![](media/image1.png){width="0.8444444444444444in"
height="0.8048611111111111in"}**FEDERAL COMMUNICATIONS COMMISSION**

**WASHINGTON, D.C. 20554**

**DA 03-1198**

April 23, 2003

Richard D. Rubino, Esq.

Blooston, Mordkofsky, Dickens, Duffy & Prendergast

2120 L Street, N.W., Suite 300

Washington, D.C. 20037

Re: Request for Waiver

Dear Mr. Rubino:

This letter responds to the request for waiver of Sections 1.949 and
90.20(d)(60) of the Commission's Rules[^1] that you filed on November
15, 2002[^2] on behalf of the St. Joseph's Medical Center of Stockton
(St. Joseph's) for leave to file a late application to renew the license
for Conventional Public Safety Station KWE378, Stockton, California. For
the reasons set forth below, we grant the waiver request in part and
deny it in part.

*Background.* On April 29, 1997, the Commission granted St. Joseph's
renewal application to operate Station KWE378, with an expiration date
of May 7, 2002. On June 30, 1999, the Wireless Telecommunications
Bureau's Public Safety and Private Wireless Division (Division) granted
St. Joseph's a permanent waiver of Section 90.20(d)(60) of the
Commission's Rules to permit the continued use of the frequency 453.075
MHz for internal hospital paging purposes.[^3] On February 11, 2002, the
Commission sent a renewal reminder to St. Joseph's.[^4] On May 7, 2002,
the authorization for Station KWE378 expired by its terms. On November
15, 2002, St. Joseph's filed a request for waiver of Section 1.949(a) of
the Commission's Rules,[^5] which provides that an application for
renewal of license must be filed no later than the date on which the
authorization expires. On November 16, 2002, St. Joseph submitted an
application for Special Temporary Authority (STA), which the Public
Safety and Private Wireless Division, Licensing and Technical Analysis
Branch (Branch) returned on November 20, 2002, because the STA
application did not indicate the number of pagers authorized to Station
KWE378, and no renewal application had been filed with the
Commission.[^6] On January 16, 2003, St. Joseph's filed an amended STA
application.[^7] On January 17, 2003, St. Joseph filed a renewal
application for Station KWE378.[^8] On January 17, 2003, the Branch
granted the amended STA application under Call Sign WPWT730 with an
expiration of July 17, 2003.

In its waiver request, St. Joseph's states that (a) due to personnel
changes, the notification did not reach the parties responsible for
ensuring timely preparation and filing of the application; (b) it has
taken steps to create a tickler system to alert its personnel to
Commission deadlines, and at least two employees are designed to receive
the reminder to ensure that the filing is timely made; (c) the cost to
change to another paging frequency, which would require St. Joseph's to
replace its equipment, would be prohibitive to St. Joseph's, which is a
non-profit entity; (d) although commercial dispatch and two-way services
are available, because the hospital is engaged in protecting health and
welfare of its patients, it must rely on an internal communications
systems; and (e) in the event of a major disaster or terrorist strike,
commercial communications are likely to be saturated with traffic beyond
capacity and as a result there would be no certainty that St. Joseph's
would be able to communicate with its personnel in the event of such an
emergency.[^9] The Commission will grant a waiver 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
would be inequitable, unduly burdensome, or contrary to the public
interest, or the applicant has no reasonable alternative.[^10]

*Waiver of Section 1.949.* The Commission's policy regarding treatment
of late-filed renewal applications in the Wireless Radio Services is as
follows: Renewal applications that are filed up to thirty days after the
expiration date of the license will be granted *nunc pro tunc* 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.[^11] Applicants who file
renewal applications more than thirty days after the license expiration
date may also request that the license be renewed *nunc pro tunc*, but
such requests 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.[^12] In determining whether to
grant a late-filed renewal application, we take 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.[^13] Taking into account all the
facts and circumstances of the instant matter, including the specific
factors set forth by the Commission, we conclude that St. Joseph's
request for waiver of Section 1.949 should be denied.

