Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File No. 0000655923          |
|                                  | * |                              |
| CITY OF SAN DIEGO                | ) |                              |
|                                  | * |                              |
| Request for Waiver of Section    | * |                              |
| 101.147 of the Commission's      |   |                              |
| Rules                            | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: April 23, 2002 Released: May 1, 2002**

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

# INTRODUCTION

1.  On November 13, 2001, the City of San Diego (San Diego) filed a
    request for waiver of Section 101.147 of the Commission's Rules[^1]
    to permit authorization on a primary basis in the 17.7-19.7 GHz band
    (18 GHz band) Fixed Microwave Service (FMS) of a new station to
    replace FMS Station WJY47, San Diego, California.[^2] San Diego also
    seeks authorization to operate in the 6 GHz band. San Diego
    inadvertently allowed the license for Station WJY47 to expire on
    October 31, 2000. For the reasons discussed below, we deny San
    Diego's Waiver Request.

# BACKGROUND

2.  The Commission has reallocated portions of the 18 GHz band from
    terrestrial fixed services (FS), including the FMS, to satellite
    services.[^3] To this end, the Commission has adopted certain
    transition rules.[^4] In doing so, the Commission balanced the needs
    of incumbent FS licensees to continue operating their systems with
    the need to conserve vacant 18 GHz spectrum for use by satellite
    licensees, to provide satellite licensees with the flexibility to
    establish new services in a timely and economic manner, and to
    preclude satellite licensees from bearing any unwarranted additional
    costs in relocating FS licensees.[^5] Thus, rather than immediately
    clearing the entire 18 GHz band of the incumbent FS users, the
    Commission permits the incumbents to continue to occupy portions of
    the band on a co-primary basis with the FSS and MSS licensees for a
    significant length of time, by the end of which the incumbents are
    to relocate to other spectrum.[^6] FSS and MSS licensees have the
    option, however, of requiring the FS and FMS incumbents to relocate
    sooner if they pay the additional costs caused by the earlier
    relocation.[^7] In addition, we authorize extensions and major
    modifications of existing FS systems only on a secondary basis to
    FSS and MSS systems.[^8] Most minor modifications of FS stations are
    also authorized on a secondary basis unless the licensee can
    demonstrate that it needs primary status and that the modifications
    will not add to the relocation costs to be paid by the FSS or MSS
    licensees.[^9] The result is that while incumbent FS licensees are
    able to continue operating their systems with primary status -- as
    those systems currently exist -- any expansions and most
    modifications to the systems result in secondary status. Also, no
    new FS licenses will be granted in the 18.58-19.3 GHz portion of the
    18 GHz band.[^10]

3.  At the time that the Commission adopted and released the *18 GHz
    Report and Order*, San Diego was an incumbent licensee operating
    Station WJY47 on a primary basis. Station WJY47 was authorized for
    paths on frequencies 1975 MHz, 1985 MHz, 6735 MHz, 6755 MHz, and
    19015 MHz. San Diego's authorization to operate Station WJY47 was
    scheduled to expire on October 31, 2000. As a courtesy, the
    Commission mailed a renewal reminder to San Diego on August 6, 2000.
    However, San Diego failed to file a timely renewal application. As a
    result, the license for Station WJY47 expired on October 31, 2000.
    San Diego filed the instant application and waiver request on
    November 13, 2001. The new application seeks authorization to
    operate on frequencies 6735 MHz, 6755 MHz, and 19015 MHz. The Waiver
    Request merely states that San Diego seeks a waiver of Section
    101.147(r) of the Commission's Rules "to retain 'primary' status for
    this application. This site was previously licensed under FCC call
    sign WJY47, which we mistakenly allowed to expire."[^11]

# DISCUSSION

4.  Pursuant to Section 1.925 of the Commission's Rules, we may grant a
    waiver if it is shown that either (1) the underlying purpose of the
    rule(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 (2) in view of 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.[^12] For
    the reasons discussed below, we deny San Diego's requested waiver of
    Section 101.147(r) of the Commission's Rules.

5.  Based on the record before us, San Diego has not met its burden of
    demonstrating that grant of a waiver is warranted under the
    circumstances presented. The Commission's Rules clearly state that
    "requests for waiver must contain a complete explanation as to why
    the waiver is desired."[^13] In this matter, San Diego only states
    that it seeks a waiver of Section 101.47(r) because it "mistakenly
    allowed" its license to expire.[^14] However, a licensee's
    inadvertent failure to renew its license in a timely manner is not a
    unique or unusual circumstance[^15] that would render application of
    the rule in question inequitable, unduly burdensome, or contrary to
    the public interest.[^16] Rather, it is the responsibility of the
    licensee to know the term of its license and to file a timely
    application to renew its authorization prior to expiration.[^17]
    Consequently, we believe that San Diego's failure to file a timely
    renewal application for Station WJY47 does not provide a sufficient
    basis for granting a waiver of Section 101.147(r) of the
    Commission's Rules.

# CONCLUSION

6.  For the reasons discussed above, we deny San Diego's request for
    waiver of Section 101.147(r) of the Commission's Rules. San Diego
    failed to make a sufficient showing that grant of a waiver is
    warranted under the circumstances presented. Absent a waiver,
    Section 101.147(r) of the Commission's Rules precludes the
    authorization of a new Part 101 license in the 18.58-19.3 GHz band.
    Therefore, San Diego's application is defective with respect to
    frequency 19015 MHz. The application will be processed with respect
    to the 6 GHz paths.

# ORDERING CLAUSES

7.  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
    Sections 1.925 and 101.147 of the Commission's Rules, 47 C.F.R. §§
    1.925, 101.147, the Request for Waiver of Section 101.147 of the
    Commission's Rules filed by the City of San Diego on November 13,
    2001 IS DENIED.

8.  IT IS FURTHER ORDERED that the Public Safety and Private Wireless
    Division, Licensing and Technical Analysis Branch SHALL PROCESS the
    City of San Diego's pending application, FCC File No. 0000655923, in
    accordance with this *Order* and the applicable Commission Rules.

9.  These actions are 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

[^1]: 47 C.F.R. § 101.147.

[^2]: *See* FCC File No. 0000655923, Attachment 1 (Request for Waiver of
    Section 101.147 of the Commission's Rules) (filed Nov. 13, 2001)
    (Waiver Request).

[^3]: *See* Redesignation of the 17.7-19.7 GHz Frequency Band, Blanket
    Licensing of Satellite Earth Stations in the 17.7-20.2 GHz and
    27.5-30.0 GHz Frequency Bands, and the Allocation of Additional
    Spectrum in the 17.3 -17.8 GHz and 24.75-25.25 GHz Frequency Bands
    for Broadcast Satellite-Service Use, *Report and Order*, IB Docket
    No. 98-172, 15 FCC Rcd 13430 (2000) (*18 GHz Report and Order*). The
    satellite services operating in the 18 GHz band consist of both the
    Fixed Satellite Service (FSS) and the Mobile Satellite Service
    (MSS).

[^4]: *See* 47 C.F.R. §§ 101.83-101.97. The rules are intended to
    protect the incumbent FS and FMS licensees in the 18 GHz band "to
    the maximum extent possible while at the same time providing for the
    growth of both satellite and terrestrial services." *18 GHz Report
    and Order*, 15 FCC Rcd at 13432 ¶ 2; *see also id.* at 13470 ¶ 82
    (noting that the adopted rules should lead to efficient relocation
    and thereby serve the public interest).

[^5]: *See 18 GHz Report and Order*, 15 FCC Rcd at 13460-70 ¶¶ 61-84.

