**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| # In the Matter o                | *  | File No. 5790-CM-R-91        |
| f Application of  {#in-the-matte | *) |                              |
| r-of-application-of .unnumbered} | ** |                              |
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| SAN DIEGO MDS COMPANY            | *  |                              |
|                                  | *) |                              |
| For Renewal of License for       | ** |                              |
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| Multipoint Distribution Service  | *  |                              |
| Station WHT559, San Diego,       | *) |                              |
| California                       | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: November 18, 2004 Released: November 23, 2004**

By the Commission:

# Introduction

1.  On December 15, 2003, San Diego MDS Company (San Diego MDS) filed an
    application for review[^1] of the November 13, 2003 decision of the
    former Public Safety and Private Wireless Division of the Wireless
    Telecommunications Bureau (Division). The Division's decision denied
    San Diego MDS's petition for reconsideration of the May 30, 1996
    dismissal of its application to renew Multipoint Distribution
    Service (MDS) Station WHT559, San Diego, California.[^2] For the
    reasons discussed below, we deny the AFR.

# Background

2.  On April 24, 1974, San Diego MDS filed an application for a
    construction permit for a new MDS Station on Channel 2 at San Diego,
    California.[^3] That application was granted on November 29, 1983.
    On January 4, 1984, San Diego MDS was issued a license for Station
    WHT559.[^4]

3.  On April 1, 1991, San Diego MDS filed an application to renew
    Station WHT559 along with a Contingent Request for Waiver of Section
    21.303(d) of the Commission's Rules (Waiver Request).[^5] Section
    21.303(d) of the Commission's Rules requires, in relevant part, that
    when a frequency is not used to render any service as authorized for
    a consecutive twelve month period, the licensee must submit its
    license for cancellation or show, in a waiver request, that it will
    use the frequency within the next six months.[^6] In the Waiver
    Request, San Diego MDS contended that Station WHT559 had been
    operating in compliance with Commission staff's interpretation of
    Section 21.303(d).[^7] San Diego MDS stated that Commission staff
    had indicated that a waiver of section 21.303(d) was not necessary
    if the station was fully constructed and periodically broadcasting
    signals over the air from its transmitter.[^8] San Diego MDS further
    stated that Commission staff had not required licensees to have
    customers.[^9] San Diego maintained that it submitted the Waiver
    Request in case Commission staff intended to interpret Section
    21.303(d) differently in the future.[^10] San Diego MDS further
    conceded that although it had worked diligently to find a customer,
    it did not have one at the time the Waiver Request was filed.[^11]

4.  By letter, dated May 30, 1996, the Video Services Division of the
    former Mass Media Bureau denied the waiver request and dismissed the
    renewal application.[^12] The Video Services Division rejected San
    Diego MDS's argument that the "periodic broadcasting of signals"
    constituted service under Section 21.303(d) of the Commission's
    Rules.[^13] Specifically, the Video Services Division found the
    proposition unsupported, unconvincing, and contrary to the
    Commission's stated purpose in adopting the rule to ensure the
    efficient use of the spectrum.[^14] In addition, the Video Services
    Division noted that San Diego MDS "had thirty days, beginning with
    the adoption of § 21.303(d) on November 9, 1987, to meet the
    requirements of that rule. \[San Diego MDS\] did not do so. Instead,
    \[San Diego MDS\] retained its license and provided no service
    whatsoever, except for 'periodically broadcast\[ing\] signals . . .'
    for almost three and a half years before requesting waiver of §
    21.303(d)."[^15] The Video Services Division concluded that
    application of the rule in this instance reinforces the reporting
    requirements and reassigns the spectrum from those who have not
    provided service and makes it available to those wishing to do
    so.[^16] The Video Services Division therefore denied the waiver
    request because allowing San Diego MDS to retain the license after
    years of non-use would frustrate the purpose of the rule and not be
    in the public interest.[^17]

