Federal Communications Commission Washington, D.C. 20554 May 5, 2011 DA 11-840 Derek M. Fukunaga WA1-RC Supervisor, Communications Hawaiian Electric Company, Inc. P.O. Box 2750 Honolulu, Hawaii 96840-0001 In re: Hawaiian Electric Company, Inc. Request for Renewal and Reinstatement Call Sign WPJB757 File No. 0004599532 Dear Mr. Fukunaga: On February 2, 2011, Hawaiian Electric Company, Inc. (“HECO”) filed a waiver request1 to file a late-filed application2 for renewal of license of Microwave Industrial/Business Pool (Multiple Address System (MAS)) Station WPJB757, which expired on December 5, 2010. Because HECO filed its application more than thirty days after expiration, HECO requests as part of its application waiver of Section 1.949(a) of the Commission’s Rules3 to grant renewal of its late-filed application.4 For the reasons stated below, we deny HECO’s Waiver Request and dismiss its late-filed Renewal Application. The license for Station WPJB757 was last renewed on November 2, 2000, and expired on December 5, 2010.5 Our records indicate that a renewal reminder notice was sent to HECO on September 13, 2010.6 Section 1.949(a) of the Commission’s Rules requires licensees to file renewal applications no later than the expiration dates of licenses.7 HECO failed to do so, not filing until February 2, 2011, and requesting that Section 1.949(a) of the Commission’s Rules be waived to allow acceptance of HECO’s late-filed application.8 1 Letter Derek M. Fukunaga, Supervisor, Communications, Hawaiian Electric Company, Inc. to Federal Communications Commission, File No. 0004599532 (filed Feb. 2, 2011) (Waiver Request). 2 File No. 0004599532 (filed Feb. 2, 2011) (Renewal Application). 3 47 C.F.R. § 1.949(a). 4 Waiver Request at 1. 5 File No. 0000242239 (granted Nov. 2, 2000). 6 Renewal Reminder Notice, Ref. No. 5024057 (Sep. 13, 2010). The reminder notice was addressed to: ATTN: EUGENE KAWAMATA WA1-RC, Hawaiian Electric Company, Inc., P.O. Box 2750, Honolulu, Hawaii 96840- 0001. 7 Waiver Request at 1. 8 Id. Derek M. Fukunaga 2 HECO states that that its renewal application was delayed because the licensee contact listed in the Commission’s records retired in December 2004. 9 In addition, HECO explains that the renewal reminder was possibly discarded or lost in HECO’s internal mail system.10 HECO also notes that it went through a large scale reorganization of its operation areas late last year and that many office renovations are currently under way.11 The license allows HECO the capability to monitor pole top electrical line recloser equipment on the western side of Oahu using MAS.12 The Commission’s policy regarding reinstatement procedures in the Wireless Radio Services is as follows: Renewal applications that are filed up to thirty days after the expiration date of the license will be granted nunc pro tunc if the application is otherwise sufficient under the Commission's Rules, but the licensee may be subject to an enforcement action for untimely filing and unauthorized operation during the time between the expiration of the license and the untimely renewal filing.13 Applicants who file renewal applications more than thirty days after the license expiration date may also request renewal of the license nunc pro tunc, but such requests will not be routinely granted, will be subject to stricter review, and also may be accompanied by enforcement action, including more significant fines or forfeitures.14 In determining whether to reinstate a license, we consider all of the facts and circumstances, including the length of the delay in filing, the reasons for the failure to timely file, the potential consequences to the public if the license should terminate, and the performance record of the licensee.15 Taking into account all the facts and circumstances of the instant matter, including the specific factors set forth by the Commission, we conclude that HECO’s Waiver Request should be denied.16 Under the Commission’s rules, licensees must file renewal applications no later than the expiration date of the license for which renewal is sought.17 In fact, licenses automatically terminate upon the expiration date, unless a timely application for renewal is filed.18 Applicants may, however, file an application for renewal and request for waiver of the filing deadline if the renewal application is not filed in a timely manner. A waiver of the Commission’s rules may be granted where the applicant demonstrates that (1) the underlying purpose of the rule would not be served or would be in the public interest; or (2) in view of unique or unusual factual circumstances of the instant case, application of the 9 Id. 10 Id. 11 Id. 12 See 47 C.F.R. § 1.949(a). 13 Biennial Regulatory Review - Amendment of Parts 0, 1, 13, 22, 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 ¶ 22 (1999) (ULS MO&O). 14 Id. at 11486 ¶ 22. 15 Id. at 11485 ¶ 22. 16 See, e.g., WSYX Licensee, Inc., Order, 15 FCC Rcd 19084 (WTB PSPWD 2000) (denying a request for waiver of Section 1.949 of the Commission’s Rules to allow submission of late-filed renewal applications after the licenses expired, and dismissing the subject applications). 17 47 C.F.R. § 1.949(a). 18 47 C.F.R. § 1.955(a)(1). Derek M. Fukunaga 3 rule would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.19 We do not believe that HECO has satisfied either waiver prong. An inadvertent failure to renew a license in a timely manner is not so unique and unusual in itself as to warrant a waiver of the Commission’s Rules.20 Further, each licensee is solely responsible for knowing the terms of its license and submitting a renewal application to the Commission in a timely manner.21 While we note HECO’s allegations concerning a renewal reminder notice, a renewal reminder is merely a courtesy, and whether or not it receives the reminder, the licensee is responsible for filing a timely renewal application with the Commission.22 HECO makes no showing that the underlying purpose of the rule would not be served or would be frustrated by application to HECO in the instant case. Nor does HECO show how administrative oversight constitutes unique or unusual factual circumstances.23 Furthermore, while we note the importance of the station in question to monitoring and controlling the flow of electricity, the nature of those operations, by themselves, does not justify a waiver. If HECO wishes to obtain a new regular authorization for this station, it may file a new, properly coordinated application.24 If it needs to continue operating the facilities in the meantime, it can seek special temporary authority (STA) pursuant to Section 1.931 of the Commission’s Rules.25 In view of the foregoing, we find that grant of HECO’s requested waiver is not in the public interest. 19 47 C.F.R. § 1.925(b)(3). 20 See Mr. Roger Given, Vice President, Transmission and Storage Operations, Columbia Gas Transmission Company, Letter, 24 FCC Rcd 11769 (WTB BD 2009) (Columbia Gas); Fresno City and County Housing Authorities, Order on Reconsideration, 15 FCC Rcd 10998, 11002 ¶ 11 (WTB PSPWD 2000) (citing Plumas-Sierra Rural Electric Cooperative, Order, 15 FCC Rcd 5572, 5575 ¶ 9 (WTB PSPWD 2000)). 21 ULS MO&O, 14 FCC Rcd at 11485 ¶ 21; Amendment of Parts 1 and 90 of the Commission’s Rules Concerning the Construction, Licensing, and Operation of Private Land Mobile Radio Stations, Report and Order, PR Docket No. 90-481, 6 FCC Rcd 7297, 7301 n.41 (1991). 22 See Biennial Regulatory Review - Amendment of Parts 0, 1, 13, 22, 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, Report and Order, WT Docket No. 98-20, 13 FCC Rcd 21027, 21071 ¶ 96 (1998). 23 Cf. Columbia Gas, supra; Southwest Central Rural Electric Cooperative Corporation, Order on Reconsideration, 16 FCC Rcd 5499, 5500 n.7 (WTB PSPWD 2001) (licensee is responsible for failure to provide correct contact information). 24 See 47 C.F.R. § 101.103. 25 See 47 C.F.R. §1.931. Derek M. Fukunaga 4 Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309, and Section 1.925 of the Commission’s Rules, 47 C.F.R. § 1.925, that the request for waiver of Section 1.949(a) of the Commission’s Rules filed February 2, 2011 by Hawaiian Electric Company, Inc. IS DENIED, and application File No. 0004599532 SHALL BE DISMISSED. These actions are 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. Sincerely, John J. Schauble Deputy Chief, Broadband Division Wireless Telecommunications Bureau cc: Richard Freitas, Superintendent Hawaiian Electric Company, Inc. P.O. Box 2750 Honolulu, HI 96840-0001