Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | * | File No. 0001806319          |
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| GRAND TELEPHONE COMPANY, INC.    | ) |                              |
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| For Renewal of Multipoint        | * |                              |
| Distribution Service Station     |   |                              |
| WLW846, Jay, Oklahoma            | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: October 7, 2004 Released: October 8, 2004**

By the Deputy Chief, Broadband Division, Wireless Telecommunications
Bureau

# INTRODUCTION

1.  In this *Memorandum Opinion and Order*, we address the pending
    application filed by Grand Telephone Company, Inc. (Grand Telephone)
    for renewal of Multipoint Distribution Service (MDS)[^1] Station
    WLW846, Jay, Oklahoma.[^2] We also address the request made by Grand
    Telephone for a waiver and reinstatement of the license for Station
    WLW846.[^3] For the reasons discussed below, we deny Grand's
    Petition and dismiss the Application.

# BACKGROUND

2.  On August 16, 1995, Grand Telephone was granted a license to operate
    Station WLW846, Jay, Oklahoma.[^4] The license for Station WLW846
    expired on May 1, 2001.[^5] J. L. Houck was Grand Telephone's
    General Manager at the time it received the license for Station
    WLW846.[^6] At the end of 1998, Mr. Houck retired, and Rex Brixey
    became the new General Manager.[^7] In early 1999, Mr. Houck died
    unexpectedly, and he was unable to advise Mr. Brixey of all of his
    job duties.[^8]

3.  According to Grand Telephone, Mr. Brixey was under the "impression"
    that Grand Telephone's license term was for ten years therefore he
    was unaware that the license expired on May 1, 2001[^9] Grand
    Telephone explains its failure to apply for timely renewal of its
    license on the unforeseen death of Mr. Houck and Mr. Brixey's
    impression that the license was granted for a ten year period.[^10]

4.  Grand Telephone asserts that no further lapses in complying with the
    Commission's filing requirements will occur because it has taken
    actions to rectify the previous omissions.[^11] Grand Telephone has
    hired an assistant to ensure future timely filings.[^12]

# discussion

5.  Under the Commission's MDS rules, licensees must file their renewal
    applications between thirty and sixty days prior to the license
    expiration date.[^13] Section 21.44(b) of the Commission's Rules
    limits consideration of reinstatement petitions to petitions that
    are filed within thirty days of the expiration date of the
    license.[^14]

6.  If a licensee fails to file a timely renewal application, the
    licensee automatically forfeits the MDS station license as of the
    expiration date.[^15] However, a licensee may file a petition for
    reinstatement of a forfeited license within thirty days of the
    license expiration date.[^16] A timely filed petition for
    reinstatement must adequately explain the failure to timely file the
    renewal application, and specify the procedures the licensee has
    established to ensure timely filings in the future.[^17]

7.  Grand Telephone's license for Station WLW846 expired on May 1, 2001,
    without further action by the Commission, because Grand Telephone
    failed to submit a timely renewal application for its license. Grand
    Telephone was required to submit its renewal application for the
    license between March 1, 2001 and April 2, 2001. However, Grand
    Telephone failed to file its renewal application as required under
    the Commission's Rules.[^18]

8.  Although Grand Telephone failed to file a timely renewal
    application, under the Commission's Rules it had another option to
    regain the authorization for Station WLW846 -- namely, to file a
    petition for reinstatement.[^19] Under the Commission's Rules, Grand
    Telephone had until June 1, 2001- thirty days after the license
    expiration date - to submit its reinstatement request. However,
    Grand Telephone did not file the petition for reinstatement until
    May 10, 2004.[^20]

9.  In conjunction with its Petition, Grand Telephone requested a waiver
    of the filing deadline set forth in Section 21.44(b)(1) of the
    Commission's Rules. Because Grand Telephone failed to meet either
    filing deadline identified above, a waiver of the Commission's Rules
    is required for us to provide the requested relief.[^21] We may
    grant this waiver if the purpose of the rule will not be served, or
    would be frustrated by its application in the instant case, or the
    grant of waiver is otherwise in the public interest. The
    Commission's MDS reinstatement rule serves two purposes: first, to
    ensure that parties will have a date certain after which they may
    file applications for an area covered by an expired license; and
    second, to ensure uninterrupted authorized service to the
    public.[^22] The Commission has a fervent interest in preserving the
    clarity and certainty of when other applicants may permissibly file
    for spectrum previously utilized by expired licenses.[^23]

10. We find that Grand Telephone has failed to make the requisite
    showing that grant of a waiver is warranted under the circumstances
    presented. "An applicant for waiver faces a high hurdle even at the
    starting gate. When an applicant seeks a waiver of a rule, it must
    plead with particularity the facts and circumstances which warrant
    such action."[^24] Grand Telephone asserts that waiver of the
    reinstatement filing requirement is warranted because its failure to
    renew the license was the result of oversight due to a change in
    management.[^25] While Grand Telephone's Petition provides a
    "reason" for its failure to file a timely renewal, it cannot be said
    that Mr. Houck's death and Mr. Brixey's misplaced impression of the
    license expiration date adequately addresses Grand Telephone's
    burden to *explain*[^26] how it was unaware of its license
    obligations. We note that Grand Telephone could have easily
    ascertained the expiration date of the license by reviewing the
    license.