5.  On July 1, 1996, San Diego MDS filed a petition for reconsideration
    of the May 30, 1996 dismissal of its application to renew Station
    WHT559.[^18] San Diego MDS argued that the Commission cannot
    penalize applicants for attempting to comply with ambiguous
    requirements.[^19] San Diego MDS maintained that Section 21.303(d)
    was ambiguous because the Commission never formally addressed what
    sort of use was required to avoid license cancellation.[^20]
    Moreover, San Diego contended that in response to the lack of formal
    guidance from the Commission, it relied on the informal advice from
    the Commission staff concerning the requirements of Section
    21.303(d).[^21] San Diego MDS maintains that it operated Station
    WHT559 in accordance with this informal advice from Commission
    staff.[^22] Thus, according to San Diego MDS, the decision of the
    Video Services Division should have been overturned and its license
    to operate Station WHT559 should have been renewed.[^23] San Diego
    further maintained that the Video Services Division had treated San
    Diego MDS differently from similarly situated applicants.[^24] San
    Diego MDS provided information on three letter rulings by three
    Commission staff members.[^25]

6.  The Division denied San Diego MDS's request to overturn the decision
    of the Video Services Division.[^26] First, the Division concluded
    that Section 21.303(d) of the Commission's Rules was not ambiguous
    as applied to San Diego MDS's situation.[^27] Second, the Division
    concluded that parties before the Commission may not claim reliance
    on informal staff advice as an excuse for non-compliance with
    regulatory requirements.[^28] The Division found that while the rule
    explicitly required San Diego MDS to provide "service," San Diego
    MDS did not explain how the periodic broadcasting of signals that no
    person received could possibly constitute "service" to any
    person.[^29] Moreover, the Division continued, San Diego MDS's
    interpretation of the rule, which would allow a licensee to avoid
    license cancellation by broadcasting a signal once a year that
    nobody receives, was plainly inconsistent with the Commission's
    underlying purpose of ensuring that spectrum is used efficiently and
    effectively.[^30] Moreover, the Division found that based on the
    record, it was unclear whether San Diego MDS in fact received advice
    that its operation complied with Section 21.303(d).[^31] The
    Division also concluded that to the extent that any of the rulings
    cited by San Diego MDS may have been inconsistent with the
    Commission's clear policy, it was not bound to follow those
    decisions.[^32] On December 15, 2003, San Diego MDS filed the
    instant AFR.

# discussion

7.  San Diego MDS maintains that Section 21.303(d) is ambiguous.[^33]
    Specifically, San Diego MDS contends that the rule did not clearly
    define "service" and failed to provide sufficient notice of what was
    required in order to avoid license cancellation.[^34] In addition,
    San Diego maintains that staff in the former Common Carrier Bureau,
    the former Mass Media Bureau, and the Wireless Telecommunications
    Bureau have, in the absence of formal guidance from the Commission,
    inconsistently interpreted Section 21.303(d) of the Commission's
    Rules.[^35] Consequently, San Diego MDS maintains, the Commission
    treated similarly situated applicants differently.[^36] According to
    San Diego MDS, these actions were arbitrary and capricious and a
    violation of San Diego MDS's right to due process.[^37] San Diego
    MDS requests that the Commission overrule the Division's decision
    and grant it a waiver of Section 21.303(d) of the Commission's
    Rules.[^38]

8.  We reject San Diego MDS' argument that it had insufficient notice of
    what constituted service under Section 21.303(d) of the Commission's
    Rules. The U.S. Court of Appeals for the District of Columbia
    Circuit has held in determining whether a party has fair notice, the
    critical inquiry is whether "by receiving the regulations and other
    public statements issued by the agency, a regulated party acting in
    good faith would be able to identify, with ascertainable certainty,
    the standards with which the agency expects parties to
    conform."[^39] In *Trinity Broadcasting*, the District of Columbia
    Circuit also explained that a licensee may not be penalized when the
    rules in question were unclear, the "agency itself struggles to
    provide a definitive reading of the regulatory requirements," and
    the licensee's interpretation of those rules was reasonable.[^40]
    San Diego MDS maintains that Section 21.303(d) of the Commission's
    Rules was unclear because the Commission did not formally address
    what sort of use was required to avoid license cancellation. We
    disagree.

