Request for extension of construction permit for WAAT, Tiptonville, TV -- July 31, 1996 -- Audio Services Division (FCC) USA
                              WASHINGTON, DC  20554

                                                   IN REPLY REFER TO:

                                                  July 31, 1996

Philip R. Hochberg, Esq.
Baraff, Koerner, Olender & Hochberg, P.C.
Three Bethesda Metro Center
Suite 640
Bethesda, MD  20814-5330

John Garziglia, Esq.
Pepper & Corazzini, L.L.P.
1776 K Street, N.W., Suite 200
Washington, D.C.  20006
                                                 In re: WAAT(FM), Tiptonville, TN
                                                        BMPH-940915JA (extension)
                                                        BMPH-940922IC (modification)
                                                        BPH-920717MA (permit)
Dear Counsel:

The staff has before it a Petition for Reconsideration filed December 1, 1995 by WENK of Union City, Inc. ("WUCI")
and related pleadings.  WUCI requests reconsideration of our October 27, 1995 decision letter which (1) denied
WUCI's application for extension of time to construct station WAAT(FM), Tiptonville, Tennessee; (2) dismissed
WUCI's application to modify WAAT(FM)'s facilities; (3) cancelled the station's construction permit; and (4) deleted
the station's call sign.  As discussed below, we will deny the Petition for Reconsideration.

Background.  The October 27, 1995 ruling found that WUCI failed to meet one of the three criteria which must be met
to warrant an extension for a construction permit, 47 C.F.R. Section 73.3534, or for a modification of its permit, 47
C.F.R. Section 73.3535.  As noted in that ruling, pursuant to Section 73.3534(b), extension applications will only be
granted if a permittee can show that one of the following three circumstances has occurred: (1) construction is complete
and testing is underway looking toward the prompt filing of a license application; (2) substantial progress has been
made; or (3) no progress has been made for reasons clearly beyond the control of the permittee and the permittee has
taken all possible steps to expeditiously resolve the problem and proceed with construction.  The October 27, 1996
ruling stated that the evidence suggested that WUCI had not even commenced construction of WAAT(FM) during the
allotted 18-month construction period and that its decision to relocate its tower site was its independent business decision
that was not necessitated by circumstances beyond WUCI's control.  

The Petition for Reconsideration states that during the construction period WUCI discovered that its approved
transmitter site was located on valuable Mississippi Valley farmland.  WUCI therefore found another site at Elbridge,
Tennessee, but that site had to be abandoned when WUCI discovered that another recently authorized station at
Elbridge made the location unworkable.  WUCI states that it promptly located yet another site, filing a modification
application just one week after the filing of the instant extension application.  WUCI also argues that, while its extension
application stated that no equipment had been ordered or delivered for WAAT(FM) during the construction period, as
an existing broadcaster WUCI had equipment at other stations -- including studio amplifiers and control monitors -- that
might have been used at WAAT(FM).  Finally, the Petition cites a Video Services Division case, La Paz Wireless, Ltd.,
in support of the proposition that an extension is warranted based on the instant facts.  The Petition requests that the
Commission reinstate WAAT(FM)'s construction permit and extend it for six months.

Discussion.  WUCI's Petition for Reconsideration fails to point to any error in our earlier decision or to present any new
facts that would support a different result.  See 47 C.F.R. Section 1.106(d)(2).  WUCI argues that the ruling in La Paz
Wireless, Ltd., Letter of Clay C. Pendarvis, Chief, Television Branch, Video Services Division, MMB, August 8, 1994,
produced a different result in circumstances that WUCI cannot distinguish from its own.  In La Paz Wireless the
Bureau of Land Management ("BLM") held that the permittee could not build on its specified transmitter site due to a
decision regarding the site by the BLM that barred new antenna construction there.  The letter decision found that the
permittee in La Paz Wireless met the criteria in Section 73.3534(b)(3) because its progress was blocked by
circumstances beyond its control.  These circumstances are clearly distinguishable from WUCI's, where, WUCI
acknowledges, "the specified site was technically and legally available" (Petition, p. 5), but it preferred to look for
another site because the replacement site would provide a larger coverage area and because the specified site was on
fertile farmland.  See Tidewater Christian Communications Corp., 2 FCC Rcd 2549 (MMB 1987) (unless loss of
transmitter site is due to no fault of the permittee, and such is alleged, seeking modification of permit to change
transmitter site is not circumstance beyond permittee's control but, rather, private business decision).

The Response filed by WUCI contains a Declaration from its president, Terry Hailey, in which he attempts to
demonstrate (for the first time) that WUCI made substantial progress during its construction period.  Specifically, Mr.
Hailey's Declaration states that WUCI ordered amplifiers and monitors during the construction period "with the
knowledge that [this equipment] could be used at WAAT, Tiptonville, or at one of the other [WUCI] properties." 
Even if this equipment were used at another of WUCI's stations, Mr. Hailey asserted, the equipment that it replaced
could be used at WAAT(FM).  However, even if this information could properly be considered on reconsideration, "it
would be of little probative value in determining whether construction progress [was made]."  Mansfield Christian
School, 10 FCC Rcd 12,585, 12,590 (1996) (broadcaster's acquisition of studio equipment for use in unbuilt or existing
co-owned station not attributable to construction efforts of unbuilt station). 

For the reasons set forth above, we DENY WUCI's Petition for Reconsideration of our October 27, 1995 decision


                                                          Linda Blair, Chief
                                                          Audio Services Division
                                                          Mass Media Bureau