**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | FCC File No. R393705         |
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| SAN FRANCISCO IVDS, INC.         | ** | FCC File No. MTS 2002031333  |
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| To Renew the License for Station | *  |                              |
| KIVD0012, San Francisco,         | *) |                              |
| California in the 218-219 MHz    | ** |                              |
| Service; and,                    |    |                              |
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| Petition for Reinstatement of    | *) |                              |
| License and for Reinstatement of | ** |                              |
| Application for Renewal of       |    |                              |
| License                          | *  |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: January 18, 2005 Released: January 28, 2005**

By the Commission:

# Introduction

1.  We have before us an Application for Review filed on February 24,
    2003, by San Francisco IVDS, Inc. (San Francisco IVDS).[^1] In 2001,
    the former Public Safety and Private Wireless Division
    (Division)[^2] issued a *Memorandum Opinion and Order* (*MO&O*)
    denying San Francisco IVDS's petition for reinstatement of the
    above-captioned license and request for waiver of Sections 1.949(a)
    and 1.955(a)(1) of the Commission's rules,[^3] under which a license
    automatically cancels without further Commission action unless a
    timely application for renewal is filed.[^4] In its Application for
    Review, San Francisco IVDS seeks review of the decision issued in
    2003[^5] denying San Francisco IVDS's petition that sought
    reconsideration of the Division's *MO&O*.[^6] For the reasons
    discussed below, we grant the Application for Review.

# background

2.  The license for Station KIVD0012 was granted to San Francisco IVDS
    on March 28, 1994, for a five-year term, authorizing service on the
    218-219 MHz band. Section 1.949(a) of the Commission's rules
    requires licensees to file applications for renewal no later than
    the expiration date of the authorization and no sooner than 90 days
    prior to expiration.[^7] Section 1.955(a)(1) of the Commission's
    rules provides that, unless a timely application for renewal is
    filed, the license automatically cancels without further Commission
    action.[^8] The expiration date for Station KIVD0012 was March
    28, 1999. San Francisco IVDS, however, did not file a renewal
    application before or on that date.[^9] Nearly two months after the
    expiration date, on May 21, 1999, San Francisco IVDS did file a
    renewal application for Station KIVD0012,[^10] but it did not
    include a request for waiver of the Commission's filing
    deadlines.[^11]

3.  During the license term for Station KIVD0012, the Commission
    initiated a rulemaking proceeding regarding its service rules for
    the 218-219 MHz band. Specifically, on September 17, 1998, the
    Commission sought comment on numerous modifications to the licensing
    and technical rules for the 218-219 MHz Service, including changing
    the license term from five to ten years.[^12] On September 7, 1999,
    the Commission revised its 218-219 MHz service rules.[^13] In
    relevant part, the Commission changed the license term from five to
    ten years for licenses granted by lottery on March 24, 1994, and who
    had timely filed renewal applications or timely filed waiver
    requests pending at the FCC.[^14]

4.  On August 7, 2000, the Division's Licensing and Technical Analysis
    Branch dismissed San Francisco IVDS's renewal application as
    untimely.[^15] On September 6, 2000, San Francisco IVDS filed its
    petition for reinstatement, which requested a waiver of Sections
    1.949(a) and 1.955(a)(1) of the Commission's rules to permit renewal
    of its automatically cancelled license.[^16] On October 12, 2001,
    the Division denied San Francisco IVDS's petition for reinstatement
    and waiver request.[^17] San Francisco IVDS requested
    reconsideration of that decision on November 13, 2001.[^18] Upon
    review, the Division upheld its earlier findings and denied the
    Reconsideration Petition.[^19]

5.  In its Application for Review, San Francisco IVDS states that the
    Division inappropriately "focused exclusively on procedural issues"
    instead of considering "the substantive facts and circumstances in
    the case."[^20] It also claims that the Division failed to employ
    the standard for late-filed renewal applications set forth in the
    Commission's universal licensing system (ULS) proceeding, and it
    disagrees with the Division's finding that the failure to file a
    waiver request with the initial renewal application is fatal.[^21]

# discussion

6.  As an initial matter, we reject San Francisco IVDS's argument that
    the requirement that late-filed renewal applications include a
    request for waiver violates the notice requirements outlined in
    *Salzer v. FCC*.[^22] In 1999, the Commission adopted a new policy
    regarding the treatment of late-filed renewal applications in the
    Wireless Radio Services.[^23] Under this policy, where a renewal
    application is filed before the end of thirty days after the license
    expiration date, the renewal application will be granted as long as
    the application otherwise complies with all other Commission
    rules.[^24] In cases where the renewal application is filed more
    than thirty days after the license expiration date, the applicant
    may also request renewal, but such requests are not routinely
    granted, are subject to stricter review, and also may be accompanied
    by enforcement action.[^25] In determining whether to grant an
    application filed more than thirty days after the license expiration
    date, the Commission takes into consideration all of the facts and
    circumstances involved, including the length in delay of filing, the
    licensee's performance record, the reasons for the failure to timely
    file, and the potential consequences to the public if the license
    were terminated.[^26]

7.  San Francisco IVDS claims that there was insufficient notice in the
    *ULS Order on Reconsideration*, because the Commission did not
    "specifically demand that a late renewal application be accompanied
    by a waiver request."[^27] We disagree. The *ULS Order on
    Reconsideration* describes the level of scrutiny that we will give
    to late-filed renewal applications and also states that applications
    must comply with all Commission rules before they will be granted.
    Section 1.934(d)(2) of our rules authorizes the Commission to
    dismiss any application found to be defective.[^28] An application
    may be considered defective if it requests an authorization that
    would not comply with the Commission's rules and "does not contain a
    request for waiver."[^29] San Francisco IVDS's late-filed renewal
    application violated Section 1.949(a), which requires that renewal
    applications be filed prior to the expiration date of the license.
    Consequently, Commission rules required San Francisco IVDS to seek a
    waiver of that rule at the time it filed its renewal
    application.[^30] The absence of an express reference to a waiver
    requirement in the Commission's discussion of the level of scrutiny
    that will be applied in reviewing a request for renewal of a
    late-filed renewal application---or any other request for waiver of
    the Commission licensing rules---does not violate the requirement
    that adequate notice be provided.

8.  Nonetheless, we find that this case presents unusual factual
    circumstances that warrant grant of the Application for Review.
    Pursuant to Section 1.925 of our rules, we may grant a waiver if it
    is shown that: (a) the underlying purpose of the rule 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 (b) in view of unique or unusual factual circumstances
    of the instant case, application of the rule would be inequitable,
    unduly burdensome, or contrary to the public interest or the
    applicant has no reasonable alternative.[^31]

9.  We find that the unusual factual circumstances of this proceeding
    render the strict application of Section 1.949(a) inequitable,
    unduly burdensome, or contrary to the public interest. Specifically,
    we conclude that San Francisco IVDS's failure to request a waiver of
    Section 1.949(a) to obtain renewal until (1) dismissal of its
    defective application and (2) eighteen months after the license
    expired is outweighed by the other factors to be considered under
    our late-filed renewal policy.[^32]

10. The 218-219 MHz Service rulemaking proceeding, which resulted,
    *inter alia*, in the extension of 218-219 MHz Service licenses from
    five to ten years, was launched on September 17, 1998, and completed
    on September 10, 1999. Moreover, the new Wireless Services renewal
    policy was not released until June 28, 1999, more than a month after
    San Francisco filed its renewal application. We agree with San
    Francisco IVDS that the combination of these events were unusual
    circumstances that contributed to a confusing situation.[^33]

11. We conclude that *Self Communications*[^34] supports a finding that
    unusual circumstances contributed to the licensee's conclusion,
    albeit erroneous, that it was not required to file a renewal
    application prior to the original expiration date for the subject
    license, March 28, 1999.[^35] In *Self*, where the 218-219 MHz
    Service licensee filed a late renewal application and waiver
    request,[^36] the Division specifically found that "the scheduled
    expiration of a license during the pendency of a rule making which
    addresses the duration of the term for such license (given that the
    construction benchmarks associated with the license have been waived
    pending the resolution of the rule making) is an unusual
    circumstance."[^37] That Order also held that in light of such
    unusual circumstances, application of the Commission's rules "would
    be unduly burdensome," and the Division accordingly reinstated the
    expired license.[^38]

12. We agree with San Francisco IVDS that the same unusual circumstances
    that were found in *Self* are present here, *i.e.*, the pendency of
    the 218-219 MHz Service rulemaking confused the licensee regarding
    the need to file a renewal application. In addition, we take notice
    that the 218-219 MHz Service is a struggling one and has been from
    the outset when its predecessor, the Interactive Video and Data
    Service (IVDS), was established. The band has several technical
    restrictions that preclude its use for typical commercial services
    such as land mobile radio. Many 218-219 MHz Service licensees that
    initially saw promise in the service let their licenses expire
    without making any attempt to offer service. We thus perceive that
    it takes a combination of technical innovation and business
    entrepreneurship to develop and execute a viable business plan for
    this band. In light of this, we find it highly significant that San
    Francisco IVDS was actually offering service to customers at the
    time its license expired.[^39] Moreover, San Francisco IVDS
    evidenced its intent to continue operating pursuant to its license
    with the filing by its sole proprietor of a request for waiver of
    Part 95 technical and operating rules.[^40] Finally, we find no
    indication whatsoever of bad faith on San Francisco IVDS's part,
    although we remind San Francisco IVDS and all other licensees that
    it is the responsibility of each applicant and licensee to remain in
    compliance with our rules.[^41]

13. This is a close case. Of the mitigating factors present, no single
    one would justify granting San Francisco IVDS's license renewal
    application. However, taken in combination---and considering the
    time at which they occurred---the composite of mitigating factors
    very slightly tips the scales in San Francisco IVDS's favor and we
    thus grant its Application for Review and renew its license for a
    ten-year period that began on March 28, 2004, and ends on March 28,
    2014.[^42]

# ordering clauses

14. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 5(c) of
    the Communications Act, as amended, [47 U.S.C. §§ 154(i),
    155](http://www.lexis.com/research/buttonTFLink?_m=cd59b316caf8be5c490a0c3520974783&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B16 FCC Rcd 15020%5D%5D><%2Fcite>&_butType=4&_butStat=0&_butNum=21&_butInline=1&_butinfo=47 USC 155&_fmtstr=FULL&docnum=30&_startdoc=21&wchp=dGLbVtz-zSkAW&_md5=b448d440603e4008dc6c009222e5f13d)(c),
    and Section 1.115 of the Commission\'s rules, 47 C.F.R. § 1.115, the
    Application for Review filed by San Francisco IVDS, Inc. on February
    24, 2003, IS GRANTED.

15. Accordingly, IT IS FURTHER ORDERED that, pursuant to Sections 4(i)
    and 303(r) of the Communications Act, as amended, 47 U.S.C. §§
    154(i), 303(r), and Sections 1.925, 1.949, and 95.812 of the
    Commission's rules, §§ 1.925, 1.949, 95.812, the license for Station
    KIVD0012, San Francisco, California IS REINSTATED AND RENEWED with
    an expiration date of March 28, 2014.

16. Accordingly, IT IS FURTHER ORDERED that, pursuant to Sections 4(i)
    and 303(r) of the Communications Act, as amended, 47 U.S.C. §§
    154(i), 303(r), and Sections 1.946 and 95.833 of the Commission's
    rules, §§ 1.946, 95.833, the construction deadline for Station
    KIVD0012, San Francisco, California is March 28, 2009.

    FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch
>
> Secretary

[^1]: Application for Review, filed by San Francisco IVDS, Inc. (Feb.
    24, 2003) (Application for Review).

[^2]: In late 2003, the Commission's Wireless Telecommunications Bureau
    was reorganized. We note that the mobile radio service licensing
    issues related to the 218-219 MHz Service, which were previously
    handled by the Bureau's Public Safety and Private Wireless Division,
    are now under the purview of the Bureau's Mobility Division. FCC's
    Wireless Bureau Announces Reorganization, *Public Notice* (rel. Nov.
    24, 2003); Reorganization of the Wireless Telecommunications Bureau,
    *Order*, 18 FCC Rcd 25414 ¶ 2 (2003).

[^3]: San Francisco IVDS, Inc., *Memorandum Opinion and Order*, 16 FCC
    Rcd 18008 (2001) (*MO&O*).

[^4]: 47 C.F.R. §§ 1.949(a), 1.955(a)(1).

[^5]: San Francisco IVDS, Inc., *Memorandum Opinion and Order on
    Reconsideration*, 18 FCC Rcd 724 (2003) (*Order on
    Reconsideration*).

[^6]: Petition for Reconsideration, filed by San Francisco IVDS, Inc.
    (Nov. 13, 2001) (Reconsideration Petition).

[^7]: 47 C.F.R. § 1.949(a).

[^8]: 47 C.F.R. § 1.955(a)(1).

[^9]: *MO&O*, 16 FCC Rcd at 18009 ¶ 3.

[^10]: FCC File No. R393705 (filed May 21, 1999).

[^11]: *MO&O*, 16 FCC Rcd at 18009 ¶ 3. The late-filed renewal policy in
    effect at that time allowed licensees to file an application to
    reinstate an expired license within thirty days after the license
    expiration date. In October 1998, in the *ULS Report and Order*, the
    Commission abolished this 30-day reinstatement procedure. 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, *Report and Order*, 13 FCC Rcd
    21027 (1998) (*ULS Report and Order*). However, before the changes
    contemplated by *the ULS Report and Order* became effective, the
    Commission adopted its current late-filed renewal policy. 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*, 14 FCC Rcd 11476 (1999) (*ULS Order on
    Reconsideration*).

[^12]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service and Amendment of
    Part 95 of the Commission\'s Rules to Allow Interactive Video and
    Data Service Licensees to Provide Mobile Services (proceeding
    terminated), *Order, Memorandum Opinion and Order, and Notice of
    Proposed Rulemaking*, 13 FCC Rcd 19064 (1998).

[^13]: Amendment of Part 95 of the Commission\'s Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, *Report and Order
    and Memorandum Opinion and Order*, 15 FCC Rcd 1497 (1999) (*218-219
    MHz Flex R&O*).

[^14]: *Id*., 15 FCC Rcd at 1517 ¶ 32.

[^15]: *Order on Reconsideration*, 18 FCC Rcd at 726 ¶ 6.

[^16]: *Id*.

[^17]: *Id*. at 726 ¶ 7. The petition for reinstatement and waiver
    request would normally be considered only in the context of an
    underlying application. While San Francisco IVDS's renewal
    application had been dismissed, the Division noted that, in these
    particular circumstances, the public interest would not be served by
    requiring the filing of an underlying application, which would
    result in a later filing date for the associated waiver request. The
    Division used the filing date of the petition for reinstatement as
    the filing date for conducting its analysis of the waiver request.
    *Id.*

[^18]: Reconsideration Petition.

[^19]: *Order on Reconsideration*, 18 FCC Rcd 724 (2003).

[^20]: Application for Review at 7.

[^21]: *Id*. at 6-16.

[^22]: *See* Application for Review at 15; *Salzer v. FCC*, 778 F.2d 869
    (D.C. Cir. 1985). In *Salzer*, the court held, *inter alia*, that
    the Commission must provide explicit notice of all application
    requirements as a *quid pro quo* for stringent acceptability
    criteria.

[^23]: *ULS Order on Reconsideration*, 14 FCC Rcd 11476.

[^24]: *Id*., 14 FCC Rcd at 11485-86 ¶ 22.

[^25]: *Id*.

[^26]: *Id*.

[^27]: Application for Review at 16.

[^28]: 47 C.F.R. § 1.934(d)(2).

[^29]: *Id*.

[^30]: In addition, Section 1.955(a)(1) specifies that licenses
    "automatically terminate" on the license expiration date unless a
    timely renewal application is filed. 47 C.F.R. § 1.955(a)(1).
    Without a waiver of this rule, San Francisco IVDS would have nothing
    to renew. We also note that it is incumbent upon the applicant to
    make its case under the late-filed renewal policy. Applicants should
    present their evidence and analysis as part of their waiver request.

[^31]: 47 C.F.R. § 1.925(b)(3).

[^32]: *See ULS Order on Reconsideration*, 14 FCC Rcd 11476 (1999).

[^33]: Application for Review at 3-5.

[^34]: Self Communications, Inc., *Order and Notice of Apparent
    Liability for Forfeiture*, 15 FCC Rcd 18661 (2000) (*Self
    Communications*).

[^35]: Application for Review at 14.

[^36]: Eighteen licenses in the 218-210 MHz Service system licenses were
    awarded by lottery with a license term of five years. The licenses
    were granted on March 28, 1994. The expiration date for the license
    in *Self Communications* was the same as for San Francisco IVDS.

[^37]: *Self Communications*, 15 FCC Rcd at 18663 ¶ 6.

[^38]: *Id*., 15 FCC Rcd at 18663-64 ¶ 7.

[^39]: *See* Application for Review at 10.

[^40]: On April 17, 1997, Raveesh K. Kumra, the principal of San
    Francisco IVDS, filed a request for waiver of certain technical
    rules relating to the 218-219 MHz band. *See* Raveesh K. Kumra
    Request for Waiver (filed Apr. 17, 1997). Mr. Kumra sought waiver of
    the antenna height and power limitations contained in Section
    95.859(a) of the Commission's rules, as well as the duty cycle
    limitations contained in Section 95.863(a) of the Commission's
    rules. *Id*. The Commission incorporated Kumra's waiver request, as
    well as other related waiver requests, into the record of the
    pending rulemaking proceeding. *See* Amendment of Part 95 of the
    Commission\'s Rules to Provide Regulatory Flexibility in the 218-219
    MHz Service and Amendment of Part 95 of the Commission\'s Rules to
    Allow Interactive Video and Data Service Licensees to Provide Mobile
    Services (proceeding terminated), *Order, Memorandum Opinion and
    Order, and Notice of Proposed Rulemaking*, 13 FCC Rcd 19064, 19094
    n.201 (1998).

[^41]: We caution that each licensee is solely responsible for knowing
    the term of its license and submitting a renewal application in a
    timely manner. *ULS Order on Reconsideration*, 14 FCC Rcd at 11485 ¶
    21; *see also* Sierra Pacific Power Company, *Order*, 16 FCC Rcd
    188, 190-91 ¶ 6 (2001) ("each licensee bears the exclusive
    responsibility of filing a timely renewal application"); World
    Learning, *Order*, 15 FCC Rcd 23871, 23872 ¶ 4 (2000) (licensee "is
    solely responsible for filing a timely renewal application"); First
    National Bank of Berryville, *Order*, 15 FCC Rcd 19693, 19695 ¶ 8
    (2000) ("it is the responsibility of each licensee to renew its
    application prior to the expiration date of the license"); and
    Montana Power Company, *Order*, 14 FCC Rcd 21114, 21117 ¶ 7 (1999)
    ("it is the responsibility of each licensee to apply to renew its
    license prior to the license's expiration date").

[^42]: We note that the construction deadline for the 218-219 MHz
    Service is ten years from the license grant. *See* 47 C.F.R. §
    95.833. Because of the circumstances present in this case, we will
    allow San Francisco IVDS another five years---from the date that its
    license would have expired had its renewal application been granted
    by the Division---to demonstrate substantial service under our
    construction requirements.