August 10, 2020 – Rural communications service provider Cunningham Communications, Inc. has filed an Application For Review And Request For Waiver seeking review of the FCC International Bureau’s decisions declining to register Cunningham’s receive-only earth station as an incumbent earth station eligible for reimbursement of C-Band relocation costs.[1]

Cunningham timely filed a Form 312 to register its earth station, but failed to pay the filing fee when it submitted its registration. If its earth station is not eligible for reimbursement of relocation costs, Cunningham says it “will likely be forced to spend over $200,000 to transition.”

Background – FSS Earth Station Registration

On April 19, 2018, the FCC’s International Bureau announced a temporary suspension on the filing of new or modification applications for fixed-satellite service (FSS) earth station licenses, receive-only earth station registrations, and fixed microwave licenses in the 3.7 – 4.2 GHz band.[2] The freeze was made to allow the FCC to “preserve the current landscape of authorized operations in the 3.7 – 4.2 GHz band” as it moved forward with a proceeding aimed at reallocating the band for mobile broadband use.

In addition to the freeze, the FCC opened a 90-day window during which entities that own or operate “existing FSS earth stations” in the 3.7 – 4.2 GHz band could file an application to register or license an earth station if it is currently not registered or licensed. Existing FSS earth stations were defined as earth stations that have been constructed and are operational as of April 19, 2018.

At the time, some estimates put the number of unregistered FSS earth stations at 10,000 or more. Most of these were head-ends. Cable operators receive video programming from satellites at their head-ends, which are receive-only earth stations. For most owners of earth stations, the limited benefit of receiving protection from fixed microwave provided by a registration did not outweigh the costs of conducting frequency coordination and preparing an FCC application. Registration, however, became important when the FCC signaled its intent to reallocate the band for mobile broadband. In fact, when announcing the registration window, the FCC included the following warning: “All potential applicants are advised that the Commission may, for purposes of further action following the NOI, choose to take into consideration only those earth stations that are licensed, registered, or have pending applications for license or registration on file in IBFS as of July 18, 2018.” The FSS earth station registration window was ultimately extended until through October 31, 2018.

Cunningham’s Application For Review (And Waiver)

Cunningham, founded in 1946, is a small, local, independently owned telephone, broadband, and cable television services provider in rural Kansas. It expanded into the cable television business in 1997. Cunningham “serves approximately 2,605 video subscribers, 3563 phone and 5320 broadband subscribers.”

In its application for review, Cunningham explains that it “filed FCC Form 312 to register its existing but unregistered receive-only earth station on May 31, 2018,” months prior to the special filing window deadline. But, it forgot to pay the filing fee.

On February 12, 2020, the FCC notified Cunningham that payment had not been completed for  the Form 312 it filed in 2018. The application for review does not explain why Cunningham was unable to pay the $435 filing fee when it submitted its Form 312 in 2018. Cunningham ultimately submitted the payment to the FCC on July 13, 2020.

Without going any further, what happened here? Cunningham submitted a Form 312 to register its earth station, but didn’t pay the filing fee. A year and a half later, the FCC’s International Bureau was probably compiling the list of earth stations that were to be designated as incumbent. The Bureau probably saw Cunningham’s earth station’s information in the database, but also noticed it was still pending because the filing fee had not been paid. They then alerted Cunningham. The application for review confirms this. Included as an exhibit are emails between Cunningham and the FCC. They show that the FCC notified Cunningham that payment had not been made, and gave Cunningham five days to pay it:

Our records in the International Bureau Filing System (IBFS) show that application SES‐REG‐INTR2018-01959 was filed on May 31, 2018 and has not been paid. We cannot proceed with processing this application without proof of payment. Please pay within 5 days.[3]

I wonder if there were others that forgot to pay and were given an extra five days. Anyways, the emails also show Cunningham was having problems making the payment, with an email sent to the FCC on the fifth day explaining Cunningham still could not make the payment online. So the extra five days passed without payment made. Then, nearly six months later, payment was made.

On July 6, 2020, The FCC’s International Bureau released a preliminary list of FSS earth stations in the 3.7 – 4.2 GHz band that may satisfy the criteria to be classified as incumbent earth stations and thus eligible for C-Band relocation cost reimbursements. The Bureau also explained that it was still processing some a applications that were timely filed before the earth station freeze, and stated that it included in the list earth stations that are the subject of currently pending applications. The Bureau invited parties to file comments in response to the list to correct any errors.

