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Blakeney v. FCC, No. 11-1203 (D.C. Cir.)

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Released: November 21, 2011
ORAL ARGUMENT SCHEDULED FOR FEBRUARY 14, 2012
USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 1 of 54
BRIEF FOR APPELLEE
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 11-1203
BLAKENEY COMMUNICATIONS, INC.,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
ON APPEAL OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
AUSTIN C. SCHLICK
GENERAL COUNSEL
PETER KARANJIA
DEPUTY GENERAL COUNSEL
JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL
PAMELA L. SMITH
COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 2 of 54

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

1. Parties.
All parties, intervenors, and amici in this case are listed in the Brief of
Appellant.
2. Rulings under review.
Clear Channel Broadcasting Licenses, Inc. For License to Cover Application
for Station WRKH(FM), Mobile, Alabama; Blakeney Communications, Inc.
For Construction Permit for Modification of Licensed Facilities of Station
WBBN(FM), Taylorsville, Mississippi
, Memorandum Opinion and Order, 26
FCC Rcd 7153 (2011) (JA )
3. Related cases.
The order on appeal has not previously been before this Court or any other
court, and counsel is not aware of any related case before this or any other
court.

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 3 of 54

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................. i
TABLE OF AUTHORITIES ........................................................................... ii
GLOSSARY .................................................................................................... iv
JURISDICTION................................................................................................1
QUESTION PRESENTED ...............................................................................2
STATUTES AND REGULATIONS ................................................................2
COUNTERSTATEMENT ................................................................................2
I.
STATUTORY AND REGULATORY BACKGROUND.........................2
II. FACTUAL BACKGROUND ....................................................................7
A.
The Division Decision.........................................................................10
B.
The Reconsideration Ruling................................................................12
III. THE ORDER ON APPEAL ....................................................................13
SUMMARY OF ARGUMENT ......................................................................17
ARGUMENT ..................................................................................................18
I.
STANDARD OF REVIEW .....................................................................18
II. THE COMMISSION REASONABLY WAIVED CLEAR
CHANNEL’S FILING DEADLINE........................................................19
A.
The Waiver Was Not Arbitrary Or Capricious. ..................................19
B.
The Waiver Did Not Unlawfully Deprive BCI Of Its
Rights...................................................................................................24
CONCLUSION ...............................................................................................30
i

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 4 of 54

TABLE OF AUTHORITIES

CASES

Ashbacker Radio Corp. v. FCC, 326 U.S. 327
(1945) ..........................................................................................................13
Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281 (1974)....................................................................18
Florida Inst. of Tech. v. FCC, 952 F.2d 549 (D.C.
Cir. 1992).....................................................................................................27
Hispanic Info. & Telecomm. Network, Inc. v. FCC,
865 F.2d 1289 (D.C. Cir. 1989) ..................................................................28
*
Keller Commc’ns, Inc. v. FCC, 130 F.3d 1073 (D.C.
Cir. 1997).............................................................................................. 19, 22
*
Mass Communicators, Inc. v. FCC, 266 F.2d 681
(D.C. Cir. 1959)...........................................................................................27
Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551
(D.C. Cir. 1987)...........................................................................................28
NetworkIP, LLC v. FCC, 548 F.3d 116 (D.C. Cir.
2008)..................................................................................................... 18, 23
Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164
(D.C. Cir. 1990).............................................................................. 19, 20, 23
*
Star Wireless LCC v. FCC, 522 F.3d 469 (D.C. Cir.
2008)............................................................................................................26
WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir.
1969)................................................................................................. 3, 19, 22

ADMINISTRATIVE DECISIONS

1998 Biennial Regulatory Review – Streamlining of
Mass Media Applications, Rules, and Processes;
Policies and Rules Regarding Minority and
Female Ownership of Mass Media Facilities,
Report and Order, 13 FCC Rcd 23056 (1998) ............................................21
ii

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 5 of 54
1998 Biennial Regulatory Review – Streamlining of
Radio Technical Rules in Parts 73 and 74 of the
Commission’s Rules,
Second Report and Order,
15 FCC Rcd 21649 (2000) ........................................................................4, 5
WKLC, Inc., 26 FCC Rcd 11001 (MB 2011)..................................................21

STATUTES AND REGULATIONS

47 C.F. R. § 73.3598(a) .....................................................................................3
* 47
C.F.R.
§
1.3 ........................................................................................... 3, 19
47 C.F.R. § 73.1620(a)(1) .................................................................................8
47 C.F.R. § 73.207 ............................................................................................4
47 C.F.R. § 73.211 ............................................................................................3
47 C.F.R. § 73.211(a)(2) ...................................................................................5
47 C.F.R. § 73.211(d)........................................................................................5
47 C.F.R. § 73.3573(f) ....................................................................................26
47 C.F.R. § 73.3573(f)(1)................................................................................26
47 C.F.R. § 73.3573, Note 4................................................................. 6, 15, 25
47 C.F.R. § 73.3598(e) ............................................................................... 3, 20
47 U.S.C. § 301 .................................................................................................2
47 U.S.C. § 307 .................................................................................................2
47 U.S.C. § 309 .................................................................................................2
47 U.S.C. § 319(a).............................................................................................2
47 U.S.C. § 319(b).............................................................................................3
47 U.S.C. § 402(b).............................................................................................1
5 U.S.C. § 706(2)(a) ........................................................................................18
* Cases and other authorities principally relied upon are marked with
asterisks.

iii

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 6 of 54

GLOSSARY

Ashbacker
Ashbacker Radio Corp. v. FCC, 326
U.S. 327 (1945)
BCI
Blakeney
Communications,
Inc.

Clear Channel
Clear Channel Broadcasting Licenses,
Inc. and CCL Licenses, LLC, as
licensee of station WRKH(FM),
Mobile, Alabama
Commission or FCC
Federal Communications Commission
Division
Audio Services Division, Media
Bureau, Federal Communications
Commission
Division Letter
Clear Channel Broadcasting Licenses,
Inc.
, Letter, 21 FCC Rcd 8677 (2006)
(JA )
Order
Clear Channel Broadcasting Licenses,
Inc. For License to Cover Application
for WRKH(FM), Mobile, Alabama;
Blakeney Communications, Inc. For
Construction Permit for Modification
of Licensed Facilities of Station
WBBN(FM), Taylorsville, Mississippi,
Memorandum Opinion and Order, 26
FCC Rcd 7153 (2011) (JA )
Reconsideration Ruling
WRKH(FM), Mobile, Alabama, Letter,
23 FCC Rcd 4526 (2008) (JA )
Streamlining Order
1998 Biennial Regulatory Review –
Streamlining Technical Rules in Parts
73 and 74 of the Commission’s Rules,
Second Report and Order, 15 FCC Rcd
21649 (2000)
iv

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 7 of 54
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 11-1203
BLAKENEY COMMUNICATIONS, INC.,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
ON APPEAL OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
BRIEF FOR APPELLEE

JURISDICTION

The Federal Communications Commission order that is the subject of
1
this appeal was released on May 6, 2011. The notice of appeal was timely
filed on June 3, 2011. The Court has jurisdiction under 47 U.S.C. § 402(b).

1 Clear Channel Broadcasting Licenses, Inc. For License to Cover
Application for Station WRKH(FM), Mobile, Alabama; Blakeney
Communications, Inc. For Construction Permit for Modification of Licensed
Facilities of Station WBBN(FM), Taylorsville, Mississippi
, Memorandum
Opinion and Order, 26 FCC Rcd 7153 (2011) (“Order”) (JA ).

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 8 of 54

QUESTION PRESENTED

This appeal arises from the acceptance and grant of an application for a
revised license to cover the authorized modification of an existing radio
station’s facilities. The question presented is:
Whether the Commission lawfully exercised its discretion to waive the
filing deadline for an FM radio station that had completed construction of an
upgrade, but had filed its license application two days late.

STATUTES AND REGULATIONS

The pertinent statutory provisions and regulations are set forth in the
addendum to this brief.

COUNTERSTATEMENT

I.

STATUTORY AND REGULATORY BACKGROUND

The Federal Communications Commission (“FCC” or “Commission”)
is charged with licensing radio stations under the Communications Act of
1934. See, e.g., 47 U.S.C. § 301. Station licenses and construction permits
are granted on written application, if the Commission determines that “the
public interest, convenience, and necessity will be served” thereby. 47
U.S.C. §§ 307-309.
Section 319(a) of the Communications Act provides that “[n]o license
shall be issued . . . for the operation of any station unless a permit for its
construction has been granted by the Commission.” 47 U.S.C. § 319(a).
2

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 9 of 54
Section 319(b) specifies that such construction permits “shall provide that
said permit will be automatically forfeited if the station is not ready for
operation within the time specified or within such further time as the
Commission may allow, unless prevented by causes not under the control of
the grantee.” 47 U.S.C. § 319(b).
The Commission’s rules provide generally that construction permits to
make changes in existing radio or TV stations “shall specify a period of three
years from the date of issuance of the original construction permit within
which construction shall be completed and application for license filed.” 47
C.F. R. § 73.3598(a). Section 73.3598(e) of the Commission’s implementing
rules makes clear that “[a]ny construction permit for which construction has
not been completed and for which an application for license has not been
filed, shall be automatically forfeited upon expiration without any further
affirmative cancellation by the Commission.” 47 C.F.R. § 73.3598(e).
Any provision of the Commission’s rules “may be waived by the
Commission on its own motion or on petition if good cause therefor is
shown.” 47 C.F.R. § 1.3. See generally WAIT Radio v. FCC, 418 F.2d 1153,
1159 (D.C. Cir. 1969).
There are three general classes of commercial FM radio stations –
Class A, Class B, and Class C. See 47 C.F.R. § 73.211. The Commission’s
3

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 10 of 54
licensing rules specify minimum and maximum antenna height and power for
each class of station. The protection that each FM station receives and must
provide to other stations operating on co- and adjacent channels is based on
station class. The Commission’s minimum distance separation requirements
(which protect stations from interference caused by the signals of other
stations) are greatest from Class C stations because such stations may be
authorized to operate at the highest effective radiated power (100 kilowatts)
and greatest antenna height above average terrain (“HAAT”) (600 meters).
See 47 C.F.R. § 73.207. Thus, Class C stations have the largest service areas
of all FM stations and greatest potential to cause interference to other stations
operating on the same and nearby frequencies.
In 2000, the Commission revised its rules to allow for more efficient
utilization of the FM radio band by Class C commercial FM stations,
because, at the time, approximately half of such stations operated antennas
with HAATs of between only 300 and 450 meters. 1998 Biennial Regulatory
Review – Streamlining of Radio Technical Rules in Parts 73 and 74 of the
Commission’s Rules, Second Report and Order, 15 FCC Rcd 21649, 21655
¶ 15 (2000) (“Streamlining Order”). To avoid the imposition of unnecessary
minimum distance requirements for Class C stations that are not operating at
the maximum HAAT, the Commission “create[d] an intermediate Class C0
4

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 11 of 54
(C zero) between Classes C and C1 with a maximum antenna HAAT of 450
2
meters.” Id. at 21656 (¶ 15).
The Commission also determined that existing Class C stations
authorized to operate with facilities less than “the new Class C antenna
HAAT minimum of 451 meters,” could continue to do so but their licenses
would be subject to reclassification under the process set forth in Note 4 to
Section 73.3573 of the Commission’s rules. See ibid.; see also 47 C.F.R.
§ 73.211(d) (“Class C stations authorized . . .that do not meet the minimum
antenna HAAT . . .for Class C stations may continue to operate as authorized
subject to the reclassification procedures set forth in Note 4 to § 73.3573.”).
Significantly, the reclassification process is initiated only if “triggered” by a
conflicting application – one the does not meet the minimum distance
separation requirements for Class C stations but would if an affected station
were reclassified as a Class C0 station. Streamlining Order, 15 FCC Rcd at
21662 (¶ 26).
Specifically, under the Commission’s rules, a Class C FM radio station
operating with an antenna at a HAAT of less than 451 meters “is subject to
reclassification as a Class C0 station upon the filing of a triggering

2 See 47 C.F.R. § 73.211(a)(2) (“Class C0 stations must have an antenna
. . . (HAAT) of at least 300 meters (984 feet). Class C stations must have an
antenna . . . (HAAT) of at least 451 meters (1480 feet).”).
5

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 12 of 54
application for [a] construction permit.” 47 C.F.R. § 73.3573, Note 4. If the
triggering application is acceptable, then the licensee of the affected Class C
station must timely seek authorization from the Commission to modify its
facilities in order to maintain its full Class C status. Ibid. If the Class C
station licensee files “an acceptable construction permit application to
increase antenna height to at least 451 meters HAAT,” then upon “grant of
such a construction permit application, the triggering application will be
dismissed.” Ibid.
If, on the other hand, the affected Class C station fails to submit such
an application and the triggering application is left unchallenged, “the subject
station will be reclassified as a Class C0 station, and processing of the
triggering application will be completed.” Ibid. (“If the construction is not
completed as authorized, the subject Class C station will be reclassified
automatically as a Class C0 station.”).
6

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 13 of 54

II.

FACTUAL BACKGROUND

WRKH(FM), Mobile, Alabama, is a Class C radio station operated by
3
FCC licensee Clear Channel Broadcasting License, Inc. (“Clear Channel”).
Prior to 2002, WRKH(FM) was authorized to operate with less than full Class
C facilities. See Order ¶ 2 (JA ).
On December 28, 2001, Blakeney Communications, Inc. (“BCI”), the
licensee of station WBBN(FM), Taylorsville, Mississippi, filed an application
for a construction permit to upgrade its station from a Class C2 facility to a
Class C1 facility and, due to otherwise applicable minimum spacing
constraints, requested reclassification of Clear Channel’s WRKH(FM) station
from Class C to Class C0. Clear Channel Broadcasting Licenses, Inc.,
Letter, 21 FCC Rcd 8677, 8678 n.8 (2006) (“Division Letter”) (JA ).
In response to BCI’s triggering application, Clear Channel filed an
application on February 26, 2002 to upgrade WRKH(FM)’s facilities to
maintain Class C status by increasing its antenna height to 535 meters.
Division Letter, 21 FCC Rcd at 8678 (JA ); Clear Channel Form 301

3 On September 28, 2005, the FCC consented to the assignment of the
station WRKH(FM) from Clear Channel Broadcasting License, Inc. to its
indirect subsidiary, CC Licenses, LLC, the intervenor in this appeal. The
assignment was consummated on September 30, 2005. Order n.3 (JA ). For
convenience, we refer to Clear Channel Broadcasting License, Inc. and CC
Licenses, LLC as “Clear Channel” throughout this brief.
7

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 14 of 54
Application for Construction Permit for Commercial Broadcast Station (JA ).
The FCC granted Clear Channel’s application on June 13, 2002. Order ¶ 2
4
(JA ). The construction permit required Clear Channel to complete
construction and to submit a license application for the modified station by
June 13, 2005, 3:00 am local time. Ibid.
Clear Channel completed construction of its facilities upgrade and, on
June 12, 2005, it “commenced operation of the modified facilities under
program test authority.” Order ¶ 2 (JA ); see also Opp’n to Pet. to Dismiss,
5
Decl. of Randall L. Mullinax (“Mullinax Decl.”) at ¶ 2 (JA ). Three days
later, on June 15, Clear Channel filed an application for a license to cover the
completed upgrade of WRKH(FM)’s facilities. Order ¶ 2 ( JA ); see Clear
Channel Form 302 Application for FM Broadcast Station License (JA ).
The day after Clear Channel commenced operation, on June 13, BCI
filed an application for a construction permit to modify the facilities of station
WBBN(FM) that conflicted with the operation of WRKH(FM) as a Class C

4 BCI’s triggering application was dismissed on June 14, 2002. Division
Letter, 21 FCC Rcd at 8678 n.8 (JA ).
5 Commission rules provide that upon completion of construction, “[t]he
permittee of a nondirectional . . . FM station . . . may begin program tests
upon notification to the FCC in Washington, DC provided that within 10 days
thereafter, an application for a license is filed with the FCC in Washington,
DC.” 47 C.F.R. § 73.1620(a)(1).
8

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 15 of 54
station, and would have required WRKH(FM)’s reclassification as a Class C0
station. Order ¶ 2 (JA ); see Clear Channel Form 302 Application for FM
Broadcast Station License (JA ).
On June 24, 2005, BCI petitioned the Audio Division of the FCC’s
Media Bureau (“Division”) to dismiss Clear Channel’s application for a
revised license for station WRKH(FM). BCI argued that Clear Channel’s
application was “unacceptable for filing” because it was not submitted until
two days after the underlying construction permit had expired pursuant to
Section 73.3598(a) of the Commission’s rules. Pet. to Dismiss at 2 (JA );
see Division Letter, 21 FCC Rcd at 8678 (JA ).
In opposition to the petition to dismiss, Clear Channel argued that its
filing on June 15 was neither untimely nor violated the Commission’s rules
because, “pursuant to Section 73.1620(a)(1) . . . , a permittee has 10 days
after it has begun program tests within which to file an application for
license” – which, in Clear Channel’s case, was within ten days of June 12.
Id. at 8679 (JA ). In addition, Clear Channel contended, BCI’s interpretation
of the Commission’s timely-filing rules was “inconsistent with the
Commission’s practice to routinely to grant license to cover applications that
are filed following the construction permit deadline when construction was
9

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 16 of 54
6
completed on time.” Opp’n to Pet. to Dismiss at 7 (JA ). Clear Channel
also explained that it had “incurred a substantial financial obligation” to
upgrade its facilities, and that the operation of its upgraded facilities serves to
“improve service to the public.” Ibid. (JA ). See also Mullinax Decl., ¶¶ 5, 6
(JA ) (explaining that WRKH(FM)’s larger antenna would increase the
population of listeners by over 120,000, and that Clear Channel had “incurred
over $40,000 in expenses” in upgrading its facility).

