. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .In reply refer to:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1800B3-KDY

Lawrence J. Brenard, Jr., Esquire
5224 Chevy Chase Parkway, N.W.
Washington, D.C. 20015

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .In re: WDBS(FM) Bolingbroke, Georgia
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Petition for Reconsideration

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .File No. BMPH-940919JA
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Extension Of Time To Construct

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .File No. BPH-900531ME
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Construction Permit

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .File No. BLH-950920KC
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .License Application

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .RM-8622
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Application for Review

Dear Mr. Bernard

We have on file an August 21, 1995 petition for reconsideration filed by Joseph I. Kendrick ("Kendrick"), permittee of station WDBS(FM) Bolingbroke, Georgia (File No. BPH-900531ME). Kendrick seeks reconsideration of an August 2, 1995 action by the Chief, Audio Services Division, Mass Media Bureau ("Division Letter") denying Kendrick's subject application for extension of time to construct the WDBS(FM) facilities, cancelling the subject construction permit and deleting the WDBS(FM) call sign. See Footnote 1. Also on file is an October 11, 1995 opposition to Kendrick's petition filed by Spaulding Broadcasting, L.P. ("Spaulding"), licensee of station WEKS(FM), Zebulon, Georgia. See Footnote 2. As set forth below, we affirm the Division Letter.

Background. On March 19, 1993, the Commission granted Kendrick the above-referenced permit to construct the WDBS(FM) facilities. That permit expired on September 19, 1994. On the expiration date, Kendrick filed the subject application requesting extension of the permit. The application indicated that Kendrick had neither ordered any equipment nor commenced construction. Kendrick's sole explanation for failing to construct the authorized facilities during the relevant eighteen months of the permit is that he was "in the process of preparing" an "application and/or a petition for rulemaking" to modify the authorized facilities. See Footnote 3. The Division Letter of August 2, 1995 concluded that Kendrick failed to justify an extension under 47 C.F.R. § 73.3534(b), and denied the subject extension application.

On August 14, 1995, four days after the Commission issued Public Notice of the Division Letter (see Footnote 4), Kendrick filed a document styled "Amendment to Application" ("Amendment"). See Footnote 5. In this filing, Kendrick states that the "permittee" had been hospitalized in December of 1994 following a heart attack, and that this illness "delayed . . . Permittee in reaching final plans concerning construction of [the station]." Kendrick also reports that "[s]teps are now being taken to secure the required permission to construct the tower" and that he has "decided to construct the station as authorized." One week later, on August 21, 1995, Kendrick filed the subject petition for reconsideration. See Footnote 6. Kendrick contends that the permittee's eighteen-day hospitalization in December of 1994 "provides a factual basis for reconsideration of the [Division Letter]." Kendrick also states that beginning on July 31, 1995, "additional steps toward completion have been taken, and tentative plans have been made to begin operations of WDBS on September 1, 1995." Kendrick additionally alleges that zoning permits and equipment have been acquired and that tower anchor installation has begun.

The Commission's Atlanta field office confirms that Kendrick has completed construction of the station's facilities, and that WDBS(FM) commenced operations on September 15, 1995. Also, according to the Commission's records, on September 20, 1995, Kendrick filed an FCC Form 302 license application (BLH-950920KC). That application remains pending.

Discussion. When contemplating applications for extension of construction permits, the Commission examines the record to determine whether the permittee's application satisfies one of the three factors set forth under 47 C.F.R. § 73.3534(b). That subsection provides, in pertinent part, that the Commission will grant an application for extension where a permittee can show that: (a) construction is complete and testing is underway; or (b) substantial progress has been made (i.e., demonstration that equipment is on order or on hand, site acquired, site cleared and construction proceeding toward completion); or (c) no progress has been made for reasons clearly beyond the control of the permittee (such as delays caused by governmental budgetary processes and zoning problems) and the permittee has taken all possible steps to expeditiously resolve the problem and proceed with construction. See 47 C.F.R. § 73.3534 (b). The Commission has noted that "[i]mplicit in this requirement is the fact that a permittee's extension application will be judged according to the progress made during the most recent construction period." See Panavideo Broadcasting, Inc. ("Panavideo"), 6 FCC Rcd 5259, 5259 (1991).

The Division Letter correctly determined that Kendrick's basis for not constructing during the relevant construction period failed to justify an extension under 47 C.F.R. § 73.3534(b), and Kendrick fails to demonstrate that the Division Letter contains errors of fact or law warranting reconsideration. See 47 C.F.R. § 1.106(d)(2). In the subject extension application, Kendrick makes no attempt to characterize his inability to construct under any one of the three prongs of Section 73.3534(b). Rather, Kendrick admits to a vague "process" of preparing an application to modify the facilities, a private business decision that, standing alone, does not justify an extension. See Hymen Lake, 56 FCC 2d 379 (Rev. Bd. 1975) (a failure to construct based upon a private business judgment within the control of the permittee is not a basis to extend a construction permit). The Division Letter noted that over the course of the eighteen-month initial construction period, Kendrick neither purchased any equipment nor initiated any construction. The Division Letter concluded that Kendrick's efforts did not evidence the diligence expected of Commission permitees. We agree. See Mansfield Christian School, 10 FCC Rcd 12589, 12590 (1995) (construction permit extension denied where permittee's stated basis for extension rested on its efforts to seek upgraded facilities).