11. We believe that to grant the waiver request and reinstate the
    forfeited license, under the circumstances presented here, would
    frustrate the goals of the Commission and would be inconsistent with
    case precedent.[^27] We do not believe that Grand Telephone's
    management failures warrant grant of a waiver.[^28] Grand Telephone
    has not shown how granting a waiver due to management failures will
    promote the Commission's goals that parties will have a date certain
    after which they may file applications for an area covered by an
    expired license and that such action ensures uninterrupted,
    *authorized*, service to the public. In fact, Grand Telephone has
    shown the opposite in that it filed its waiver request over three
    years after its license expired. To allow the grant of a waiver in
    this context would eviscerate the reinstatement rule.[^29]

# CONCLUSION And oRDERING CLAUSES

12. Grand Telephone has not justified a waiver to allow consideration of
    its late-filed renewal application. We therefore deny the Petition.
    In light of our denial of Grand Telephone's waiver request, its
    Application is subject to dismissal on the basis it was untimely
    filed.[^30]

13. Accordingly IT IS ORDERED that pursuant to the authority contained
    in Section 4(i) of the Communications Act of 1934, as amended, 47
    U.S.C. § 154(i) and Section 21.44 of the Commission\'s Rules, 47
    C.F.R. § 21.44, the Petition for Reinstatement and filed by Grand
    Telephone Company, Inc. on May 10, 2004 IS DENIED.

14. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309 and
    Section 21.11 of the Commission\'s Rules, 47 C.F.R. § 21.11(c), that
    the licensing staff of the Broadband Division SHALL DISMISS the
    application (File No. 0001806319) filed by Grand Telephone Company,
    Inc. on July 14, 2004.

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

John J. Schauble

Deputy Chief, Broadband Division

Wireless Telecommunications Bureau

[^1]: On July 29, 2004, the Commission released a *Report and Order and
    Further Notice of Proposed Rulemaking *that transforms the rules
    governing MDS and the Instructional Television Fixed Service (ITFS)
    in order to encourage the deployment of broadband services by
    commercial and educational entities.  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*, 19 FCC Rcd 14165 (2004). To better reflect the
    forward-looking vision for these services, the Commission renamed
    MDS the Broadband Radio Service and ITFS the Educational Broadband
    Service.  Once the new rules become effective, we will no longer
    refer to these services as MDS and ITFS.

[^2]: *See* File No. 0001806319 (filed Jul. 14, 2004) (Application).

[^3]: Petition for Reinstatement and Waiver of Part 21.44(b)(1) (filed
    May 10, 2004) (Petition).

[^4]: File No. BLMD-9350051.

[^5]: Radio Station Authorization, Station WLW846.

[^6]: Petition at 1.

[^7]: *Id.*

[^8]: *Id*

[^9]: *Id.*

[^10]: *Id.*

[^11]: *Id*.

[^12]: *Id.*

[^13]: *See* 47 C.F.R. § 21.11(c).

[^14]: *See* 47 C.F.R. § 21.44(b)(1).

[^15]: Burlington Cablevision, Inc., *Order on Reconsideration*, 13 FCC
    Rcd 772 ¶ 7 (VSD MMB 1998) (*Burlington*); Superior Broadcasting
    Corporation, *Memorandum Opinion and Order*, 7 FCC Rcd 7543 (DRB CCB
    1992) (*Superior*); *see also* 47 C.F.R. § 21.44 (a)(2).

[^16]: *Burlington*, 13 FCC Rcd 772 ¶ 7 *citing* 47 C.F.R. § 21.44(b)(1)
    -- (3).

[^17]: *Id*.

[^18]: *See* 47 C.F.R. § 21.11(c); *Burlington*, 13 FCC Rcd at 775 ¶ 7.

[^19]: *See* 47 C.F.R. § 21.44(b)(1).

[^20]: *See* Petition for Re-Instatement and Waiver of Part 21.44(b)(1)
    dated May, 10, 2004.

[^21]: *See* *Burlington*, 13 FCC Rcd at 775 ¶ 7; s*ee also Superior
    Broadcasting*, 7 FCC Rcd 7543.

[^22]: *See Burlington*, 13 FCC Rcd at 778 ¶ 16; s*ee also Superior
    Broadcasting*, 7 FCC Rcd at 7543 ¶ 4.

[^23]: *See Burlington*, 13 FCC Rcd at 778 ¶ 16.

[^24]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969)
    (*WAIT*).

[^25]: Petition and Waiver Request at ¶ 2.

[^26]: 47 C.F.R. 21.44(b)(2).

[^27]: *See Burlington*, 13 FCC Rcd 775 ¶ 16.

[^28]: 47 C.F.R. §21.19 requires a person seeking a waiver to
    demonstrate unique facts and circumstances. *See Burlington*, 13 FCC
    Rcd 780 ¶ 19.

[^29]: *See WAIT*, 418 F.2d at 1159 (the Commission neither "must
    \[n\]or should tolerate evisceration of a rule by waivers."

[^30]: *See* 47 C.F.R. §§ 21.11(c), 21.44(b)(1).