9.  On September 25, 1987, the Commission released the *Part 21 Report
    and Order* revising Part 21 of the Commission's Rules, which governs
    the construction, licensing, and operation of common carrier
    domestic fixed radio facilities, including MDS. In the *Part 21
    Report and Order*, the Commission expressly changed Commission
    policy regarding unused licenses in the domestic public fixed radio
    services. Before the *Part 21 Report and Order* was released, the
    Commission did not require licensees to submit an unused license for
    cancellation.[^41] In changing this policy, the Commission stated
    that "\[t\]he comments have failed to convince us that requiring a
    licensee to submit an unused license for cancellation is, in and of
    itself, unreasonable."[^42] The Commission further explained that
    while it did not desire to discourage risk taking in the development
    of new technologies, it had, at the same time an obligation to
    ensure that spectrum is used efficiently.[^43] Consequently, the
    Commission added Section 21.303(d) to Part 21.[^44]

10. The plain language of the rule prohibits an MDS station from being
    non-operational for more than twelve consecutive months.[^45]
    Although San Diego MDS contends that the Commission failed to
    articulate what constitutes "service," we conclude that this is not
    a close case. In particular, we agree with the Division that it was
    clearly unreasonable for San Diego MDS to believe that the periodic
    broadcasting of signals that nobody received constituted "service"
    within the meaning of the rule. Such an interpretation is
    unreasonable; in order to provide a service a provider would, at a
    minimum, need a customer or other person to serve. Moreover, under
    San Diego MDS' interpretation of the rule, a licensee could avoid
    license cancellation by broadcasting a signal once a year that
    nobody receives. This construction, however, is plainly inconsistent
    with the Commission's underlying purpose of ensuring that spectrum
    is used efficiently and effectively.[^46]

11. San Diego MDS argues that the Commission's 1996 clarification of
    what constitutes "operation" is an admission that Section 21.303(d)
    of the Commission's Rules was ambiguous.[^47] That assertion is
    mistaken. The *Part 101 Report and Order* was not clarifying Section
    21.303(d) of the Commission's Rules. Instead, the rule being
    clarified was former Section 94.51 of the Commission's Rules.[^48]
    That rule for private operational fixed stations stated, "The
    station authorized must be placed in operation within twelve months
    from the date of grant or the authorization shall be invalid and
    must be returned to the Commission for cancellation."[^49] While
    former Section 94.51 addressed what must be done in order to meet
    the licensee's initial buildout requirement, Section 21.303(d)
    addresses what happens "after construction is completed and a
    certification of completion of construction has been filed."
    Finally, while the former Part 94 rule required that the station be
    "placed in operation," Section 21.303(d) of the Commission's Rules
    imposes a different requirement - the provision of service. We
    therefore conclude that the *Part 101 Report and Order* is
    inapplicable and does not support San Diego MDS' position.

12. San Diego MDS maintains that its right to due process was violated
    because it was treated differently than similarly situated
    parties.[^50] To support its argument, it submitted evidence
    concerning three licensees, Cleveland Microband Teleservices (CMT),
    Broadcast Data Corporation (BDC), and Wireless Holdings, Inc. and
    related companies (WHI). In reviewing these cases, we note that
    there is significant similarity between San Diego MDS's situation
    and CMT's and BDC's situation. CMT filed a waiver request on April
    5, 1991[^51] and BDC filed a waiver request on April 1, 1991.[^52]
    We do not believe that the actions granting waivers to CMT and BDC
    are precedent. We note that both of the rulings[^53] granting
    waivers did not address the untimeliness of the waiver requests or
    the definition of service in Section 21.303(d).[^54] Since the
    rulings did not address those issues, we cannot conclude that there
    was a reasoned analysis of the timeliness issue or of the definition
    of service. In any event, due process does not compel the Commission
    to follow erroneous decisions by Commission staff, particularly when
    the rulings in question do not analyze the relevant issues.[^55]
    Furthermore, we do not believe that San Diego MDS's situation is
    similar to WHI's situation. WHI was reporting periodic outages that
    lasted less than twelve consecutive months, thus not implicating the
    requirements of Section 21.303(d) of the Commission's Rules.[^56]

