WPC^ 2BVTZ3|P)?xxxX/Xx6X@DQX@HP LaserJet 4Si/4Si MX919M RM 344HPLA4SMX.WRSx  @,,R!xX@ X-#XP\  P6QXP##XP\  P6QXP##XP\  P6QXP#2(@X1Courier New (TT)Times New Roman (TT)"5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd?xxxX/Xx6X@DQX@7PC2XXP\  P6QXP#XP\  P6QXP##XP\  P6QXP##\  P6QXP#/Xx6X@DQ `` 3|P28 @ Z e @ "5@^!)22SN!!28!2222222222888,\HCCH=8HH!'H=YHH8HC8=HH^HH=!!/2!,2,2,!222N2222!'22H22,006!!!!()!22H,H,H,H,H,YCC,=,=,=,=,!!!!H2H2H2H2H2H2H2H2H2H2H,H2H2H2H2H282H2H,H,C,C,C,=,=,=,H2H2HH2H2H2H2(2!2!!!2'H2==)H2H2H2YHC!C)8'8'N#-2!,22222KK2LL2K!!,,2d!!22bd!,d!t!77778c<d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2dj@@@NCourier New (TT)Times New Roman (TT)Times New Roman (Bold) (TT)Times New Roman (Italic) (TT)"5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[[[[^ee*C`^.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSS"5@^*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW*7777CE7S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJxJoJoJoJSSSS]]C]A]A7A]S]o.oEx]x]SxxJxJ]A]AN:*ZS7SSSSSS27}}S2}}S}277SSS77SS7S72t7[[[[_ee*C`_.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW7SSSS7]777SS:S7A7xx*7SSSS%S7}2S_7}SC[227`Z*727S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS[S]]]]S]"5@^(1<d<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd?xxxX/Xx6X@DQX@7PC2XXP\  P6QXPy.C8*XC\  P6QP .y.G8*X((<G4  pQR&HHHXhH6X@DQh@W!0(X_h0\  P6QhP#5PC2XE_XP*f9 xQXXs4dddXd6X@DQ@D <<<X,<6X@DQ,@I(!XO,(\  P6Q,P X-  #C\  P6QP#X01Í ÍX01Í Í#XP\  P6QXP# FEDERAL COMMUNICATIONS COMMISSION F WASHINGTON, DC 20554  yOx` `  hh@hpp  #C\  P6QP# #G4  pQ(<# IN REPLY REFER TO:  X-x` `  hh@hpp   #XP\  P6QXP#1800B2SLW David L. Hill, Esq. Audrey P. Rasmussen, Esq. O'Connor & Hannan, L.L.P. 1919 Pennsylvania Avenue, N.W. Suite 800 Washington, DC 200063483  X -x` `  hh@In re:hDWSRM(FM), Coosa, Georgia x` `  hh@hApplication for Extension of Construction x` `  hh@hPermit x` `  hh@hFile No. BMPH951004JA x` `  hh@hApplication for Modification of x` `  hh@hConstruction Permit, File No. x` `  hh@hBMPH951024ID Dear Counsel: The staff has before it a petition for reconsideration filed by Jean M. Gradick ("Petitioner") on November 27, 1996. Petitioner seeks reconsideration of the staff's October 24, 1996 decision (the "Letter Decision") denying Petitioner's abovereferenced construction permit extension request and dismissing Petitioner's abovereferenced modification application. Rome Area Broadcasters Coalition ("RABC") filed an opposition to the petition on December  XD-9, 1996 and Petitioner filed a response thereto on December 16, 1996.D yO-#C\  P6QP#эAlso on file are RABC's December 20, 1996 "Motion to Strike for Violation of 47 C.F.R.  1.45(b)" and Petitioner's December 30, 1996 response thereto. For the reasons set forth below we deny the petition and affirm our prior action. The Commission granted Petitioner a construction permit for authorization to construct a new station at Coosa, Georgia on October 30, 1991 and required that construction be completed by April 30, 1993. The staff initially denied Petitioner's first extension request, but on reconsideration, the staff concluded that new information presented by Petitioner, which demonstrated substantial construction progress through equipment purchases and land acquisition, warranted an extension until October 27, 1995. On October 4, 1995, Petitioner filed her second extension request, the denial of which is at issue here. Petitioner claimed that a shortspaced station's channel change now permitted Petitioner to move to a superior site, which would result in considerable savings and enable the station to increase its effective radiated power from 3 kW to 6 kW. Citing the purchase"& 0*0*0*$" of equipment for the station, Petitioner also claimed that she had shown due diligence in pursuing construction of the facility. RABC filed an opposition to the extension request on November 30, 1995. By letter dated January 3, 1996, from her counsel, Audrey P.  X-Rasmussen, to Roy J. Stewart, Chief, Mass Media Bureau,CO yO4-#C\  P6QP##C\  P6QP#э The letter was a consolidated reply to RABC's opposition to Petitioner's construction permit extension request and RABC's opposition to the modification application filed by Petitioner on October 24, 1995. On December 12, 1995, Petitioner had filed a "Contingent Request for Extension of Time," requesting an extension until January 5, 1996 to respond to RABC's oppositions, citing as a basis for the request her recuperation from the September 1995 surgery.CX01Í ÍX01Í Í Petitioner responded to RABC's opposition by reiterating the benefits of the new site and informing the staff that she had undergone surgery in September 1995 for the removal of skin cancer and that such surgery "impaired her ability to pursue construction of the station and modification of the permit at full speed." By letter dated October 24, 1996, the staff denied Petitioner's extension request on the grounds that: (1) Petitioner's reported actions during the most recent construction period did not warrant an extension; and (2) Petitioner's description of her medical difficulties, standing alone, did not provide an independent basis for extending the permit. The crux of Petitioner's arguments on reconsideration is that the staff erred in concluding that her illness was not a circumstance beyond her control that would warrant a grant of an extension under Section 73.3534 of the Commission's rules. In addition, Petitioner contends that an extension is warranted because she relied on advice received from the staff in late September 1995 that the filing of an acceptable modification application would justify an extension of the permit. As a threshold matter, we note that on reconsideration, Petitioner for the first time presents the details of her illness and submits medical records, including a letter from her doctor, allegedly demonstrating that her failure to construct the station was the direct result of her illness and therefore a circumstance beyond her control warranting an extension of the permit. Section 1.106 of the Commission's rules provides that facts presented for the first time on reconsideration will only be considered if: (1) the facts relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters, 47 C.F.R.  1.106(b)(2)(i); (2) the facts were unknown to the petitioner until after the last opportunity to present such matters and could not, through the exercise of ordinary diligence, have been learned prior to such opportunity, 47 C.F.R.  1.106(b)(2)(ii); or (3) consideration is required in the public interest, 47 C.F.R.  1.106(c)(2). Petitioner has not demonstrated that reconsideration is warranted based on the newly presented facts about her illness. Petitioner contends that she did not previously provide information detailing her illness because: (1) she was concerned for her welfare; and (2) she wanted to protect her privacy. Petitioner also argues throughout her petition that "it should have been assumed by the staff that the [illness] was incapacitating and the necessary focus to accomplish the task of construction had been compromised." While we are sympathetic to Petitioner's concerns about her welfare and her privacy, such concerns do not justify Petitioner's failure to provide"!x0*(( " the staff with complete information when she filed her extension request. Applicants must present their case fully and completely at the outset, or bear the risk that their showing will  X-be found inadequate. Carolyn S. Hagedorn, 11 FCC Rcd 1695 (1996), citing Colorado Radio  X-v. FCC, 118 F.2d 24, 27 (D.C. Cir. 1941). Furthermore, it is not the staff's obligation to "assume" matters not clearly presented to it. "Neither the Commission nor its staff is  X-responsible for making an applicant's case." Id. We therefore conclude that Petitioner has not demonstrated that changed circumstances or previously unknown facts now require the staff to grant reconsideration on this basis. Furthermore, even if we were to conclude that the public interest warrants our consideration of the newly presented facts about Petitioner's illness, we conclude that such facts do not justify an extension of the permit. It is well settled that a permittee's extension application  X -"will be judged according to the progress made during the most recent construction period."  X -See Rainbow Broadcasting Company I, 9 FCC Rcd 2839, 284647; Rainbow Broadcasting  X -Company II, 11 FCC Rcd 1167, 116768 and cases cited at n. 7 (1995). Here, the relevant construction period was April 27, 1995 to October 27, 1995. Petitioner's first surgery did not occur until September 6, 1995 five months into the sixmonth construction period. Petitioner's only reported actions from April 27, 1995 until September 6, 1995 were dismissal  Xl-of a prior modification application and the filing of an assignment application.l, yO-#C\  P6QP#э We also are aware that Petitioner had further surgery in October 1995. As the staff noted in the Letter Decision, such actions do not support a finding of substantial progress  X>-toward construction warranting an extension of the permit. See Deleted Station WPHR(FM), 11 FCC Rcd 8513 (1996). Moreover, Petitioner's actions from September 6, 1995 to October 27, 1995 a meeting with the staff in late September regarding the possibility of filing a modification application and the filing of the modification application on October 24, 1995 were all in furtherance of Petitioner's attempt to move to a new site, which is a business decision that was totally within the control of Petitioner and thus does not serve as a basis for extending the construction  X-permit.X, yO-#C\  P6QP#э Petitioner also reports that she has acquired an option to purchase the site proposed in the October 24, 1995 modification application. While we are unable to determine from the record when Petitioner acquired such option, the purchase of such option also is in furtherance of Petitioner's attempt to move to a new site and thus does not justify an extension of the original permit. We also note that although Petitioner reports in her extension request that she purchased equipment, such equipment appears to be, for the most part, the same equipment she previously reported having purchased during the first construction period.  