Kendrick also fails to demonstrate that his post-authorization construction efforts, presented for the first time on reconsideration, represent "changed circumstances" or "new facts" warranting reconsideration. See 47 C.F.R. § 1.106(c). See Footnote 7. The Commission has a long-established policy that applicants for extension of construction permits are not entitled to "credit," nor will the Commission consider "construction efforts or any other actions that occur after the expiration of an authorized construction period." Rainbow Broadcasting Company, Memorandum Opinion and Hearing Designation Order ("Rainbow"), GC Docket No. 95-172, at 2, para. 3 (released November 22, 1995) (citing Rainbow Broadcasting Company, 9 FCC Rcd 2839, 2846-47 (1994); Michael C. Gelfand, M.D., 2 FCC Rcd 6522, 6523 (MMB 1987); L.E.O. Broadcasting, 2 FCC Rcd 1810, 1811 (MMB 1987); Cidra Broadcasting, Inc., ("Cidra") 2 FCC Rcd 230, 231 (MMB 1987); Sunrise Broadcasting, Inc, ("Sunrise") 100 FCC 2d 1565 (MMB 1985); app. for review granted on other grounds sub nom. Susan K. Ludka (released January 13, 1986); see generally Miami MDS Company v. FCC ("Miami") 14 F.3d 658, 660-61 (D.C. Cir. 1994) (reviewing case law and holding that FCC's refusal to consider post-authorization construction efforts is consistent with FCC precedent)). The Commission's policy "is expressly designed to discourage applicants from attempting to rely on such efforts as a means to persuade the agency to grant extension requests." Rainbow at 3, para. 4 (citing Sunrise at 1567; Cidra at 231)). See Footnote 8. The record clearly demonstrates that all of Kendrick's construction efforts took place more than one year after the permit's expiration. Furthermore, the record indicates that the bulk of the construction, if not all the construction, took place within a few weeks after the Commission's denial of the subject application and cancellation of the construction permit. In view of the above, we are not constrained on reconsideration to consider Kendrick's post-authorization construction efforts.

Kendrick similarly fails to establish that reconsideration of the Division Letter would serve the public interest. See 47 C.F.R. § 1.106(c). While we have carefully considered the benefits attendant to Kendrick's initiation of service to Bolingbroke, we find that the public interest is better served in this instance by adhering to the Commission's long established policy of not considering post-authorization construction efforts. See Miami at 660-61. We recognize that our action today removes, at least temporarily, service by WDBS(FM) to Bolingbroke, a community that receives reception service from approximately twenty radio stations. Nevertheless, in this instance, we believe that the public interest would be ill-served if we were to reward Kendrick's failure to timely construct by crediting his post-authorization construction in contravention of our well-established policy. Kendrick's construction efforts -- undertaken after Public Notice of the Division Letter -- appear timed to force the Commission into a favorable decision on reconsideration, an action that would run counter to Commission policy. See Rainbow at 3, para. 4. Thus, we decline to grant reconsideration.

Conclusion. The petition for reconsideration filed by Joseph I. Kendrick IS DENIED. The opposition filed by Spaulding Broadcasting, L.P. IS DISMISSED. The FCC Form 302 License Application filed by Joseph I. Kendrick IS DISMISSED AS MOOT (File No. BLH-950920KC). The June 16, 1995 application for review filed by Joseph I. Kendrick IS DISMISSED AS MOOT. Station WDBS(FM) IS ORDERED TO CEASE broadcast operations.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sincerely,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Roy Stewart, Chief
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mass Media Bureau


cc: John S. Neeley, Esq.
. . .EIC Atlanta

Footnotes:

Footnote 1: See August 2, 1995 Letter to Lawrence J. Bernard, Jr., Esquire (1800B3-BFF).

Footnote 2: Spaulding did not timely file its opposition. Section 1.45(a) of the Commission's Rules requires that oppositions to any petition be filed "within 10 days after the original pleading is filed." 47 C.F.R. § 1.45(a). Kendrick filed the petition for reconsideration on August 21, 1995. More than six weeks later, on October 11, 1995, Spaulding filed its opposition. We therefore dismiss Spaulding's opposition.

Footnote 3: Kendrick did not, however, file a petition for rulemaking until one and one-half years later, on March 18, 1995 (RM-8622). Concluding that the petition violated Commission policies, the staff dismissed it on May 14, 1995. See May 14, 1995 Letter from John A. Karousos, Chief, Allocations Branch, Policy and Rules Division, Mass Media Bureau. On June 16, 1995, Kendrick filed an application for review of that dismissal, which is currently pending. In light of our action taken herein, that application for review is now moot.

Footnote 4: Broadcast Actions, Report No. 43558, released August 10, 1995.

Footnote 5: The Amendment purports to have been signed by Kendrick on July 31, 1995.

Footnote 6: Kendrick alleges that he did not learn of the Division Letter until August 16, 1995, although he acknowledges the Public Notice of August 10, 1995.

Footnote 7: Similarly, Kendrick's alleged hospitalization does not present a "changed circumstance" that justifies reconsideration under 47 C.F.R. § 1.106(c). Kendrick reports that this event occurred three months after the expiration of the construction period. Therefore, it is not relevant to our evaluation of Kendrick's efforts during the relevant construction period. See Panavideo, supra.

Footnote 8: A secondary consideration is that the Commission believes that "it is unreasonable to require applicants to make further expenditures and continue construction efforts while their extensions requests are pending." Rainbow, at 4, para. 5 (citations omitted).