WPC3/ 28BH@ERoman3|PRoman (TT)#XP\  P6Q DXP#"5@^?(?SO_c(88?g(g(WOOOOOOOOOO((_g_GkOWSWSO[_,;WGc[WWWWOK_O_OSO888WO(OSKSK3KW,,S,WOSOCC;WG_OKG8 8_((((W,E(OWOOOOOOOOOOOwSKSKSKSKSK,,,,,,,,[WWOWOWOWO_W_W_W_W(KOOWSWOWOSKWOSSOOWWOOSKSKSKSKWWSK[K[O[[K[K_W_W,WWW,,,W;WSG,GE[W[WWW((WCWEOC((N((;S(GOOOS(OOOOKOOOOOO(((((((((((((((OOtOg\\GO\d*,KO.wROOn\CfxKxWlRx\]\cdIfIs`Wx\rriwgd((((((((((((((((((((((((((((((((?(?SO_c(88?g(g(WOOOOOOOOOO((_g_GkOWSWSO[_,;WGc[WWWWOK_O_OSO888WO(OSKSK3KW,,S,WOSOCC;WG_OKG8 8_(((((((((((((((((((((((((((((((((((KOOS,SWOOOOOOO,gOO(K;((OOOOOOGOOOOOOOSSSSS,,,,W[WWWWWOW____SSWOOOOOOwKKKKK,,,,OWOOOOOGOWWWWKS X-#Xj\  P6G; XP#HP2c j Z9 RomanTimes New Roman (TT)Times New Roman (Bold) (TT) DXP#RomanTimes New Roman (TT)XPPS - PSt 4/4Mt1 Room 228XPPSPS.WRSSX\  P6G;u"nGPzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddndddddddRomanTimes New Roman (TT)Times New Roman (Bold) (TT)7PC2X DXP\  P6QXP.7UC2XxXU4  pQXW!0(X h0\  P6QhP2Z  E X %5 3|j  X-#Xj\  P6G;3XP#р?y.K8?XpK\  P@QP@7PC2X XP\  P6QXP.A7UC2XXU4  pQXW!0(Xh0\  P6QhPSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNd<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddproperly gave little weight to the access road claims made in the instant extension request.  xHowever, we are aware of no Commission precedent to support the conclusion that the level and  x-type of activity described by Daugherty warrants an extension of time to construct, and we agree  xwith the staff that Daugherty's claimed construction progress constituted "very little actual  x[progress towards constructing WXJJ(FM)" and that such incrementally insignificant progress  Xb- x>cannot be considered "substantial." See, e.g., Stephen E. Powell, 11 FCC Rcd 11,925 (1996)  x(permit cancelled when permittee had not received and installed equipment necessary to initiate  X4- xstation operations); Deleted Station WPHR(FM), 11 FCC Rcd 8513, 8518 (1996) (oral agreement  X- xfor studio lease insufficient to warrant extension); Golden Eagle Communications, Inc., 6 FCC  X- xRcd 5127 (1991), recon. denied, 7 FCC Rcd 1752 (1992) (extension denied despite deposit with  xequipment suppliers where permittee failed to demonstrate substantial and sustained construction  X- xjprogress); Community Service Telecasters, Inc., 6 FCC Rcd 6026, 6028 (1991) (extension denied  X- xZwhere applicant acquired no equipment and erected no tower); High Point Community Television,  X- xMInc., 2 FCC Rcd 2506, 2507 (1987) (acquisition of studio and office equipment insufficient to warrant extension).  X|-   ]x5. Daugherty further argues that his extension request has not been accorded treatment  XN- xconsistent with other permittees, referencing F.B.C., Inc. ("FBC"), 3 FCC Rcd 4595 (M.M.Bur.  X7- x1988), and Rainbow Broadcasting Co., 9 FCC Rcd 2839 (1994) ("Rainbow"). According to  X - xDaugherty, in FBC the Mass Media Bureau determined that the permittee had made "substantial  xKprogress" where it ordered a tower, transmitter, and antenna and partially completed construction  xof a transmitter building. In contrast, Daugherty asserts that he already had a tower (on site but  xnot erected), acquired a constructed transmitter building, continued rent payments on studio space,  xand made a "substantial" down payment for computer hardware and software. Daugherty thus" 0*%%JJ"  xclaims that additional time is warranted because he made more construction progress than the  X-applicant in FBC.  X-  x6.  However, FBC supports rather than undercuts the staff's conclusion that Daugherty  xfailed to make substantial progress toward construction of WXJJ(FM) in the pertinent  X- x!construction period. In FBC, not only had the permittee completed construction of and  xsubstantially furnished its transmitter and studio building, but it had ordered its tower, antenna,  xyand transmitter, the latter two of which were being shipped. Significantly, all of these activities  XH- x[occurred within the initial construction period established for television stations,H yO -#C\  P6QpP#э See Construction of Broadcast Stations, 102 FCC 2d 1054, 1058, n. 13 (1985). not over the  X1- xcourse of seven years as in the instant case. FBC, 3 FCC Rcd at 4595, 2. The FBC permittee  X - xalso made a convincing showing that circumstances beyond its control, i.e., the unavailability of  xits transmitter site despite several attempts to resolve the problem by locating a new site,  X -prevented timely completion of construction. FBC, supra, 3 FCC Rcd at 4597.  