Federal Communications Commission
                          Washington, D.C. 20554
                                     December 30, 1998

Cary Tepper 
Booth, Freret, Imlay & Tepper
5101 Wisconsin Avenue, N.W.
Suite 307
Washington, D.C. 20016

David Kushner
Brooks, Pierce, McLendon, Humphrey & Leonard
P.O. Box 1800
Raleigh, N.C. 37602
                                     RE:     WWMO, Asheboro, North Carolina
                                             File Nos. BMPED-980113JA
Dear Counsel:

       This letter addresses the construction permit of Positive Alternative Radio (PAR) for
noncommercial educational station WWMO, Asheboro, North Carolina and various pleadings
filed against the station by Educational Information Corporation (EIC).  EIC, which is the
licensee of noncommercial educational station WCPE(FM), Raleigh, North Carolina.  EIC
asks us to reconsider our extension of  PAR's construction permit,  to deny PAR's pending
request for an additional extension, or to take one of several alternative actions that would
have the effect of cancelling PAR's construction permit.  For the reasons below we deny
and/or dismiss EIC's requests, and extend PAR's permit for an additional six months under
our existing rules.  We caution PAR, however, that new rules will become effective shortly
and will likely result in forfeiture of PAR's permit if it does not construct within the next six

       Background.  The matter before us is part of a larger ongoing matter involving
PAR and EIC.  A brief discussion of the related matter provides useful background for
examination of the current arguments.  PAR, which had authority to construct on an existing
tower, filed an application in 1996 seeking a minor change to its permit, so that it could move
to a higher, previously unavailable elevation on that tower.   PAR maintains that the desired
facilities, which use a different antenna, would reduce terrain shadowing and make it easier to
comply with FCC requirements concerning RF radiation.  At that new height, however, PAR's
facilities would become mutually exclusive with a waiver request by EIC to modify another
educational station, WCPE.  At the time of PAR's application, the staff had already denied
the related EIC waiver request, as well as EIC's petition for reconsideration, but EIC had a
pending application for review of those denials (which has since been denied and is on appeal
in court).   The staff initially granted PAR's application for minor change, unaware of EIC's
then-pending application for review, but soon rescinded the grant as premature in view of the
related EIC matter.   PAR argued that the staff's rescission and the related EIC proceedings
were circumstances beyond PAR's control, and sought extensions of its existing permit to
build at the original undesired height, while awaiting final resolution of the EIC proceeding to
determine whether it could instead build at the desired higher elevation.   Based on PAR's
uncontested showings, the staff has since extended PAR's construction permit three times.  

       Procedural Matters.   We will dismiss most of EIC's pleadings on procedural
grounds.  EIC's petition for reconsideration of our grant of extension application BMPED-
980113JA is dismissed because EIC did not participate at the initial stage and has not
demonstrated that earlier participation was not possible.  See 47 C.F.R.  1.106(b)(1).  
  EIC believed that it should have had a 30-day period from public notice to participate,
rather than the 21 days actually afforded.  However,  there is no required 30-day public notice
period for extension applications, and EIC has not shown that 21 days was insufficient. 
See 47 U.S.C.   309(c)(2)(D).   EIC's Petition to Revoke PAR's underlying
construction permit (BPED-91119MC), as previously modified (BMPED-940804IB), is
dismissed as untimely because the grant of those applications have long been final.  Its
Petition to Dismiss PAR's minor change application (BMPED-960111LP) will be dismissed
because it is based on a factually erroneous premise that the application should have been
deleted pursuant to a staff rescission.  However, the rescission to which EIC refers, was
merely with respect to our earlier premature action on PAR's application, and not a
rescission of the application itself.  The staff's action simply returned PAR's application to
pending status.   To the extent that EIC also offers as a grounds for dismissal 47 C.F.R. 
73.3535(d) (which states that we will not accept modification applications after the initial
construction period), we note that the rule is routinely waived when the permittee meets the
test applied to extensions. See Clarke Broadcasting Corporation,  11 FCC Rcd 3057
n.5 (1996). 

       Decision on Extension Request.  Of the matters presented by EIC, the only one
that warrants in-depth discussion on the merits is EIC's timely opposition to PAR's most
recent extension request (BMPED-980811JA). The standard currently applicable to extension
requests is the "one-in-three" test, embodied in Section 73.3534 of our rules.  Under that test,
it is proper to extend a broadcast construction permit if the permittee shows one of the
following three circumstances: (1) construction is complete and testing is underway; (2) there
has been substantial progress toward construction; or (3) there has been no progress for
circumstances beyond the permittee's control and the permittee nevertheless took all possible
steps toward expeditiously resolving the problem and proceeding with construction.  47 C.F.R.
§ 73.3534.   

       PAR argues that it has satisfied the third prong of the one-in-three test during the last 
construction period (February 17, 1998 to August 17, 1998).  Specifically, PAR argues that
the related EIC proceeding, and EIC's request for reconsideration of its previous extension,
were circumstances beyond PAR's control, and that PAR has nevertheless been diligent.

       EIC, however, argues that PAR has not satisfied the one-in-three test applied to
extension requests, and has no intent or ability to construct.   It argues that there was no
circumstance beyond PAR's control because PAR made a private business decision to await a
decision on its voluntary modification, rather than building its authorized facilities.   EIC also
suggests that PAR was not diligent.  EIC maintains that PAR did nothing in the most recent
construction period.  EIC believes that PAR, at a minimum, should have entered into a firm
lease to secure the availability of its desired modified height (which remains available). 

       We have considered EIC's arguments, but find that EIC is, to a large extent, rearguing
matter on which we have already passed.  As early as December 12, 1996, the staff granted
an extension based on circumstances virtually identical to those recited in the present
application.  Specifically, the staff found that EIC's mutually exclusive waiver request, and
the staff's rescission of the grant of PAR's modification application, constituted a
circumstance beyond EIC's control within the meaning of the one-in-three test.  That decision
is now final, and thus we will not entertain EIC's arguments that we reexamine those matters
anew.  In determining whether an additional extension is warranted based on a preexisting
circumstance found to have been beyond the applicant's control, we would generally consider
whether that problem continued to exist during the most recent construction period and
whether the applicant was diligent during that time in seeking resolution of that problem.  

       In the current case, the problem that formed the basis for earlier extensions continued
during the most recent construction period, i.e., there was still no final decision in the
related EIC matter, and the staff thus continued to hold PAR's modification application in
abeyance.  We find that PAR was reasonably diligent because there was little that it could do
during the relevant construction period to speed resolution of the related EIC proceeding, or
of its own modification application, which was dependent on the outcome of that related
proceeding.  On June 18, 1998, during the most recent construction period, the Commission
adopted an order dismissing EIC's request for reconsideration in the related EIC case, and the
parties were awaiting release of the text of that decision.  Memorandum Opinion and
Order, Educational Information Corporation, FCC 98-122 (October 8, 1998).   Until PAR
had the opportunity to read that decision, and to ascertain whether EIC would appeal to court
(which EIC did), there was little else that PAR could do to prosecute its modification
application or to build at its desired site.   The actions suggested by EIC, such as securing a
firm lease on the modified site, would have done nothing to solve the problem at issue. 
Further, during the relevant period, EIC was also challenging our June 12, 1997 decision
extending PAR's authorization at its existing site, as described above.  This is an additional
circumstance beyond PAR's control.  Even accepting EIC's argument that PAR might have
nevertheless constructed at the lower existing antenna height, under existing rules a permittee
is not required to go forward with construction while the grant of a construction permit is
clouded by a pending administrative or judicial challenge.  See Rainbow Broadcasting
Company, 11 FCC Rcd 1167, 1168 (1995). (Footnore 1)  Due to EIC's challenge, any
construction by PAR would have been at its own risk, because its permit could subsequently
have been cancelled.   Thus, during the relevant period, we find that PAR was reasonably
diligent, because waiting for the outcome of various Commission decisions was virtually all
that it could do.  Accordingly, we find that PAR satisfied the one-in-three test during the most
recent construction period, and we will extend PAR's permit for an additional six months, to
June 30, 1999.

       We note, however, that new rules, which will go into effect on February 16, 1999, will
have a bearing on the future of EIC's permit.  The Commission recently decided to eliminate
the one-in-three-test for extensions.  Report and Order,  Streamlining of Mass Media
Applications, MM Docket No. 98-43, 13 FCC Rcd 23056 (November 25, 1998);
63 Fed. Reg. 70039 (December 18, 1998).   The new rules, once they become effective, will
give applicants an unencumbered three-year period to construct.  If an applicant does not
complete construction within a three-year period, it would forfeit its permit unless it could
demonstrate that its three-year period was tolled by narrow encumbering circumstances, such
as by an earthquake or flood.  PAR has already had three years in which to construct.
(Footnote 2)  Thus, unless PAR can demonstrate sufficient tolling under the new rules, it
would need to construct at the existing lower height, possibly at its own risk, or would forfeit
its permit under the new rules.


                                             Linda B. Blair
                                             Chief, Audio Services Division
                                             Mass Media Bureau


Footnote 1:  See also Rainbow Broadcasting Company, 12 FCC Rcd 4028,
4061-4062 (ALJ 1997); Rainbow Broadcasting Company, Decision, GC
Docket No. 95-172, FCC 98-185 at P 50 (August 5, 1998).  KWQJ(FM), 10
FCC Rcd 8777 (1995).

Footnote 2: Specifically, PAR had an initial 18 month construction period (12/8/93 to 6/8/95), which was extended to 7/24/95 (an additional one month, 16 days), as the result of a modification. PAR has also had an additional 18 months in the form of three construction periods: 4/30/96 to 10/30/96; 12/12/96 to 6/12/97; and 7/25/97 to 1/25/98.