Mansfield Christian School, 10 FCC Rcd 12589, 12590 (1995)(construction permit extension denied where permittee's stated basis for extension was its efforts to seek upgraded  X\-facilities); see also Knox Broadcasting, Inc., 12 FCC Rcd 3337, 3341 (1997)("It would be particularly inappropriate to credit Knox's construction efforts in this case because those efforts relate to construction at the site specified in its pending modification application"). We also believe that these actions, which do not justify an extension of the permit, call into question the declaration Petitioner submits with her petition for reconsideration from her"0*((" doctor stating that "[d]uring JulyOctober 1995, she was not capable of performing any duties in connection with construction of the radio station authorized by the FCC." We also decline to grant reconsideration based on Petitioner's claim that she was "lulled into complacency" because she relied on the staff's advice that the filing of a modification application alone would justify an extension of the permit. "A person relying on informal  Xv-advice given by the Commission staff does so at their own risk." Mary Ann Salvatoriello, 6  Xa-FCC Rcd 4705, 4708 (1991), citing Texas Media Group, 5 FCC Rcd 2851, 2852 (1990); aff'd  XL-sub nom. Malkan FM Associates v. FCC, 935   F.2d 1313 (D.C. Cir. 1991).L, yO -#C\  P6QP#э On the same basis, we reject Petitioner's claim that another reason she did not provide information in the extension request regarding her illness was because of the advice received from the staff. Accordingly, Petitioner's reliance on the staff's advice does not excuse her failure to comply with Section 73.3534 of the Commission's rules regarding construction permit extensions. Moreover, Section 73.3533(b) of the Commission's rules specifically provides that the filing of a modification application does not extend the expiration date of the construction permit and that a permittee must seek an extension pursuant to 47 C.F.R.  73.3534. However, even if applicants reasonably could rely on informal advice from the Commission's staff, we nevertheless would conclude that in the instant case, Petitioner's reliance on the staff's advice would not justify her failure to demonstrate substantial progress toward construction during the relevant construction period. The meeting with the staff did not take place until late September 1995 more than two months after the channel change was granted that would enable Petitioner to file a nonshortspaced modification application, five months into the relevant construction period and one month before the permit's expiration date. We are unable to conclude that a meeting held one month before the expiration of Petitioner's construction period justifies Petitioner's failure to demonstrate substantial progress toward construction of the station during the first five months of the sixmonth construction period. In sum, we agree with the staff's earlier conclusion that the primary reason for Petitioner's failure to construct the station was her attempt to relocate to a superior transmitter site, which allegedly would result in significant cost savings and allow Petitioner to increase the  XT-station's effective radiated power ("ERP") from 3 kW to 6 kW. T , yO% -#C\  P6QP#э We also note that Petitioner's claim that the ability to increase the station's ERP is a public interest factor warranting an extension of the permit is without merit. We independently have verified that Petitioner could increase the station's ERP to 6 kW at the originally proposed site and that the additional coverage that Petitioner would gain by operating at 6 kW from the new site would not be substantial. This decision to relocate to a different site reflects a business judgment that was totally within the control of Petitioner and  X&-thus does not serve as a basis for extending the construction permit. Mansfield Christian  X-School, 10 FCC Rcd at 12590; Knox Broadcasting, Inc., 12 FCC Rcd 3341. Neither Petitioner's illness nor her actions during the relevant construction period warrant a different conclusion. "0*(("ԌFor the reasons set forth above, we decline to grant reconsideration of the denial of the extension request based on either the newly presented factors regarding Petitioner's illness or her reliance on the staff's advice. Accordingly, we DENY Jean M. Gradick's Petition for Reconsideration of the October 24, 1996 letter decision and affirm the staff's denial of the construction permit extension request and dismissal of the modification application. x` `  hh@hSincerely, x` `  hh@hLinda Blair, Chief x` `  hh@hAudio Services Division x` `  hh@hMass Media Bureau x` `  hh@h cc: Gary S. Smithwick, Esq.