**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | FCC File No. 0002018531      |
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| DISNEYLAND RESORT                | ) | FCC File No. 0002018534      |
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| Request for Waiver of Section    | * |                              |
| 1.949 of the Commission's Rules  |   |                              |
| to Reinstate License Trunked     | * |                              |
| Business Category 900 MHz        | * |                              |
| Station WNYX856                  | ) |                              |
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| Request for Waiver of the        | * |                              |
| Application Freeze in the 900    |   |                              |
| MHz Band                         | * |                              |
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| Petition for Reconsideration of  | ) |                              |
| the Termination of Private Land  | * |                              |
| Mobile Radio Station License     | * |                              |
| WNYX856                          |   |                              |
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| Motion for Stay of Termination   | * |                              |
| of Private Land Mobile Radio     | ) |                              |
| Station License WNYX856          | * |                              |
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+----------------------------------+---+------------------------------+

**ORDER**

**Adopted:** January 25, 2006 **Released:** January 27,2006

By the Chief, Public Safety and Critical Infrastructure Division,
Wireless Telecommunications Bureau:

# introduction and Executive Summary

1.  In this *Order*, we address the requests for waivers of Section
    1.949(a) of the Commission's Rules[^1] and the 900 MHz application
    freeze[^2] filed by Disneyland Resort (Disney) on January 24, 2005.
    Disney requests a waiver of Section 1.949(a) of the Commission's
    Rules for leave to file a renewal application[^3] for 900 MHz
    Trunked Business Category Station WNYX856, Anaheim, California, the
    license for which expired on October 21, 2004.[^4] Disney also filed
    a petition for reconsideration (Petition)[^5] and a motion for stay
    (Motion)[^6] of the license termination. In the event that Disney's
    efforts to retain its license for Station WNYX856 are not
    successful, Disney also requests[^7] a waiver of the current freeze
    on 900 MHz application processing to permit Disney to file a new
    license application for the 900 MHz frequencies previously licensed
    to Disney under Station WNYX856.[^8] For the reasons stated below,
    we deny the request for waiver of Section 1.949, grant the waiver
    request with respect to the 900 MHz freeze, and dismiss Disney's
    Petition and Motion as moot.

# background

2.  The Commission originally issued Disney a license to operate Station
    WNYX856 on October 21, 1994.[^9] Disney renewed the license in 1999
    for a five year period. On July 26, 2004, a renewal reminder letter
    was sent to Disney.[^10]

3.  On September 17, 2004, the Wireless Telecommunications Bureau
    (Bureau) instituted a freeze on new 900 MHz applications because it
    feared that the exceptionally large number of applications it had
    received could compromise its ability to accommodate displaced
    systems during the 800 MHz band reconfiguration process designed to
    resolve interference to public safety communications.[^11] The
    Bureau stated that it would continue to accept applications for
    license modification and would entertain requests for waiver of the
    900 MHz application freeze.[^12] More recently, the Commission
    released a *Notice of Proposed Rulemaking* seeking comment on
    geographic licensing in the 900 MHz band, which reaffirmed the
    freeze and reiterated that it would consider requests for waiver of
    the freeze.[^13]

4.  On October 21, 2004, the license for Station WNYX856 expired by its
    own terms.[^14] On January 24, 2005, Disney submitted the instant
    applications and requests for relief. Presently, Disney is operating
    on the subject 900 MHz frequencies under Station WQCB749 pursuant to
    Special Temporary Authority (STA).[^15]

# Discussion

5.  *Waiver* *of Section 1.949 of the Rules.* The Commission will grant
    a waiver of its rules if (a) it is in the public interest and the
    underlying purpose of the rule would be frustrated or not served by
    application to the present case, or (b) in view of unique or unusual
    factual circumstances, application of the rule(s) would be
    inequitable, unduly burdensome, or contrary to the public interest,
    or the applicant has no reasonable alternative.[^16] The
    Commission's policy regarding treatment of late-filed renewal
    applications in the Wireless Radio Services is as follows: we will
    grant renewal applications that are filed up to thirty days after
    the expiration date of the license *nunc pro tunc*[^17] if the
    application is otherwise sufficient under our rules, but the
    licensee may be subject to an enforcement action for untimely filing
    and unauthorized operation during the time between the expiration of
    the license and the untimely renewal filing.[^18] Applicants who
    file renewal applications more than thirty days after the license
    expiration date may also request that the Commission renew the
    license *nunc pro tunc*, but such request will not be routinely
    granted, will be subject to stricter review, and also may be
    accompanied by enforcement action, including more significant fines
    or forfeitures.[^19] In determining whether to grant a late-filed
    application, the Commission takes into consideration 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.[^20]

6.  Disneyland states that the license for Station WNYX856 expired
    because its contact person for FCC licensing left Disney without
    advising the remaining employees to process the renewal application,
    and failed to transfer the necessary station files and associated
    documentation to his replacement.[^21] This is an insufficient
    showing to warrant a waiver of Section 1.949. We note that turnover
    in recordkeeping personnel is not a valid excuse for failure to
    timely renew a license.[^22] Further, the Commission has held that
    each licensee is fully responsible for knowing the terms and
    duration of its license and for filing a timely renewal
    application.[^23]

