**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. D126953             |
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| Self Communications, Inc.        | ) | NAL/Acct. No. X 2051 00001   |
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| Reinstatement Application for    | * |                              |
| 218-219 MHz Service License      |   |                              |
| KIVD0006, Chicago, Illinois and  | * |                              |
| Request for Waiver of Sections   | * |                              |
| 1.949(a) and 1.955(a)(1) of the  | ) |                              |
| Commission's Rules               | * |                              |
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**ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY** **FOR FORFEITURE**

**Adopted: May 23, 2000 Released: May 23, 2000**

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

# INTRODUCTION

1.  On May 24, 1999, Self Communications, Inc. (Self) filed an
    application to reinstate its license[^1] and concurrently submitted
    a request for waiver of Sections 1.949(a) and 1.955(a)(1) of the
    Commission's Rules[^2] to permit such a reinstatement.[^3] For the
    reasons discussed below, and based on Commission rules and practices
    that were in effect at the time Self filed its reinstatement
    application, we grant Self's waiver request and reinstate its
    license. We also conclude that Self is apparently liable for a
    forfeiture in the amount of one thousand five hundred dollars
    (\$1500).

# BACKGROUND

2.  On March 28, 1994, Self was granted a 218-219 MHz Service (then
    known as the Interactive Video and Data Service, or IVDS) license,
    Call Sign KIVD0006, for frequency block B in the Chicago, Illinois,
    market. Self's license was issued for a five-year term that was
    scheduled to expire on March 28, 1999.[^4]

3.  On September 17, 1998, the Commission released a *Notice of Proposed
    Rulemaking* that examined ways to maximize the efficient and
    effective use of the 218-219 MHz band, and proposed numerous
    modifications to the licensing and technical rules for the 218-219
    MHz Service, including changing the license term from five to ten
    years.[^5] On March 26, 1999, the Public Safety and Private Wireless
    Division (Division) of the Wireless Telecommunications Bureau waived
    the five-year construction benchmark requirement set forth in former
    Section 95.833 of the Commission's Rules, in response to requests
    for waivers from Self and other 218-219 MHz Service licensees.[^6]
    On May 24, 1999, Self filed the above-captioned application to
    reinstate its license and requested a waiver of the Commission's
    Rules to permit the reinstatement, acknowledging its failure to file
    a timely renewal application. On September 10, 1999, the Commission
    released a *Report and Order* largely adopting the proposals the
    Commission made in the *218-219 Flex NPRM* and extending the license
    term to ten years.[^7] The new rules took effect on January 3,
    2000.[^8]

# DISCUSSION

4.  Self has requested a waiver of Sections 1.949(a) (which requires
    that renewal applications be filed before the license expiration
    date) and 1.955(a)(1) (which provides that licenses terminate
    automatically on the expiration date unless a timely renewal
    application is filed) of the Commission's Rules, in order to
    reinstate its 218-219 MHz Service license.[^9] To obtain a waiver of
    the Commission's Rules, a petitioner must demonstrate either (a)
    that, in view of unique or unusual factual circumstances,
    application of the rule(s) would be inequitable, unduly burdensome
    or contrary to the public interest, or the applicant has no
    reasonable alternative; or (b) that the underlying purpose of the
    rule(s) would not be served or would be frustrated by application to
    the present case, and grant of the requested waiver would be in the
    public interest.[^10] As discussed in further detail, herein we find
    that grant of a waiver is warranted.

5.  While we do not excuse Self's omission to file its renewal
    application in a timely manner, we nonetheless find that unusual
    factual circumstances are present in the instant matter. Self
    contends that it did not file a timely renewal application because
    it believed that it was not required to file a renewal application
    in March 1999 given that the Commission had adopted a proposal in
    the *218-219 MHz Flex NPRM* to change the license term from five to
    ten years.[^11] Self further contends that its belief to this effect
    was reinforced by the fact that it did not receive a notice from the
    FCC to file an application seeking renewal of its 218-219 MHz
    Service license.[^12] As an initial matter, we note that Self's
    belief that the Commission had adopted its outstanding proposal to
    extend the license term of 218-219 MHz Service licenses as of March
    28, 1999, was erroneous. In this regard, we point to the *Waiver
    Order* which was released on March 26, 1999 and expressly stated
    that the Commission had not yet released a final order addressing
    the proposed rule changes in the 218-219 MHz Service.[^13]

