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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: ) ) PRIORITY COMMUNICATIONS, INC. ) File No. 22406-CD-P/ML-95 ) Application For Extension of ) Construction Permit ) ) Paging and Radiotelephone Service) Station KNKK620 ) Pensacola, FL ) MEMORANDUM OPINION AND ORDER Adopted: November 19, 1999 Released: November 24, 1999 By the Commission: 1. On April 17, 1998, Priority Communications, Inc. (Priority) filed an Application for Review of the decision by the Licensing and Technical Branch (Licensing Branch), Commercial Wireless Division, Wireless Telecommunications Bureau to deny Priority's request for waiver of its construction deadline to add a base station in Pensacola, Florida. For the reasons discussed below, we deny the Application for Review. 2. On November 1, 1994, Priority filed the above-captioned application seeking to extend service to Pensacola, Florida, and requested that it be assigned the 931.2375 MHz frequency. In a Public Notice dated March 19, 1997, the Narrowband Branch granted Priority an authorization on the 931.6375 MHz frequency for Pensacola, Florida because the 931.2375 MHz frequency had already been assigned to another applicant. On April 16, 1997, Priority filed a petition for reconsideration of its grant on the 931.6375 MHz frequency, and requested authorization to operate on the 931.2375 MHz frequency as specifically requested in its application. That petition for reconsideration was denied on August 26, 1999. 3. On March 10, 1998, Priority filed a request seeking an extension of its one-year construction period for facilities to operate on the 931.6375 MHz frequency. The Licensing Branch denied Priority's request on March 19, 1998. In the Licensing Branch Letter Decision, the Licensing Branch found that Priority had failed to support its extension request because it was unable to demonstrate that it had not commenced service to subscribers by the deadline due to causes beyond its control. Specifically, the Licensing Branch determined that "the Commission had not stayed the grant to Priority and Priority had chosen not to construct the station." Thus, the Licensing Branch found that, because it was Priority's business decision not to construct, Priority failed to adequately support an extension of the construction period. Accordingly, the Licensing Branch terminated Priority's authorization for station KNKK620. Priority now seeks Commission review of the Licensing Branch Letter Decision, denying Priority's request for an extension of its construction deadline. 4. At the time Priority filed its Application for Review, its petition for reconsideration was still pending before the Commercial Wireless Division. In its Application for Review, Priority claims that "a grant does not become 'final' during the pendency of a petition for reconsideration" and that the "practical effect" of an outstanding petition for reconsideration "is the same as a stay." Finally, Priority argues that "pending litigation preventing a grant from becoming final [is] a circumstance beyond the control of the permittee warranting an extension." To support its contentions, Priority argues that the "denial of Priority's request for an extension of the Pensacola permit conflicts with long-standing case precedent and well-established Commission policy to excuse a permittee from proceeding with construction and extend a permit which is under a cloud of litigation." 5. We find that the cases cited by Priority are inapplicable to the facts before us in this proceeding. Specifically, those cases generally excuse a permittee from construction because of the risk presented by pending petitions for reconsideration of the authorization filed by other parties, or because of pending policy initiatives related to the timing of construction, such as a change in the allowable construction time period. Here, no party other than Priority filed a petition for reconsideration of the March 19, 1997 Public Notice granting Priority a permit to construct a station in Pensacola on frequency 931.6375 MHz, nor has the Commission modified its regulations governing the applicable construction time period subsequent to granting Priority's permit. Any "cloud of litigation" over Priority's authorization necessitating the extension request was, therefore, self-created and not beyond the control of Priority. Priority presents no other arguments in its Application for Review that would lead us to change the Licensing Branch's decision. We, therefore, affirm the Licensing Branch decision to terminate Priority's above-captioned authorization. 6. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the Communications Act, as amended, 47 U.S.C.  155(c)(5), and Section 1.115 of the Commission's rules, 47 C.F.R.  1.115, the Application for Review filed by Priority Communications, Inc. on April 17, 1998, in the above-captioned proceeding IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary