**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File Numbers:                |
|                                  | *) | BSTAMD-20000601AAB,          |
| LYNCHBURG MDS, L.L.C.            | ** | BLMPMD-9650880, BLMD-930455  |
|                                  |    |                              |
| License of Multipoint            | *  |                              |
| Distribution Service Station     | *) |                              |
| WMI288 in Lynchburg, Virginia    | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+
|                                  |    |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 19, 2004 Released: February 20, 2004**

By the Deputy Chief, Broadband Division, Wireless Telecommunications
Bureau:

1.  *Introduction.* On August 1, 2001, the Commission issued a public
    notice that the license of Lynchburg MDS, L.L.C. ("Lynchburg
    MDS")[^1] for Multipoint Distribution Service (MDS) Station WMI288
    at Lynchburg, Virginia, had been forfeited for failure to file a
    timely renewal application[^2] On August 30, 2001, Lynchburg MDS
    filed a waiver request and petition for reinstatement of its
    license.[^3] For the reasons stated below, we deny the Petition and
    associated waiver request.

2.  *Background.* The original construction permit for Station WMI288
    was issued on March 5, 1992.[^4] On March 28, 1993, a license was
    issued for Station WMI288.[^5] Within one year thereafter, however,
    the licensee received notice from the owner of its transmitter
    location that the tower was scheduled to be demolished in March 1995
    and that the licensee would have to vacate the premises.[^6] In May,
    1994, ten months prior to the expected demolition date, the licensee
    filed a modification application seeking authorization to construct
    the station at another location.[^7] The Commission did not act upon
    the modification application before the tower was demolished, and
    the licensee ceased operation. Lynchburg MDS states that it
    immediately filed the appropriate notice under Section 21.303(a) of
    the Commission's Rules and that it subsequently maintained annual
    updates to the status of Station WMI288 as part of its required
    Section 21.911 filings.[^8]

3.  With its initial modification application still pending, in May
    1996, the licensee filed another modification application requesting
    authority to relocate to an alternative transmitter site that it
    believed should satisfy any concerns the Commission might have over
    potential electrical interference with other stations.[^9] Another
    licensee, CFW, filed a petition to deny or dismiss, arguing that
    Lynchburg MDS' proposal would cause interference to CFW's station in
    Charlottesville, Virginia.[^10] Lynchburg MDS opposed the petition
    to deny and submitted engineering studies that it said demonstrated
    that operating Station WMI288 from the new proposed site would not
    cause interference.[^11] In March 2000, Lynchburg MDS filed a minor
    modification application to relocate to still another potential
    transmitter site.[^12] When CFW again filed a petition to deny,
    Lynchburg MDS voluntarily dismissed its latest modification
    application.[^13] Lynchburg MDS subsequently identified a fourth
    potential site for its transmitter, but this time it also chose to
    file a request for special temporary authority (STA) in the hope
    that, by actually operating the station, it would be able to
    demonstrate that it would not cause electrical interference.[^14]
    CFW filed another petition to deny alleging that the proposed
    facilities would cause interference to its station.[^15]

4.  The license for Station WMI288 expired on May 1, 2001. Lynchburg MDS
    had not filed a renewal application by that date. On August 1, 2001,
    the Commission issued the Public Notice announcing that the
    station's license had been forfeited for failure to file a timely
    renewal application.[^16] The Public Notice also dismissed Lynchburg
    MDS' pending modification application and STA request.[^17]
    Lynchburg MDS filed a late-filed renewal application on August
    29, 2001. On the following day, it filed its Petition.

5.  *Discussion.* Lynchburg MDS acknowledges that its renewal
    application was filed late. It seeks a waiver of the rule due to
    extenuating circumstances, including a mistaken belief that its
    license renewal deadline would not be tolled pending action on its
    pending modification application and its STA request.[^18] The
    company acknowledges that it should have filed a renewal application
    "out of an abundance of caution" but says it made a good-faith,
    albeit erroneous, determination that the renewal application was not
    necessary at the time.[^19] Lynchburg MDS also says that its faulty
    judgment call was affected to a significant degree by a need to
    economize on further legal expenditures.[^20] The company pledges to
    file all required reports and renewals in the future, if necessary,
    regardless of whether or not it holds an authorization for a new
    transmitter site.[^21]

6.  Under the Commission's MDS rules, licensees must file their renewal
    applications between thirty and sixty days prior to the license
    expiration date.[^22] If a licensee fails to file a timely renewal
    application, the licensee automatically forfeits the MDS station
    license as of the expiration date.[^23] A licensee may file a
    petition for reinstatement of a forfeited license within thirty days
    of the license expiration date.[^24] 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.[^25] 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.[^26]

7.  Lynchburg MDS's license for Station WMI288 expired on May 1, 2001,
    without further action by the Commission because Lynchburg MDS
    failed to submit a timely renewal application for the station.
    Lynchburg MDS was required to submit a renewal application for the
    Station between March 1, 2001 and April 1, 2001. However, Lynchburg
    MDS did not file its renewal application until August 29, 2001.
    Thus, the renewal application was untimely in accordance with
    Section 21.11(c) of the Commission's Rules.[^27]

8.  In light of Lynchburg MDS's failure to file a timely renewal
    application, it had another option under the rules to regain the
    authorization for Station WMI288 -- namely, to file a petition for
    reinstatement.[^28] Under the Commission's Rules, Lynchburg MDS had
    until June 1, 2001, thirty days after the license expiration date,
    to submit its reinstatement request. Lynchburg MDS, however, did not
    file the petition for reinstatement until August 30, 2001.[^29] In
    conjunction with its reinstatement petition, Lynchburg MDS requested
    a waiver of the filing deadline set forth in Section 21.44(b)(1) of
    the Commission's Rules for such petition.

9.  Because Lynchburg MDS failed to meet either filing deadline, a
    waiver is required for us to provide the requested relief.[^30]
    Pursuant to Section 21.19 of the Commission\'s Rules,[^31] an
    applicant seeking a waiver must make an affirmative showing
    that: (a) The underlying purpose of the rule will not be served, or
    would be frustrated, by its application in the particular case, and
    that grant of the waiver is otherwise in the public interest; or (b)
    The unique facts and circumstances of a particular case render
    application of the rule inequitable, unduly burdensome or otherwise
    contrary to the public interest. Applicants must also show the lack
    of a reasonable alternative.[^32] The Commission's MDS reinstatement
    rule serves two purposes: to ensure that parties will have a date
    certain after which they may file applications for an area covered
    by an expired license; and to ensure uninterrupted, authorized
    service to the public.[^33] The Commission has a strong interest in
    preserving the clarity of its rules governing the dates upon which
    applicants may permissibly file for spectrum previously used by
    expired stations.[^34]

10. We find that Lynchburg MDS 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."[^35] Lynchburg MDS asserts that waiver of the
    reinstatement filing requirement is warranted because the failure to
    renew the license was the result of a good-faith, but erroneous,
    determination on its part that the renewal application was not
    necessary while a modification application was pending, and because
    it was seeking to economize on legal fees.[^36] Lynchburg MDS
    asserts that no further lapses in complying with the Commission's
    filing requirements will occur, now that it understands the renewal
    rules.[^37] However, Lynchburg MDS provides no adequate
    justification for its managerial oversight. It does not explain why
    its management should have formed a belief that the pendency of a
    modification application or a desire to economize on legal fees
    would absolve it of responsibility to file a renewal application by
    the due date set out in the Commission's rules.

11. We believe that to grant the waiver request and reinstate the
    forfeited license, under the circumstances presented here, would
    frustrate the goal of providing a date certain upon which one may
    file an application for an area covered by an expired license and
    would be inconsistent with case precedent.[^38] Pursuant to Section
    21.932 of the Commission's rules, if the license for an incumbent
    MDS station is forfeited, absent the filing and grant of a petition
    for reinstatement pursuant to Section 21.44(b), the 35-mile
    protected service area of the incumbent station dissolves and the
    protected service area becomes part of the BTA surrounding it and
    any other BTAs within 35 miles.[^39] We do not believe that
    Lynchburg MDS's failure to comprehend our renewal rule and a desire
    to economize on legal fees, warrant grant of a petition for
    reinstatement.[^40] Our renewal rule is clear on its face and
    contains no suggestion that renewal obligations will be suspended
    while modification applications are pending. Lynchburg MDS has not
    shown how granting a waiver due to inability to understand our
    renewal rule or a desire to economize on legal fees will ensure that
    parties will have a date certain after which they may file
    applications for an area covered by an expired license. Lynchburg
    MDS filed its waiver request nearly four months after its license
    expired. To allow the grant of a waiver in this context would
    eviscerate the reinstatement rule.[^41] Accordingly, we deny
    Lynchburg MDS's waiver request. In light of our denial of Lynchburg
    MDS's waiver request, its renewal application and petition for
    reinstatement are subject to dismissal on the basis that they were
    untimely filed.[^42]

12. *Ordering Clauses.* 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 21.19 of the
    Commission\'s Rules, 47 C.F.R. § 21.19, the Waiver Request and
    Petition for Reinstatement of License filed by Lynchburg MDS, L.L.C.
    on August 30, 2001 IS DENIED.