A. The Division Decision.

On July 31, 2006, the Division disposed of BCI’s petition to dismiss
Clear Channel’s license. Division Letter, 21 FCC Rcd 8677 (JA ).
At the outset, the Division disagreed with Clear Channel’s reliance on
the Commission’s program test authority rules “to calculate the deadline for
filing an application for license.” Division Letter, 21 FCC Rcd at 8680 (JA ).
As the Division explained, “Section 73.1620 specifically concerns the
maximum time which may elapse between the commencement of program

6 In doing so, Clear Channel cited the following Commission cases: Station
WJUN(AM), Mexico, PA (construction permit expired Jan. 23, 2005;
covering license filed Jan. 25, 2005; license granted May 18, 2005);
KVLH(AM), Pauls Valley, OK (construction permit expired Feb. 13, 2005;
covering license application filed Feb. 28, 2005; covering license granted
June 1, 2005); WJEH-AM, Gallipolis, OH (construction permit expired Sept.
10, 2004, covering license application filed Oct. 12, 2004; covering license
granted March 7, 2005). Opp’n to Pet. to Dismiss at 7 n.11 (JA ).
10

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 17 of 54
tests and the filing of a license application,” which is “a wholly distinct filing
issue” from that under Section 73.3598(a) of the Commission’s rules, which
“requires the filing of a license application within the three-year construction
period.” Ibid. (JA ).
The Division went on to note, however, that in “several instances” it
had “granted license applications filed after the permit expiration date,
provided that the permittee has demonstrated timely construction in
accordance with the terms of the permit.” Id. at 8680-81 (JA ). In this case,
the Division found, even though Clear Channel “did not tender a license prior
to the expiration” of its construction permit, it had “demonstrated that it
completed physical construction of Station WRKH(FM)’s facilities prior to
the permit’s expiration.” Id. at 8681 (JA ). Thus, although Clear Channel
did not file its license application within the three-year period for
construction specified in Section 73.3598(a) of the Commission’s rules, the
Division determined that it should “waive the automatic forfeiture provision
in Section 73.3598(e) on our own motion and accept [Clear Channel]’s
license application.” Ibid. (JA ).
The Division’s waiver decision “[took] into account all of the
circumstances in this case, including the fact that the facility was fully
constructed by the expiration date and that the delay in filing the license
11

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 18 of 54
application amounted to only two days.” Ibid. (JA ). Moreover, the Division
stated, “if waiver were not granted, [Clear Channel] would be required to
repeat the . . . [application] filing process” which “would [place] an
unnecessary burden on public and private resources” and “would delay the
public service benefits associated with the modification of WRKH(FM)’s
facilities.” Ibid. (JA ). Nonetheless, the Division “admonish[ed]” Clear
Channel for its late filing, concluding that such a sanction was “sufficient to
redress [Clear Channel]’s failure to timely file the application.” Ibid. (JA ).

B.

The Reconsideration Ruling.

On August 30, 2006, BCI filed a petition for reconsideration of the
Division’s waiver of the filing deadline and subsequent grant of the covering
license application. Among other things, BCI argued that reconsideration
was warranted because there was “‘confusion’ about the time of day
WRKH(FM) began operating pursuant to program test authority,” and
suggested that Clear Channel “did not begin program tests before the permit
expired.” WRKH(FM), Mobile, Alabama, Letter, 23 FCC Rcd 4526, 4528
(2008) (“Reconsideration Ruling”) (JA ).
In a ruling issued on March 18, 2008, the Division found that BCI’s
arguments were “procedurally defective” (because BCI had the opportunity to
raise those arguments earlier but failed to do so), and in any event were
12

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 19 of 54
“without merit.” Ibid. (JA ). Specifically, the Division found that the sworn
statements by WRKH(FM)’s engineer “that he activated WRKH(FM)
pursuant to program tests at approximately 9:30 p.m. the day before its
construction permit expired . . . significantly outweigh[ed] BCI’s bare
conjecture” to the contrary. Id. at 4529 (JA ).
The Division also rejected BCI’s arguments that it had erred in waiving
its rules to accept Clear Channel’s license application, finding the waiver to
be “consistent with precedent and well within the Division’s delegated
authority.” Id. at 4530. Finally, the Division rejected BCI’s contention that
7
the Ashbacker doctrine, under which certain conflicting broadcast license
applications are entitled to comparative hearing, “mandate[d] comparative
evaluation of BCI’s upgrade application against the WRKH(FM) license
application.” Id. at 4530-31.

III.

THE ORDER ON APPEAL

On April 17, 2008, BCI filed an application for review by the
Commission of the Reconsideration Ruling. In an order released on May 6,
2011, the Commission denied review and affirmed the Reconsideration
Ruling. Order ¶ 8 (JA ).

7 See Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945).
13

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 20 of 54
The Commission explained that the case presented “the narrow issue of
how the staff should process a late-filed covering license application for
facilities fully completed by the construction deadline.” Id. ¶ 9 (JA ). The
Commission noted that the “staff practice has been to waive relatively minor
filing deadline violations, so long as the applicant can demonstrate that
construction was, in fact, completed in a timely manner.” Ibid. (JA ).
In this case, the Commission found, WRKH(FM)’s modified facilities
already were “constructed and operating at the time the Construction Permit
expired,” thus Clear Channel’s conduct satisfied the policy underlying
Section 73.3598 that construction and commencement of operation be
completed within three years of the grant of a construction permit. Id. ¶ 10
(JA ). “In these circumstances,” the Commission concluded, where Clear
Channel’s license application was filed only two days after the deadline, “we
find that a waiver does not undermine Section 73.3598’s purpose.” Id. ¶¶ 10,
11 (JA ). In determining that “the [Division]’s action was proper,” the
Commission reaffirmed “the staff’s practice of waiving Section 73.3598(e) of
the Rules” only in those situations where “the applicant conclusively
demonstrates that it completed construction prior to the expiration of the
construction period, notwithstanding the tardy filing of the license to cover
application.” Id. ¶ 11 (JA ). The Commission also upheld the “[Division]
14

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 21 of 54
action admonishing [Clear Channel] for its two-day tardiness in filing the
License Application,” as consistent with the “‘strict completion’ policy which
underlies Section 73.3598(e).” Id. ¶ 11 (JA ).
The Commission considered and rejected each of BCI’s arguments for
review of the Reconsideration Ruling. The Commission found that Note 4 to
Section 73.3573 of the Commission’s rules provides for reclassification of a
Class C station to a Class C0 station only “[i]f construction is not completed
as authorized. Id. ¶ 12 (JA ) (quoting 47 C.F.R. § 73.3573, Note 4). The
Commission further found that BCI “has proffered no credible evidence” that
station WRKH(FM)’s “modified facilities were not ‘completed’ as
authorized.” Ibid. Conversely, the Commission explained, Clear Channel
had submitted “sworn declarations that the Station’s engineer initiated
program tests” of the modified facilities “prior to the construction deadline.”
Ibid. Therefore, the Commission concluded, “Note 4 is not applicable to the
facts of this case, and a waiver of Note 4 is unnecessary,” id. ¶ 12 (JA ),
“because construction was, in fact, ‘completed as authorized.’” Id. ¶ 12 n.34
(JA ).
The Commission also rejected BCI’s argument that, under Ashbacker,
the Division could not properly have granted Clear Channel’s covering
license application without first considering BCI’s application to upgrade
15

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 22 of 54
station WBBN(FM). See id. ¶¶ 13-14 (JA ). The agency explained that
Ashbacker has never been held to prevent the Commission from establishing
threshold criteria that determine whether an application is entitled to
comparative consideration.” Id. ¶ 13 (JA ). In this case, the Commission
found that Clear Channel’s filing of an application for a permit to upgrade
station WRKH(FM) terminated the right of any subsequent applicant –
including BCI – to seek a construction permit that did not meet the minimum
spacing requirements that protect a Class C station from interference. Ibid.
BCI’s upgrade application accordingly “was not acceptable under Section
73.3573(f) of the Rules,” which “provides that only that the ‘first acceptable
[minor modification] application cuts off the rights of subsequent applicants.”
Id. n.40 (JA ) (emphasis added in original) (citation omitted).
In sum, the Commission concluded that (1) acceptance of Clear
Channel’s late-filed license application “conforms with long-standing
application processing and waiver policies,” (2) the station’s upgraded
facilities “were completed as authorized,” (3) the late filing was “de
minimis,” and (4) and a waiver serves “the policies underlying” Section
73.3598 of the FCC’s rules. Id. ¶ 15 (JA ). Thus, a waiver was consistent
with the public interest.
16

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SUMMARY OF ARGUMENT

The Commission acted within its discretion in waiving Section
73.3598(e) of its rules for good cause shown. The waiver here served the
policy underlying that rule – to promote construction and operation of FM
stations within the applicable three-year period – because Clear Channel in
fact had completed construction and had commenced operation under the
Commission’s grant of program test authority within that period. The
Commission reasonably concluded that Clear Channel’s failure to meet the
deadline for filing the accompanying application form – a deadline it missed
by only two days – should not be fatal under the circumstances. Having
made a substantial investment in completing construction of facilities that
would better serve the local community, grant of a waiver – in the face of a
de minimis failure to meet a filing deadline – was in the public interest. And,
in affirming the Division’s grant of a waiver, the Commission sufficiently
explained the special circumstances justifying a departure from a strict
application of its rule, and why such an outcome would serve the public
interest.

