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Somerville Independent School District Renewal Reinstatement Order

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Released: June 5, 2012

Federal Communications Commission

DA 12-886

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of Application of
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SOMERVILLE INDEPENDENT SCHOOL
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File No. 0004964016
DISTRICT
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For Renewal of License for Educational
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Broadband Service Station WLX438
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ORDER ON RECONSIDERATION

Adopted: June 4, 2012

Released: June 5, 2012

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

I.

INTRODUCTION

1.
In this Order on Reconsideration, we grant a petition for reconsideration and reinstate a
renewal application that had been dismissed for failure to respond to a notice of return. While the original
dismissal was correct, we find that the public interest would best be served by reinstating the renewal
application and allowing the licensee to provide educational broadband services.

II.

BACKGROUND

2.
Somerville Independent School District, Somerville, Texas (“Somerville”) operates
Educational Broadband Service (“EBS”) Station WLX438 on the C-group channels. Somerville has
constructed a WiMax system that operates 24/7 and that is used to provide wireless internet service to the
SHS Library, the Technology Lab, and the SES Library for faculty and students.1 The license for Station
WLX438 expired on February 19, 2012.2 Somerville was required to file a renewal application in the 90
day period prior to February 19, 2012.3 In addition, all EBS licensees were required to demonstrate that
they were offering substantial service by November 1, 2011.4 Somerville met both requirements: it filed
a construction notification on November 1, 20115 and an application to renew the license for Station
WLX438 on November 22, 2011.6
3.
The Wireless Telecommunications Bureau (“Bureau”) returned the Renewal Application
on February 7, 20127 because Somerville was required to file FCC Form 602, which requires applicants to


1 File No. 0004935604 (filed Nov. 1, 2011) (“Construction Notification”).
2 See File No. BRIF-20011004AAL (granted Feb. 19, 2002).
3 See 47 C.F.R. § 1.949(a).
4 See National EBS Association and Catholic Television Network, Memorandum Opinion and Order, 26 FCC Rcd
4021 (WTB 2011).
5 Construction Notification, Amendment (filed May 7, 2012).
6 File No. 0004964016 (filed Nov. 22, 2011) (“Renewal Application”).
7 Notice of Return, Ref. No. 5309196 (Feb. 7, 2012) (“Renewal Application Notice of Return”) at 1-2.

Federal Communications Commission

DA-12-886

disclose the owners of wireless stations.8 The Bureau returned the Construction Notification on March
17, 2012 because it did not contain sufficient information for Commission staff to evaluate whether
Somerville had met the requirements for demonstrating substantial service applicable to EBS licensees.9
Both Notices of Return informed Somerville that it must respond within 60 days of the date of the Notice
of Return.10 Thus, Somerville was required to respond to the renewal application Notice of Return on or
before April 9, 2012. Somerville did not do so, and the Bureau therefore dismissed its Renewal
Application.11 Somerville was also required to respond to the construction notification Notice of Return
on or before May 17, 2012. On May 7, 2012, Somerville amended its Construction Notification to
include additional information to enable Commission staff to evaluate whether it met the substantial
service requirements for EBS licensees under the Commission’s rules.12 Also on May 7, 2012,
Somerville filed the instant petition seeking reconsideration of the Commission’s decision to dismiss
Somerville’s application to renew Station WLX438.13 Somerville explains that there was a changeover in
staff and that it mistakenly thought the Renewal Application Notice of Return concerned the same issue
as the Construction Notification Notice of Return.14 Finally, on the same date, Somerville filed FCC
Form 602.15

III.

DISCUSSION

4.
In this case, Somerville failed to respond to the Renewal Application Notice of Return
letter on or before April 9, 2012, 60 days after the Notice of Return was sent. Under Section 1.934(c) of
the Commission’s Rules, an application may be dismissed for failure to prosecute “for failure of the
applicant to respond substantially within a specified time period to official correspondence or requests for
additional information.”16 The Bureau sends a Notice of Return to applicants when additional
information is necessary for the Bureau to process the application. The Notice of Return plainly states
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.” Somerville was placed on notice that its Renewal Application
would be dismissed if it failed to respond to the return letter. Somerville failed to respond and does not
offer any legitimate explanation for its failure. Accordingly, we conclude that the dismissal of
Somerville’s renewal application was proper.
5.
The pertinent question before us, however, is whether to reinstate Somerville’s Renewal
Application on reconsideration. 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,17 based upon the
totality of the circumstances involved in this case, we believe the public interest would best be served by


8 See 47 C.F.R. § 1.913(a)(2).
9 Notice of Return, Ref. No. 5333763 (Mar. 17, 2012) (“Construction Notification Notice of Return”) at 1-2. See
also
47 C.F.R. 27.14(o).
10 Renewal Application Notice of Return at 1; Construction Notification Notice of Return at 1.
11 Notice of Dismissal, Ref. No. 5364425 (May 1, 2012). The Bureau gave public notice of the dismissal of the
Renewal Application on May 2, 2012. See Wireless Telecommunications Bureau Market-Based Applications
Action, Report No. 7726, Public Notice (May 2, 2012) at 2.
12 Construction Notification, Amendment (filed May 7, 2012).
13 Somerville Independent School District Somerville, Texas, Petition for Reconsideration (filed May 7, 2012)
(“Petition”).
14 Id.
15 File No. 0005196597 (filed May 7, 2012).
16 47 C.F.R. § 1.934(c).
17 See RAM Technologies, Inc., Order on Reconsideration, 16 FCC Rcd 10919 (WTB PS&PWD 2001).
2

Federal Communications Commission

DA-12-886

granting the Petition and reinstating the Renewal Application. Although Somerville did not timely
respond to the Renewal Application Notice of Return, it has otherwise been diligent in complying with
the Commission’s rules. It timely filed its Renewal Application and Construction Notification, and
timely responded to the Construction Notification Notice of Return. We also note that the two deadlines
for responses were close together and that Somerville has alleged that it was unaware that there were two
Notices of Return concerning separate subjects. Under those specific circumstances, while we expect
Somerville to exercise greater care in the future, we do not believe that Somerville should lose its license
for this isolated failure.
6.
Another circumstance supporting reinstatement of Somerville’s renewal application is
that it is providing educational broadband service to students and faculty. Specifically, Somerville has
constructed a WiMax system that operates 24/7 and that is used to provide wireless internet service to the
SHS Library, the Technology Lab, and the SES Library for faculty and students.18 Based upon the
totality of the circumstances, we conclude that it is in the public interest to grant Somerville’s Petition. If
the Renewal Application is granted, we will then evaluate the Construction Notification to see if
Somerville has demonstrated substantial service.

IV.

CONCLUSION AND ORDERING CLAUSES

7.
The decision to dismiss Somerville’s Renewal Application was correct. However, based
upon the information provided in the Petition, we have decided to reinstate Somerville’s Renewal
Application. Accordingly, we grant the Somerville’s petition for reconsideration.
8.
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 1.106 of the
Commission’s Rules, 47 C.F.R. §§ 1.106 the Petition for Reconsideration filed by Somerville
Independent School District, Somerville, Texas on May 7, 2012 IS GRANTED.
9.
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 REINSTATE AND PROCESS the application filed
by Somerville Independent School District, Somerville, Texas (File No. 0004964016) in accordance with
this Order on Reconsideration and the Commission’s rules and policies.
10.
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


18 See Construction Notification.
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