Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. BPIFH-2001420ABJ    |
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| DATA TRUCK, LLC                  | ) |                              |
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| Petition for Reinstatement of    | * |                              |
| License of Multipoint            |   |                              |
| Distribution Service Station     | * |                              |
| WNTK287, Watertown, South Dakota | * |                              |
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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:

# INTRODUCTION

1.  In this *Memorandum Opinion and Order*, we address the reinstatement
    request of Data Truck, LLC (Data Truck) for Multipoint Distribution
    Service (MDS) Station WNTK287, Watertown, South Dakota (the
    Station). We deny the reinstatement request but, on our own motion,
    grant Data Truck special temporary authority (STA) to operate the
    Station for six months and invite it to file a *de novo* application
    for a station license pursuant to its Basic Trading Area (BTA)
    authorization for the Watertown BTA.

    **II. BACKGROUND**

2.  On August 6, 1996, the Video Services Division of the Mass Media
    Bureau (MMB) granted a petition for reinstatement and application
    for renewal filed by Northeast TV Cooperative, Inc. (Northeast TV)
    for MDS Station WNTK288, near Kranzburg, S.D., which then included
    two channels, H1 and H2.[^1] In November, 1999, the Commission
    authorized Northeast TV to assign the H2 channel at that location to
    Data Truck and granted a construction permit to Data Truck under
    call sign WNTK287.[^2] The First Construction Permit indicated that
    the license would expire on May 1, 2001.[^3] On January 11, 2000,
    the Commission issued a modified construction permit for WNTK287,
    authorizing a different transmitter site near Kranzburg.[^4] The
    Second Construction Permit also indicated that the license would
    expire on May 1, 2001.[^5] On October 18, 2002, the Commission
    released a public notice indicating, *inter alia*, that its records
    showed that the license for WNTK287 had expired on May 1, 2001.[^6]

3.  On March 24, 2003, Data Truck filed a petition for reinstatement of
    Station WNTK287.[^7] In it Data Truck states that Northeast TV gave
    it a copy of the August 6, 1996, Reinstatement Grant before Data
    Truck purchased the Channel H2 authorization from Northeast TV, and
    that Northeast TV represented that it had a ten-year license, which
    Data Truck believed would expire in 2006.[^8] Data Truck states that
    it holds the MDS BTA authorization for the Watertown area and could
    prepare an application for this channel under that BTA authorization
    but that it would have to incur unnecessary expense to prepare such
    an application.[^9] Data Truck adds that Station WNTK287 is part of
    a two-way system that includes MDS channels 1 and 2A, operating
    under call sign WNTK287-H01, whose license expires in May 2011, and
    that it is the only two-way wireless system in Watertown, SD.[^10]
    Data Truck argues that, if the license for WNTK287 is not
    reinstated, it will be forced to shut down the only two-way wireless
    system in the area until it can prepare a new application and obtain
    a grant.[^11]

# Discussion

## Petition for Reinstatement

4.  Under the Commission's rules pertaining to MDS, licensees must file
    their renewal applications between thirty and sixty days prior to
    the license expiration date.[^12] If a licensee fails to file a
    timely renewal application, the licensee automatically forfeits the
    MDS station license as of the expiration date.[^13] A licensee may
    file a petition for reinstatement of a forfeited license within
    thirty days of the license expiration date.[^14] A timely filed
    petition for reinstatement must adequately explain the failure to
    file the renewal application on time, and specify the procedures the
    licensee has established to ensure timely filings in the
    future.[^15] 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.[^16]

5.  Data Truck's license for Station WNTK287 expired on May 1, 2001
    without further action by the Commission because Data Truck failed
    to submit a timely renewal application for the station. Data Truck
    was required to submit a renewal application for the Station between
    March 1, 2001 and April 1, 2001. However, Data Truck did not file
    its Petition for Reinstatement until March 24, 2003, and even then
    did not include a renewal application. Even if it had coupled a
    renewal application with the Petition for Reinstatement, the renewal
    application would have been untimely in accordance with Section
    21.11(c) of the Commission's Rules.[^17]

