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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#f\  PC&P#X01Í ÍX0Í Íҫ]\  PCP'\  `&Times Romanomanf\  PC&P'\  `&Times Romanoman&f\  PC&P'\  `&Times Romanoman&f\  PC&P'\  `&Times Romanoman&2KhKKZI"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7y.X80,X\  P6G;P2a=5,&a\  P6G;&P2e=5,&e4  pG;&\0_=5,%&_*f9 xr G;&XP:% ,J:\  P6G;JPH5!,i,5\  P6G;,P2 S- X   jan adjacent channel station, WJTL(FM), Lancaster, Pennsylvania, to complete an authorized facility  x=modification. Temple claimed that it planned, following grant of the covering WJTL license application,  x[to file an application to modify its construction permit to specify a different antenna, and therefore, that  xit should not be required to construct the lesser, authorized facilities. Temple stated it would construct  x=WRTL promptly upon grant of the WRTL permit modification application. Temple subsequently filed  xyan amendment to the extension request providing additional information about the status of construction.  xIn the amendment, Temple advised that it would use an existing building, tower and transmitter site which  xit owned, and that the only remaining steps were the delivery and installation of a transmitter, antenna, and transmission line."(, * *,,,"Ԍ S- ` pԙx3.` ` Thereafter, on June 16, 1995, Temple filed an application for minor modification of  xWRTL's construction permit. It explained that this application was filed in anticipation of the  x=construction and licensing of WJTL and requested that the Commission waive its contingent application  Sg- xrule, see 47 C.F.R.  73.3517, and accept the application.Xg yO- x#]\  PCP##f\  PC&P##X\  P6G;P#эSection 73.3517 prohibits the filing of "contingent applications" in the FM broadcast services. Contingent  xapplications refer to applications for facilities which cannot properly be filed until another station's permit for changed facilities has been implemented. On October 18, 1995, the staff dismissed  xTemple's modification application because it would result in a prohibited contour overlap of the thenlicensed facilities of WJTL, in violation of 47 C.F.R  73.509.  S- ` x4.` ` On December 19, 1996, the staff denied Temple's extension application, cancelled the  xconstruction permit, and deleted the station's call sign. The staff found that Temple failed to demonstrate  xthat the extension of a construction permit was warranted under Section  73.3534(b). Temple filed for  xreconsideration of this decision on January 23, 1997. Temple claimed the staff action was unwarranted  xbecause it was always able and willing to construct WRTL. Temple also claimed that the Commission  xwas unreasonable in strictly applying the permit extension standard to a NCE station. Temple maintained  x[that its delay in constructing was caused by the inaction of WJTL and that it should not be penalized by  xits desire to construct better technical facilities than those specified in the outstanding WRTL construction  S - xpermit. Temple's petition was denied on April 24, 1997.    yO- x#X\  P6G;P#эSimultaneous with filing its petition for reconsideration on January 23, 1997, Temple filed an application  xseeking to modify the construction permit for WRTL. File No. BPED970123IA. Because the underlying  xconstruction permit was cancelled and the petition for reconsideration denied, the application was dismissed as moot. In this Order, we also affirm the dismissal of this application.  The Bureau Letter denying reconsideration  xstated that Temple's reliance on preexisting facilities failed to support its claim of substantial progress.  xIn addition, the Bureau Letter stated that Temple's decision to wait for WJTL to complete construction  xLbefore building WRTL was voluntary and a private business decision, and not a circumstance beyond its  xcontrol. The Bureau Letter also concluded that the initial staff action was not unreasonable because under  x>Commission precedent, construction permit extension criteria apply equally to commercial and NCE educational stations.  Sl- ` x5.` ` In its June 2, 1997 application for review Temple does not identify any specific error of  x=fact or law, as required under 47 C.F.R.  1.115(b)(1). Instead, Temple first reiterates the argument that  xby relying on preexisting facilities of another station it met the "substantial progress" criterion. Temple  xstates the Bureau failed to address its claim that this criterion was unfair to applicants seeking to "take  xLadvantage of the efficiency of using existing facilities." Second, Temple maintains that the Bureau Letter  x=erred in finding that its decision to delay WRTL's construction was a private business decision. Temple  S:- xmaintains that its situation is unlike that in Community Service Telecasters, Inc., 6 FCC Rcd 6026 (1991),  xrelied on in the Bureau Letter, in which the permittee did not build due to adverse market competition.  x<Temple explains that waiting for WJTL to complete construction would allow WRTL to serve more people  xwhile preserving limited financial resources. It contends that the WJTL extensions granted by the staff  xand the twentytwo months which WJTL took to complete construction constitute circumstances beyond  x>its control justifying an extension. Finally, Temple asserts that cancellation of its permit is not good  xpublic policy in light of financial constraints facing NCE stations. It urges the Commission to subject NCE stations to a more lenient permit extension standard. "=,l(l(,,e""Ԍ S- \9 Discussionă  S- ` #x6.` ` At issue is whether Temple has shown sufficient grounds for reinstatement and extension  xof the station's construction permit pursuant to the Commission's "oneinthree" test. Section 73.3534 of  x<our rules permits the reinstatement and extension of broadcast construction permits only in one of the three  xfollowing circumstances: 1) construction is complete and testing is underway looking toward prompt filing  xof a license application; 2) substantial progress has been made; or 3) no progress has been made for  xreasons clearly beyond the control of the permittee (such as delays caused by governmental budgetary  xprocesses or zoning problems) and the permittee has taken all possible steps to expeditiously resolve the  xproblem and proceed with construction. 47 C.F.R.  73.3534(b). Temple does not assert that it is entitled  xto an extension under the first factor, that construction is complete and testing is underway, but claims to have met the second and third criteria. T  Sj - ` TPx7.` ` Substantial Progress.  The record does not support an extension on the basis of substantial  x]progress. Temple claims it satisfied this criterion when it acquired the transmitter site, tower and  xassociated building for WRTL. Temple acknowledges that this occurred prior to the issuance of the initial  xpermit for WRTL, but claims it is being penalized for using existing facilities. Although Temple argues  x/that the remaining construction involved only the routine delivery and installation of the transmitter,  xantenna and transmission line, Temple concedes that none of these steps were taken during the permit period.  S- ` x8.` ` It is well established that the time frame for evaluating a permittee's construction efforts  S- xis the most recent construction permit period. See Contemporary Communications, 11 FCC Rcd 5230,  Sn- xO5231 (1996); Panavideo Broadcasting, Inc., 6 FCC Rcd 5259, 5259 (1991). Accordingly, our  xconsideration of the WRTL construction permit extension request is based on whether Temple undertook  xdiligent efforts between October 1993 and April 1995, its initial construction period. It is undisputed,  xjhowever, that no construction efforts occurred during this time. Consequently, Temple is not entitled to  xyan extension under the substantial progress criterion. Contrary to Temple's contention, the Bureau did  xLnot penalize Temple for specifying an existing site, but correctly held that Temples acquisition of a site  xprior to the grant of the WRTL permit is simply irrelevant in making this Section 73.3534(b) determination.  S- ` Qx9.` ` We also reject Temple's attempt to distinguish the cases relied on by the staff. Temple  Sq- xcontends that Panavideo Broadcasting, Inc., 6 FCC Rcd 5259 (1991), is inapposite because unlike the  S?- x\permittee in Panavideo, who failed on several promises to commence broadcasts, Temple states it is  xwilling and able to construct when its modification application is granted. Similarly, Temple states that  S- xRainbow Broadcasting Co., 11 FCC Rcd 1167 (1995) (subsequent history omitted) concerned postpermit  xconstruction efforts, a matter which is not at issue in Temple's case. These cases, however, were properly  xjcited for the policy that the Commission's focus in every instance is construction efforts during the most  xlrecent construction period. Therefore, the Bureau Letter properly relied on these cases in denying Temple's request for an extension.  