The Commission’s waiver action had no impact on the application for a
construction permit BCI filed two days before Clear Channel’s filing of its
application for a license to cover its modified station. BCI’s construction
17

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 24 of 54
permit application was unacceptable for filing under the Commission’s
licensing rules because it interfered with WRKH(FM)’s duly authorized –
and currently operating – Class C facilities.
Because the Commission’s waiver action was a reasonable exercise of
its discretion, the Order should be affirmed.

ARGUMENT

I.

STANDARD OF REVIEW

Under the Administrative Procedure Act, this Court must uphold
federal agency action so long as it is not “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a).
The scope of review “is a narrow one”; the Court “is not empowered to
substitute its judgment for that of the agency” but instead may determine only
whether the agency has “articulate[d] a rational connection between the facts
found and the choice made.” Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 285 (1974) (internal quotation marks and citations
omitted). Moreover, courts must afford “deference . . . to an agency’s
decision whether to waive one of its own procedural rules.” NetworkIP, LLC
v. FCC, 548 F.3d 116, 127 (D.C. Cir. 2008).
18

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 25 of 54

II.

THE COMMISSION REASONABLY WAIVED CLEAR
CHANNEL’S FILING DEADLINE.

A. The Waiver Was Not Arbitrary Or Capricious.

The FCC’s rules expressly provide that the Commission may “on its
own motion” waive any provision of its rules “if good cause therefor is
shown.” 47 C.F.R. § 1.3. And this Court has long recognized that “[t]he
FCC may exercise its discretion to waive a rule where particular facts would
make strict compliance inconsistent with the public interest.” Northeast
Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT
Radio v. FCC, 418 F.2d at 1159). Indeed, an “agency’s discretion to proceed
in difficult areas through general rules is intimately linked to the existence of
a safety valve procedure for consideration of an application for exemption
based on special circumstances.” WAIT Radio, 418 F.2d at 1157. Accord
Keller Commc’ns, Inc. v. FCC, 130 F.3d 1073, 1076 (D.C. Cir. 1997). An
agency’s waiver authority allows it to “take into account considerations of
hardship, equity, or more effective implementation of overall policy.” WAIT
Radio, 418 F.2d at 1159.
To be sure, in granting a waiver the Commission must explain its
reasons – it must identify the “special circumstances” that warrant a deviation
from the general rule, and explain why “such deviation will serve the public
19

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 26 of 54
interest.” Northeast Cellular, 897 F.2d at 1166. The Commission did so
here.
Section 73.3598(e) of the Commission’s rules provides that “[a]ny
construction permit for which construction has not been completed and for
which an application for license has not been filed, shall be automatically
forfeited upon expiration without any further affirmative cancellation by the
Commission.” 47 C.F.R. § 73.3598(e). The Commission expressly found
that Clear Channel had completed construction of WKRH’s facilities prior to
the expiration of its construction permit – an outcome consistent with the
fundamental policy underlying Section 73.3598. See Order ¶ 2 (JA ) (“On
Sunday, June 12, 2005 – the day prior to the expiration of the Construction
Permit – [Clear Channel] commenced operation of the modified facilities
under program test authority.”). BCI does not challenge that finding on
8
appeal.
As the Commission explained, because WRKH(FM)’s “modified
facilities were constructed and operating at the time the Construction Permit
expired,” Clear Channel satisfied the purpose of Rule 73.3598 to ensure that

8 BCI vaguely alludes to its claims below that there were “discrepancies in
the documentation” that accompanied the statement of Clear Channel’s
engineer (BCI Br. 28), but it does not dispute that the Commission’s factual
findings were supported by substantial evidence.
20

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 27 of 54
station construction and operation occur within the three-year term of the
9
construction permit. Order ¶ 10 (JA ). In addition, as the Commission
observed, because the required application form was filed only two days late,
the nature of the filing-rule violation was “de minimis.” Id. ¶ 15 (JA ).
The waiver in Clear Channel’s case also was consistent with the staff’s
practice – which the Commission expressly affirmed – of accepting late-filed
covering license applications only in those situations “where the applicant
conclusively demonstrates that it completed construction prior to the
expiration of the construction period, notwithstanding the tardy filing of the
10
license to cover application.” Id. ¶ 11 (JA ) (emphasis added).

9 See also Reconsideration Ruling, 23 FCC Rcd at 4529-30 (Section
73.3598’s “automatic forfeiture provision was adopted for a singular and
narrow purpose: conservation of Commission staff resources previously
devoted to the unnecessary task of cancelling expired permits and so
notifying the former permittees[;]. . . [there’s] nothing in the Streamlining
Order
[adopting the rule] which suggests that the Commission intended to
apply Section 73.3598(e) to permittees already operating pursuant to program
test authority”)(JA ), citing 1998 Biennial Regulatory Review – Streamlining
of Mass Media Applications, Rules, and Processes; Policies and Rules
Regarding Minority and Female Ownership of Mass Media Facilities,
Report
and Order, 13 FCC Rcd 23056, 23087-88 (¶¶ 77-80) (1998).
10 Thus, Commission staff granted, for example, the 2005 license
application of Station WJUN(FM), Mexico, PA, even though the application
was filed two days after its construction permit had expired. See Division
Letter
, 21 FCC Rcd at 8679 n.17 (JA ). In contrast, in WKLC, Inc., 26 FCC
Rcd 11001, 11005 (¶ 6) (MB 2011) (cited at BCI Br. 22-23), the Commission
denied a waiver when the station did not file its covering license application
“until nearly four years after the construction permit’s expiration.”
21

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Finally, the Commission reasonably concluded that the equities and the
public interest weigh in Clear Channel’s favor. See WAIT Radio, 418 F.2d at
1159. The record shows that Clear Channel incurred “over $40,000 in
expenses” in modifying its facilities to maintain its Class C status, and that
those modifications increased the population to be served “from 619,185 to
731,224 persons” – an increase of “almost 20 percent.” Mullinax Decl., ¶¶ 5,
6 (JA ). As the Division explained, the failure to grant Clear Channel a
waiver “would delay the public service benefits associated with the
modification of WRKH(FM)’s facilities.” Division Letter, 21 FCC Rcd at
8681; see also Order ¶ 11 (JA ) (affirming the Division’s action). Such
financial and public interest considerations support the Commission’s
decision to waive Section 73.3598(e) under the circumstances of this case.
See Keller Commc’ns, 130 F.3d at 1077 (affirming Commission rule waiver
to uphold grant of radio license in view of public safety benefits and
municipal licensee’s expenditure of “thousands of dollars” in reliance).
NetworkIP, in which this Court reversed a Commission waiver of
procedural rules applicable to the filing of a formal complaint under Section
415(b) of the Communications Act (see BCI Br. 22, 27), presented a very
different situation from the one before the Commission here. Unlike this
case, the Commission’s waiver in NetworkIP was not justified by any special
22

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circumstances other than mere “procrastination plus the universal tendency
for things to go wrong . . . at the worst possible moment.” Ibid. 548 F.3d at
128. Nor was there any “indication” that “the FCC’s practice” was to accept
late-filed complaints. Ibid. Here, by contrast, the Commission explained that
the waiver served the rule’s overarching purpose to promote construction of
upgraded FM station facilities, and was consistent with the staff’s practice of
11
waiving the filing deadline in like circumstances. Order ¶¶ 10-11 (JA ).
Finally, BCI is wrong that, through the waiver in Clear Channel’s case,
“the Commission has effectively written [the] obligation” to file a covering
license application within the three-year construction period “out of [its]
rules.” See BCI Br. 17. As the Commission held, a denial of a waiver to
Clear Channel under the circumstances would not serve the public interest.
Order, ¶¶ 9-15. Moreover, Clear Channel was admonished for the late filing
and warned to use care to ensure future compliance. See Order ¶ 11 (JA ).
As the Commission and its staff found, the admonishment was “sufficient to
redress CCBL’s failure to timely file the application” (Division Letter, 21

11 The situation presented here is also very different from that in Northeast
Cellular (cited BCI Br. at 16), where the Court found that the Commission
had failed to “articulate any standard” by which it could “determine the
policy underlying the waiver.” 897 F.2d at 1166-67.
23

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 30 of 54
FCC Rcd at 8681 (JA )), and also properly “recognize[d] the ‘strict
completion’ policy which underlies Section 73.3598(e).” Order ¶ 11 (JA ).
BCI “does not dispute that agencies are entitled to a fair measure of
deference in determining when and how to waive their rules and deadlines.”
BCI Br. 38. The Commission’s waiver decision is entitled to deference here.