X -  |x7. The other case cited by Daugherty, Rainbow, is likewise inapposite. According to  X - xDaugherty, the Commission reinstated a television permit in Rainbow under "very similar"  X- xcircumstances, e.g., construction of a transmitter building and maintenance of a tower space lease.  Xy- xContrary to Daugherty's assertions, however, Rainbow did not turn on the issue of whether or not  xKthe applicant had made substantial progress toward construction of the station involved. Rather,  XK- xthe Rainbow applicant faced a judicial appeal which the Commission decided rendered its permit  x=grant not final and, consequently, justified the fact that the permittee did not proceed to finish  xjconstruction of its authorized television facilities. The Commission specifically noted that "[i]t  x-would have been unreasonable to have . . . expected Rainbow to proceed with construction while  X- x[faced with the uncertainties resulting from the appellate challenges to its construction permit."  X- xRainbow, supra, 9 FCC Rcd at 2846.@X yO-#C\  P6QpP#э   Rainbow was reversed and remanded by the Court of Appeals, Press Broadcasting Co., Inc. v. FCC, 59 F.3d 1365 (D.C. Cir. 1995), and the Commission subsequently designated the extension application for a hearing  yOq-on substantive extension and ex parte issues. Rainbow Broadcasting Company, 11 FCC Rcd 1167 (1996). A subsequent Administrative Law Judge Decision determined that a grant of the extension request was warranted "without regard to the extent of [the permittee's construction] progress," because failure to construct was  yO-attributable to circumstances beyond the permittee's control, i.e., it would have been unreasonable to require  yO-construction efforts while the grant of the permit was clouded by a pending judicial appeal. See Rainbow  yOY-Broadcasting Company, FCC 97D05, released April 2, 1997. Daugherty also asserts that he should be given special  xjconsideration because he requested and received only a 90day extension when he could have  x!requested and received a 180day extension. According to Daugherty, the Commission  X- xconsidered a similar "shortened" period a "mitigating" factor in Rainbow. However, Daugherty's  X|- xreliance on Rainbow in this context is misplaced. The Commission held in Rainbow that, due  xto the appellate challenges to its construction permit grant, the permittee had not been afforded  xthe normal 24month construction period allotted television permittees under 47 C.F.R. 73.3598;"N` 0*%%JJ"  x=it therefore could receive "automatic" extensions of its permit so long as, in their totality, such  xyextension grants afforded the permittee no less than the full 24 months (from the date its permit  X- x>grant became final) to which it was entitled. Rainbow, 9 FCC Rcd at 2846. Here, Daugherty  x0received the full 18month initial construction period to which he was entitled as a radio  xLpermittee under Section 73.3598; he therefore does not qualify for any "automatic" extensions,  X-and his situation cannot be analogized to that in Rainbow.   !x8. Finally, we conclude that the staff action was not, as Daugherty argues, deficient for  x=failing to address CMI's misrepresentation allegations, inasmuch as the determination was not  xpredicated on those charges. Rather, the staff action was properly based upon a determination  xthat Daugherty had not made sufficient construction progress during the most recent applicable  X - xconstruction term to warrant additional time to construct. Upon reaching such a conclusion,  xwhich warranted cancellation of the WXJJ(FM) permit and deletion of its call sign, the staff had  xno obligation to evaluate CMI's misrepresentation claims. Daugherty also questions the relevance  xKof the "extensive" discussion of his prior requests for additional time to construct. The recitation  x<was, in fact, relevant for purposes of evaluating the extension of time request, insofar as it served  xto demonstrate the extent of Daugherty's construction progress, or the lack of it, during the most  Xy-recent construction period. See e.g., note 7.   XK-  x 9. Conclusion/action. Accordingly, for the reasons stated above and pursuant to 47  xC.F.R. 1.115(g), the Application for Review filed December 13, 1996 by William S. Daugherty III IS DENIED. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary