Request for extension of time to construct KCVN, Faribault, MN -- June 27, 1996 -- Audio Services Division (FCC) USA

FEDERAL COMMUNICATIONS COMMISSION
                          Washington, D.C.  20554

     In reply refer to:
     1800B3-PHD

Jerrold Miller, Esq.
Miller & Miller, P.C.
P.O. Box 33003
Washington, D. C. 20033

     Re:   KCVN(FM), Faribault, MN
     File No. BMPH-941215JB

Dear Counsel:

     The staff has before it a petition for reconsideration filed by Faribault Broadcasting, Inc.
("FBI") on September 28, 1995.  FBI seeks reconsideration of an August 17, 1995 decision (the
"Letter Decision") which denied the above-referenced application (the "Application") for
extension of time to construct unbuilt station KCVN(FM), Faribault, Minnesota, cancelled the
KCVN(FM) construction permit and deleted the station's call sign.  For the reasons set forth
below we deny the Petition and affirm our prior action.

     FBI contends that the staff erred in not granting the Application based on "substantial
progress" and "reasons clearly beyond the control of the permittee."  See 47 C.F.R.  73.3534(b). 
It argues that the Letter Decision is based on several erroneous factual findings, including the
staff conclusion that FBI must relocate to a new tower site.  Moreover, FBI contends that the
staff failed to properly credit FBI's work on "important preconstruction details" such as drafting
transmitter site blueprints and talking to potential contractors and vendors.  Finally, it reiterates
its claim that technical and zoning issues relating to the proposed studio transmitter link ("STL")
tower at its original studio location have delayed station construction.

     As an initial matter we agree with FBI that the Letter Decision contains several factual
errors.  Specifically, there is no basis on which to infer that FBI's transmitter site is not available
for the construction of the broadcast tower specified in the KCVN(FM) construction permit.  FBI
has demonstrated that it has secured the necessary local zoning approvals for tower and
transmitter construction.   Moreover, we are unaware of any specific construction impediments. 
FBI also has made clear that its tower problems relate to the technical feasibility of a 75-foot
STL tower at its initially proposed main studio location and its ability to obtain zoning approvals
for a taller structure.

     Nevertheless, we conclude that the staff considered the entirety of FBI's efforts during the
final construction period and properly found that FBI has not made substantial progress toward
construction.  Attending to "preconstruction details" is not "substantial progress."  As the rule
itself makes clear, a permittee must demonstrate that "equipment is on hand, site acquired, site
cleared and construction proceeding toward completion."  47 C.F.R.  73.3534(b)(2) (emphasis
added).  FBI does not have a studio site, much less built studios.  It has not begun construction
of its transmission facilities.  It has not entered into a ground lease for its authorized tower site. 
Moreover, it is far from clear that it should be credited with "ordering" the tower or antenna. 
Delivery of these items "is contingent upon grant of the pending extension application." 
Opposition to Informal Objection, Declaration of Judith Saye-Willis at 1.  FBI also has failed to
show that it had made the required 30 percent payment due upon "acceptance" of the ERI tower
and antenna quotation.  See April 27, 1995 "Response" of FBI, Tower/Antenna Documents.  In
these circumstances, we reject as meritless FBI's contention of "substantial progress."  Compare
Community Service Telecasters, Inc., 6 FCC Rcd 6026, 6028 (1991) (extension denied where
applicant acquired no equipment, erected no tower and risked no funds toward constructing
station) with Horseshoe Bay Centrex Broadcasting Co., 5 FCC Rcd 7125 (1990) (extension based
on "substantial progress" where permittee graded and leveled transmitter site, completed access
road to site, ordered studio, transmitter and antenna equipment, and remodeled studio facilities). 
See also Arthur C. Kralowec, 6 FCC Rcd 5265 (M.M. Bur. 1991) ("substantial progress" based
on delivery of transmission equipment); F.B.C., Inc., 3 FCC Rcd 4595 (M.M. Bur. 1988)
(permittee made "substantial progress" where it ordered tower, transmitter and antenna, and
substantially completed construction of transmitter building).  

     We also find that the staff correctly concluded that circumstances beyond FBI's control
have not prevented station construction.  FBI has not made "diligent and continual attempts to
complete construction."  Horseshoe Bay Centrex Broadcasting, Co., 5 FCC Rcd at 7126.  FBI has
not explained how questions regarding the delivery of programming via a microwave link
impeded construction of the authorized transmission facilities.  Certainly, FBI's refusal to order
equipment based on concerns about warehousing fees, unspecified "potential damage to the stored
equipment," or potential vandalism constitutes a private business decision on which an extension
is not warranted.  See, e.g., Community Service Telecasters, Inc., 6 FCC Rcd at 6208; New
Orleans Channel 20 Inc., 100 FCC 2d 1401 ((M.M.Bur. 185), rev. denied, 104 FCC 2d 304, 313
(1986) (subsequent history omitted).

       Even if we accept the fact that STL transmission issues could delay station construction,
FBI wholly fails to show that it took "all possible steps to expeditiously resolve these problems
and proceed with construction."  47 C.F.R.  73.3534(b)(3).  At the time the first extension
application was filed, FBI was fully aware that the proposed 75-foot tower might not provide a
line-of-sight signal path to its tower site.   However, as Exhibit 1 to the Application makes clear,
FBI failed to locate a new studio/STL site during the six-month extension period.  Absent a
compelling justification for its lack of progress, FBI is not entitled to an extension based on
continuing studio siting problems.   See  L.E.O. Broadcasting, Inc., 2 FCC Rcd 1810, 1811
(M.M. Bur. 1987) (permittee can rely on impeding circumstance only if it took all possible steps
to overcome problem and proceed with construction); High Point Community Television, Inc.,
2 FCC Rcd 2506, 2507 (1987) (extension not warranted where permittee fails to resolve problem
expeditiously and proceed with construction).

     Finally, we reject weather conditions as a basis for extending the KCVN(FM) construction
permit.  We note that FBI did not undertake any actual construction between July 22, 1994 and
January 22, 1995.  FBI has not provided any specific documentation support establishing that
weather prevented construction during the entirety of this period.  FBI's speculation about "winter
weather" during the period following the submission of the Application is legally irrelevant.  Ex
hypothesi, future weather conditions cannot explain past failures to construct.  Moreover, this
justification is of no consequence to the extent that it relates to the period following the
expiration of the final KCVN(FM) construction period.  See Rainbow Broadcasting Company,
11 FCC Rcd 1167, 1167 and cases cited at 1167 n.7 (1995) (extension must be based on
construction period circumstances only).

     Accordingly, the September 28, 1995 petition for reconsideration of Faribault
Broadcasting, Inc. IS DENIED.

     Sincerely,



     Linda Blair, Chief
     Audio Services Division
     Mass Media Bureau