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Garnett Unified School District Renewal Waiver Order

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Released: October 17, 2012

Federal Communications Commission

DA 12-1661

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Application of
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)

GARNETT UNIFIED SCHOOL DISTRICT #365
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File No. 0005177897
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For Renewal of License for Educational
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Broadband Service Station WLX335
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MEMORANDUM OPINION AND ORDER

Adopted: October 16, 2012

Released: October 17, 2012

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

I.

INTRODUCTION

1.
In this Memorandum Opinion and Order, we grant Garnett Unified School District #335
(“Garnett”) a waiver of the Commission’s rule requiring that a licensee file its renewal application before
its license expires. While Garnett had filed a timely application to renew Station WLX335, the
application had been dismissed because Garnett failed to respond to a notice of return. While the original
dismissal was correct, we find that it is in the public interest to grant a waiver to allow processing of a
second, late-filed application to renew Station WLX335 and thus allow Garnett to continue providing
educational broadband services.

II.

BACKGROUND

2.
Garnett operates Educational Broadband Service (“EBS”) Station WLX335 on the D-
group channels in Garnett, Kansas. Garnett has constructed a wireless network that provides coverage to
Garnett’s campus, its administration facility, and its adjacent athletic and recreational facilities.1
3.
On October 20, 2011, Garnett timely notified the Commission that it had constructed
Station WLX3352 as required under Section 27.14(o) of the Commission’s Rules3 and that it was using
the station for educational purposes.4 Thus, Garnett met the deadline applicable to all EBS licensees to
demonstrate substantial service on or before November 1, 2011. 5 Unfortunately, although Garnett timely
filed its Construction Notification, it did so confidentially, and the public was unable to review it to
determine whether Garnett had met the substantial service and educational use requirements applicable to
EBS licenses.


1 File No. 0004921621 (filed Oct. 20, 2011) (“Construction Notification”).
2 Id.
3 47 C.F.R. § 27.14(o).
4 See 47 C.F.R. §§ 27.1203, 27.1214.
5 See National EBS Association and Catholic Television Network, Memorandum Opinion and Order, 26 FCC Rcd
4021 (WTB 2011).

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DA-12-1661

4.
On November 14, 2011, Garnett timely filed an application to renew Station WLX335,
which was scheduled to expire on February 6, 2012.6 Under the Commission rules, licensees may file a
renewal application 90 days before the license expires.7
5.
On January 26, 2012,8 the Wireless Telecommunications Bureau (“Bureau”) returned
Garnett’s First Renewal Application because Garnett was required to disclose the owners of Station
WLX335 by filing FCC Form 602 and did not do so.9 The First Renewal Notice of Return indicated that
Garnett must file Form 602 within 60 days (on or before March 26, 2012) or its First Renewal
Application would be dismissed.10
6.
Two months later, on March 17, 2012, the Bureau returned the Garnett’s Construction
Notification because Garnett had filed it originally as a confidential document that could not be viewed by
the public.11 The construction notification Notice of Return requested that Garnett re-file the substantial
service notification so that it could be viewed by the public and to redact only confidential information, if
any.12 The Construction Notification Notice of Return stated that Garnett must file a construction
notification that is viewable by the public within 60 days (on or before May 17, 2012) or its construction
notification would be dismissed.13
7.
On April 17, 2012, the Bureau dismissed Garnett’s First Renewal Application because
Garnett did not respond to the First Renewal Notice of Return.14
8.
On April 24, 2012, Garnett timely responded to the Construction Notification Notice of
Return by re-filing its Construction Notification in a publicly viewable format.15 Also on April 24, 2012,
Garnett filed the Second Renewal Application seeking to renew its application to operate Station
WLX33516 and an associated request17 to waive Section 1.949(a) of the Commission’s rules, which
requires licensees to file their renewal applications before their license expiration date.18
9.
On July 3, 2012, the Bureau returned Garnett’s Second Renewal Application because
Garnett had again failed to file Form 602.19 The Second Renewal Application Notice of Return directed
Garnett to file Form 602 within 60 days (on or before September 4, 2012) or its Second Renewal


6 File No. 0004952711 (filed Nov. 14, 2011) (“First Renewal Application”).
7 47 C.F.R. § 1.949(a).
8 Notice of Return, Ref. No. 5301908 (Jan. 26, 2012) (“First Renewal Application Notice of Return”).
9 See 47 C.F.R. § 1.913(a)(2).
10 First Renewal Application Notice of Return.
11 Notice of Return, Ref. No. 5333759 (Mar. 17, 2012) (“Construction Notification Notice of Return”).
12 Id.
13 Id.
14 Notice of Dismissal, Ref. No. 5355969 (Apr. 17, 2012). The Bureau gave public notice of the dismissal of the
Renewal Application on April 18, 2012. See Wireless Telecommunications Bureau Market-Based Applications
Action, Report No. 7695, Public Notice (Apr. 18, 2012) at 1.
15 Construction Notification, Amendment (filed Apr. 24, 2012).
16 File No. 0005177897 (filed Apr. 24, 2012) (“Second Renewal Application”).
17 Second Renewal Application, Waiver Request.
18 47 C.F.R. § 1.949(a).
19 Notice of Return, Ref. No. 5403921 (Jul. 3, 2012) (“Second Renewal Application Notice of Return”) at 1-2.
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DA-12-1661

application would be dismissed.20 On August 23, 2012, Garnett timely responded to the Second Renewal
Application Notice of Return by filing Form 602.21

III.

DISCUSSION

10.
Although Garnett timely filed its application to renew Station WLX335, we conclude that
the dismissal of Garnett’s First Renewal Application was proper. Under Section 1.934(c) of the
Commission’s Rules, we properly dismissed Garnett’s First Renewal Application because Garnett failed
to respond to our First Renewal Application Notice of Return on or before March 26, 2012, the date
indicated in the First Renewal Application Notice of Return.22 Generally, the Bureau sends a Notice of
Return to applicants when additional information is necessary for the Bureau to process the application.
Moreover, Notices of Return plainly state that “[i]f you do not file an amendment to your application
within 60 days of the date on the top of this letter, your application will be dismissed.”23 In this case, the
First Renewal Application Notice of Return requested that Garnett disclose the owners of Station
WLX335 by filing Form 602 on or before March 26, 2012. Garnett did not do so and thus its First
Renewal Application was properly dismissed.
11.
The pertinent question before us, however, is whether to grant Garnett’s request to waive
Section 1.949(a) of the Commission’s rules to allow consideration of its Second Renewal Application.
The Commission may grant a waiver request if it is shown that: (i) the underlying purpose of the rules(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; 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.24 We conclude that it is in
the public interest to grant Garnett’s Waiver Request because Garnett has shown that in view of its unique
factual circumstances applying Section 1.949(a) to its case is contrary to the public interest. While there
is precedent for refusing to reinstate renewal applications when an applicant fails to offer a justification
for failing to respond to a return letter,25 based upon the totality of the circumstances of this case, we find
that Garnett has shown that in view of the its unique factual circumstances, it is in the public interest to
grant its Waiver Request and allow processing of its Second Renewal Application.26 Although Garnett
did not timely respond to the First Renewal Application Notice of Return, it has otherwise been diligent
in complying with the Commission’s rules. It timely filed its First Renewal Application and Construction
Notification, timely responded to the Construction Notification Notice of Return, constructed Station
WLX335, and is providing wireless educational service to its students, faculty, and staff. We also note
that although the Notices of Return concerned two separate matters, both concerned the license to operate
Station WLX335, were sent to Garnett close-in-time, and could easily be confused by Garnett, which
timely responded to one Notice of Return and not the other. Under these specific circumstances, while


20 Second Renewal Application Notice of Return at 1.
21 Second Renewal Application, Amendment (filed Aug. 23, 2012). See Form 602, Garnett Unified School District
#365, File No. 0005363358 (filed Aug. 22, 2012, amended Aug. 24, 2012).
22 47 C.F.R. § 1.934(c). Under Section 1.934(c) of the Commission’s Rules, an application may be dismissed when
the applicant fails “to respond substantially within a specified time period to official correspondence or requests for
additional information.”
23 See First Renewal Application Notice of Return.
24 47 C.F.R. § 1.925(b).
25 See RAM Technologies, Inc., Order on Reconsideration, 16 FCC Rcd 10919 (WTB PS&PWD 2001).
26 See Somerville Independent School District, Order on Reconsideration, 27 FCC Rcd 6063 (WTB BD 2012)
(renewal application reinstated despite failure to respond to notice of return where two notices of return had been
sent around the same time and licensee had otherwise been diligent in complying with the Commission’s rules).
3

Federal Communications Commission

DA-12-1661

we expect Garnett to exercise greater care in the future, we find that it is not in the public interest for
Garnett to lose its license for this isolated failure.

IV.

CONCLUSION AND ORDERING CLAUSES

12.
The decision to dismiss Garnett’s First Renewal Application was correct. However,
based upon the information provided in the Waiver Request, we have decided to grant a waiver to allow
processing of Garnett’s Second Renewal Application. Accordingly, we grant Garnett’s Waiver Request.
13.
Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Sections 1.925 and 1.949 of the
Commission’s Rules, 47 C.F.R. §§ 1.925, 1.949, the Waiver Request filed by Garnett Unified School
District #365 on April 24, 2012 IS GRANTED.
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 Section 1.949 of the Commission’s Rules, 47
C.F.R. § 1.949, that the Broadband Division SHALL PROCESS the application filed by Garnett Unified
School District #365 for renewal of license of Educational Broadband Service Station WLX335 (File No.
0005177897) in accordance with this Memorandum Opinion and Order and the Commission’s rules and
policies.
15.
These actions are taken under designated 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
4

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