In this case, we conclude that St. Joseph's has not shown the existence
of unusual circumstances that warrant a waiver of Section 1.949 in this
instance. The Commission has rejected the view that turnover in
recordkeeping personnel is a valid excuse for failure to timely renew a
license.[^14] In addition, the Commission has determined that a licensee
will not be afforded special consideration when the licensee fails to
file a timely renewal application simply because they engage in public
safety activities.[^15] Moreover, the possibility that denial of a
waiver could cause the applicant to incur additional costs does not by
itself merit a waiver of the Commission's Rules.[^16]

*Waiver of Section 90.20(d)(60).* In the alternative to a waiver of
Section 1.949 of the Commission's Rules, St. Joseph's requests a waiver
of Section 90.20(d)(60) of the Commission's Rules. We note that we may
assign frequency 453.075 MHz to public safety stations in limited
situations.[^17] Specifically, Section 90.20(d)(60) permits paging
licensees as of March 20, 1991, to continue to operate on a primary
basis on frequency 453.075 MHz until January 14, 1998.[^18] Unless a
paging licensee received a waiver, it could no longer operate on a
primary basis on the frequency after January 14, 1998. As noted
previously, St. Joseph's received a permanent waiver of Section
90.20(d)(60) which allows it to operate one-way medical paging
operations on frequency 453.075 MHz.[^19] As such, St. Joseph's requests
that we permit the filing, acceptance and processing of a new
application to authorize the continued operation of its facilities for
Station KWE378.[^20]

St. Joseph's hospital is a non-profit 294-bed acute care hospital
serving Stockton, California.[^21] St. Joseph's Hospital offers a full
range of medical services, which include a state-of-the-art Heart
Center, neonatal intensive care, twenty-four hour emergency services,
and a regional cancer center.[^22] St. Joseph operates an internal
paging system on frequency 453.075 MHz[^23] to enhance the medical
services it provides. Specifically, the paging system supports critical
emergency room and intensive care unit operations, both on site and
throughout San Joaquin County.[^24] Furthermore, the most critical use
of the paging system involves "code" situations. These "code" situations
involve alerting critical care personnel to respond immediately to
medical emergencies.[^25] Additionally, the Hospital uses the pagers to
contact maintenance personnel quickly and efficiently when emergency
equipment needs immediate repair.[^26]

The Division permanently grandfathered St. Joseph's one-way paging
system on frequency 453.075 MHz on June 30, 1999 in view of the public
safety interests involved.[^27] We believe that the public interest will
be served by granting St. Joseph another waiver of Section 90.20(d)(60)
to allow St. Joseph's to file a new application to continue operation of
its internal paging system. The loss of this frequency and relocation to
another channel would cause significant disruption of public safety
communications resulting in adverse effects upon the quality medical
treatment and responsiveness of health care personnel in the Stockton,
California area.[^28] Accordingly, we will grant St. Joseph's another
waiver of Section 90.20(d)(60).

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 fashion. Thus, we admonish St. Joseph's 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 St. Joseph's has
indicated that it has implemented procedures to ensure timely filings in
the future.[^29]

ACCORDINGLY, IT IS 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 waiver request
filed by Saint Joseph's Medical Center of Stockton on November 15, 2002
in connection with its application to renew its authorization for
Station KWE378 IS GRANTED IN PART with respect to frequency 453.075 MHz,
and DENIED in all other respects.

IT IS FURTHER ORDERED that the Public Safety and Private Wireless
Division, Licensing and Technical Analysis Branch SHALL PROCESS
application FCC File No. 0001169658 filed by Saint Joseph's Medical
Center of Stockton on January 17, 2003 in accordance with the waiver
granted herein and the other applicable provisions of Commission's
Rules. 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

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

j:/pspwd/benfaida/St. Joseph Med partial grant 032403

cc: PSPWD Chron file

D. Terry

R. Melson

H. Zeiler

J. Borkowski

J. Schauble

S. Stone

P. Daronco

M. Shultz

T. Simmons

J. Benfaida

[^1]: 47 C.F.R. §§ 1.949, 90.20(d)(60).