Cunningham was not included on the FCC’s July 6, 2020, preliminary list of incumbent earth stations. Cunningham filed comments in response to the list, informing the Bureau that it filed a Form 312 registration in 2018, and the Bureau had not dismissed nor returned the registration.

Cunningham also explained its problems with submitting the required Form 312 filing fee, but noted payment had been made. When Cunningham submitted its comments, its earth station registration was still marked as “filed-pending fee verification.” Despite this, Cunningham was not included in the FCC’s August 3, 2020, updated list of earth stations in the C-Band classified as incumbent.

In its application for review, Cunningham argues it “took every possible step to register its earth station and qualify as an incumbent.” Cunningham explains that it “filed to register its earth station during the special 2018 filing window, paid the filing fee (which the Commission accepted), and responded to the July Public Notice.”

Cunningham argues it meets the definition of an incumbent earth station as set forth in Section 25.138(c) of the FCC’s rules because it had a pending application for registration in the IBFS database on November 7, 2018. This is correct, as Cunningham’s application for registration was pending at that time, and remained pending. Cunningham did everything correctly except for paying the filing fee on time. This fact, though, according to Cunningham “is irrelevant.” To the extent necessary, Cunningham is seeking a waiver of the requirement for timely payment of the registration filing fee.

Why was the Form 312 fee not paid upon filing, and why was it not paid during the year and a half period between filing and the FCC informing Cunningham it had not been paid? The application for review doesn’t say. Why did the FCC not dismiss Cunningham’s registration for non-payment at the close of the special filing window? Don’t know. Why did the FCC not dismiss Cunningham’s registration for non-payment at the end of the extra five days? Don’t know.

The odds of Cunningham obtaining a favorable outcome here are not good. Cunningham failed to pay the filing fee upon submitting its registration. It failed to pay the fee during the year and a half period between filing and the FCC telling Cunningham the fee had not been paid. Cunningham failed to pay the fee within the extra five days it was given. One more thing. Here is what the International Bureau said about failing to timely pay the filing fee when it put out the list of incumbent earth stations:

Dismissals for Non-Payment of Application Fees. A handful of filers seek reinstatement of registration applications that have been dismissed over time for non-payment of application fees, and thus did not appear on the preliminary list. In cases in which the filer has demonstrated payment or the Bureau has confirmed a misapplication of an otherwise timely fee payment in IBFS, the Bureau has reinstated those applications, and they appear on the list. In other cases, when the payment was not made or delayed by more than 14 days after the application was made, the Bureau has declined to reinstate the application, which is consistent with its general policies requiring the timely receipt of application fee payments.[4]

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[1] Cunningham Communications, Inc., SES-REG-20180531-07376, Request for Limited Waiver of the C-Band Filing Freeze and Section 25.138(c) of the Commission’s Rules, IB Docket No. 20-205, Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket No. 18-122, Application For Review And Request For Waiver (Aug. 10, 2020) (Cunningham Request).

[2] Temporary Freeze On Applications For New Or Modified Fixed Satellite Service Earth Stations And Fixed Microwave Stations In The 3.7 - 4.2 GHz Band; 90-Day Window To File Applications For Earth Stations Currently Operating In 3.7 - 4.2 GHz Band; GN Docket Nos. 17-183 and 18-122, Public Notice, DA 18-398 (Apr. 19, 2018). The freeze was subject to the following exceptions: (1) the freeze does not extend to applications for renewal or cancellation of current earth station authorizations, or modifications to correct location or other data required in the earth station file; and (2) the freeze does not extend to applications for renewal, cancellation, minor modifications, or data corrections of fixed microwave stations currently operating in the band.

[3] Cunningham Request, Exhibit 1.

[4] International Bureau Releases List Of Incumbent Earth Stations In The 3.7-4.2 GHz Band In The Contiguous United States, IB Docket No. 20-205, Public Notice, DA 20-823, p. 5 (Aug. 3, 2020), https://docs.fcc.gov/public/attachments/DA-20-823A1.pdf.