7.  Disney also argues that the 900 MHz system the license for Station
    WNYX856 is integral to the safe operation of the resort because
    Disney uses the system on a daily basis to coordinate the safe
    operation of its theme park rides, report and react to emergencies
    (including fire and medical), and monitor suspicious or dangerous
    activity by guests.[^24] Disney is not a public safety licensee.
    Even if it were, the Commission has determined that even public
    safety licensees will not be afforded special consideration when
    they fail to file a timely renewal application and argue that their
    late-filed renewal application should be granted because the
    licensee engages in activities relating to public health or
    safety.[^25] Taking into account all the facts and circumstances of
    the instant matter, including the specific factors set forth by the
    Commission, we conclude that Disney's request for waiver of Section
    1.949(a) should be denied.

8.  *Waiver of 900 MHz Application Freeze*. In the alternative, Disney
    requests a waiver of the 900 MHz freeze to file a new application
    for the frequencies previously licensed under Station WNYX856. As
    noted above, the application freeze does not foreclose license
    modifications or requests for waiver. The purpose of the application
    freeze is to preserve adequate spectrum resources during band
    reconfiguration as well as to preserve the spectrum landscape until
    the Commission resolves the geographic licensing issues raised in
    its *900 MHz NPRM*.[^26]

9.  We do not believe the underlying purpose of the 900 MHz application
    freeze would be frustrated if a waiver is granted in this case,
    because Disney only seeks to regain the licensing it formerly
    held.[^27] As noted above, Disney was licensed on Station WNYX856
    for ten years until its license expired. Thus, Disney was authorized
    to operate Station WNYX856 prior to the decision to institute the
    application freeze. Disney does not seek to modify any of its
    formerly licensed operating activities. Waiver will not interfere
    with the spectrum needs associated with the 800 MHz proceeding
    because Disney was an established 900 MHz licensee before the 800
    MHz reconfiguration decision and, had it filed a timely renewal
    application, would not have been affected by the application freeze
    or the *900 MHz NPRM*. Thus, grant of the waiver will not interfere
    with the purpose of the 900 MHz freeze.

10. We also agree with Disney that grant of the instant waiver request
    is in the public interest. Disneyland hosts large crowds daily with
    its hotels, theme park rides, and other amusements.[^28] Radios are
    used daily to coordinate safe operation of amusement rides and
    respond to fire, medical, and other emergencies.[^29] Accordingly,
    we believe that grant of a waiver of the 900 MHz application freeze
    is important for the safe operation of Disney's resort. For the
    aforementioned reasons, we grant Disney's request for waiver of the
    900 MHz application freeze. Because we grant Disney leave to file a
    900 MHz application for the frequencies formerly licensed under
    Station WNYX856, we dismiss as moot its Petition and Motion.

11. Notwithstanding our decision in this particular case, we caution
    that a licensee must abide by the Commission's filing deadlines. All
    licensees are responsible for filing renewal applications and
    related petitions in a timely manner. Thus, we admonish Disney to
    conform to this requirement in the future and to take any necessary
    steps to avoid future occurrences, because the Commission does not
    routinely grant such waiver requests. In this connection, we note
    that Disneyland indicates that it has implemented procedures to
    ensure timely filings in the future.[^30]

#  ORDERING CLAUSes

12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 4(i) if the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, the
    waiver request filed January 24, 2005 by the Disneyland Resort in
    connection with application FCC File No. 0002018531 IS DENIED, and
    application FCC File No. 0002018531, filed January 24, 2005, by the
    Disneyland Resort to renew the license for Station WNYX856 SHALL BE
    DISMISSED.

13. IT IS FURTHER ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.925 of the Commission's Rules, 47 C.F.R § 1.925, the
    Request for Waiver of the Application Freeze in the 900 MHz Band,
    filed by Disneyland Resort on January 2005 IS GRANTED, and
    application FCC File No. 0002018534 SHALL BE PROCESSED in accordance
    with this *Order* and the Commission's Rules.

14. IT IS FURTHER ORDERED that, pursuant to Section 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. § 405, and Section
    1.106 of the Commission\'s Rules, 47 C.F.R. § 1.106, the Petition
    for Reconsideration and the Motion for Stay of Cancellation filed
    January 24, 2005 by the Disneyland Resort ARE DISMISSED AS MOOT.

15. This action is taken under delegated 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

Michael Wilhelm

Chief, Public Safety and Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 1.949(a) (applications for renewal licenses to be
    filed no later than the expiration date of the authorization for
    which renewal is sought, and no sooner than ninety days prior to
    expiration).

