPTED: FEBRUARY 25, 2010

RELEASED: FEBRUARY 25, 2010

By the Deputy Chief, Wireless Telecommunications Bureau:

I. INTRODUCTION

1. This item denies a petition for reconsideration related to a late-filed 800 MHz Specialized
Mobile Radio (“SMR”) license renewal. FM Radio Service, LLC (“FM Radio”)1 seeks reconsideration of
an Order dismissing its late-filed renewal application and denying its request for waiver to file late. As
discussed below, we deny the petition because FM Radio has not demonstrated a material error or
omission, or offered new facts or evidence that were not considered in the Order.2

II. BACKGROUND

2. Generally, the Commission licenses Private Land Mobile Radio (“PLMR”) applicants on
frequencies in categories, or “pools,” based on eligibility. These include the 800 MHz Public Safety and
the Business/Industrial/Land Transportation (“B/ILT”) Categories. The Commission previously
permitted "intercategory sharing" where applicants eligible for licensing in one category obtain licenses
on channels outside of their respective categories if certain criteria are met, including that no channels are
available in the category for which the applicant is eligible.3 However, the Wireless Telecommunications
Bureau (“Bureau”) placed a freeze on the filing of new applications for intercategory sharing on all
PLMR frequencies in the 806-821/851-866 MHz bands to curb the increase in such applications for


1 Petition for Reconsideration filed by FM Radio Service, LLC, FCC File No. 0001523859 (filed Mar. 2, 2007)
(“Petition”); Letter from Roger Noel, Chief, Mobility Division, Wireless Telecommunications Bureau, Federal
Communications Commission, to Russell H. Fox, Counsel for FM Radio Service, LLC (Jan. 31, 2007)(“Order”).
2 See, e.g., American Distance Education Consortium Request for an Expedited Declaratory Ruling and Informal
Complaint, Order on Reconsideration, 15 FCC Rcd 15448 (2000); Implementation of Section 302 of the
Telecommunications Act of 1996, Open Video Systems, Order on Reconsideration, 13 FCC Rcd 14583 (1998).
3 47 C.F.R. § 90.621(e).

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DA 10-318

Public Safety Category channels by B/ILT licensees whose own channels were subject to increased
demand from SMR applicants.
3. On July 16, 1998, the Commission granted Northwest Pipeline Corporation (“Northwest”) an
800 MHz SMR license with an expiration date of September 30, 2003 (“License”).4 Although the
frequency was designated for use in the public safety 800 MHz pool, the Commission granted the License
to Northwest (a non-public safety entity) under the intercategory sharing rules in effect at that time.5 The
License was assigned to FM Radio on January 6, 2003.
4. Section 1.955(a) of the Commission’s rules requires a licensee to file a timely renewal
application by the expiration date of its authorization or else the authorization automatically terminates.6
FM Radio failed to timely file for license renewal and therefore its authorization automatically terminated
on the expiration date.7 On November 21, 2003, 52 days after its license expired, FM Radio filed a
renewal application and request for waiver of Section 1.955(a).8
5. In the Waiver Request, FM Radio stated that the delay in filing its renewal application was
due to administrative error and argued that a waiver was warranted because FM Radio was in the unique
situation of being unable to reapply for a new 800 MHz SMR license because that spectrum had been
designated for use in the public safety 800 MHz pool.9 Thus, FM Radio argued, absent a waiver, the
public would be deprived of its service.10
6.
The Bureau’s Mobility Division (“Division”) denied the Waiver Request and dismissed the
pending renewal application, finding that administrative error was insufficient to support a waiver. The
Division also found that FM Radio had failed to demonstrate how its loss of revenue or commercial
service to its customers met either prong of the waiver standard under Commission rule section 1.925.11
7. FM Radio now argues that the Commission should reconsider the Order because the Division
(1) failed to adequately consider FM Radio’s justifications for the Waiver Request; and (2) acted
inconsistently with other Commission decisions granting reinstatement.12
8. On June 13, 2007, following the Division’s denial of FM Radio’s waiver request and
dismissal of its renewal application, the Public Safety and Homeland Security Bureau (“PSHSB”) issued
a license for the same frequency as WNXG464 to the Regional Transportation Commission of Clark
County, Nevada (“RTC”).13 On May 6, 2008, RTC requested an extension of its June 13, 2008