6.  Although Self's belief was incorrect, we find 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. In this connection, we note that the Commission's
    decision in the 218-219 MHz Service rule making was to extend the
    term of 218-219 MHz Service licenses to ten years rather than to
    grant the renewal of license applications that had been filed by
    218-219 MHz Service licensees.[^14] Even though Self contends that
    its failure to receive a renewal notice was an additional reason for
    its failure to file its renewal application in a timely manner, we
    do not find such reason to be a sufficient basis for granting its
    requested waiver, particularly in this instance where the licensee
    failed to provide the FCC with its most current address.[^15] We
    reiterate that "failure of a licensee to receive a \[renewal form\]
    from the Commission is no excuse for failure to file a renewal
    application.[^16] As a result, we have not considered this assertion
    as a factor in reaching our finding of unusual circumstance.

7.  In addition, we believe that application of the rule would be unduly
    burdensome. First, we note that Self previously had indicated its
    desire to retain the subject 218-219 MHz Service license prior to
    the license's scheduled expiration date.[^17] We consider this to be
    a significant factor in determining whether granting relief is
    warranted in this context.[^18] Second, we note in the *218-219 Flex
    R&O* the Commission indicated its belief that "we should extend the
    license terms to ten years of those licensees who were issued
    licenses on March 28, 1994 (footnote omitted) and who have timely
    filed renewal applications or timely filed waiver requests pending
    at the FCC."[^19] As stated *supra*, Self's waiver request was
    pending at the FCC at the time of the Commission's decision. Third,
    we note that Self has made efforts to construct Station KIVD0006,
    including the actual construction and deconstruction of facilities
    over the past five years. Finally, we note that in the context of
    another proceeding, the Commission indicated that "our treatment of
    late-filed renewal applications should take into consideration the
    complete facts and circumstances involved, including the length of
    the delay in filing, the performance record of the licensee, the
    reasons for the failure to timely file, and the potential
    consequences to the public if the license were to terminate."[^20]
    While the Commission stated that requests from applicants who filed
    more than thirty days after license expiration will not be routinely
    granted, it nonetheless noted that such applications would be
    subject to stricter review, and may be accompanied by enforcement
    action.[^21] In this connection, we note that Self's waiver request
    was filed more than thirty days after the license expiration date.
    However, based on the totality of the circumstances in this matter
    and the Commission's policies discussed herein, we find that
    application of the rule that renewal applications be filed prior to
    the expiration of a license term would be unduly burdensome in this
    instance. Thus, we conclude that Self has made the requisite showing
    that grant of a waiver is warranted. Consequently, we will reinstate
    its license and accept its late-filed renewal application. Self's
    license will be subject to the same conditions and terms as those
    imposed by the Commission on 218-219 MHz Service licenses obtained
    by lottery as set forth in WT Docket No. 98-169.[^22]

8.  However, we also find that Self Communications willfully violated
    Section 1.949 of the Commission's Rules when it failed to file its
    renewal application on time for its 218-219 MHz Service license,
    Call Sign KIVD0006, Chicago, Illinois.[^23] Self's authorization for
    KIVD0006 ended on March 28, 1999.[^24] Self, however, did not file
    for renewal of the authorization until May 24, 1999.[^25] In this
    *Order*, we will grant Self's waiver request to the extent that it
    seeks reinstatement of its license.

9.  Section 1.949 of the Commission's Rules states, in pertinent part,
    that "Applications for renewal of authorizations in the Wireless
    Radio Services must be filed no later than the expiration date of
    the authorization for which the renewal is sought . . ." Based on
    the information before us, Self Communications filed its license
    renewal application for Call Sign KIVD0006 almost two months after
    the authorization for the station had expired, in apparent violation
    of Section 1.949 of the Commission's Rules.

