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CSUS obtained a letter dated August 25, 1994, from Sainte, agreeing  xto lease space on the KRENTV tower and on November 23, 1994, it filed an application to modify its  S- xconstruction permit to specify the KRENTV site.L   yO]-Ѝ File No. BMPED941123IC.L The following month, on December 23, 1994, the  xCommission approved the sale of KRENTV to Pappas Telecasting Company ("Pappas"). Within days,  xCSUS contacted Pappas, the new owner of KRENTV, by letter dated December 30, 1994, to ensure that  xthe terms of CSUS's understanding with the previous owner for use of the tower remained acceptable.  x[In response, Pappas confirmed its willingness to lease tower space to CSUS in a letter dated February 8, 1995.   x4. On July 5, 1995, the staff granted CSUS a modification of its construction permit to relocate  Sm- x>its antenna to the KRENTV tower.ImH  {OU%-Ѝ Id. I The staff also granted CSUS an extension of time to construct"m,l(l(,,"  S- xKKTO at the proposed new antenna site, with construction to be completed by January 5, 1996.V yOh-Ѝ File No. BMPED941205JA.V  xtSubsequently, CSUS wrote to Pappas, the new owner of KRENTV,  xin a letter dated August 14, 1995, requesting negotiations for a formal lease and specifying the technical  xrequirements of its authorized FM facilities. Pappas notified CSUS on October 2, 1995, that it had to  x[conduct additional engineering studies that could not be completed until December 1995. CSUS filed the  x.subject extension application with the Commission on November 28, 1995, asserting that circumstances  S- xbeyond its control had prevented completion of construction during the relevant construction period.LX yO-Ѝ File No. BMPED951128JB.L  xKPappas notified CSUS on March 6, 1996, that the KRENTV tower was technically insufficient for CSUS's  xneeds. On March 29, 1996, Commission staff granted CSUS an extension of time to construct KKTO for  xa six month period until September 29, 1996. On May 6, 1996, Howell filed the 1996 Petition seeking  xboth the rescission of the staff decision granting KKTO an extension and also the cancellation of the KKTO construction permit. x  Si -  ox5. For approximately six weeks after the March 6, 1996, notification, CSUS continued  xjnegotiations with Pappas about the use of the KRENTV tower and hired an engineering firm to redesign  xthe KKTO antenna, but negotiations ultimately failed. CSUS then decided to return to the previously  x{authorized CPI site which was 0.18 miles south of the KRENTV tower, and which, as a result of  x developments in digital telephone line technology, no longer required a satellite relay system. CSUS  xsigned a contract for the CPI site on May 10, 1996, and filed a minor modification application with the  S7- xCommission on May 29, 1996, to reflect the proposed change in sites.U7 yO-Ѝ File No. BPED960529IB.U On August 15, 1996, Howell filed an informal objection to CSUS's modification application that proposed the CPI site. x  S-  x6. On February 27, 1997, the staff issued its Letter Ruling denying the 1996 Petition and informal  xLobjection to CSUS's CPI modification application but held in abeyance further action on this application  xbecause it was mutually exclusive with a new FM station application in Pollock Pines, California. On  xApril 3, 1997, Howell filed the instant Application for Review. Subsequently, the Pollock Pines applicant  xamended its application to eliminate the mutual exclusivity with the CSUS modification application. The  S- x[Commission granted CSUS's CPI modification application on August 11, 1997.Gx {O-Ѝ Id.G On September 2, 1997  xCSUS filed an application for a license to cover KKTO's construction permit. This application remains  S9-pending.U9  yO-Ѝ File No. BLED970902KB.U x  S-  x7. The construction permit for KKTO at the KRENTV tower expired on September 29, 1996,  x[while the CPI modification application was still pending. CSUS filed an application for reinstatement of  xMits construction permit on January 29, 1997, stating that the basis for its late filing was inadvertence.  xCSUS explained that the expiration of the construction permit was overlooked during the period when  x^there was a change in management and attorneys. CSUS submitted a oneinthree showing for  x[reinstatement based on "substantial progress" in constructing the KKTO facilities pursuant to 47 C.F.R.",l(l(,,"  S- x 73.3534(b)(2). yOh- xwԍ The other two factors set forth in 47 C.F.R.  73.3534(b) for an extension or reinstatement of a construction  xpermit are based upon a permittee's showing that: (1) construction is complete and testing is underway; or (3) no  x/progress has been made for reasons clearly beyond the control of the permittee (such as delays caused by  xMgovernmental budgetary processes and zoning problems) and the permittee has taken all possible steps to expeditiously resolve the problems and proceed with construction. 47 C.F.R.  73.3534(b)(1), (3).  The staff granted the unopposed CSUS reinstatement application on March 11, 1997.@ yO- xЍ File No. BPED970129JA. As noted above, CSUS now has a pending application for a license to cover the KKTO construction permit. Howell filed the 1997 Petition on April 11, 1997. x Sg-( DISCUSSION  S4-TP x  S-I. Application for Review of March 29, 1996, Staff Action Extending KKTO(FM) Construction Permit(#(#X x  S-  x8. Howell contends that the Bureau erred in its Letter Ruling in finding that Howell had not  xraised a substantial and material question of fact concerning CSUS's reasonable assurance of the KREN x=TV site. Howell asserts that the Bureau misconstrued its arguments. Howell states that it did not claim  x.that CSUS lacked the site owner's permission to use the KRENTV site. Rather, it contends that CSUS  xfailed to act with diligence and good faith in proposing to locate its antenna on the KRENTV tower when  xit was repeatedly warned by the former and current owners that the tower might not be capable of  xLsupporting the KKTO antenna. Howell claims that Pappas's decision to not lease tower space to CSUS  xshould not be treated as a circumstance beyond CSUS's control because the technical suitability of the KRENTV tower was always in doubt. x  S -  x9. We reject Howell's contentions as nothing more than a rehash of arguments previously raised  Sk- xand considered. The relevant exhibitsk yO- xЍ The previous owner, in agreeing to lease the KRENTV tower site to CSUS stated, "I am hopeful that there  xJwill be no difficulty in antenna placement on the tower. As I indicated by phone that could be a problem and should  xxbe checked out, although I admit that I really don't know since I am not a technical person. I am told that we do  xhave the building and microwave space without any difficulty." Letter from Chester Smith, General Partner of Sainte  xLtd., to CSUS dated August 25, 1994. Following the sale of the tower, CSUS obtained permission to use the site  xfrom the new owner who notified CSUS as follows: "This is to confirm our willingness to lease . . . 1. Space in our  xJTransmitter Building at Slide Mountain for an FM transmitting antenna 2. Space on our tower at Slide Mountain for  xa FM transmitting antenna, subject to structural analysis which confirms that adequate capacity is available for the  xproposed antenna system." Letter from LeBon G. Abercrombie, Senior Executive Vice President of Pappas Telecasting Co., to CSUS dated February 8, 1995. plainly establish that CSUS acted reasonably and in good faith  xin obtaining a permit modification to use the KRENTV tower. A permittee proposing to collocate its  xantenna on an existing tower is not required to enter in a binding agreement with the tower owner prior  x.to the grant of the application specifying such tower. We reject Howell's attempt, in essence, to require  xja permittee to obtain a favorable outcome or risk cancellation of its permit where the tower owner raises,  x\as here, straightforward technical issues and the permittee diligently seeks to resolve these issues in a manner satisfactory to the tower owner.  S-  Ox 10. Howell also argues that the Bureau erred by failing to address what Howell terms CSUS's  xlack of candor by allegedly not disclosing the loss of its antenna site to the Commission when Pappas,"0,l(l(,,"  x the current owner of the KRENTV tower, rescinded its permission on March 6, 1996. We disagree.  x\CSUS spent approximately six weeks after the March 6th notification attempting to renegotiate with  xyPappas, and taking such actions as proposing an antenna redesign to address the tower owner's concerns.  xThese efforts indicate that CSUS believed that the Pappas rejection of its technical proposal was not final  xand that a reversal of this outcome was possible. By midApril 1996, however, it was clear to CSUS that  x.it had lost the KRENTV site. Thus, at this point it had an obligation to report this development to the  xCommission within 30 days, notwithstanding the March 29, 1996, staff grant of its extension application.  S- xSee 47 C.F.R.  1.65 (application remains "pending" until a Commission grant or denial of application  xis no longer subject to reconsideration by the Commission or to review by any court). Although CSUS  xfailed to file this required Section 1.65 amendment, it disclosed the loss of the KRENTV site only 6  xweeks after this event occurred in its May 29, 1996, modification application, a fact which substantially  xrebuts Howell's lack of candor contention. In any event, Howell's argument must fail because it has not  S - x[made a prima facie showing of an intent to conceal a decisionally significant fact, or a pattern of repeated  xzviolations or other circumstances that would warrant a disqualifying reporting or lack of candor issue.  S8 - xSee, e.g., Merrimack Valley Broadcasting, Inc., 99 FCC 2d 680, 683 n.9 (1984); see also David Ortiz  S - xRadio Corp. v. FCC, 941 F.2d 1253, 12601261. (D.C. Cir. 1991) (applicant's two filings stating or  x[implying applicant's reliance on a transmitter site known to be unavailable evidenced an intent to conceal  xsuch that disqualification under Section 1.65 was possible). Intent to deceive is a necessary element of  Sn- xMmisrepresentation or lack of candor which, given the circumstances, we do not find present here. See  S<- xBluegrass Broadcasting Co, 43 FCC 2d 990, 993 (1973); Fox River Broadcasting, Inc., 93 FCC 2d 127 (1983). x  Q- xII. Petition for Reconsideration of the March 11, 1997, Staff Action Reinstating KKTO(FM) Construction  Qq-Permitx  S -  |x 11. The 1997 Petition for reconsideration will be dismissed because Howell does not meet the  S- x^procedural requirements of 47 C.F.R.  1.106(b)(1). Specifically, Howell is not a party to the  xreinstatement proceeding and it has not successfully demonstrated that it was not possible for it to  x.participate at the initial phase of that proceeding. Nonetheless, we will consider on our own motion the  S?-arguments raised in Howell's petition for reconsideration. See 47 C.F.R.  1.106(c)(2). x  S-  x 12. Howell contends that CSUS prematurely constructed the KKTO facilities prior to the August  S- x=11, 1997, grant of the modification application specifying the CPI site {O-Ѝ Construction of the KKTO facilities is now complete. See para. 6, supra. in violation of Section 319(a) of  x|the Communications Act of 1934, as amended, 47 U.S.C.  319(a), and that CSUS's premature  xconstruction is an attempt to pressure the Commission into posthoc acceptance. CSUS responds that it  xhad no reason to believe that its minor modification application for a previously authorized site would not  xbe timely granted since it had requested expedited review. It also argued that severe winter weather  x\conditions on Slide Mountain limit opportunities for station construction, and therefore, that it acted  Su- xreasonably in having the equipment delivered to the CPI site consistent with Patton Communications, Inc.,  x81 FCC 2d 336 (1980), where the Commission determined that the permittee, prior to the grant of a  xconstruction permit by the Commission, did not engage in premature construction by building concrete footings where local weather conditions prevented construction during the winter.  Sw"-  x 13. We agree with Howell that under Commission precedent, CSUS is not entitled to any credit  SD#- xfor construction at the CPI site for which it had only a pending modification application. See Deltaville  S$- xCommunications, 11 FCC Rcd 10793, 10797 (1996) (finding no substantial progress where "progress" was  S$- xtied entirely to preferred site); Mansfield Christian School, 10 FCC Rcd 12589, 12590 (1995) (finding"$Z,l(l(,,}("  x=preferred site activities "not relevant" to evaluating construction efforts, "especially where the applicant  xhas taken no other steps toward constructing the authorized facility"). As a result, CSUS's contention that  xMreinstatement and extension of the CSUS application on the basis of "substantial progress" is wholly  x without merit. We find, however, that CSUS was prevented from completing construction based on  xcircumstances beyond its control during the March 29, 1996, to September 29, 1996, construction period,  S- x.and therefore, that the staff action reinstating the permit was warranted. See 47  C.F.R. 73.3534(b)(3).  x[Howell timely sought reconsideration of the March 29, 1996, action extending the CSUS permit and that  x[1996 Petition remained pending for the rest of the construction period. It is well settled that a permittee  xis not required to go forward with construction while the grant of a construction permit is clouded by a  S6- xpending administrative or judicial challenge. See Rainbow Broadcasting Company, 11 FCC Rcd 1167,  S- x1168 (1995); see also Rainbow Broadcasting Company, 12 FCC Rcd 4028, 40614062 (ALJ 1997)  xk(finding following designation of case for hearing that construction during pendency of judicial appeal  xwould be unreasonable and therefore that the pendency of such appeal constitutes a circumstance beyond  Sl - xypermittee's control); Rainbow Broadcasting Company, Decision, GC Docket No. 95172, FCC 98185 at  x 50 (adopted July 30, 1998, released August 5, 1998) (affirming the ALJ's finding that the permittee's  S - x|failure to construct was due to reasons beyond its control under Section 73.3534(b)). See also  S - xKWQJ(FM), 10 FCC Rcd 8777 (1995) (litigation regarding grant of permit constitutes a reason beyond  xcontrol of permittee for purposes of Section 73.3534(b)). This policy is designed to avoid the manifest  x]unfairness that would result from requiring a permittee to make further expenditures and continue  S=- xconstruction efforts where its permit could be subsequently cancelled. See Channel 16 of Rhode Island,  S - xInc. v. FCC, 440 F.2d 266, 27576 (D.C. Cir. 1970) (excusing lack of construction where relevant FCC policy remains in limbo). x  Ss-  mx 14. Howell alleges misrepresentation by CSUS in failing to report to the Commission that the  xconstruction for which CSUS claimed credit in its reinstatement application was actually premature  x=construction at an unauthorized site. Specifically, Howell contends that CSUS falsely responded "yes"  xto question 8 on the FCC Form 307 for reinstatement, "Are the representations, including environmental,  x.contained in the application for construction permit still true and correct?" CSUS replies that there was  xjno misrepresentation because in response to question 5 on FCC Form 307, it stated that it had a pending  xminor modification application for the CPI site. CSUS contends that its response to question 5 and  xadditional references to the pending site authorization in its exhibits to Form 307 sufficiently indicate that construction had taken place at that pending site. x  Su-  x15. With regard to the allegation of misrepresentation, we find that CSUS's failure to clearly  xreport to the Commission that CSUS was building at its pending site was not deliberate, but rather was  xdue to carelessness. However, as stated above, intent to deceive is a necessary element of  xmisrepresentation. "[C]arelessness, exaggeration or slipshoddiness, which lack that necessary element, do  S- xnot constitute misrepresentation." See F.B.C. Incorporated, 3 FCC Rcd 4595, 4597 (1988) citing John  Sw- xC. Roach, 43 FCC 2d 685, 689 (Rev. Bd. 1973). Although CSUS failed to state explicitly in its  xreinstatement application that construction activity took place at the CPI tower site, the attached exhibits do provide indications of such activity, including a copy of a lease contract with CPI.  S!-  x16. Nevertheless, we find that CSUS prematurely constructed the KKTO facilities by installing  xits antenna, transmitter, transmission line, and related wiring at the CPI tower site prior to the grant of the  SF#- xminor modification of its construction permit. Although CSUS relies on Patton Communications, Inc.,  x81 FCC 2d 336 (1980), to support its assertion that its construction activities did not constitute premature  S$- xconstruction, CSUS's situation is clearly distinguishable from Patton where the permittee went no further  S%- xthan to have concrete footings installed. Compare Global Broadcasting Group, 10 FCC Rcd 5437 (1995)  S}&- x(insufficient evidence to support allegation of premature construction, i.e., that antenna had been mounted  xonto existing tower and transmitter connected prior to the Commission's grant of minor modification, when"K',l(l(,,+"  xpolicy permits purchase of broadcast equipment prior to grant). We therefore direct the Mass Media  S- xyBureau's Enforcement Division to issue a Notice of Apparent Liability consistent with our findings herein. CSUS's license application will be held in abeyance pending any such action.  Sh-  S5-  lx17. Accordingly, for the reasons stated above, IT IS ORDERED that the Application for Review filed by Howell Mountain Broadcasting Company on April 3, 1997, IS HEREBY DENIED.  S-  x18. IT IS FURTHER ORDERED, that the Petition for Reconsideration filed by Howell Mountain Broadcasting Company on April 11, 1997, IS HEREBY DISMISSED. x  S-  lx19. IT IS FURTHER ORDERED, that the application for a license to cover KKTO(FM), Tahoe  xCity, California, filed on September 2, 1997, by California State University, Sacramento, is held in abeyance pending any action taken by the Mass Media Bureau's Enforcement Division. x  S7 -x x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x x` `  hh@Magalie Roman Salas x` `  hh@Secretary x` `  hh@