13. 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), the
    application for renewal of license for Multipoint Distribution
    Service Station WMI288 filed by Lynchburg MDS, L.L.C. on August 29,
    2001, IS DISMISSED.

14. This action taken under delegated authority pursuant to Sections
    0.31 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

/media/pszemraj/PeterTrove/project-files/DATA/ms-word-files/big-DOC/339560.doc

Last printed 2/9/2004 2:44 PM

[^1]: The original licensee for Station WMI288 was G/S Lynchburg F
    Settlement Group. On May 3, 2000, the Commission granted its consent
    to assign the license for Station WMI288 to Lynchburg MDS. For sake
    of clarity, we will use Lynchburg MDS to refer to the licensee of
    Station WMI288, regardless of the period.

[^2]: *See* FCC Public Notice, Mass Media Bureau Instructional
    Television Fixed Service/Multipoint Distribution Service Actions,
    Report No. 458 (released Aug. 1, 2001) ("Public Notice").

[^3]: Waiver Request and Petition for Reinstatement of License (filed
    Aug. 30, 2001) ("Petition").

[^4]: File No. BPMD-9152657.

[^5]: File No. BLMD-930455.

[^6]: Petition at 2*.*

[^7]: *Id.*

[^8]: *Id.* at 2-3.

[^9]: *Id.* at 3.

[^10]: *Id.* at 3, *citing* Petition of CFW Licenses Inc. and CFW Cable
    Inc. (collectively, "CFW"), filed June 26, 1996, File No.
    50880-CM-MP-96.

[^11]: *Id.* at 3.

[^12]: *Id.* 4.

[^13]: *Id.*

[^14]: The Commission's Broadband Licensing Service database indicates
    that the STA request was filed on June 1, 2000.

[^15]: Lynchburg MDS, Station WMI288 Annual Report for 2002, Exhibit One
    at 3.

[^16]: *See* FCC Public Notice, Mass Media Bureau Instructional
    Television Fixed Service/Multipoint Distribution Service Actions,
    Report No. 458, released Aug. 1, 2001("Public Notice").

[^17]: *Id*.

[^18]: Petition at 7.

[^19]: *Id.*

[^20]: *Id.* at 6-7.

[^21]: *Id.* at 7.

[^22]: *See* 47 C.F.R. § 21.11(c).

[^23]: 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.

[^24]: *Burlington*, 13 FCC Rcd 772 ¶ 7 *citing* 47 C.F.R. § 21.44(b)(1)
    -- (3).

[^25]: *Id*.

[^26]: *See* 47 C.F.R. § 21.44(b)(1).

[^27]: *See* 47 C.F.R. § 21.11(c); *Burlington*, 13 FCC Rcd at 775 ¶ 7.

[^28]: *See* 47 C.F.R. § 21.44(b)(1).

[^29]: *See* para. 4.

[^30]: *See* *Burlington*, 13 FCC Rcd at 775 ¶ 7; s*ee also Superior
    Broadcasting*, 7 FCC Rcd 7543.

[^31]: 47 C.F.R. § 21.19.

[^32]: *Id*.

[^33]: *See Burlington*, 13 FCC Rcd at 778 ¶ 16; s*ee also Superior*, 7
    FCC Rcd at 7543 ¶ 4.

[^34]: *See Burlington*, 13 FCC Rcd at 778 ¶ 16.

[^35]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969)
    (*WAIT*).

[^36]: Petition at 6-7.

[^37]: *Id*. at 7.

[^38]: *See Burlington*, 13 FCC Rcd 775 ¶ 16.

[^39]: 47 C.F.R. § 21.932. *See also* Amendment of Parts 21 and 74 of
    the Commission's Rules with Regard to Filing Procedures in the
    Multipoint Distribution Service and in the Instructional Television
    Fixed Service, *Report and Order,* 10 FCC Rcd 9589, 9610-9611 ¶ 39
    (1995); 47 C.F.R. § 21.925.

[^40]: Emphasis added. 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.

[^41]: *See WAIT*, 418 F.2d at 1159 (the Commission neither "must
    \[n\]or should tolerate evisceration of a rule by waivers."

[^42]: *See* 47 C.F.R. §§ 21.11(c ), 21.44(b)(1).