10. The guidelines contained in the Commission's *Forfeiture Policy
    Statement* specify a base forfeiture amount of \$3000 for a failure
    to file a required form.[^26] The guidelines, however, permit the
    issuance a higher or lower forfeiture than provided in the
    guidelines.[^27] Section 503(b)(2)(D) of the Communications Act of
    1934, as amended (the Act), requires the Commission to consider "the
    nature, circumstances, extent and gravity of the violation, and,
    with respect to the violator, the degree of culpability, any history
    of prior offenses, ability to pay, and such other matters as justice
    may require."[^28] In this case, taking into consideration all of
    the factors required by Section 503(b)(2)(D) of the Act, including,
    but not limited to, Self's voluntary disclosure of its violation to
    the Commission, we believe it is appropriate to reduce the amount of
    the proposed forfeiture from \$3,000 to \$1,500 for Call Sign
    KIVD0006.

# CONCLUSION

11. Because we have concluded that circumstances that would warrant
    grant of a waiver exist, we conclude that it is proper to grant Self
    a waiver and reinstate its license. Self states that it applied for
    reinstatement "immediately upon discovering that the renewal
    application was not filed,"[^29] and we received its application
    less than two months after its license expired. For the reasons
    stated, we conclude that reinstatement of Self's license is
    warranted based on the particular circumstances described herein.

12. Because Self's failure to file a renewal application appears to stem
    largely from its own omissions,[^30] and because we have established
    no policy guaranteeing the automatic reinstatement of 218-219 MHz
    Service licenses,[^31] we conclude that Self Communications is
    apparently liable for a forfeiture in the amount of one thousand
    five hundred (\$1500).

# ORDERING CLAUSES

13. Accordingly, pursuant to Section 4(i) of the Communications Act of
    1934, 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 of Self
    Communications, Inc., filed May 24, 1999, is GRANTED to the extent
    stated herein, the five-year progress report filed as Exhibit B to
    application FCC File No. D126953 IS ACCEPTED, and the license for
    Call Sign KIVD0006 IS REINSTATED.

14. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended,[^32] and Section 1.80 of the
    Commission's Rules,[^33] Self Communications, Inc. is hereby
    NOTIFIED of its APPARENT LIABILITY FOR A FORFEITRUE in the amount of
    one thousand five hundred dollars (\$1,500) for its apparent and
    willful violation of Section 1.949 of the Commission's Rules.

15. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    Rules, that within thirty days of the release of this Notice, Self
    Communications, Inc. SHALL PAY the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture.[^34]

16. IT IS FURTHER ORDERED that copies of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Self Communications,
    Inc. Attention: Rodney R. Eales, 2054 State Street, San Diego, CA
    92101.

17. Payment of the forfeiture may be made by credit card through the
    Commission's Credit and Debit management center at (202)418-1995 or
    by mailing a check or similar instrument, payable to the order of
    the Federal Communications Commission, to the Forfeiture Collection
    Section, Finance Branch, Federal Communications Commission, P.O. Box
    73482, Chicago, Illinois 60673-7482. The payment should note the
    NAL/Acct. No. referenced above.

18. The response if any must be mailed to the Federal Communications
    Commission, Wireless Telecommunications Bureau, Public Safety and
    Private Wireless Division, 445 12^th^ Street, SW, Washington, DC,
    20554 and MUST INCLUDE THE NAL/Acct. No. X 2051 00001 referenced
    above.

19. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices ("GAAP"); or (3) some other reliable
    and objective documentation that accurately reflects the
    petitioner's current financial status. Any claim of inability to pay
    must be specifically identify the basis for the claim by reference
    to the financial documentation submitted

20. Requests for payment of the full amount under an installment plan
    should be sent to: Chief, Credit and Debt Management Center, 445
    12^th^ Street, SW, Washington, DC 20554.[^35]

21. 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
>
> D'wana R. Terry
>
> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Self Communications, Inc., Reinstatement Application for 218-219
    MHz Station KIVD0006, filed May 24, 1999 (Reinstatement
    Application).