B.

The Waiver Did Not Unlawfully Deprive BCI Of Its
Rights.

BCI contends that the Commission’s waiver grant to Clear Channel
nonetheless improperly deprived BCI of “procedural protections” that would
have required the Commission to have considered BCI’s upgrade application
for a construction permit. BCI Br. 30-37.
First, BCI contends that the waiver deprived it of rights under the
Commission Class C radio station reclassification rules, because, according to
BCI, Clear Channel’s untimely filing should have resulted “in the automatic
forfeiture of Clear Channel’s permit and reclassification of its channel.” BCI
Br. 30-31. But as the Commission explained, its rules provide for
reclassification of a Class C station to a Class C0 station only “[i]f
construction is not completed as authorized.” Order ¶ 12 (JA ) (citing 47
24

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12
C.F.R. 73.3573, Note 4) (emphasis added). Here, as the Commission found,
Clear Channel completed its station modification within the three year period
provided by its construction permit, thus its construction was “completed as
authorized,” 47 C.F.R. 73.3573, Note 4. See Order ¶ 12 & n.34 (JA )
(finding that a waiver of Note 4 was therefore unnecessary).
BCI argues that “even if Clear Channel did complete installation of its
equipment” in a timely fashion, it did not complete construction “as
authorized” within the meaning of Note 4 because it had failed to submit its
covering license application prior to the construction permit’s expiration.
BCI Br. 31 n.13. BCI’s reading ignores Note 4’s specification that it is
“construction” that must be authorized. Because Clear Channel completed
modification of its facilities before its construction permit expired, the
construction was “authorized,” and Note 4 did not trigger reclassification
simply because its covering license application was filed two days late.
Order ¶ 12 & n.34 (JA ). Because, at a minimum, the Commission’s reading
of its own rule is not “plainly erroneous or inconsistent with the regulation,”
the Commission’s interpretation is “entitled to controlling weight.” Star

12 Note 4 to Section 73.3573 provides in relevant part: “If the construction
is not completed as authorized, the subject Class C station will be reclassified
automatically as a Class C0 station.”
25

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 32 of 54
Wireless LCC v. FCC, 522 F.3d 469, 473 (D.C. Cir. 2008) (internal quotation
marks and citation omitted).
Second, relying on section 73.3573(f) of the Commission’s rules, 47
C.F.R. § 73.3573(f), BCI contends that, because it involved a minor
modification, its June 13 application “should have been immune to” Clear
Channel’s late-filed covering application, which was submitted on June 15.
BCI Br. 32. But section 73.3573(f) provides only that the first “acceptable”
minor modification application “cut[s] off the filing rights of subsequent
applicants.” 47 C.F.R. § 73.3573(f)(1). Here, BCI’s application was not
acceptable because it conflicted with WRKH(FM)’s upgrade application,
filed three years earlier, and which established Clear Channel’s rights to cut
off applications that conflicted with station WRKH’s operation as a Class C
13
station. Order ¶ 13 (JA ).

13 BCI contends that commencement of station WRKH(FM)’s operations
pursuant to program test authority on June 12, 2005 was not “authorized”
(BCI Br. 12 & n.7), because “program test operation is to be commenced
‘upon notification to the FCC in Washington.’” BCI Br. 29. However, the
Commission did not rely on Clear Channel’s operation of the modified station
pursuant to program test authority, but instead found that, under the
Commission’s first-come/first served processing rule, Clear Channel’s minor
modification application to upgrade station WRKH(FM) – filed in response
to BCI’s triggering application for a minor modification to station
WBBN(FM) – was the “first acceptable” application. See Order ¶ 14 (JA ).
26

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 33 of 54
Third, and relatedly, BCI contends that its application was entitled to
comparative consideration with “Clear Channel’s mutually exclusive
covering license application” (BCI Br. at 37) under the doctrine of Ashbacker
(holding that where two parties’ license applications are mutually exclusive,
the grant of one application without first considering the second application
violates the due process rights of the second applicant).
Ashbacker has no relevance in this case. As the Commission
explained, “the Ashbacker doctrine has never been applied to a Section
319(b) application” because the frequency is not available to a competing
applicant. Order ¶ 14 (JA ), citing Mass Communicators, Inc. v. FCC, 266
F.2d 681, 684-85 (D.C. Cir. 1959); see also id. (“a Form 301 application for a
construction permit has never been allowed a comparative hearing with a
Form 701 application for an extension of time to complete construction”)
(JA ). The Commission found that “the same principle applies to [covering]
license applications filed pursuant to Section 319(c) of the Act.” Ibid.
The Commission further explained that Ashbacker does not preclude
the Commission from establishing a “cut-off application processing policy
under which a prior-filed application may ‘cut-off’ the right of a subsequently
filed application to comparative consideration.” Order ¶ 13 (JA ). See
Florida Inst. of Tech. v. FCC, 952 F.2d 549, 550 (D.C. Cir. 1992). Nor does
27

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 34 of 54
the doctrine “prevent the Commission from establishing threshold criteria [to]
determine whether an application is entitled to comparative consideration.”
Ibid. (JA ). See Hispanic Info. & Telecomm. Network, Inc. v. FCC, 865 F.2d
1289, 1294 (D.C. Cir. 1989) (Ashbacker “does not preclude the FCC from
establishing threshold standards to identify qualified applicants and excluding
those applicants who plainly fail to meet the standards.”).
Regardless of the Commission’s waiver of Section 73.3598(e) to
accept the late-filed covering license application, on the day the construction
permit expired, Clear Channel retained all the rights of a Class C station—
including the right to file an application for a construction permit for full
Class C facilities. See Division Letter, 21 FCC Rcd at 8681 (JA ) (in the
absence of a waiver of Section 73.3598(e), “[Clear Channel] would be
required to repeat the Forms 301 and 302 filing process”). Ashbacker
therefore “simply is irrelevant” where, as here, an applicant complains that its
application was not considered due to otherwise valid Commission
processing rules. Cf. Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551,
1561 (D.C. Cir. 1987).
* * * * *
BCI, which galvanized Clear Channel to upgrade WRKH(FM)’s
facilities by filing a triggering application, now seeks to capitalize on Clear
28

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 35 of 54
Channel’s two-day delay in submitting a covering license application for its
modified Class C facilities, and to compel the Commission to entertain BCI’s
application for a construction permit that does not meet the minimum
distance separation requirements for Class C stations. The public interest
plainly did not require that result. Moreover, the Commission sufficiently
explained the special circumstances and public interest considerations that
underlay its determination that good cause was shown for a waiver of section
73.3598(e) of its rules. The waiver should be upheld.
29

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CONCLUSION

For the above reasons, the Order should be affirmed.
Respectfully
submitted,

AUSTIN C. SCHLICK
GENERAL COUNSEL
PETER KARANJIA
DEPUTY GENERAL COUNSEL
JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL
/s/ Pamela L. Smith
PAMELA L. SMITH
COUNSEL
FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
November 21, 2011
30

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 37 of 54
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BLAKENEY COMMUNICATIONS, INC.,
APPELLANT,
v.
NO. 11-1203
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
CERTIFICATE OF COMPLIANCE
Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying “Brief for Appellee” in the captioned case
contains 6,005 words.
/s/ Pamela L. Smith
Pamela L. Smith

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
November 21, 2011

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 38 of 54
STATUTORY APPENDIX
Communications Act Provision:
47 U.S.C. § 319
FCC Rules:
47 C.F.R. § 1.3
47 C.F.R. § 73.1620



