Christmas comes early for late-filing applicants

After sitting on a host of late-filed Educational Broadband Service (EBS) and Broadband Radio Service (BRS) renewal applications for more than two years, the Wireless Bureau’s Broadband Division (Division) finally decided on June 16 to accept the filings and process the applications.   More than 116 EBS licensees had for various reasons neglected to file their last renewal application by the prescribed deadline. 

In many cases, the affected licensees were confused about whether a renewal application was fileable when the underlying station had not yet been constructed. Such confusion was understandable because, when responsibility for such applications moved from the Mass Media Bureau to the Wireless Bureau, there was a change of policy on this issue. (Old Media Bureau policy: if you hadn’t constructed your station, don’t bother to file for renewal; New Wireless Bureau policy: even if you hadn’t constructed, you have to file for renewal.) But the Wireless Bureau never bothered to issue any public notice of that change of policy.The Division decided that it was unfair to administer the administrative death penalty to licensees who had failed to comply with the unannounced policy since that policy, well, hadn’t been announced.

Over and above the justifiably confused folks, there were also quite a few applicants who had simply neglected to file their renewals on time due to carelessness, oversight, changes in personnel, or because their lessee had failed to take care of it.  The Division declared, in effect, that these educators were grown-ups, and excuses akin to “the dog ate my homework” were unacceptable. Nevertheless, since it was permitting mere permittees to file late-flied renewals, it decided it would be inequitable not to accord similar relief to licensees who had actually built their systems. The Division therefore magnanimously waived the filing deadline for everybody.  

A huge sigh of relief was audible over much of the country, particularly from the administrators who had failed to file the renewals on time. At the same time, the Division dismissed Sprint-Nextel’s objections to this action on the grounds that Sprint would not be harmed by acceptance of the late filings and therefore had no legal standing to complain.

The dilatory filers did not get off unscathed, however.  The Division decided that late-filers would not be allowed to "split the football" with nearby incumbents who had timely filed their renewal applications. “Splitting the football” occurs when the protected service areas of two co-channel licensees overlap. The FCC ruled several years ago that in such overlapping situations, the licensees would divide equally the overlap area, which appears as a football-shaped figure in diagrams.   Under last week’s ruling, the late-filers would not be entitled to their half of the football.    Half a football is normally better than none, but here none of a football is better than none, because at least the licensees get the service areas that do not overlap with anyone else.

The Division also permitted those applicants who had neither constructed their stations nor timely filed for extensions of time to file late-filed requests for extension time, which the Division agreed to grant when filed.  

Finally, the Division also tied up loose ends for a handful of BRS licensees whose late-filed renewals had been petitioned against by Sprint-Nextel. Here, too, the Division dismissed the Sprint petitions on procedural grounds, freeing the licensees to proceed with build-outs and transitions of their markets. The Division obviously decided that, legal niceties aside, it was better for the development of the BRS/EBS service to have these renewals established and a build-out accomplished by 2011 rather than putting the spectrum up for auction and waiting perhaps another ten years for service to be provided.