[^2]: 47 C.F.R. §§ 1.949(a), 1.955(a)(1).

[^3]: Reinstatement Application Exhibit A (Waiver Request).

[^4]: *Id. See also* former 47 C.F.R. § 95.811(d) (setting forth a
    five-year license term).

[^5]: *218-219 MHz Flex NPRM*, 13 FCC Rcd at 19084 ¶ 36*.*

[^6]: Request of Licensees in the 218-219 MHz Service for Waiver of the
    Five-Year Construction Deadline, *Order*, 14 FCC Rcd 5190 (WTB PSPWD
    1999) (*Waiver* *Order*).

[^7]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, *Report and
    Order*, WT Docket No. 98-169, 15 FCC Rcd 1497, 1517 ¶ 31, (1999)
    (*218-219 MHz Flex* *R&O*).

[^8]: 63 Fed. Reg. 59656 (Nov. 3, 1999).

[^9]: 47 C.F.R. §§ 1.949(a), 1.955(a)(1).

[^10]: 47 C.F.R. § 1.925(b)(3).

[^11]: Waiver Request at 1-2.

[^12]: *Id*.

[^13]: *Waiver Order*, 14 FCC Rcd at 5194.

[^14]: *218-219 MHz Flex R&O,* 15 FCC Rcd at 1517 ¶ 32.

[^15]: *See* Waiver Request at 1-2.

[^16]: Daniel Goodman, Receiver, Dr. Robert Chan, Petition for Waiver of
    Sections 90.633 (c) and 1.1102 of the Commission's Rules,
    *Memorandum Opinion & Order and Order on Reconsideration*, 13 FCC
    Rcd 21944, 21973 (1998).

[^17]: *See Waiver Order*, 14 FCC Rcd at 5190, n.3.

[^18]: *See* Medina Electric Cooperative, Inc., *Order on
    Reconsideration*, DA 99-2314, ¶ 6 (WTB PSPWD rel. Oct. 26, 1999)
    (granting reinstatement of a 2 GHz license erroneously cancelled by
    licensee, in part because the fact that the licensee had negotiated
    a voluntary relocation agreement demonstrated that the licensee
    intended to continue operating the system).

[^19]: *218-219 MHz Flex R&O*, 15 FCC Rcd at 1517 ¶ 32.

[^20]: Biennial Regulatory Review---Amendment of Parts 0, 1, 13, 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*, WT Docket No. 98-20, 14 FCC Rcd 11476,
    11485 (1999) (*ULS MO&O*).

[^21]: *Id*.

[^22]: *See* *218-219 MHz Flex R&O*, 15 FCC Rcd at 1517 ¶ 32.

[^23]: 47 C.F.R. § 1.949.

[^24]: *Lottery Grant Public Notice*.

[^25]: Reinstatement Application.

[^26]: *See The Commission's Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Commission's Rules (Forfeiture Policy
    Statement)*, 12 FCC Rcd 17087, 17113 (1997); 47 C.F.R. § 1.80(b)(4).

[^27]: *See* Forfeiture *Policy Statement*, 12 FCC Rcd at 17112, 47
    C.F.R. § 1.80(b)(4).

[^28]: 47 U.S.C. § 503(b)(2)(D).

[^29]: Waiver Request at 2.

[^30]: Self Communications claims that two factors contributed to its
    failure to timely renew its license: failure to receive a renewal
    notice -- which appears to have occurred because Self Communications
    did not have a current mailing address on file with the Commission
    -- and its misconception that the Commission had adopted the
    proposal in the *218-219 MHz Flex NPRM* to change the license term
    from five to ten years. Waiver Request at 1-2.

[^31]: *Contrast* *GMRS R&O*, 3 FCC Rcd at 6562 ¶ 71 (allowing for
    automatic reinstatement within six months of license expiration).

[^32]: 47 U.S.C. § 503(b).

[^33]: 47 C.F.R. § 1.80.

[^34]: 47 C.F.R. § 1.80.

[^35]: *See* 47 C.F.R. § 1.914.