47 C.F.R. § 73.3573 & NOTE 4
47 C.F.R. § 73.3598

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 39 of 54
47 U.S.C.
§ 319. Construction permits
(a) Requirements
No license shall be issued under the authority of this chapter for the operation of
any station unless a permit for its construction has been granted by the
Commission. The application for a construction permit shall set forth such facts as
the Commission by regulation may prescribe as to the citizenship, character, and
the financial, technical, and other ability of the applicant to construct and operate
the station, the ownership and location of the proposed station and of the station or
stations with which it is proposed to communicate, the frequencies desired to be
used, the hours of the day or other periods of time during which it is proposed to
operate the station, the purpose for which the station is to be used, the type of
transmitting apparatus to be used, the power to be used, the date upon which the
station is expected to be completed and in operation, and such other information as
the Commission may require. Such application shall be signed by the applicant in
any manner or form, including by electronic means, as the Commission may
prescribe by regulation.
(b) Time limitation; forfeiture
Such permit for construction shall show specifically the earliest and latest dates
between which the actual operation of such station is expected to begin, and shall
provide that said permit will be automatically forfeited if the station is not ready
for operation within the time specified or within such further time as the
Commission may allow, unless prevented by causes not under the control of the
grantee.
(c) Licenses for operation
Upon the completion of any station for the construction or continued construction
of which a permit has been granted, and upon it being made to appear to the
Commission that all the terms, conditions, and obligations set forth in the
application and permit have been fully met, and that no cause or circumstance
arising or first coming to the knowledge of the Commission since the granting of
the permit would, in the judgment of the Commission, make the operation of such
station against the public interest, the Commission shall issue a license to the
2

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 40 of 54
lawful holder of said permit for the operation of said station. Said license shall
conform generally to the terms of said permit. The provisions of section 309(a)-(g)
of this title shall not apply with respect to any station license the issuance of which
is provided for and governed by the provisions of this subsection.
(d) Government, amateur, or mobile station; waiver
A permit for construction shall not be required for Government stations, amateur
stations, or mobile stations. A permit for construction shall not be required for
public coast stations, privately owned fixed microwave stations, or stations
licensed to common carriers, unless the Commission determines that the public
interest, convenience, and necessity would be served by requiring such permits for
any such stations. With respect to any broadcasting station, the Commission shall
not have any authority to waive the requirement of a permit for construction,
except that the Commission may by regulation determine that a permit shall not be
required for minor changes in the facilities of authorized broadcast stations. With
respect to any other station or class of stations, the Commission shall not waive the
requirement for a construction permit unless the Commission determines that the
public interest, convenience, and necessity would be served by such a waiver.
3

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 41 of 54
47 C.F.R.
§ 1.3 Suspension, amendment, or waiver of rules.
The provisions of this chapter may be suspended, revoked, amended, or waived for
good cause shown, in whole or in part, at any time by the Commission, subject to
the provisions of the Administrative Procedure Act and the provisions of this
chapter. Any provision of the rules may be waived by the Commission on its own
motion or on petition if good cause therefor is shown.
§ 73.1620 Program tests.
(a) Upon completion of construction of an AM, FM, TV or Class A TV station in
accordance with the terms of the construction permit, the technical provisions of
the application, the rules and regulations and the applicable engineering standards,
program tests may be conducted in accordance with the following:
(1) The permittee of a nondirectional AM or FM station, or a nondirectional or
directional TV or Class A TV station, may begin program tests upon
notification to the FCC in Washington, DC provided that within 10 days
thereafter, an application for a license is filed with the FCC in Washington, DC.
(2) The permittee of an FM station with a directional antenna system must file
an application for license on FCC Form 302-FM requesting authority to
commence program test operations at full power with the FCC in Washington,
D.C. This license application must be filed at least 10 days prior to the date on
which full power operations are desired to commence. The application for
license must contain any exhibits called for by conditions on the construction
permit. The staff will review the license application and the request for program
test authority and issue a letter notifying the applicant whether full power
operation has been approved. Upon filing of the license application and related
exhibits, and while awaiting approval of full power operation, the FM permittee
may operate the directional antenna at one half (50%) of the authorized
effective radiated power. Alternatively, the permittee may continue operation
with its existing licensed facilities pending the issuance of program test
authority at the full effective radiated power by the staff.
(3) FM licensees replacing a directional antenna pursuant to § 73.1690 (c)(2)
without changes which require a construction permit (see § 73.1690(b)) may
4

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 42 of 54
immediately commence program test operations with the new antenna at one
half (50%) of the authorized ERP upon installation. If the directional antenna
replacement is an EXACT duplicate of the antenna being replaced (i.e., same
manufacturer, antenna model number, and measured composite pattern),
program tests may commence with the new antenna at the full authorized power
upon installation. The licensee must file a modification of license application on
FCC Form 302-FM within 10 days of commencing operations with the newly
installed antenna, and the license application must contain all of the exhibits
required by § 73.1690(c)(2). After review of the modification-of-license
application to cover the antenna change, the Commission will issue a letter
notifying the applicant whether program test operation at the full authorized
power has been approved for the replacement directional antenna.
(4) The permittee of an AM station with a directional antenna system must file
an application for license on FCC Form 302-AM requesting program test
authority with the FCC in Washington, DC at least ten (10) days prior to the
date on which it desires to commence program test operations. The application
must provide an AM directional antenna proof of performance, containing the
exhibits required by § 73.186. After review of the application to cover the
construction permit, the Commission will issue a letter notifying the applicant
whether program test operations may commence. Program test operations may
not commence prior to issuance of staff approval.
(5) Except for permits subject to successive license terms, the permittee of an
LPFM station may begin program tests upon notification to the FCC in
Washington, DC, provided that within 10 days thereafter, an application for
license is filed. Program tests may be conducted by a licensee subject to
mandatory license terms only during the term specified on such licensee's
authorization.
(b) The Commission reserves the right to revoke, suspend, or modify program tests
by any station without right of hearing for failure to comply adequately with all
terms of the construction permit or the provisions of § 73.1690(c) for a
modification of license application, or in order to resolve instances of interference.
The Commission may, at its discretion, also require the filing of a construction
permit application to bring the station into compliance the Commission's rules and
policies.
(c) Unless sooner suspended or revoked, the program test authority continues valid
during FCC consideration of the application for license, and during this period
5

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 43 of 54
further extension of the construction permit is not required. Program test authority
shall be automatically terminated by final determination upon the application for
station license.
(d) All operation under program test authority shall be in strict compliance with the
rules governing broadcast stations and in strict accordance with representations
made in the application for license pursuant to which the tests were authorized.
(e) Acceptance by the FCC of notification of the station of program tests, or the
granting of program test authority by the FCC, is not to be construed by the
permittee as approval by the FCC of the application for station license.
(f) The licensee of a UHF TV station which is not in operation on, but assigned to,
the same allocated channel which a 1000 watt UHF translator station is authorized
to use (see § 73.3516, “Specification of facilities”), shall notify the licensee of the
translator station, in writing, at least 10 days prior to commencing or resuming
operation. The TV station licensee shall also certify to the FCC in Washington, DC
that such advance notice has been given to the translator station licensee.
(g) Reports required. In their application for a license to cover a construction
permit and on the first anniversary of the commencement of program tests,
applicants for new broadcast facilities that were granted after designation for a
comparative hearing as a result of a post designation settlement or a decision
favoring them after comparative consideration must report.
(1) Any deviations from comparative proposals relating to integration of
ownership and management and diversification of the media of mass
communication contained in their application for a construction permit at the
time such application was granted; and
(2) Any deviations from an active/passive ownership structure proposed in their
application for a construction permit at the time such application was granted.
(3) The reports referred to in paragraphs (g)(1) and (2) of this section shall not
be required in any case in which the order granting the application relieved the
applicant of the obligation to adhere to such proposals.
6

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 44 of 54
§ 73.3573 Processing FM broadcast station applications.
(a) Applications for FM broadcast stations are divided into two groups:
(1) In the first group are applications for new stations or for major changes of
authorized stations. A major change in ownership is any change where the
original party or parties to the application do not retain more than 50 percent
ownership interest in the application as originally filed. In the case of a Class D
or an NCE FM reserved band channel station, a major facility change is any
change in antenna location which would not continue to provide a 1 mV/m
service to some portion of its previously authorized 1 mV/m service area. In the
case of a Class D station, a major facility change is any change in community of
license or any change in frequency other than to a first-, second-, or third-
adjacent channel. A major facility change for a commercial or a noncommercial
educational full service FM station, a winning auction bidder, or a tentative
selectee authorized or determined under this part is any change in frequency or
community of license which is not in accord with its current assignment, except
for the following:
(i) A change in community of license which complies with the requirements of
paragraph (g) of this section;
(ii) A change to a higher or lower class co-channel, first-, second-, or third-
adjacent channel, or intermediate frequency;
(iii) A change to a same-class first-, second-, or third-adjacent channel, or
intermediate frequency;
(iv) A channel substitution, subject to the provisions of Section 316 of the
Communications Act for involuntary channel substitutions.
(2) The second group consists of applications for licenses and all other changes
in the facilities of authorized stations.
(b)(1) The FCC may, after the acceptance of an application for modification of
facilities, advise the applicant that such application is considered to be one for a
major change and therefore subject to the provisions of §§ 73.3522, 73.3580 and
1.1111 of this chapter pertaining to major changes. Such major modification
applications in the non-reserved band will be dismissed as set forth in paragraph
(f)(2)(i) of this section.
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USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 45 of 54
(2) An amendment to a non-reserved band application which would effect a
major change, as defined in paragraph (a)(1) of this section, will not be
accepted, except as provided for in paragraph (f)(2)(i) of this section.
(3) A new file number will be assigned to a reserved band application for a new
station or for major changes in the facilities of an authorized station, when it is
amended so as to effect a major change, as defined in paragraph (a)(1) of this
section. Where an amendment to a reserved band application would require a
new file number, the applicant will have the opportunity to withdraw the
amendment at any time prior to designation for hearing, if applicable; and may
be afforded, subject to the discretion of the Administrative Law Judge, an
opportunity to withdraw the amendment after designation for hearing.
(c) An application for changes in the facilities of any existing station will continue
to carry the same file number even though (pursuant to FCC approval) an
assignment of license or transfer of control of such licensee or permittee has taken
place if, upon consummation, the application is amended to reflect the new
ownership.
(d) If, upon examination, the FCC finds that the public interest, convenience and
necessity will be served by the granting of an application for FM broadcast
facilities, the same will be granted. If the FCC is unable to make such a finding and
it appears that a hearing may be required, the procedure given in § 73.3593 will be
followed. In the case of mutually exclusive applications for reserved channels, the
procedures in subpart K of this part will be followed. In the case of mutually
exclusive applications for unreserved channels, the procedures in subpart I of this
part will be followed.
(e) Processing reserved channel FM broadcast station applications.
(1) Applications for minor modifications for reserved channel FM broadcast
stations, as defined in paragraph (a)(2) of this section, may be filed at any time,
unless restricted by the FCC, and will be processed on a “first come/first
served” basis, with the first acceptable application cutting off the filing rights of
subsequent, competing applicants. The FCC will periodically release a Public
Notice listing those applications accepted for filing. Conflicting applications
received on the same day will be treated as simultaneously filed and mutually
exclusive. Conflicting applications received after the filing of the first
acceptable application will be grouped, according to filing date, behind the lead
8

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 46 of 54
application in the queue. The priority rights of the lead applicant, against all
other applicants, are determined by the date of filing, but the filing date for
subsequent conflicting applicants only reserves a place in the queue. The right
of an applicant in a queue ripens only upon a final determination that the lead
applicant is unacceptable and that the queue member is reached and found
acceptable. The queue will remain behind the lead applicant until the
construction permit is finally granted, at which time the queue dissolves.
(2) The FCC will specify by Public Notice a period for filing reserved channel
FM applications for a new station or for major modifications in the facilities of
an authorized station. FM reserved channel applications for new facilities or for
major modifications will be accepted only during the appropriate filing period
or “window.” Applications submitted prior to the window opening date
identified in the Public Notice will be returned as premature. Applications
submitted after the specified deadline will be dismissed with prejudice as
untimely.
(3) Concurrently with the filing of a new or major modification application for a
reserved noncommercial educational channel, the applicant shall submit to the
FCC's public reference room and to a local public inspection file consistent with
§ 73.3527(e)(2), supporting documentation of points claimed, as described in
the application form.
(4) Timely filed applications for new facilities or for major modifications for
reserved FM channels will be processed pursuant to the procedures set forth in
subpart K of this part (§ 73.7000 et seq.) Subsequently, the FCC will release
Public Notices identifying: mutually exclusive groups of applications;
applications selected pursuant to the fair distribution procedures set forth in §
73.7002; applications received during the window filing period which are found
to be non-mutually exclusive; tentative selectees determined pursuant to the
point system procedures set forth in § 73.7003; and acceptable applications. The
Public Notices will also announce: additional procedures to be followed for
certain groups of applications; deadlines for filing additional information; and
dates by which petitions to deny must be filed in accordance with the provisions
of § 73.3584. If the applicant is duly qualified, and upon examination, the FCC
finds that the public interest, convenience and necessity will be served by the
granting of the application, it will be granted. If an application is determined
unacceptable for filing, the application will be returned, and subject to the
amendment requirements of § 73.3522.
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USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 47 of 54
(f) Processing non-reserved FM broadcast station applications.
(1) Applications for minor modifications for non-reserved FM broadcast
stations, as defined in paragraph (a)(2) of this section, may be filed at any time,
unless restricted by the FCC, and, generally, will be processed in the order in
which they are tendered. The FCC will periodically release a Public Notice
listing those applications accepted for filing. Processing of these applications
will be on a “first come/first serve” basis with the first acceptable application
cutting off the filing rights of subsequent applicants. All applications received
on the same day will be treated as simultaneously tendered and, if they are
found to be mutually exclusive, must be resolved through settlement or
technical amendment. Applications received after the tender of a lead
application will be grouped, according to filing date, behind the lead application
in a queue. The priority rights of the lead applicant, as against all other
applicants, are determined by the date of filing, but the filing date for
subsequent applicants for that channel and community only reserves a place in
the queue. The rights of an applicant in a queue ripen only upon a final
determination that the lead applicant is unacceptable and if the queue member is
reached and found acceptable. The queue will remain behind the lead applicant
until a construction permit is finally granted, at which time the queue dissolves.
(2)(i) The FCC will specify by Public Notice, pursuant to § 73.5002(a), a period
for filing non-reserved band FM applications for a new station or for major
modifications in the facilities of an authorized station. FM applications for new
facilities or for major modifications, whether for commercial broadcast stations
or noncommercial educational broadcast stations, as described in 47 U.S.C.
397(6), will be accepted only during the appropriate filing period or “window.”
Applications submitted prior to the window opening date identified in the
Public Notice will be returned as premature. Applications submitted after the
specified deadline will be dismissed with prejudice as untimely.
(ii) Such FM applicants will be subject to the provisions of §§ 1.2105 and
73.5002 regarding the submission of the short-form application, FCC Form 175,
and all appropriate certifications, information and exhibits contained therein.
FM applicants may submit a set of preferred site coordinates as a supplement to
the short-form application. Any specific site indicated by FM applicants will
not be studied for technical acceptability, but will be protected from
subsequently filed applications as a full-class facility as of the close of the
window filing period. Determinations as to the acceptability or grantability of
an applicant's proposal will not be made prior to an auction.
10

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 48 of 54
(iii) FM applicants will be subject to the provisions of §§ 1.2105 and 73.5002(c)
regarding the modification and dismissal of their short-form applications.
(3) Subsequently, the FCC will release Public Notices:
(i) Identifying the short-form applications received during the window filing
period which are found to be mutually exclusive, including any applications for
noncommercial educational broadcast stations, as described in 47 U.S.C.
397(6), as well as the procedures the FCC will use to resolve the mutually
exclusive applications;
(ii) Establishing a date, time and place for an auction;
(iii) Providing information regarding the methodology of competitive bidding to
be used in the upcoming auction, bid submission and payment procedures,
upfront payment procedures, upfront payment deadlines, minimum opening bid
requirements and applicable reserve prices in accordance with the provisions of
§ 73.5002;
(iv) Identifying applicants who have submitted timely upfront payments and,
thus, are qualified to bid in the auction.
(4) If, after the close of the appropriate window filing period, a non-reserved
FM allotment remains vacant, the window remains closed until the FCC, by
Public Notice, specifies a subsequent period for filing non-reserved band FM
applications for a new station or for major modifications in the facilities of an
authorized station pursuant to paragraph (f)(2)(i) of this section. After the close
of the filing window, the FCC will also release a Public Notice identifying the
short-form applications which are found to be non-mutually exclusive,
including any applications for noncommercial educational broadcast stations, as
described in 47 U.S.C. 397(6). These non-mutually exclusive applicants will be
required to submit the appropriate long-form application within 30 days of the
Public Notice and, for applicants for commercial broadcast stations, pursuant to
the provisions of § 73.5005(d). Non-mutually exclusive applications for
commercial broadcast stations will be processed and the FCC will periodically
release a Public Notice listing such non-mutually exclusive applications
determined to be acceptable for filing and announcing a date by which petitions
to deny must be filed in accordance with the provisions of §§ 73.5006 and
73.3584. Non-mutually exclusive applications for noncommercial educational
11

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 49 of 54
broadcast stations, as described in 47 U.S.C. 397(6), will be processed and the
FCC will periodically release a Public Notice listing such non-mutually
exclusive applications determined to be acceptable for filing and announcing a
date by which petitions to deny must be filed in accordance with the provisions
of §§ 73.7004 and 73.3584. If the applicant is duly qualified, and upon
examination, the FCC finds that the public interest, convenience, and necessity
will be served by the granting of the non-mutually exclusive long-form
application, it will be granted.
(5)(i) Pursuant to § 1.2107 of this chapter and § 73.5005, a winning bidder that
meets its down payment obligations in a timely manner must, within 30 days of
the release of the public notice announcing the close of the auction, submit the
appropriate long-form application for each construction permit for which it was
the winning bidder. Long-form applications filed by winning bidders shall
include the exhibits identified in § 73.5005(a).
(ii) Winning bidders are required to pay the balance of their winning bids in a
lump sum prior to the deadline established by the Commission pursuant to §
1.2109(a) of this chapter. Long-form construction permit applications will be
processed and the FCC will periodically release a Public Notice listing such
applications that have been accepted for filing and announcing a date by which
petitions to deny must be filed in accordance with the provisions of §§ 73.5006
and 73.3584. Construction permits will be granted by the Commission only
after full and timely payment of winning bids and any applicable late fees, and
if the applicant is duly qualified, and upon examination, the FCC finds that the
public interest, convenience and necessity will be served.
(iii) All long-form applications will be cut-off as of the date of filing with the
FCC and will be protected from subsequently filed long-form applications and
rulemaking petitions. Applications will be required to protect all previously
filed commercial and noncommercial applications. Winning bidders filing long-
form applications may change the technical proposals specified in their
previously submitted short-form applications, but such change may not
constitute a major change. If the submitted long-form application would
constitute a major change from the proposal submitted in the short-form
application or the allotment, the long-form application will be returned pursuant
to paragraph (f)(2)(i) of this section.
(g) Applications proposing to change the community of license of an FM station or
assignment are considered to be minor modifications under paragraphs (a)(2),
12

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 50 of 54
(e)(1), and (f)(1) of this section, and are subject to the following requirements:
(1) The applicant must attach an exhibit to its application containing
information demonstrating that the proposed community of license change
constitutes a preferential arrangement of allotments or assignments under
Section 307(b) of the Communications Act of 1934, as amended (47 U.S.C.
307(b));
(2) The facilities specified by the applicant at the proposed community of
license must be mutually exclusive, as defined in § 73.207 or 73.509, with the
applicant's current facilities or its current assignment, in the case of a winning
auction bidder or tentative selectee; and
(3) Notwithstanding the provisions of § 73.3580(a), the applicant must comply
with the local public notice provisions of §§ 73.3580(c)(3), 73.3580(d)(3), and
73.3580(f). The exception contained in § 73.3580(e) shall not apply to an
application proposing to change the community of license of an FM station.
(4) Non-reserved band applications must demonstrate the existence of a suitable
assignment or allotment site that fully complies with §§ 73.207 and 73.315
without resort to § 73.213 or 73.215.
. . .

Note 4 to § 73.3573

: A Class C station operating with antenna height above
average terrain (“HAAT”) of less than 451 meters is subject to reclassification as a
Class C0 station upon the filing of a triggering application for construction permit
that is short-spaced to such a Class C station under § 73.207 but would be fully
spaced to such a station considered as a Class C0 assignment. Triggering
applications may utilize § 73.215. Triggering applications must certify that no
alternative channel is available for the proposed service. Available alternative
frequencies are limited to frequencies that the proposed service could use at the
specified antenna location in full compliance with the distance separation
requirements of § 73.207, without any other changes to the FM Table of
Allotments. Copies of a triggering application and related pleadings must be served
on the licensee of the affected Class C station. If the staff concludes that a
triggering application is acceptable for filing, it will issue an order to show cause
why the affected station should not be reclassified as a Class C0 station The order
to show cause will provide the licensee 30 days to express in writing an intention
to seek authority to modify the subject station's technical facilities to minimum
Class C HAAT or to otherwise challenge the triggering application. If no such
13

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 51 of 54
intention is expressed and the triggering application is not challenged, the subject
station will be reclassified as a Class C0 station, and processing of the triggering
application will be completed. If an intention to modify is expressed, an additional
180–day period will be provided during which the Class C station licensee must
file an acceptable construction permit application to increase antenna height to at
least 451 meters HAAT. Upon grant of such a construction permit application, the
triggering application will be dismissed. Class C station licensees must serve on
triggering applicants copies of any FAA submissions related to the application
grant process. If the construction is not completed as authorized, the subject Class
C station will be reclassified automatically as a Class C0 station. The
reclassification procedure also may be initiated through the filing of an original
petition for rule making to amend the FM Table of Allotments as set forth in Note
2 to § 1.420(g).
§ 73.3598 Period of construction.
(a) Except as provided in the last two sentences of this paragraph, each original
construction permit for the construction of a new TV, AM, FM or International
Broadcast; low power TV; TV translator; TV booster; FM translator; or FM
booster station, or to make changes in such existing stations, shall specify a period
of three years from the date of issuance of the original construction permit within
which construction shall be completed and application for license filed. Except as
provided in the last two sentences of this paragraph, each original construction
permit for the construction of a new LPFM station shall specify a period of
eighteen months from the date of issuance of the construction permit within which
construction shall be completed and application for license filed. A LPFM
permittee unable to complete construction within the time frame specified in the
original construction permit may apply for an eighteen month extension upon a
showing of good cause. The LPFM permittee must file for an extension on or
before the expiration of the construction deadline specified in the original
construction permit. An eligible entity that acquires an issued and outstanding
construction permit for a station in any of the services listed in this paragraph shall
have the time remaining on the construction permit or eighteen months from the
consummation of the assignment or transfer of control, whichever is longer, within
which to complete construction and file an application for license. For purposes of
the preceding sentence, an “eligible entity” shall include any entity that qualifies as
a small business under the Small Business Administration's size standards for its
industry grouping, as set forth in 13 CFR 121 through 201, at the time the
transaction is approved by the FCC, and holds
14

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 52 of 54
(1) 30 percent or more of the stock or partnership interests and more than 50
percent of the voting power of the corporation or partnership that will hold the
construction permit; or
(2) 15 percent or more of the stock or partnership interests and more than 50
percent of the voting power of the corporation or partnership that will hold the
construction permit, provided that no other person or entity owns or controls
more than 25 percent of the outstanding stock or partnership interests; or
(3) More than 50 percent of the voting power of the corporation that will hold
the construction permit if such corporation is a publicly traded company.
(b) The period of construction for an original construction permit shall toll when
construction is prevented by the following causes not under the control of the
permittee:
(1) Construction is prevented due to an act of God, defined in terms of natural
disasters (e.g., floods, tornados, hurricanes, or earthquakes);
(2) The grant of the permit is the subject of administrative or judicial review
(i.e., petitions for reconsideration and applications for review of the grant of a
construction permit pending before the Commission and any judicial appeal of
any Commission action thereon), or construction is delayed by any cause of
action pending before any court of competent jurisdiction relating to any
necessary local, state or federal requirement for the construction or operation of
the station, including any zoning or environmental requirement; or
(3) A request for international coordination, with respect to an original
construction permit for a new DTV station, has been sent to Canada or Mexico
on behalf of the station and no response from the country affected has been
received, or the licensee or permittee is challenging the response from Canada
or Mexico on the grounds that the facility as approved would not permit the
station to serve the population that is both approved by the Commission and
served by the station's TV (analog) facility to be vacated by June 12, 2009.
(c) A permittee must notify the Commission as promptly as possible and, in any
event, within 30 days, of any pertinent event covered by paragraph (b) of this
section, and provide supporting documentation. All notifications must be filed in
triplicate with the Secretary and must be placed in the station's local public file.
15

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 53 of 54
(d) A permittee must notify the Commission promptly when a relevant
administrative or judicial review is resolved. Tolling resulting from an act of God
will automatically cease six months from the date of the notification described in
paragraph (c) of this section, unless the permittee submits additional notifications
at six month intervals detailing how the act of God continues to cause delays in
construction, any construction progress, and the steps it has taken and proposes to
take to resolve any remaining impediments.
(e) Any construction permit for which construction has not been completed and for
which an application for license has not been filed, shall be automatically forfeited
upon expiration without any further affirmative cancellation by the Commission.
16

USCA Case #11-1203 Document #1343224 Filed: 11/21/2011 Page 54 of 54
11-1203

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Blakeney Communications, Inc., Appellant

v.

Federal Communications Commission, Appellee.

CERTIFICATE OF SERVICE

I, Pamela L. Smith, hereby certify that on November 21, 2011, I
electronically filed the foregoing Brief for Appellee with the Clerk of the
Court for the United States Court of Appeals for the D.C. Circuit by using
the CM/ECF system. Participants in the case who are registered CM/ECF
users will be served by the CM/ECF system.
Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.
Harry F. Cole
Marissa G. Repp
Anne Goodwin Crump
Repp Law Firm
Fletcher, Heald & Hildreth, PLC
1629 K Street, N.W.
Suite 300
1300 N. 17th Street
Washington, D.C. 20006-1631
11th Floor
Counsel for: CC Licenses, LLC
Arlington, VA 22209
Counsel for: Blakeney
Communications, Inc.

/s/ Pamela L. Smith

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