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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Edmund Dinis ) ) Application to Replace ) File No. BP-930113DA Expired Construction Permit ) and for Extension of Time ) to Construct WLAW(AM), ) Fairhaven, Massachusetts ) ) Application to Replace ) File No. BP-960828DA Expired Construction Permit, ) WLAW(AM), ) Fairhaven, Massachusetts ) ) Application to Modify ) File No. BMP-940826AD Construction Permit, ) WLAW(AM), ) North Dartmouth, Massachusetts ) ) Application to Extend ) File No. BP-970820JF Construction Permit, ) WLAW(AM), ) North Dartmouth, Massachusetts ) MEMORANDUM OPINION AND ORDER Adopted: February 4, 1999 Released: February 9, 1999 By the Commission: 1. The Commission has before it three joint Petitions for Reconsideration filed against three separate applications involving the construction permit for new AM broadcast station WLAW, Fairhaven, Massachusetts, and a joint informal objection filed against the most recently submitted application for extension of the WLAW construction permit, all from Bristol County Broadcasting, Inc., licensee of Station WSAR(AM), and SNE Broadcasting, Inc., licensee of Station WHTB(AM), Fall River, Massachusetts ("Petitioners"). The September 25, 1996 petition seeks reconsideration of the Commission's Memorandum Opinion and Order ("MO&O") in Edmund Dinis, 11 FCC Rcd 11,074 (1996), which denied Petitioners' application for review and affirmed a Mass Media Bureau ("Bureau") action reinstating and extending the construction permit of Edmund Dinis ("Dinis") for unbuilt station WLAW(AM). The October 8, 1996 and April 15, 1997 reconsideration petitions, as well as the September 26, 1997 informal objection, involve matters related to the September 25, 1996 reconsideration petition and are referred to the Commission pursuant to 47 C.F.R. 1.106(a)(1). For the reasons set forth below, we dismiss the September 25, 1996 petition for reconsideration and deny the subsequent petitions for reconsideration and the informal objection. Background 2. Dinis' application for a construction permit for a new AM station was granted October 8, 1988. He subsequently was granted five extensions of time within which to construct the facility. The first extension was premised on representations that his original site on Marsh Island could become unavailable based on a Massachusetts state senator informing Dinis that the government was actively considering taking the site by eminent domain. Additional extensions were granted based on Dinis' efforts in locating a new site and on problems that arose in obtaining local zoning approval to use the site ultimately chosen, Copicut Hill. 3. On September 15, 1995, the Bureau denied Petitioners' joint objection and granted Dinis' sixth application to reinstate and extend the WLAW permit (File No. BP-930113DA). In the August 26, 1996 MO&O denying Petitioners' application for review of that grant, the Commission determined that Dinis' inability to build at the Copicut Hill site was due to circumstances beyond his control which warranted an extension of the permit. The Commission noted that the staff action it affirmed only extended Dinis' permit through March 15, 1996. Referencing precedent for accepting late-filed extension requests under the circumstances, the Commission invited Dinis to file a further reinstatement and seventh extension application. He did so shortly thereafter, on August 28, 1996 (File No. BP-960828DA). The staff granted the extension on September 13, 1996. Petitioners' seek reconsideration of the MO&O granting the sixth extension and the subsequent staff action granting the seventh extension. They also seek reconsideration of a March 13, 1997 staff action granting Dinis' application to change transmitter sites to Copicut Hill and community of license from Fairhaven to North Dartmouth. Finally, Petitioners filed an informal objection to Dinis' eighth extension application, which remains pending. Discussion 4. In all four of the pleadings currently before the Commission, Petitioners make essentially the same arguments. Specifically, they reference a June 11, 1996 letter from Dinis advising the Commission pursuant to 47 C.F.R. 1.65 that the Watuppa Water Board ("Board"), a local government entity, wrote him on May 8, 1996 rescinding the lease for the proposed Copicut Hill site for failure to make rent payments. Petitioners charge that (a) Dinis' letter to the Commission misrepresents that the Board "made no previous complaint" about Dinis' failure to pay rent and that, therefore, there are "serious candor problems" stemming from the letter; and (b) as demonstrated by the June 11, 1996 letter, Dinis "has no transmitter site" and thus his permit should be cancelled. 5. Dinis' June 11, 1996 letter was filed a full two months prior to adoption and release of our earlier MO&O. Further, it was served on Petitioners. We agree with Dinis that, if Petitioners thought the letter was relevant, they could have presented evidence prior to release of the MO&O instead of necessitating a separate adjudication on reconsideration with the resultant delay in putting WLAW on the air. We will therefore dismiss Petitioners' September 25, 1996 reconsideration petition on procedural grounds pursuant to 47 C.F.R. 1.106(b)(2). 6. However, we will address the merits of Petitioners' arguments briefly, since they are raised in the context of the three other pleadings at issue here. First, we note that Dinis has settled his dispute with the Board, thereby mooting one of Petitioners' arguments, i.e., that, because of a dispute with the Board, he has lost his site. Even if Dinis had not reached a settlement regarding the site, however, we would not have been compelled to deny his applications and cancel his permit, since the issue of the validity of the site lease was pending before the local courts. See Peoples Broadcasting Corp., 68 FCC 2d 1569, 1577 (1978) (applicant established reasonable assurance notwithstanding pending litigation regarding who had the legal authority to lease the site). As to the other argument -- that Dinis misrepresented whether or not the Board had complained about the prior failure to pay rent and therefore put him on notice that the tower lease would be cancelled -- we find no intent to deceive and thus, no misrepresentation. See Fox River Broadcasters, Inc., 88 FCC 2d 1132, 1135 (Rev. Bd. 1982), modified, 93 FCC 2d 122 (1983); Greater Muskegon Broadcasters, Inc., 11 FCC Rcd 15,464 (1996); Garrett, Andrews and Letizia, Inc., 88 FCC 2d 620(1981); Kaye-Smith Enterprises, 71 FCC 2d 1402, 1415 (1979). Inasmuch as the Board's May 8 termination letter did not itself reference prior demands for rent, we credit Dinis' claim that the language in the June 11, 1996 letter submitted to the Commission by his counsel indicating that there had been no prior demands is the result of miscommunication between Dinis and his counsel, not a misrepresentation. Nevertheless, Dinis, as an applicant, is responsible for the accuracy of pleadings filed on his behalf and is admonished for his lack of care in this case. 7. Finally, we address whether Dinis has justified grant of an eighth extension. Contrary to Petitioners' urgings, we decline to dismiss the extension request, filed after expiration of the permit, as untimely. See, e.g., F.B.C., Incorporated, 3 FCC Rcd 4595, 4597 (MMB 1988) (given that the rule allows for the filing of an application to replace an expired permit up to 30 days after permit expiration date, see 47 C.F.R. 73.3534(e), adherence to the 30-day provision of 47 C.F.R. 73.3534(a) is not strictly observed). We also find that grant of the eighth extension is warranted because the pendency of Petitioners' challenges to the grant of Dinis' sixth and seventh extensions prevented "finality" with respect to these extensions, and therefore Dinis was not obligated to move forward with construction of WLAW. See, e.g., 47 C.F.R. 73.3534(b) (permittee entitled to extension of time to construct when circumstances beyond his control have prevented construction); Rainbow Broadcasting Company, FCC 98-185 (rel. August 5, 1998) (permittee cannot be faulted for failure to construct during period of litigation and uncertainty, when grant of construction permit is not final). We emphasize, however, that new Commission rules which become effective on February 16, 1999 will have a bearing on Dinis' construction permit. See Report and Order, Streamlining of Mass Media Applications, MM Docket No. 98-43, 13 FCC Rcd 23,056 (1998), Para. 77-90 (November 25, 1998); 63 Fed. Reg. 70,039 (December 18, 1998). Pursuant to these new rules, an applicant who has not completed construction within an unencumbered three year period will forfeit its permit unless it can demonstrate that the three year period was tolled by narrow circumstances, such as by a flood or earthquake. Our records indicate that Dinis has had three unencumbered years to construct subsequent to issuance of his permit in 1988 and therefore the permit will be subject to automatic forfeiture unless construction is complete and an application for license to cover is filed prior to expiration of the six month extension granted below. Ordering Clauses 8. Accordingly, the Petition for Reconsideration filed jointly by Bristol County Broadcasting, Inc. and SNE Broadcasting, Inc. on September 25, 1996, IS DISMISSED. The October 8, 1996, and April 15, 1997 Petitions for Reconsideration, and the Informal Objection filed jointly on September 26, 1997 ARE DENIED, and the Memorandum Opinion and Order, FCC 96-350, and the September 13, 1996 and March 12, 1997 grants of the applications of Edmund Dinis to replace the expired construction permit and to modify the construction permit for Station WLAW(AM) (File Nos. BP-960828DA and BMP-940826AD, respectively) ARE AFFIRMED. Additionally, Dinis' extension application No. BP-970820JF IS GRANTED, and the WLAW construction permit (BP-870810AE) IS EXTENDED for six months from the date the release of this Order. FEDERAL COMMUNICATIONS COMMISSION Magalie Rom n Sales Secretary