DA 07-783

Robert E. Griffin

1436 Johnson Avenue

San Luis Obispo, CA 93401.

> Re: Application for First Class Radiotelegraph Operator's Certificate
>
> FCC File No. 0002583507

Dear Mr. Griffin:

On April 26, 2006, you filed the above-referenced application for a
First Class Radiotelegraph operator's certificate (T1).[^1] In
connection with this application, you requested a waiver[^2] of Section
13.201(b)(1)(iv) of the Commission's Rules, which states that an
applicant for a T1 license must, among other requirements, "have one
year of experience in sending and receiving public correspondence by
radiotelegraph at a public coast station, a ship station, or both."[^3]
For reasons discussed below, we deny the waiver request, and will
dismiss the application.

You state, in support of the waiver request, that "\[t\]he operational
requirements for, and the widespread acceptance of the \[Global Maritime
Distress and Safety System\] has resulted in extraordinarily limited use
of radiotelegraph-messaging by ships for emergency or maritime
safety-related communications," and "the advent, evolution and
acceptance of fast, error-correcting digital modes and satellite
technology has dramatically shifted operational and regulatory reliance
in maritime communications away from maritime radiotelegraphy services
both at sea and at coastal stations." [^4] You argue that it would
therefore be "an unreasonable hardship and a burdensome requirement to
hold new T1 applicants to that portion of Rule 13.201(b)(1)(iv)
requiring radiotelegraphy messaging experience be strictly limited to
(now virtually moribund) service at public coast stations or ship
stations (or both), where other relevant experience is shown."[^5] You
seek credit for yourself for your radiotelegraph operating experience in
the military and the Amateur Radio Service, including participation in
the Military Affiliate Radio System, in lieu of experience at a public
coast station or ship station.[^6]

Section 1.925(b)(3) of the Commission's Rules provides that the
Commission may grant a request for waiver "if it is shown that (i)
\[t\]he 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 (ii) \[i\]n
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."[^7]

We decline to grant the requested waiver. You claim that a waiver is
warranted because it is a "hardship" and a "burden" to comply with
Section 13.201(b)(1)(iv) due to the absence of opportunities for
obtaining radiotelegraphy operating experience at a public coast station
or ship station. In order to justify a waiver under the second prong of
the Section 1.925(b)(3) waiver standard, however, a waiver applicant
bears the burden of demonstrating not only that compliance with the rule
would be, *e.g.*, inequitable or burdensome, but that this difficulty is
due to "unique or unusual factual circumstances of the instant case...."
Here, you do not assert that the requirement of Section 13.201(b)(1)(iv)
creates any special burden for you beyond what any applicant for a T1
license would face. Thus, granting a waiver on the basis of the
diminished opportunity to fulfill the experience requirement would apply
equally to any applicant for a T1 license. Grant of the requested waiver
therefore would undermine the rule.[^8] A request for relief from the
existing requirement of Section 13.201(b)(1)(iv) would better be
addressed in a rulemaking proceeding, rather than through the waiver
process.[^9] We therefore deny the waiver request because you have not
established the requisite unique or unusual circumstances to support
grant of a waiver.

Accordingly, pursuant to Section 4(i) of the Communications Act, as
amended, 47 U.S.C. § 154(i), and Section 1.925 of the Commission's
rules, 47 C.F.R. § 1.925, the waiver request filed by Robert E. Griffin
on April 24, 2006, IS DENIED, and application FCC File No. 0002583507
SHALL BE DISMISSED.

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

Scot Stone

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: FCC File No. 0002583507 (filed Apr. 24, 2006).

[^2]: Waiver Request (filed Apr. 24, 2006).

[^3]: 47 C.F.R. § 13.201(b)(1)(iv).

[^4]: *See* Waiver Request at 4. You further note radiotelegraphy
    operations at U.S. public coast stations have been "virtually closed
    since 1999." *Id.*

[^5]: *Id*. at 5.

[^6]: *Id*. at 6. You attach to the Waiver Request a letter from the
    American Radio Relay League (ARRL) verifying your experience and
    proficiency in radiotelegraphy. Letter dated Mar. 7, 2006, from
    Steve Ewald, Supervisor, ARRL Field Organization/Public Service
    Team, to FCC.

[^7]: 47 C.F.R. § 1.925(b)(3).

[^8]: *See* Nextel Communications, Inc., *Order*, 14 FCC Rcd 11678,
    11691 ¶ 31 (WTB 1999) ("It is axiomatic that the Commission 'must
    not eviscerate a rule by a waiver.' The Commission has been
    especially reluctant to grant a waiver when to do so would 'invite
    numerous other waiver requests which, if granted, would effectively
    circumvent the Commission\'s rulemaking function.'") (citing,
    *e.g.*, Riverphone, Inc., T/A Maritel, *Memorandum Opinion and
    Order*, 3 FCC Rcd 4690, 4692 ¶ 12 (1988); Verilink Corp.,
    *Memorandum Opinion and Order*, 10 FCC Rcd 8914, 8916 ¶ 6 (CCB
    1995)).

[^9]: The waiver request appears to recognize this point. *See* Waiver
    Request at 5 (stating that "\[i\]t could be argued that the specific
    experience requirement of Rule 13.201(b)(1)(iv) is itself an
    anomaly, and that it should be deleted from the regulation").