S!- ` 5x10.` `  Circumstances Beyond Permittees Control. The burden is on the permittee to  Sw"- x.demonstrate that a permit extension is justified as a result of circumstances beyond its control. Carolyn  SE#- x=S. Hagedorn, 11 FCC Rcd 1695, 1697 (1996). The critical legal inquiry in evaluating an extension based  S$- xLon this criterion is whether the permittee has "taken all possible steps" to proceed with construction. 47  S$- xLC.F.R.  73.3534(b)(3). Temple explicitly stated, however, that it decided to delay construction because  xit was not financially prudent to construct WRTL twice. The Commission has previously held that  xconstruction delays arising from a permittee's voluntary decision to construct facilities at variance to its  xpermit is an independent business judgment and does not constitute a circumstance beyond the permittee's"H',l(l(,,+"  S- x\control warranting an extension.  See Deltaville Communications, 11 FCC Rcd at 10798. See also Kin  S- xShaw Wong, 11 FCC Rcd 11928, 11935 (1996), aff'd, 12 FCC Rcd 6987 (1997) (record established that  x=the voluntary selection of another transmitter site was a decision motivated by business judgment rather  xthan matters beyond permittee's control). In addition, it is well settled policy that a decision by a NCE  xZpermittee not to expend funds on station construction does not constitute a circumstance beyond its control  S- xwarranting an extension.  See, e.g., School Board of Indian River County, 12 FCC Rcd 2588, 2589 (1997).  S- ` Px11.` ` Contrary to Temple's assertion, we find that Community Service Telecasters, Inc., 6 FCC  Sl- xLRcd 6026 (1991) supports the staff's action on reconsideration. In Community Service, the Commission  xfound, on facts similar to those at issue here, that abandonment of an originally authorized site in favor  S- xof another preferred site was a voluntary business judgment. Id. at 6028. There is no dispute here that  xTemple's construction decision was, in fact, voluntary. The extensions granted to WJTL had no effect  xon Temple's ability to construct under its permit. We do not wish to encourage lengthy delays such as  xKthe one that occurred in this case where a station voluntarily chooses to delay construction that it otherwise  xMcould commence immediately based on future actions of another station over which it has no control.  xMoreover, we note that Temple's application to modify the WRTL construction permit would be subject  xOto competing applications, and thus, to additional potential delays and uncertainties. In these  xlcircumstances, Temple's interest in building a better facility cannot justify the abandonment of its construction commitment and the resulting delay in the introduction of new NCE service.  S - ` x12.` ` Temple also asserts that the Bureau Letter did not reflect good public policy, stating it is  S- x"inappropriate and harsh" to require a NCE entity to build twice given its financial constraints.  In School  S- x Board of Indian River County, the Commission explicitly rejected this argument, stating that Section  x73.3534 and the cases interpreting the rule apply equally to commercial and NCE stations. 12 FCC Rcd  x2588, 2590 (1997). This decision is consistent with the "public interest goals of furthering the prompt  xconstruction of broadcast facilities within a reasonable time frame and providing incentives for permittees  S- xto inaugurate new service as quickly as possible." Golden Eagle, 6 FCC Rcd 5127, 5129 (1991). Allowing  xa permittee to warehouse spectrum in the hope that it may obtain superior facilities is contrary to these  xprinciples and disserves the public. These goals apply equally to commercial and NCE stations. Thus,  xzwe continue to believe that this uniform policy advances the public interest and that to allow an NCE  S- xpermittee to obtain an extension on the basis of its financial status would be unwarranted.  See School  S- x]Board of Indian River County, at 2589. " yOE- xJ"#X\  P6G;P#X` hp x (#%'0*,.8135@8: