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WTB Denies Waiver Request of Port Authority of NY/NJ

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Released: April 8, 2014
Federal Communications Commission
Washington, D.C. 20554
April 8, 2014
DA 14-473
Mr. Vijay Revankar
The Port Authority of New York and New Jersey
2 Gateway Center, 16SW
Newark, NJ 07102
The Port Authority of New York and New Jersey
Requests for Waiver to Permit Untimely Filing and
to Extend the Construction Period For
Station WQPK961; File No. 0006191959
RS – Land Mobile Radiolocation
Dear Mr. Revankar:
On March 10, 2014, The Port Authority of New York and New Jersey (the Port
Authority) filed a request to waive the deadline for filing a request for extension of time to
complete construction of its Land Mobile Radiolocation Station WQPK961 (waiver request), and
a request to extend the construction period for the same station to October 31, 2014 (extension
request).1 For the reasons stated below, we deny the Port Authority’s waiver request and dismiss
the extension request as moot.
The Mobility Division (MD) granted the Port Authority a license for Station WQPK961
on June 18, 2012.2 Section 90.155 of the Commission’s rules requires that all stations authorized
under Part 90, including Station WQPK961, be placed into operation within twelve (12) months
from the date of grant or the authorization cancels automatically.3 We note that the Port
Authority previously requested and was granted an extension of time to construct Station
WQPK961 that extended the construction deadline to February 13, 2014.4 Therefore,
Commission rules required the Port Authority to construct Station WQPK961 by February 13,
2014, and to file its construction notification within 15 days of that date.5 On March 10, 2014,

1 FCC File No. 0006191959 (filed March 10, 2014) (waiver request) (extension request).
2 FCC File No. 0005153622 (filed Apr. 6, 2012).
3 47 C.F.R. § 90.155(a); see also 47 C.F.R. § 1.946(c).
4 FCC File No. 000582685 (filed June 20, 2013). Furthermore, three months before the expiration of the new
construction period deadline, the Commission’s Universal Licensing System (ULS) issued letters to the Port
Authority and to Raytheon IDS, the Port Authority’s contact-of-record, reminding the licensee that the construction
period for Station WQPK961 was about to expire and that the licensee had to submit a construction notification no
later than 15 days after the construction period. See Construction/Coverage Deadline Reminder Notice to the Port
Authority, Ref. No. 5683367 (Sent Nov. 13, 2013); Construction Coverage Deadline Reminder Notice to Raytheon
IDS, Ref. No. 5683368 (Sent Nov. 13, 2013).
5 Section 1.946(d) of the Commission’s rules requires a licensee who commences service within its construction
period to notify the Commission within 15 days of the expiration of the applicable construction deadline. 47 C.F.R.
§ 1.946(d).

twenty-five days after the construction period expired, the Port Authority submitted the waiver
request and extension request at issue.
Section 1.946(e) permits a licensee to request an extension of a construction period if the
failure to construct is due to an involuntary loss of its site or other causes beyond its control, but
the request must be filed before the expiration of the construction period.6 If a licensee does not
file a request to extend the construction period before its expiration, a waiver from Section
1.946(e) to permit untimely filing may be granted, pursuant to section 1.925(b)(3) of the
Commission’s rules, if the petitioner establishes that: 1) the underlying purpose of the rule would
not be served or would be frustrated by application of the instant case, and that grant of the
waiver would be in the public interest; or 2) where the petitioner establishes unique or unusual
factual circumstances, that application of the rules would be inequitable, unduly burdensome or
contrary to the public interest, or the applicant has no reasonable alternative.7 An applicant
seeking a waiver faces a high hurdle and must plead with particularity the facts and
circumstances that warrant a waiver.8
Because the Port Authority filed its extension request after the expiration of the
construction period, we must first decide whether to grant the Port Authority’s waiver request.
The Port Authority states that it did not timely file its extension request for station WQPK61
before the end of the construction period “due to an oversight” stemming from changes in
personnel while remedying an environmental permit violation, and the failure of similar
equipment elsewhere in the air transportation facility’s property.9 This administrative oversight
is not an adequate justification under either prong of Section 1.925(b)(3) for the Commission to
grant the Port Authority’s waiver request. The Port Authority makes no showing that the
underlying purpose of Section 1.946(e) would not be served or would be frustrated by its
application to the present case, nor has the Port Authority demonstrated that the late filing of the
extension request stems from unique or unusual circumstances. The licensee is solely
responsible for complying with its construction requirements.10 Inattention to Commission rules
due to oversight is not a compelling basis for a waiver.11 Furthermore, we note that the
Commission has emphasized that requiring licensees to file extension requests on a timely basis

6 47 C.F.R. § 1.946(e).
7 47 C.F.R. § 1.925(b)(3).
8 See, e.g., WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), aff'd, 459 F.2d 1203 (1973), cert. denied,
409 U.S. 1027 (1972) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664, 666 (D.C. Cir.
1968)); see also In the Matter of Birach Broad. Corp., Memorandum Opinion and Order, 18 FCC Rcd 1414, 1415 ¶
6 (2003).
9 Waiver request at 1.
10 In the Matter of 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, Report and Order, WT Docket 96-188, 13 FCC Rcd. 21027, 21075 ¶ 104
(1998); See also, e.g., In the Matter of Instapage Network, LTD., Order on Reconsideration, 17 FCC Rcd. 19083,
19091 ¶ 16 (2002) (“Instapage”) (“It is important that licensees take responsibility for their compliance with the
Commission’s rules”).
11 See, e.g., Instapage at 19094 ¶ 22. See also Empire Broad. Corp., Memorandum Opinion and Order, 25 FCC2d
68, 69 ¶ 4 (1970) (mere oversight or failure to be aware of the Commission’s requirements will not excuse a licensee
from its obligation to operate in compliance with the Commission’s Rules).

serves important policy objectives and has upheld the dismissal of untimely requests for
extension.12 Therefore, because the Port Authority has failed to satisfy the criteria for grant of a
waiver, we deny its waiver request.
We now address the Port Authority’s extension request, which asks the Commission to
extend the construction deadline for Station WQPK961 to October 31, 2014. Although the Port
Authority provides several reasons in support of its extension request – including a stop work
order during months in which construction would have taken place, harsh winter conditions, and
damage to the radio unit meant to be used in the WQPK961 operation13 – we do not reach the
merits of the Port Authority’s claims. Because the Port Authority failed to timely file its
extension request and we have denied its waiver request, the Port Authority’s authorization
terminated automatically effective February 13, 2014, the date the construction period expired.
Therefore, we dismiss the Port Authority’s extension request as moot.
This action is taken without prejudice, so the Port Authority may file an application for a
new license. If you have any questions or need further information on this matter, you may
contact Thomas Derenge at (202) 418-2451.
Pursuant to Sections 4(i) and 303(i) of the Communications Act of 1934, as amended,
47 U.S.C. §§ 154(i), 303(i), and Sections 0.331, 1.925, 1.946 and 90.155 and of the
Commission’s Rules, 47 C.F.R. §§ 0.331, 1.925, 1.946, 90.155, we DENY the Port Authority’s
waiver request and DISMISS its extension request, FCC File No. 0006191959, filed on March
10, 2014, to the extent set forth in this letter.
Thomas P Derenge
Deputy Chief, Mobility Division
Wireless Telecommunications Bureau

12 See Nathan Sherman Enterprises, Inc., Lubbock SMR, Inc., S&C Investments, Inc., Triangle Communications,
Inc., Mobilecom One, L.L.C., Hawaiian Wireless, Inc., HBS Communications, Inc., SRI, Inc. and Spectrum
Resources of the Northeast, Inc., Order, 16 FCC Rcd 11150, 11152 ¶ 6 (2001) (“As a general matter, allowing the
filing of untimely [construction] extension requests . . . would undermine orderly and efficient spectrum
management, lead to administrative uncertainty and delay, and hinder [the Commission’s] ability to relicense scarce
spectrum resources to other licensees who are ready and able to construct”).
13 Waiver request at 1-2.

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