13. As the Division stated in the *Order on Reconsideration*, after
    twelve consecutive months of non-use, Section 21.303(d) of the
    Commission's Rules explicitly required San Diego MDS to submit its
    license for cancellation, file an application for modification of
    the license to delete the unused frequency, or request a waiver and
    demonstrate that the frequency will be used (as evidenced by
    appropriate requests for service) within twelve months of the end of
    the period of non-use.[^57] In the instant case, the twelve-month
    period of non-use began on January 4, 1984 when Station WHT559 was
    first authorized. Thus, San Diego MDS had thirty days from the
    effective date of Section 21.303(d) on November 9, 1987,[^58] to
    submit its license for cancellation, file a modification
    application, or seek a waiver of the rule. Instead of complying with
    Section 21.303(d), however, San Diego MDS periodically broadcast
    test signals and color bars for almost three and a half years before
    requesting a waiver of Section 21.303(d) of the Commission's Rules
    on April 1, 1991. Although San Diego MDS maintains that it was
    merely following the advice of Commission staff, in reviewing the
    record we have not found any evidence that Commission staff
    maintained that periodically transmitting a broadcast signal that no
    one receives constituted an authorized service under Section
    21.303(d) of the Commission's Rules.[^59] Moreover, as we have
    stated many times, parties doing business before the Commission may
    not claim reliance on informal staff advice to excuse non-compliance
    with regulatory requirements.[^60] Thus, we conclude that San Diego
    MDS' waiver request was untimely filed.

14. San Diego MDS asks the Commission to grant it a waiver of Section
    21.303(d) of the Commission's Rules. As noted above, San Diego MDS'
    waiver request was untimely. Even if we reached the merits of the
    waiver request, however, we would conclude that the waiver request
    was properly denied. Under Section 21.19 of the Commission's Rules,
    the Commission may grant a request for a waiver 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.[^61] We do not agree with
    San Diego MDS that the underlying purpose of Section 21.303(d) of
    the rule, to prevent spectrum warehousing, would be frustrated with
    the Commission's affirmation of the *Order on Reconsideration*. On
    the contrary, application of the Commission's Rules in this case
    would further the underlying purpose. As stated above, San Diego MDS
    did not provide service for years, which prevented other entities
    from using this spectrum. We also disagree with San Diego MDS that
    there are unique factual circumstances in this case that render the
    application of section 21.303(d) inequitable, unduly burdensome, and
    contrary to the public interest. As we stated above, we do not
    believe that Section 21.303(d) was ambiguously interpreted by the
    Commission or by Commission staff. Moreover, San Diego MDS' argument
    that application of this rule would penalize pioneers in the MDS
    industry that took tremendous risks completely ignores the
    Commission's statements and rationale in the *Part 21 Report and
    Order.* Risk-taking in the wireless industry is not a unique factual
    circumstance. In fact, the Commission stated in the *Part 21 Report
    and Order* that "\[w\]e have no desire to discourage risk taking in
    new technologies"[^62] The Commission continued, however, that the
    adoption of Section 21.303(d) was necessary to allow others to use
    the spectrum that was not being used to provide service and to allow
    the Commission to ascertain when spectrum is not being utilized or
    is being under utilized.[^63]

# conclusion and ordering clauses

15. For the reasons discussed above, we deny the application for review.
    We affirm the denial of San Diego MDS's request for waiver of
    Section 21.303(d) of the Commission's Rules and the dismissal of San
    Diego MDS's application to renew its license to operate Station
    WHT559.[^64]

16. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 4(i) and 405
    of the Communications Act of 1934, 47 U.S.C. §§ 154(i), 405, and
    Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the
    Application for Review filed by San Diego MDS Company on December
    15, 2003 IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: Application for Review (filed Dec. 15, 2003) (AFR).

