WPCW 2B-J Z CourierCourierTimes New RomanTimes New Roman BoldX@HP LaserJet 4Si (Additional)HPLA4SAD.PRSx6X@K\ NX@26F3|xX01Í ÍX0Í ÍYzYzYC8C8C8C8ddddddddddYdddddodYYYYYYdzYzYzYzYdddddddCdCdCCCdNCdz8zCzCzCz8dddddCCCoNoNoNoNzCzCzCdddddzYzYNF2[dCYddddd7>d<d<$YYdCCddooCY2. 2U%!2'"2)#2+toc 8\D4@6 toc 8lE! =(!^D4*!')\D.E ?@!(#` hp x (#toc 9\D5@6 toc 9lE! =(!^D5*!')\D.E!AB!(#B` hp x (#index 1D6@6 index 1lE! =(!^D6*!')\D.E"CD` !(# ` hp x (#index 2D7@6 index 2lE! =(!^D7*!')\D.E#EF` !(#B` hp x (#22$2O.%0&Y1''2toa heading@6 toa heading! =(!^D8*!')\D.E$GH!(# ` hp x (#captionD9@6 captionlE! =(!^D9*!')\D.E%EI;J#x6X@KX@##b6X@C@#_Equation Ca@6 _Equation Caption!^D:*!')\D.E&;K;L#x6X@KX@##b6X@C@#a1Right Par+!*')Right-Aligned Paragraph Numbers!^DF*!'8MN@   25(2)3**4+4a2Right Par+!*')Right-Aligned Paragraph Numbers!^DF*!(AOP@` `  ` ` ` a3Right Par+!*')Right-Aligned Paragraph Numbers!^DF*!)JQR` ` @  ` `  a4Right Par+!*')Right-Aligned Paragraph Numbers!^DF*!*SST` `  @  a5Right Par+!*')Right-Aligned Paragraph Numbers!^DF*!+\UV` `  @hh# hhh 2F,5-~6.F708a6Right Par+!*')Right-Aligned Paragraph Numbers!^DF*!,eWX` `  hh#@( hh# a7Right Par+!*')Right-Aligned Paragraph Numbers!^DF*!-nYZ` `  hh#(@- ( a8Right Par+!*')Right-Aligned Paragraph Numbers!^DF*!.w[\` `  hh#(-@pp2 -ppp x6X@KX@<6X9`(CourierXx6X@KX@<6X9`(CourierXx6X@KX@<6X9`(CourierXb6X@C@;6X9`("Courier New (TT)x6X@KX@<6X9`(CourierXb6X@C@;6X9`("Courier New (TT)x6X@KX@<6X9`(CourierXb6X@C@;6X9`("Courier New (TT)[\  PP'() Z 6Times New Roman RegularXN\  P XP'() Z 6Times New Roman RegularXo\  P CXP'\  `Times RomanXo\  P CXP'\  `Times RomanXo\  P CXP'\  `Times RomanXo\  P CXP'\  `Times RomanXo\  PCXP'\  `Times RomanXo\  PCXP'\  `Times RomanXx6X@KX@<6X9`(CourierXXN\  PXP'() Z 6Times New Roman RegularXx6X@KX@<6X9`(CourierXXN\  PXP'() Z 6Times New Roman RegularXx6X@KX@<6X9`(CourierXx6X@KX@<6X9`(CourierX2-PKFXIIKKKM"i~'^DO]uuĶOOOu=O=AuuuuuuuuuuAAgרOYͨۨOAOkuOgugugOuuAAuAuuuuOYAuuuugp/p~O=~kOOO=OOOOOOOOuAggggg͘gggggOAOAOAOAuuuuuuuuuuguruuuuggggg~ggggguuu~u~uOAOuOOOu~~uA]OOAuuuuuͨOOOYYY~bAkuuuuuuۨ~ggguOuYOu=uuN*NWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNTTkuOguuuuuAKuFKuFOOgguPPuu叱T錌TƒOguF"u錇~u匌u<?xxx,>Fx6X@`7X@@|ND,i|\  P6G;P@ND,,ʼ4  pG;7jC:,+Xj\  P6G;XP~uNuuuuuuFMuFuFAuuuNNuuNuFt捍:]@s:`1"i~'^DOuuOOOu=O=AuuuuuuuuuuOOuۨYuۨ騨OAOuOuggOuAOAăugYOuuug]3]yO=yOOO=OOOOOOuOAuuuuu騨gggggVAVAVAVAuuuuuuuuuuuuuggyggggguuuyuYAYYOYyyAiO]Auu稨gggYYYywO騨ygggOYOu=uuN?NWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNTT|uOuuuuuuFOuFOuFOOuuuPPuu鏱T錌TƒOuuF"u錊~u匌u"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdR2UK_PZRB"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddFx6X@`7X@@|ND,i|\  P6G;P@ND,,ʼ4  pG;7jC:,+Xj\  P6G;XP7nC:,Xn4  pG;XW!@(#,9h@\  P6G;hP     2K7UW"i~'^#)0< of August 2, 1995  b> 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  Xv4Division Letter,v\ X-4#o\  PCXP#э Broadcast Actions, Report No. 43558, released August 10, 1995. Kendrick filed a document styled "Amendment to Application"  X_4( Amendment).X0Í ÍX0Í Íq_1 X4ԍ The Amendment purports to have been signed by Kendrick on July 31, 1995.q 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,  X 41995, Kendrick filed the subject petition for reconsideration. h 1 X4ԍ #XN\  PXP#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. Kendrick contends that the permittees eighteenday 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 Commissions Atlanta field office confirms that Kendrick has completed construction of the stations facilities, and that WDBS(FM) commenced operations on September 15, 1995. Also, according to the Commissions records, on September 20, 1995,  X4Kendrick filed an FCC Form 302 license application (BLH950920KC). That application remains pending.  