[^2]: *See* Wireless Telecommunications Bureau Freezes Applications in
    the 900 MHz Band, *Public Notice*, 19 FCC 18277 (WTB 2004) (*900 MHz
    Freeze PN*); *see also* Amendment of Part 90 of the Commission's
    Rules to Provide for Flexible Use of the 896-901 MHz and 935-940 MHz
    Bands Allotted to the Business and Industrial Land Transportation
    Pools, *Notice of Proposed Rulemaking and Memorandum Opinion and
    Order*, WT Docket No. 05-62, 20 FCC Rcd 3814 (2005) (*900 MHz
    NPRM*).

[^3]: FCC File No. 0002018531 (filed Jan. 24, 2005).

[^4]: Request for Waiver of Section 1.949(a) of the Commission's Rules,
    filed January 24, 2005 by Disneyland Resort (Renewal Waiver
    Request).

[^5]: Petition for Reconsideration of Cancellation of Private Mobile
    Radio Station WNYX856, filed January 24, 2005 by Disneyland Resort.

[^6]: Motion for Stay of Cancellation of Private Land Radio Station
    License WNYX856, filed January 24, 2005 by Disneyland Resort.

[^7]: Request for Waiver of the 900 MHz License Application Freeze,
    filed January 24, 2005 by Disneyland Resort.

[^8]: *See* FCC File No. 0002018534 (filed Jan. 24, 2005).

[^9]: *See* Renewal Waiver Request at 1.

[^10]: *See* FCC Ref. No. 2929647, Renewal Reminder Letter sent on July
    26, 2004. The letter was addressed to Disneyland Resort, 1313 Harbor
    Blvd., Anaheim, California 92803.

[^11]: *See 900 MHz Freeze PN*, 19 FCC Rcd at 18277-78.

[^12]: *Id.* at 18278 n.7.

[^13]: *900 MHz NPRM*, 20 FCC Rcd at 3857 ¶ 67.

[^14]: [*See* 47 C.F.R](../See%2047%20C.F.R). § 1.955(a)(1)
    (authorizations automatically terminate without specific Commission
    action on the expiration date specified on the license, unless a
    timely renewal application is filed).

[^15]: *See* FCC File No. 0002018576 (filed Jan. 24, 2005). The STA was
    renewed most recently on November 22, 2005, with an expiration date
    of May 21, 2006. *See* FCC File No. 0002387404 (filed Nov. 21,
    2005).

[^16]: *See* 47 C.F.R. § 1.925(b)(3).

[^17]: *Nunc pro tunc* is a phrase that applies to acts legally allowed
    to be done after the time when they should be done, with a
    retroactive effect, *i.e.*, with the same effect as if regularly
    done.

[^18]: *See* 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,
    11486 ¶ 22 (1999) (*ULS MO&O*).

[^19]: *Id.*

[^20]: *Id.* at 11485 ¶ 22.

[^21]: *See,* *e.g.*, Renewal Waiver Request at 2.

[^22]: *See* *ULS MO&O*, 14 FCC Rcd at 11486 ¶ 21.

[^23]: *See* *id*. *See also*, *e.g.*, Sierra Pacific Power Company,
    *Order*, 16 FCC Rcd 188, 191 ¶ 6 (WTB PSPWD 2001) (holding that
    "each licensee bears the exclusive responsibility of filing a timely
    renewal application"); Alameda-Contra Costa Transit District Private
    Land Mobile Stations KBY746, WFS916, and KM8643, *Order*, 15 FCC Rcd
    24547, 24551 ¶ 10 (WTB PSPWD 2000) (holding that "each licensee is
    responsible for knowing the expiration date of its licenses and
    submitting a renewal of license application in a timely manner");
    World Learning, *Order*, 15 FCC Rcd 23871, 23872 ¶ 4 (WTB PSPWD
    2000) (holding that licensee "is solely responsible for filing a
    timely renewal application"); First National Bank of Berryville,
    *Order*, 15 FCC Rcd 19693, 19696 ¶ 8 (WTB PSPWD 2000) (holding that
    "it is the responsibility of each licensee to renew its application
    prior to the expiration date of the license"); Montana Power
    Company, *Order*, 14 FCC Rcd 21114, 21115 ¶ 7 (WTB PSPWD 1999)
    (holding that "it is the responsibility of each licensee to apply to
    renew its license prior to the license's expiration date").

[^24]: *See, e.g.,* Renewal Waiver Request at 4-6.

[^25]: *See* Amendment of Parts 1 and 90 of the Commission's Rules
    Concerning the Construction, Licensing and Operation of Private Land
    Mobile Radio Stations, *Report and Order*, PR Docket No. 90-481, 6
    FCC Rcd 7297, 7301 ¶ 20 (1991).

[^26]: *See* n.14, *supra.*

[^27]: *Cf.* Columbia Communications Corporation, *Order and
    Authorization*, 14 FCC Rcd 3318, 3326 ¶ 21 (IB 1999).

[^28]: *See*, *e.g.*, Renewal Waiver Request at 4.

[^29]: *Id.*

[^30]: *Id.* at 2.