[^2]: San Diego MDS Company, *Order on Reconsideration*, 18 FCC Rcd
    23863 (WTB PSPWD 2003) (*Order on Reconsideration*).

[^3]: File No. BPMD-7450092.

[^4]: File No. BLMD-8450043.

[^5]: San Diego MDS Company, Contingent Request for Waiver of Section
    21.303(d) of the Commission's Rules (Apr. 1, 1991) (Waiver Request).

[^6]: 47 C.F.R. 21.303(d) (1988).

[^7]: Waiver Request at 2.

[^8]: *Id.* at 1. In its Application for Review, San Diego MDS states
    that it had broadcast color bars and/or test signals twenty-four
    hours a day. Application for Review at 2.

[^9]: *Id*. at ii.

[^10]: *Id*. at 1.

[^11]: *Id*. at 13. San Diego MDS indicated that it had received
    positive feedback after it had contacted several minority
    broadcasting executives about the possibility of utilizing MDS and
    MMDS in a multi-market communications network. *Id.*

[^12]: *See* Letter from Daniel R. Ball, Esq., Attorney, MDS Section,
    Video Services Division, Mass Media Bureau, FCC, to Mr. James E.
    Lindstrom, Partner, San Diego MDS Company (dated May 30, 1996) (Ball
    Letter).

[^13]: *See* Ball Letter at 1.

[^14]: *See id.* (internal citations omitted).

[^15]: *Id* at 2*.* The Division found that the initial period of nonuse
    in this matter began on January 4, 1984. *Id.*

[^16]: *See id.*

[^17]: Ball Letter at 3.

[^18]: San Diego MDS Company, Petition for Reconsideration (filed Jul.
    1, 1996) (Petition).

[^19]: *Id*. at 4.

[^20]: *Id*. at 3.

[^21]: *Id.*

[^22]: *Id.*

[^23]: *Id*. at 8.

[^24]: *Id*. at 1.

[^25]: *See* *Id*. at 6 and n.9. *See also* Letter from Paul J.
    Sinderbrand, Counsel, San Diego MDS Company to Magalie Roman Salas,
    Secretary, Federal Communications Commission at 2 (filed April 17,
    1998) (Petition Supplement).

[^26]: *Order on Reconsideration*, 18 FCC Rcd at 23867 ¶ 12.

[^27]: *Id.* at 23865 ¶ 8.

[^28]: *Id.* at 23865-66 ¶ 9.

[^29]: *Id.* at 23865 ¶ 8.

[^30]: *Id.*, *citing* Revision of Part 21 of the Commission's Rules,
    *Report and Order,* 2 FCC Rcd 5713, 5724 ¶ 82 (1987) (*Part 21
    Report and Order*).

[^31]: *Order on Reconsideration*, 18 FCC Rcd at 23865-66 ¶ 9.

[^32]: *See Jelks v. FCC*, 146 F.3d 878, 881 (1998) (a subordinate body
    like the Division cannot alter a policy set by the Commission
    itself), *cert. den.* 119 S.Ct 1045 (1999); *Amor Family
    Broadcasting Group, v. FCC*, 918 F.2d 960, 962 (D.C. Cir. 1990)
    (even if internal inconsistency at a subordinate level were shown,
    the Commission itself would not be acting inconsistently) *citing
    Homemakers North Shore, Inc. v. Bowen*, 832 F.2d 408, 413 (7th Cir.
    1987); *Continental Cellular*, 6 FCC Rcd. 6834, 6836 n.25 (1991)
    (The Commission is not bound to apply a decision issued on delegated
    authority that is contrary to the Commission\'s Rules).

[^33]: AFR at 4.

[^34]: *Id.* at 5-7.

[^35]: *Id*. at 8.

[^36]: *Id.* at 8-9.

[^37]: *Id*. at 9.

[^38]: *Id*. at 15.