X4Discussion. When contemplating applications for extension of construction permits, the Commission examines the record to determine whether the permittee's application satisfies  X|4one 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  X74progress 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" .P-P-"  X4possible 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  X4during 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  X14or 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  X 4alone, 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 eighteenmonth initial construction period, Kendrick neither purchased any equipment nor initiated any construction. The Division Letter concluded that Kendrick's efforts did not  Xb4evidence the diligence expected of Commission permitees. We agree. See Mansfield  XK4Christian 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 postauthorization construction efforts, presented for the first time on reconsideration, represent changed circumstances or "new  X4facts" warranting reconsideration. See 47 C.F.R.  1.106(c).1 XQ4ԍ Similarly, Kendricks alleged hospitalization does not present a "changed circumstance" that justifies reconsideration under 47 C.F.R.  1.106(c). Kendrick reports that this event  X#4occurred three months after the expiration of the construction period. Therefore, it is not  X 4relevant to our evaluation of Kendricks efforts during the relevant construction period. See  X4Panavideo, supra. The Commission has a longestablished 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  X4occur after the expiration of an authorized construction period. Rainbow Broadcasting  X|4Company, Memorandum Opinion and Hearing Designation Order ( Rainbow), GC Docket  Xe4No. 95172, at 2, para. 3 (released November 22, 1995) (citing Rainbow Broadcasting  XN4Company, 9 FCC Rcd 2839, 284647 (1994); Michael C. Gelfand, M.D., 2 FCC Rcd 6522,  X746523 (MMB 1987); L.E.O. Broadcasting, 2 FCC Rcd 1810, 1811 (MMB 1987); Cidra  X 4Broadcasting, Inc., ("Cidra") 2 FCC Rcd 230, 231 (MMB 1987); Sunrise Broadcasting, Inc,  X 4("Sunrise") 100 FCC 2d 1565 (MMB 1985); app. for review granted on other grounds sub  X4nom. Susan K. Ludka (released January 13, 1986); see generally Miami MDS Company v.  X4FCC ("Miami") 14 F.3d 658, 66061 (D.C. Cir. 1994) (reviewing case law and holding that FCC's refusal to consider postauthorization construction efforts is consistent with FCC precedent)). The Commissions policy is expressly designed to discourage applicants from attempting to rely on such efforts as a means to persuade the agency to grant extension"".P-P- "  X4requests. Rainbow at 3, para. 4 (citing Sunrise at 1567; Cidra at 231)).1 Xy4Ѝ A secondary consideration is #XN\  PXP#that the Commission believes that it is unreasonable to require applicants to make further expenditures and continue construction efforts while their  XK4extensions requests are pending. Rainbow, at 4, para. 5 (citations omitted). #x6X@KpX@#ѭ The record clearly  X4demonstrates that all of Kendricks construction efforts took place more than one year after the permits expiration. Furthermore, the record indicates that the bulk of the construction, if  X4not all the construction, took place within a few weeks after the Commissions 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 postauthorization construction efforts. Kendrick similarly fails to establish that reconsideration of the Division Letter would  X14serve the public interest. See 47 C.F.R.  1.106(c). While we have carefully considered the benefits attendant to Kendricks initiation of service to Bolingbroke, we find that the public interest is better served in this instance by adhering to the Commissions long established  X 4policy of not considering postauthorization construction efforts. See Miami at 66061. 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 illserved if we were to reward Kendrick's failure to timely construct by crediting his postauthorization construction in contravention of our wellestablished 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  X44Commission policy. See Rainbow at 3, para. 4. Thus, we decline to grant reconsideration.  X4Conclusion. 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. BLH950920KC). 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. ` `  hhCq ` `  hhCqpp ` `  Sincerely, ` `  Roy Stewart, Chief ` `  Mass Media Bureau  X:&4cc: John S. Neely, Esq. EIC, Atlanta  ? (4#x6X@KpX@#