[^6]: *See* 47 C.F.R. §§ 101.85, 101.95; *see also 18 GHz Report and
    Order,* 15 FCC Rcd at 13460-67 ¶¶ 61-75. With the exception of
    incumbent licensees in the 19.26-19.3 GHz band, FS and FMS licensees
    have until June 8, 2010 -- ten years from the adoption of the *18
    GHz Report and Order*. *See 18 GHz Report and Order*, 15 FCC Rcd at
    13462-65 ¶¶ 65-72. Incumbent FS and FMS licensees in the 19.26-19.3
    have until October 31, 2011. *See* Redesignation of the 17.7-19.7
    GHz Frequency Band, Blanket Licensing of Satellite Earth Stations in
    the 17.7-20.2 GHz and 27.5-30.0 GHz Frequency Bands, and the
    Allocation of Additional Spectrum in the 17.3-17.8 GHz and
    24.75-25.25 GHz Frequency Bands for Broadcast Satellite-Service Use,
    *First Order on Reconsideration*, IB Docket No. 98-172, 16 FCC Rcd
    19808, 19820-19821 ¶ 25 (2001) (*18 GHz Reconsideration Order*).

[^7]: *See* 47 C.F.R. §§ 101.85(a), 101.89-101.99.

[^8]: *See* 47 C.F.R. §§ 101.83, 101.97. Secondary operations may not
    cause interference to operations authorized on a primary basis and
    are not protected from interference from primary operations. Thus,
    an incumbent operating under a secondary authorization must cease
    operations if it causes interference to an FSS or MSS licensee.

[^9]: *See* 47 C.F.R. § 101.97; *see also 18 GHz Report and Order*, 15
    FCC Rcd at 13460-70 ¶¶ 61-84.

[^10]: *See* 47 C.F.R. § 101.147(r).

[^11]: Waiver Request at 1. In full, the Waiver Request totals three
    sentences. The third sentence notes that expired Station WJY47
    "talks" with FMS Station WNEO793, San Diego, California. *Id.* The
    license for Station WNEO793 is due to expire November 9, 2008.

[^12]: 47 C.F.R. § 1.925(b)(3).

[^13]: 47 C.F.R. § 1.925(b)(2); *see also, e.g.,* Teton Communications,
    Inc., *Order*, 17 FCC Rcd 410, 411-12 ¶ 5 (WTB PSPWD 2002); World
    Learning, Inc., *Order*, 15 FCC Rcd 23871 (WTB PSPWD 2000) (denying
    a waiver request filed thirty-four days after the expiration of the
    license because, in part, the licensee "failed to provide any
    information in support thereof").

[^14]: Waiver Request at 1. San Diego filed the instant application and
    waiver request more than one year after the expiration of the
    license.

[^15]: The presence of unique or unusual circumstances is a prerequisite
    to relief under the second prong of the Commission's waiver
    standard. 47 C.F.R. § 1.925(b)(3)(ii); *see also, e.g.,* Fresno City
    and County Housing Authorities, *Order on Reconsideration*, 15 FCC
    Rcd 10998 (WTB PSPWD 2000). With regard to the first prong of the
    Commission's waiver standard, 47 C.F.R. § 1.925(b)(3)(i), San Diego
    intimates no suggestion that the underlying purpose of the rule in
    question would be frustrated or otherwise not served by its
    application in this matter. *See* Waiver Request at 1.

[^16]: *See, e.g.,* Sierra Pacific Power Company, *Order*, 16 FCC Rcd
    188 (WTB PSPWD 2001); First National Bank of Berryville, *Order*, 15
    FCC Rcd 19693 (WTB PSPWD 2000); Sierra-Plumas Rural Electric
    Cooperative, *Order*, 15 FCC Rcd 5572 (WTB PSPWD 2000); Duke Power
    Company, *Order*, 14 FCC Rcd 19431 (WTB PSPWD 1999).

[^17]: *See* 47 C.F.R. § 1.949; 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, *Memorandum Opinion and Order on Reconsideration,* Docket
    No. 98-20, 14 FCC Rcd 11476 (1999).