[^2]: *See* Petition for Leave to File Late Filed License Renewal
    Applications or, in the Alternative, New Facilities Application and
    Request for Waiver of Rule Section 1.949 and 90.20(d)(60) (filed
    Nov. 15, 2002) (Waiver Request).

[^3]: Letter from Herbert Zeiler, Deputy Chief, Public Safety and
    Private Wireless Division, Wireless Telecommunications Bureau to
    Eugene Maliszewskyj, Director of Engineering & Licensing, Blooston,
    Mordkofsky, Jackson & Dickens (Jun. 30, 1999) (Permanent Waiver
    Letter). When the Commission established the Emergency Medical Radio
    Service (EMRS) in January 1993, it adopted sunset provisions
    terminating primary paging operations on various frequencies,
    including frequency 453.075 MHz. *See* Amendment of Part 90 of the
    Commission's Rules to Create the Emergency Medical Radio Service,
    *Report and Order*, PR Docket No. 91-72, 8 FCC Rcd 1454 (1993); 47
    C.F.R. § 90.20(d)(60). The *EMRS Report and Order*, however,
    provided a waiver process for grandfathering existing one-way
    medical paging operations on the above-referenced frequency. In
    order to continue using its paging operations, a licensee filing a
    waiver requests must demonstrate that either: (1) there is adequate
    spectrum for EMRS communications in its area of operation; or (2)
    the relocation of the paging system to another channel would not
    serve the public interest, or (3) relocation would cause significant
    disruption of public safety communications. *See* Kaiser Foundation
    Hospitals and Kaiser Foundation Health Plan, Inc., *Order*, 13 FCC
    Rcd 5294 (WTB 1998); The New York Hospital -- Cornell Medical
    Center, *Order*, 13 FCC Rcd 5301 (WTB 1998).

[^4]: *See* FCC Reference Number 1280660, Renewal Reminder Notice sent
    to St. Joseph's Medical Center of Stockton, Attn: Lawrence A.
    Philipp, 1800 N. California Street, Stockton, CA 95204-6088.

[^5]: 47 C.F.R. § 1.949(a).

[^6]: *See* FCC Reference Number 1632925, Return Letter sent Nov. 20,
    2002.

[^7]: *See* Application FCC File No. 0001093596 filed Jan. 16, 2003.
    Schedule H is amended to reflect that frequency 453.075 MHz operates
    250 paging receivers. St. Joseph explains that it submitted an
    application to the frequency coordinator, International Municipal
    Signal Associations (ISMA), on or about November 18, 2002, but the
    filing of the amended STA application was delayed because IMSA
    requested a letter of support from the California EMS Authority,
    which was obtained January 15, 2003.

[^8]: *See* Application FCC File No. 0001169658 (filed Jan. 17, 2003).

[^9]: Waiver Request at 2-6.

[^10]: 47 C.F.R. § 1.925(b)(3).

[^11]: *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,
    11485 ¶ 22 (1999).

[^12]: *See id.* at 11486 ¶ 22.

[^13]: *See id* at 11485 ¶ 22.

[^14]: *See id.* at 11485 ¶ 21.

[^15]: *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).

[^16]: *See* Country Cousins, Inc., *Order*, 14 FCC Rcd 19351, 19352-53
    ¶ 6 (WTB PSPWD 1999).

[^17]: 47 C.F.R. § 90.20(c).

[^18]: 47 C.F.R. § 90.20(d)(60).

[^19]: *See* note 3.

[^20]: Waiver Request at 7.

[^21]: *Id.* at 2-3.

[^22]: *Id*. at 3.

[^23]: *Id*. at 3.

[^24]: *Id*. at 4.

[^25]: *Id*.

[^26]: *Id*.

[^27]: *See* Permanent Waiver Letter.

[^28]: *See* note 3 for waiver requirements.

[^29]: Waiver Request at 2.