WPC; 2J BNLTimes RomanTimes RomanTimes Roman Bold#XP\  P6QXP#"S^*8DSS888S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZ8*888888888888S.xJxJxJxJxJooJfJfJfJfJ8.8.8.8.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxJxJoJoJoJoJxSfJfJfJfJxSxSxSxSxSxSxS8S8S888SA8xSf.f8f8f8f.xSxSxSxSxSxo8o8o8]A]A]A]Af8f8f8xSxSxSxSxxSfJfJN:*LS8JSSSSS.4}}S2S}2JJS88SS]]8J2t^^\\^^ee*C^.wR)Ewn\1fy\r\Sxx\r3|o]\  PCPaP2eE| ZX  X-#XP\  P6QXP#HP LaserJet 4 PostScript in room 324HPLA4POS.PRSC\  P6Qhhhh9aPzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`lC2CC!CCCCCCCCCCd8YYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddodYYYYYYdzYzYzYzYdddddddCdCdCCCdNCdz8zCzCzCz8dddddCCCoNoNoNoNzCzCzCdddddzYzYNF2[dCYddddd7>d<d<$YYdCCddooCYd<d<$YYdCCddooCYdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"S^!)22SN!!!28!2222222222888,\HCCH=8HH!'H=YHH8HC8=HH^HH=!!/2!,2,2,!222N2222!'22H22,006!!!d!!!!!!!!!!2H,H,H,H,H,YCC,=,=,=,=,!!!!H2H2H2H2H2H2H2H2H2H2H,H2H2H2H2H282H,H,C,C,C,C,H2=,=,=,=,H2H2H2H2H2H2H2!2!2!!!2'!H2==!=!=!=H2H2H2H2H2YHC!C!C!8'8'8'8'=!=!=!H2H2H2H2^HH2=,=,N#-2!,22222KK2LL2K,,2d!!22b88d!,dt887788c<occupied by existing station WBEA(FM)." g yOy- xԍ Included as an exhibit to the application was a September 24, 1993 letter from the President of C&S stating  xZthat C&S had reached a preliminary understanding with WBI to allow WVZC(FM) to use the WBEA(FM) tower.  xThe September 24, 1993 letter stated that WBI would pay rent for 1994 equal to $7,000 per month and that such rent would increase at a rate of 7% for each year thereafter. During the pendency of the second extension  x+application, WBI filed a modification application specifying the WBEA(FM) tower and then  x<amended it to include a certification that WBI would begin construction immediately upon grant  x/of that application. The staff granted the extension and modification applications on December 14, 1994; construction of the station was to be completed by June 14, 1995.  "4. WBI failed to file either an application for extension of time to construct or an  xapplication for license to cover that permit by the June 14, 1995 expiration date. Thus, on  x}September 22, 1995, Commission staff issued a letter informing WBI that its construction permit  X14had been cancelled and call sign WVZC(FM) deleted.1 yO' x  ԍ By letter of July 26, 1995 after the permit expired WBI's counsel informed the Commission that WBI  x no longer had reasonable assurance of the availability of the WBEA(FM) transmitter site, that WBI was pursuing  x^ a new transmitter site location, and that an application for extension or replacement would be filed in the next few  x days. In the petition for reconsideration, WBI counsel states that the failure to file another extension application was exclusively attributable to counsel, as other work requirements caused the filing to be overlooked.   "5. On October 23, 1995, WBI filed a petition for reconsideration of the cancellation and  xthe abovecaptioned application to reinstate the cancelled permit. The petition for reconsideration  xexplained that the terms of the tower lease agreement that formed the basis of the second  X 4 xlextension were not terms that "C&S intend[ed] to insist on," see note 1 supra, that WBI was  xagain attempting to finalize the arrangement with C&S relative to the leasing and use of the  xWBEA(FM) tower and that further negotiations were required, thus delaying construction. WBI  xpalso explained that the lease of the WBEA(FM) tower was part of a broader proposed business  xarrangement which had been discussed between principals of WBI and C&S since 1993 and  XK4 xwhich would include, inter alia, the implementation of a local marketing agreement and  xRacquisition of a minority ownership interest in WBI by C&S or a related C&S entity. In this  xregard, C&S had submitted an October 11, 1994 draft memorandum outlining the terms of the business arrangement to WBI.  "W6. The plan was never finalized. WBI asserted that it made continuing, unsuccessful  xefforts to contact C&S for a period of several months prior to the expiration of the second  xextension period on June 14, 1995, but was unable to secure C&S's attention to the  X4 x"understandings previously given." `  yO#' x3 ԍ Specifically, WBI's efforts included a January 10, 1995 meeting with the WBEA(FM) general manager to  x obtain technical information concerning the WBEA(FM) tower and studio facilities; sending two status inquiry letters,  x^ dated February 16, 1995 and March 9, 1995, to C&S; making several (unanswered) phone calls to the President of C&S; and speaking with the President of C&S during a chance encounter at a fundraising dinner.  In fact, at some point in March 1995, the WBEA(FM)  xgeneral manager had informed a WBI principal that the C&S President no longer thought that"|H ,-(-(ZZz"  x&an arrangement with WBI made financial sense. Nonetheless, on June 13, 1995, counsel for WBI  xfaxed a proposal to C&S, outlining the terms of a proposed lease agreement. Specifically, the  xVagreement would provide for a monthly rental fee of $700 for an initial lease term of five years.  X4 xICompare note 1 supra. The proposal stated that this letter of reasonable assurance superseded  xall prior letters of reasonable assurance and was expressly subject to the execution of a definitive  xlease agreement. On June 14, 1995, the day the permit expired, C&S responded by faxing to  xIWBI its draft counter proposal. C&S proffered that WBI's rental fee would be based upon the  x<cost of constructing and maintaining the WBEA(FM) tower and would bear no relation to rents payable on other towers on Long Island. WBI rejected C&S's counter offer.  "h7. As noted, on September 22, 1995, when WBI had failed to file either a third extension  xrequest or an application for a license to cover the construction permit, the staff notified WBI  xthat the construction permit had been cancelled and the call sign deleted. The May 9, 1996 letter  x<ruling by the Chief, Audio Services Division denied reconsideration of the September 22 action.  xThe letter ruling found that, despite WBI's efforts to shift responsibility to C&S for the lack of  xconstruction progress, WBI, as permittee, was ultimately responsible for proceeding expeditiously  xwith construction. It concluded that WBI's decision to engage in protracted negotiations with  xC&S regarding tower space and other matters was strictly a business decision that did not justify grant of a third extension.  "8. In the application for review, WBI argues that it was entitled to an extension pursuant  xto 47 C.F.R. Section 73.3534(b)(3), since no progress had been made for reasons clearly beyond  xthe control of the permittee and since the permittee took all possible steps to expeditiously  x~resolve the problem and proceed with construction. WBI challenges the letter ruling's  x"determination that WBI's business judgment was the reason that no construction had occurred.  X4 x'WBI avers that "a tower owner's sudden decision to deny access [emphasis added] to a  x+transmitter site for which it had previously provided reasonable assurance of availability is a  x"factor beyond the permittee's control which justifies an extension." (App. at p. 15). WBI asks  xIthe Commission to consider these arguments in light of the difficulty in locating an available and suitable tower site on Long Island.  "9. The application for review also argues that the letter ruling improperly considered  xevents occurring outside of the relevant December 14, 1994 to June 14, 1995 construction period,  x_as the tower rental terms in the C&S June 14, 1995 counter proposal letter were specifically  x}rejected by WBI after this time period. If the Commission is to rely upon events occurring after  xJune 14, 1995, WBI states, it must then consider WBI's subsequent efforts to locate an alternative  xsite and its March 19, 1996 letter to the Commission reporting the successful location of such an alternative tower site.  X#4 hSDISCUSSION  "A10. The staff properly cancelled WVZC(FM)'s permit because WBI failed to timely file  xhan extension application prior to the June 14, 1995 expiration of its construction period, as  x+extended. Moreover, the application to replace the expired permit that accompanied WBI's"#',-(-(ZZ,%"  xpetition for reconsideration failed to satisfy the requirements of the applicable rule, 47 C.F.R.  xSection 73.3534(b). Though WBI maintains that it did not construct because of circumstances beyond its control, we agree with the staff that this is a mischaracterization of the facts.  "11. WBI's representation to the Commission that it had obtained reasonable assurance  xfor a tower site in September 1993, as well as its certification that construction would begin  ximmediately upon grant of the modification application, obligated WBI to commence the business  xAof construction. However, WBI neither ordered any equipment, nor proceeded with any  xconstruction. Indeed, WBI merely continued to hope for a "definitive agreement" with C&S.  xThe fact is that for approximately 28 months the arrangement between the two parties never proceeded beyond the negotiation stage.  "12. WBI asserts that it acted in good faith to implement the contemplated arrangement  x with C&S, but that C&S made an "exclusive" and "sudden" decision not to carry out the  xSeptember 24, 1993 agreement by submitting its June 14, 1995 counter proposal that the tower rent be based upon the actual cost of tower construction.   yO ' xk ԍ WBI argues that its surprise at the terms of the June 14, 1995 counter proposal is especially justified in light  xQ of the fact that the October 11, 1994 draft memorandum had stated that, after WBI's initial capitalization had been  x repaid to the C&S investors, all future arrangements between WBEA and WVZC would be on commercially  yOx'reasonable terms. See para. 5 supra.  WBI's contention that this rental term  xconstitutes a denial of access to the WBEA(FM) tower does not follow. Even if the Commission  Xy4 xwere to assume, arguendo, that after C&S provided a reasonable assurance of site availability on  x+September 24, 1993, the sole reason that no progress toward construction occurred was the  xunilateral intransigence of C&S, precedent would not permit an extension based on the record  xbefore us. A permittee has the obligation to ascertain expeditiously the potential intransigence  xof a lessor, where negotiations with that lessor have provided the basis for the Commission to  X4 xgrant a prior extension. Contemporary Communications, 11 FCC Rcd 5230, 5231 (1996). The  x/instant facts demonstrate that WBI has not fulfilled this obligation. WBI continued to negotiate with C&S until the day its second extension expired.  X4 "13. WBI's reliance on William J. Kitchen, 7 FCC Rcd 4169, 4170, (1992) is misplaced.  X4 xpIn Kitchen, the Commission granted an extension because of the "unique difficulties" in securing  xa lease resulting from the unusual and protracted governmental approval processes required in  Xe4 x[American Samoa. Nor is Community Service Telecasters, Inc., 6 FCC Rcd 6026 (1991)  xcontrolling. There, too, FAA and zoning approval difficulties were at issue. Here, we agree with  xthe staff, that private business decisions not governmental processes are the key factor in  X 4the failure to construct.   "14. Finally, WBI contends that the letter ruling wrongly considered WBI's decision to  xnot accept C&S's June 14, 1995 proposal, because a "formal" rejection occurred at a later,  x<unspecified date. WBI decided not to accept the C&S offer on the day the construction period  xexpired, and the letter ruling properly considered that decision. Whether WBI "formally" rejected"!,-(-(ZZ "  xcthe proposal at a later date is not relevant. Nor is the Commission obligated, as WBI asserts, to  x_consider efforts made by WBI to acquire another site in March 1996 after the permit was  x'cancelled. Applicants for extension of construction permit are not entitled to "credit" for  X4 xconstruction efforts that occur after the expiration of the authorized construction period. See  X4Rainbow Broadcasting Company, 11 FCC Rcd 116768 (1995) (subsequent history omitted).  "N15. Accordingly, IT IS ORDERED, That pursuant to Section 1.115 of the Commission's  xhrules, 47 C.F.R. Section 1.1115, the June 10, 1996 application for review filed by Women Broadcasters, Inc. IS DENIED. ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` `  hhCqWilliam F. Caton ` `  hhCqActing Secretary