6.  In light of Data Truck's failure to file a timely renewal
    application, it had another option under the rules to regain the
    authorization for Station WNTK287 -- namely, to file a petition for
    reinstatement.[^18] Under the Commission's Rules, Data Truck had
    until June 1, 2001, thirty days after the license expiration date,
    to submit its reinstatement request. Data Truck, however, did not
    file the petition for reinstatement until March 24, 2003.[^19] Data
    Truck requests a waiver of the filing deadline set forth in Section
    21.44 of the Commission's Rules for such a petition.[^20]

7.  Because Data Truck failed to meet either filing deadline, a waiver
    is required for us to provide the requested relief.[^21] Pursuant to
    Section 21.19 of the Commission\'s Rules,[^22] 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.[^23] 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.[^24] The Commission has a strong interest in preserving the
    clarity of when other applicants may permissibly file for spectrum
    previously utilized by expired stations.[^25]

8.  We find that Data Truck 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."[^26] Data Truck asserts that reinstatement is
    warranted in this case because: (1) it thought its license would not
    expire until 2006; (2) WNTK287 is an essential part of the only
    two-way wireless system in its area; (3) filing to revive the
    station pursuant to its BTA authorization would involve
    "unnecessary" expense, and (4) such a filing would require the
    station to be shut down while the application is pending.[^27]
    However, Data Truck provides no adequate explanation for its
    managerial oversight. The Commission issued Data Truck two
    construction permits for the Station, and both of the permits
    clearly stated that the license would expire on May 1, 2001. It was
    unreasonable of Data Truck to put more faith in verbal assurances
    from the assignor than in a printed instrument of authorization from
    the Commission.

9.  Moreover, Data Truck's Petition for Reinstatement is apparently
    based in part on an unsupported assumption that because it holds the
    BTA authorization for Watertown, South Dakota, it would
    automatically be entitled to recover its right to transmit signals
    throughout the protected service area (PSA) of its expired Station,
    because its PSA was in the Watertown BTA. That assumption is not
    correct, for two reasons. Station WNTK294's PSA is within BTA 464
    but extends into two adjacent areas, BTA 422 and BTA 199. Holding
    the authorization for BTA 464 would not provide Data Truck with an
    automatic right to recover the portions of a station's PSA that fall
    within other BTAs. Moreover, by allowing its station license to
    lapse, Data Truck has lost its grandfathered status with respect to
    any other properly licensed co-channel stations that are located
    within 35 miles of the WNTK294 transmitter site. In 1995, the
    Commission expanded the co-channel PSAs of MDS and ITFS site
    licenses from a radius of 15 miles to a radius of 35 miles, but
    grandfathered incumbent stations that were short-spaced with respect
    to each other under the new interference protection standards.[^28]
    In this case, Data Truck's expired station is 34 miles from MDS
    station WNTK294, licensed to Condington Clark Electric Cooperative.

10. 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
    the goal of ensuring uninterrupted, authorized service to the public
    and would be inconsistent with case precedent.[^29] Data Truck filed
    its petition for reinstatement nearly two years after its license
    expired due to management failure. To allow the grant of a waiver in
    this context would eviscerate the reinstatement rule.[^30]
    Accordingly, we deny Data Truck's waiver requests. In light of our
    denial of Data Truck's waiver request, its petition for
    reinstatement is subject to dismissal on the basis that it was
    untimely filed.[^31]

11. If Data Truck chooses to file a *de novo* site license application
    pursuant to its BTA authorization, we will expect it to provide an
    electrical interference analysis showing the status of any incumbent
    MDS site licensees in the area that Data Truck seeks to serve. Other
    interested parties will have an opportunity to oppose such an
    application.[^32]

## Special Temporary Authority

12. As noted above, Data Truck states that WNTK287 is an essential part
    of the only two-way wireless system in its area. Because of South
    Dakota's low population density, we are concerned that some of Data
    Truck's customers might not have access to alternative reasonably
    priced substitute services. To ensure that Data Truck's customers
    will not suffer from that company's management oversights, we will
    grant, on our own motion, a special temporary authorization (STA)
    allowing Data Truck to operate the facilities of former Station
    WNTK287 for a period of 180 days beginning with the date upon which
    this order is released. The Commission's rules provide that an STA
    may be granted for an initial period not to exceed 180 days.[^33]
    Data Truck may seek an extension if it has filed a *de novo* license
    application that remains pending at the end of that period.

# oRDERING CLAUSES

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 21.19 of the Commission\'s Rules, 47
    C.F.R. § 21.19, the Petition for Reinstatement for Station WNTK287
    filed by Data Truck, LLC., on March 24, 2003 IS DENIED.

14. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309(f) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309(f) and Section 21.25(b)(4) of the Commission\'s Rules, 47 C.F.R.
    § 21.25(b)(4), special temporary authority for Multipoint
    Distribution Service Station WNTK287 IS GRANTED TO THE EXTENT
    INDICATED HEREIN.

15. 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/526350.doc

[^1]: Letter from Daniel R. Ball, Attorney, Video Services Division,
    Mass Media Bureau, to Marci E. Greenstein, Esq., Counsel for North
    East TV Cooperative, Inc., Renewal Application File. No.
    51203-CM-R-96, Aug. 6, 1996 (Reinstatement Grant).

[^2]: WNTK287 Construction Permit, File No. BPMD-19910517AAA (granted
    Nov. 9, 1999) (First Construction Permit); WNTK287 Assignment Grant,
    Nov. 22, 1999 (Assignment Grant). The record does not indicate why
    the First Construction Permit was issued before the Assignment
    Grant.

[^3]: First Construction Permit at 1.

[^4]: WNTK287 Construction Permit, File No. BPMD-19910517AAA (granted
    Jan. 11, 2000) (Second Construction Permit).

[^5]: Second Construction Permit at 1.

[^6]: FCC Public Notice, DA 02-2752, released Oct. 18, 2002.

[^7]: Data Truck, L.L.C., Petition for Reinstatement of MDS Station
    WNTK287, FRN 0006-5543-15, filed Mar. 24, 2003 (Petition for
    Reinstatement).

[^8]: *Id.* at 1-2.

[^9]: *Id.* at 2.

[^10]: *Id.*

[^11]: *Id.*

[^12]: *See* 47 C.F.R. § 21.11(c).

[^13]: 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.

[^14]: *Burlington*, 13 FCC Rcd 772 ¶ 7 *citing* 47 C.F.R. § 21.44(b)(1)
    -- (3).

[^15]: *Id*.

[^16]: *See* 47 C.F.R. § 21.44(b)(1).

[^17]: *See* 47 C.F.R. § 21.11(c); *Burlington*, 13 FCC Rcd at 775 ¶ 7.

[^18]: *See* 47 C.F.R. § 21.44(b)(1).

[^19]: *See* para. 3.

[^20]: *See* 47 C.F.R. § 21.44(b)(1).

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

[^22]: 47 C.F.R. § 21.19.

[^23]: *Id*.

[^24]: *See Burlington*, 13 FCC Rcd at 778 ¶ 16; s*ee also Superior*, 7
    FCC Rcd at 7543 ¶ 4.

[^25]: *See Burlington*, 13 FCC Rcd at 778 ¶ 16.

[^26]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969)
    (*WAIT*).

[^27]: Petition for Reinstatement at 1-2.

[^28]: Amendment of Parts 1, 21 and 74 to Enable Multipoint Distribution
    Service and Instructional Television Fixed Service Licensees to
    Engage in Fixed Two-Way Transmissions, Gen. Docket No. 90-54,
    *Second Order on Reconsideration*, 10 FCC Rcd 7074 at 7075-7085, ¶¶
    2-31 (1995). *See also* Amendment of Parts 1, 21 and 74 to Enable
    Multipoint Distribution Service and Instructional Television Fixed
    Service Licensees to Engage in Fixed Two-Way Transmissions, *Report
    and Order on Reconsideration*, 14 FCC Rcd 12,764 at 12,796-12,-797,
    ¶ 69 (1999) (*Two-Way Reconsideration*); Request for Declaratory
    Ruling on the Use of Digital Modulation by Multipoint Distribution
    Service and Instructional Television Fixed Service Stations,
    *Declaratory Ruling and Order*, 11 FCC Rcd 18839 at 18853-18854 ¶¶
    23-24 (1996) (*Digital Declaratory Ruling*).

[^29]: *See Burlington*, 13 FCC Rcd at 775 ¶ 16.

[^30]: *See WAIT*, 418 F.2d at 1159 (the Commission neither "must
    \[n\]or should tolerate evisceration of a rule by waivers."

[^31]: *See* 47 C.F.R. §§ 21.11(c ), 21.44(b)(1).

[^32]: *See* 47 C.F.R. § 21.30.

[^33]: 47 C.F.R. § 73.1635(a)(4).