4 FM Radio Service, LLC Request for Waiver and Reinstatement of Call Sign WNXG464, FCC File No.
0001523859 (filed Nov. 21, 2003) (“Waiver Request”) at 2-3.
5 Id. at 3. In addition, the Commission granted Northwest’s application to convert the License to commercial status
and add mobile transmitter frequencies. Id.
6 47 C.F.R. § 1.955(a).
7 Order at 1.
8 Id. at 1; see generally Waiver Request.
9 Order at 2.
10 Id.
11 Id.; see also 47 C.F.R. § 1.925.
12 Petition at 2-3.
13 See FCC File No. 0003429760.
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construction deadline, which was granted on May 8, 2008, and the deadline was extended to December
13, 2008.14 FM Radio filed an informal request to set aside RTC’s license on July 9, 2008.15 In
addition, on August 5, 2008, the Commission received a letter from RTC advocating for denial of the
Petition.16 RTC argues that FM Radio is requesting the same relief as in the Waiver Request, but has not
presented new facts in support.17 Moreover, RTC states that it is a governmental entity providing public
transit services in the greater Las Vegas area and has contracted for installation of a communications
system utilizing the license.18 RTC asserts that requiring it to seek a new license at this time would be
contrary to the public interest.19 Subsequently, on December 5, 2008, RTC filed the construction
notification for its license, WQHA740.20 The construction notification remains pending.

III. DISCUSSION

9. We deny the Petition for Reconsideration because it neither demonstrates a material error or
omission by the Division in the Order nor introduces any new facts not previously considered by the
Division. Section 1.106 of the Commission’s rules permits parties to file petitions for reconsideration of
actions by the Commission or by delegated authority.21 Reconsideration is appropriate only where the
petitioner either shows a material error or omission in the original order or raises additional facts not
known or existing until after the petitioner's last opportunity to present such matters.22 A petition that
“simply reiterates arguments previously considered and rejected will be denied.”23 Section 1.106(d) of
the Commission's rules provides that a petition for reconsideration must state with particularity the
respects in which the petitioner believes the action taken by the Commission should be changed. The
petition must also specifically state the form of relief sought.24
10. FM Radio requests reconsideration of the Order because the Division allegedly (1) failed to
adequately consider FM Radio’s justifications for the Waiver Request; and (2) acted inconsistently with
other Commission decisions granting reinstatement.25 Specifically, FM Radio contends that the Division
only considered its reason for untimely filing of its renewal application (administrative error), but did not


14 See Request for Extension of Time, FCC File No. 0003429766 (filed May 6, 2008).
15 Informal Request for Commission Action filed by FM Radio Service LLC, FCC File No. 0003429760 (filed July
9, 2008).
16 Letter from Zev Kaplan, General Counsel, Regional Transportation Commission of Southern Nevada, to Roger
Noel, Chief, Mobility Division, Wireless Telecommunications Bureau, Federal Communications Commission at 2
(Aug. 5, 2008) (“RTC Letter”).
17 Id. at 2.
18 Id. at 1.
19 Id.
20 FCC File No. 0003668163 (filed Dec. 5, 2008).
21 47 C.F.R. § 1.106(a)(1).
22 See WQAM License Limited Partnership, Memorandum Opinion and Order, 15 FCC Rcd 13549, 13549 ¶ 2
(2000) (citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorrain Journal Co. v. FCC, 351 F.2d 824
(D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966); 47 C.F.R. § 1.106(c)).
23 Petition for Reconsideration by Warren C. Havens, AMTS Consortium, LLC, Telesaurus-VPC, LLC and
Telesaurus Holdings GB LLC, Memorandum Opinion and Order, 22 FCC Rcd 1860, ¶ 7 (WTB 2007).
24 47 C.F.R. § 1.106(d)(1) and (d)(2).
25 Petition at 2-3.
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consider the length of the delay (52 days) or the fact that it could not seek additional 800 MHz
authorizations when it filed the Waiver Request.26 In addition, FM Radio argues that the Division’s
decision does not treat similarly situated licensees similarly because in the case of Educational Broadband
Services licenses, the Bureau’s Broadband Division reinstated licenses years after the licenses had
expired.27
11. We find FM Radio’s arguments unpersuasive. FM Radio fails to demonstrate a material error
or omission by the Division in the Order. We find that the Division appropriately considered the relevant
factors in examining FM Radio’s late filed renewal request. Renewal applications filed more than 30
days after license expiration are subject to strict review.28 In determining whether to grant a late-filed
application, the Commission considers 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.29 In addition, the Commission may grant a
waiver request where (i) the underlying purpose of the rules(s) would not be served or would be frustrated
by application to the instant case, and a grant of the requested waiver would be in the public interest; or
(ii) in view of the 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.30 Here, the Division appropriately found that FM Radio’s administrative error was
an insufficient basis for a waiver of the rules,31 and that FM Radio failed to meet either prong of the
waiver standard.32 The Waiver Request provided no specific information about the service FM Radio
provided or the customers it served. Although FM Radio maintained that its circumstances were unique
because it would be unable to apply for new 800 MHz SMR frequencies because of the 800 MHz
rebanding freeze,33 in this regard, FM Radio is no different from any other 800 MHz licensee that failed
to timely renew its license. Accordingly, we find that the Division was correct in denying the Waiver
Request.
12. In addition, the precedent cited by FM Radio in support of its claim of disparate treatment is
distinguishable. In the EBS Renewal Order, the Broadband Division granted waivers of the
Commission’s renewal rule in order to facilitate the Commission’s substantial, multi-year efforts to
transition the 2500-2690 MHz Band.34 The Broadband Division reasoned that the transition process
would “require an extraordinary degree of coordination and negotiation among all affected licensees in


26 Id at 2.
27 Id. at 3 (citing Forty-one Late-Filed Applications for Renewal of Educational Broadband Service Stations,
Memorandum Opinion and Order, 22 FCC Rcd 879 (Broadband Division, WTB 2007) (“EBS Renewal Order”)).
28 Biennial Regulatory Review – Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, and 101 of the
Commission’s Rules to Facilitate Development and Use of the Universal Licensing System in the Wireless
Telecommunications Service, Memorandum Opinion and Order on Reconsideration, WT Docket No. 98-20,
14 FCC Rcd 11476, 11485-86 ¶ 22 (1999) (“ULS Order”); Waiver Requests Required for Late-Filed Renewal
Applications in Most Wireless Services, Public Notice, 18 FCC Rcd 16703 (WTB 2003) (“Waiver Request Public
Notice”).
29 Waiver Request Public Notice, 18 FCC Rcd 16703; see also ULS Order, 14 FCC Rcd at 11485-86 ¶ 22.
30 47 C.F.R. § 1.925(b)(3).
31 Order at 2.
32 Id.
33 Waiver Request at 3.
34 EBS Renewal Order, 22 FCC Rcd at 882 ¶ 7.
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the transition area over a finite time period” and that granting the waiver requests would “create greater
certainty for existing and future transition proponents regarding which EBS licenses [would] be part of
the transition.”35 The Broadband Division concluded grant of the waiver requests would “facilitate a
more rapid restructuring of the band” which would ultimately promote faster delivery of wireless
broadband and educational services in the band.36 The unique circumstances justifying waiver in that
case are not present here, and thus, we reject FM Radio’s argument that the Division deviated from
Commission precedent.
13. Finally, because we find that the Division did not err in denying the Waiver Request, we
dismiss as moot FM Radio’s informal request to set aside RTC’s license.

IV. ORDERING CLAUSES

14.
Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4 (j), 5(c), and 303(r) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 155(c), and 303(r) , and
sections 0.331 and 1.106, of the Commission’s rules, 47 C.F.R. §§ 0.331 and 1.106, that the Petition for
Reconsideration filed by FM Radio Service LLC on March 2, 2007, IS HEREBY DENIED.
15.
It is further ORDERED that the Informal Request for Commission Action filed by FM
Radio Service LLC, FCC on July 9, 2008, IS HEREBY DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai
Deputy Chief
Wireless Telecommunications Bureau


35 Id. at 882-883 ¶ 7.
36 Id.
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