[^39]: *General Electric Co. v. Environmental Protection Agency*, 53 F.
    3d 1324, 1329 (D.C. Cir. 1995); *see also* *Trinity Broadcasting of
    Florida, Inc. et al. v. FCC*, 211 F. 3d 618, 628 (D.C. Cir. 2000)
    ("*Trinity Broadcasting*").

[^40]: *Trinity Broadcasting*, 211 F.3d at 632.

[^41]: *Part 21 Report and Order*, 2 FCC Rcd at 5724 ¶ 82.

[^42]: *Id*. at ¶ 83.

[^43]: *Id.* at ¶ 82.

[^44]: Section 21.303(d) states:

    > \(d\) If any radio frequency should not be used to render any
    > service as authorized during a consecutive period of twelve months
    > at any time after construction is completed and a certification of
    > completion of construction has been filed, under circumstances
    > that do not fall within the provisions of paragraph (a), (b) or
    > (c) of this section, or, if removal of equipment or facilities has
    > rendered the station not operational, the licensee shall, within
    > thirty days of the end of such period of nonuse:
    >
    > \(1\) Submit for cancellation the station license (or licenses) to
    > the Commission at Washington, DC 20554;
    >
    > \(2\) File an application for modification of the license (or
    > licenses) to delete the unused frequency (or frequencies); or
    >
    > \(3\) Request waiver of this rule and demonstrate either that the
    > frequency will be used (as evidenced by appropriate requests for
    > service, etc.) within six months of the end of the initial period
    > of nonuse, or that the frequency will be converted to allow
    > rendition of other authorized public services within one year of
    > the end of the initial period of nonuse by the filing of
    > appropriate applications within six months of the end of the
    > period of nonuse.
    >
    > If any frequency authorization is cancelled under this paragraph,
    > the Commission will declare by public notice the frequency (or
    > frequencies) vacated.

    47 C.F.R. 21.303(d) (1988).

[^45]: *Id.*

[^46]: *See Part 21 R&O*.

[^47]: AFR at 7-8, *citing* Reorganization and Revision of Parts 1, 2,
    21, and 94 of the Rules to Establish a New Part 101 Governing
    Terrestrial Microwave Fixed Radio Services, *Report and Order*, 11
    FCC Rcd 13449, 13464-65 ¶¶ 34-36 (1996) (*Part 101 Report and
    Order*).

[^48]: *See* Reorganization and Revision of Parts 1, 2, 21, and 94 of
    the Rules to Establish a New Part 101 Governing Terrestrial
    Microwave Fixed Radio Services, *Notice of Proposed Rulemaking*, 10
    FCC Rcd 2508, 2513-14 ¶¶ 13-14 (1995).

[^49]: 47 C.F.R. § 94.51 (1985).

[^50]: AFR at 9-12.

[^51]: Cleveland Microband Teleservices, Request for Waiver of Section
    21.303(d) of the Commission's Rules (filed Apr. 5, 1991).

[^52]: Broadcast Data Corporation, Contingent Request for Waiver of
    Section 21.303(d) of the Commission's Rules (filed Apr. 1, 1991).

[^53]: Letter from Lynne Milne, Senior Attorney, MDS Section, Video
    Services Division, Mass Media Bureau to Mr. William F. Hoffman
    (dated Feb. 23, 1995); Letter from Stephen Svab, Attorney, MDS
    Section, Video Services Division, Mass Media Bureau to Robert F.
    Corazzini, Esq. (dated Nov. 21, 1997).

[^54]: Neither letter ruling from Commission staff indicated that the
    periodic broadcast of test signals or color bars constituted service
    under Section 21.303(d) of the Commission's Rules. *See* i*d*.

[^55]: *See e.g.*, *See Jelks v. FCC*, 146 F.3d 878, 881 (1998) (a
    subordinate body like the Division cannot alter a policy set by the
    Commission itself), *cert. den.* 119 S.Ct 1045 (1999); *Amor Family
    Broadcasting Group, v. FCC*, 918 F.2d 960, 962 (D.C. Cir. 1990)
    (even if internal inconsistency at a subordinate level were shown,
    the Commission itself would not be acting inconsistently) *citing
    Homemakers North Shore, Inc. v. Bowen*, 832 F.2d 408, 413 (7th Cir.
    1987); *Continental Cellular*, 6 FCC Rcd. 6834, 6836 n.25 (1991)
    (The Commission is not bound to apply a decision issued on delegated
    authority that is contrary to the Commission\'s Rules); *North Texas
    Media, Inc. v. FCC*, 778 F.2d 28, 33 (D.C. Cir. 1985) (\"The initial
    improvident grant of a \[short-spacing\] waiver \... now described
    as an error, does not deprive the agency of authority to require
    future applicants to meet certain standards, in order to obtain such
    a waiver.")

[^56]: In a letter, WHI Holdings, Inc informed the staff of the Video
    Services Division, Mass Media Bureau, that the following stations
    had been off the air: KFF81 was out of service for 45 days to
    relocate its transmitter to a new site; WNTA514 was out of service
    for at least two months because its transmission equipment was
    stolen and then was removed from service for another 28 days to
    repair equipment; WHT909 was out of service for five months because
    the transmitter failed and the vacuum tubes to repair it were out of
    production; and WJL36 was out of service for 40 days because of
    erosion under the mountain top transmitter. Letter from Robert J.
    Rini, Esq. Attorney, Rini, Coran & Lancellotta, P.C., to Charles
    Dziedzic, Assistant Chief, MDS Section, Video Services Division,
    Mass Media Bureau, Federal Communications Commission (dated Mar. 6,
    1996). *See* also Letter from Daniel R. Ball, Esq., Attorney, MDS
    Section, Video Services Division, Mass Media Bureau, FCC, to Robert
    J. Rini, Esq., Rini, Coran & Lancellotta (dated Mar. 29, 1996).

[^57]: *Order on Reconsideration*, 18 FCC Rcd at 23865 ¶ 7.

[^58]: Common Carrier Services, Licensing, Construction, and Operation
    of Facilities, 52 Fed. Reg. 37775 (Oct. 9, 1987).

[^59]: We further note that the timing of San Diego MDS' waiver request,
    at renewal after three and a half years of unlawful conduct,
    constitutes a tacit admission of its failure to comply with the
    Commission's rules.

[^60]: *See, e.g.,* Mary Ann Salvatoriello, *Memorandum Opinion and
    Order*, 6 FCC Rcd 4705, 4708 (1991) (\"Erroneous advice received
    from a government employee is insufficient \[to warrant estoppel
    against the government\], particularly when the relief requested
    would be contrary to an applicable statute or rule.\"); Texas Media
    Group, Inc., *Memorandum Opinion and Order*, 5 FCC Rcd 2851, 2852
    (1990), *aff\'d sub nom*. *Malkan FM Associates v. FCC*, 935 F.2d
    1313 (D.C. Cir. 1991) (\"It is the obligation of interested parties
    to ascertain facts from official Commission records and files and
    not rely on statements or informal opinions by the staff.\"); Hinton
    Telephone Company, *Memorandum Opinion and Order on
    Reconsideration*, 10 FCC Rcd 11625, 11637 (1995) (\"The Commission
    has specifically held that parties who rely on staff advice or
    interpretations do so at their own risk.\").

[^61]: 47 CFR § 21.19.

[^62]: *Part 21 Report and Order*, 2 FCC Rcd at 5724 ¶ 82.

[^63]: *Id.*

[^64]: We recently eliminated Section 21.303 of the Commission's Rules
    as part of a comprehensive review of the rules relating to MDS and
    the Instructional Television Fixed Service. *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,
    *et al.*; WT Docket Nos. 03-66, *et al.*, *Report and Order and
    Further Notice of Proposed Rulemaking*, FCC 04-135 (rel. Jul. 29,
    2004) at ¶¶ 231-239. The subsequent elimination of the rule has no
    bearing on this case because San Diego MDS' license was subject to
    cancellation during the time the rule was in effect.