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Deleted Station DW286BA, Bloxham, FL

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Released: November 15, 2013
Federal Communications Commission
Washington, D.C. 20554

November 15, 2013

DA 13-2193
In Reply Refer to:
1800B3-PCC
Released: November 15, 2013
Mr. Grady Moates
24402 Lanier Street,
Tallahassee, FL 32310
In re:

FM Translator Construction Permit

DW286BA, Bloxham, Florida

File No. BNPFT-20030828BDV
Facility ID No. 151661

Petition for Reconsideration

Dear Mr. Moates:
The Media Bureau (“Bureau”) has before it a Petition for Reconsideration (“Petition”) filed on
December 10, 2007, by you (“Moates”), as the former permittee of unbuilt FM translator station
DW286BA, Bloxham, Florida (“Station”), seeking reinstatement of an expired construction permit and a
waiver of Section 73.3598 of the Commission’s Rules (“Rules”) to allow additional time for construction
of the Station. For the reasons set forth below, we dismiss the Petition.

Background.

The Commission issued Moates a construction permit for a new FM translator
station in Bloxham, Florida (the “Permit”) on November 9, 2004, for a three-year period expiring
automatically on November 9, 2007.1 The Commission did not receive a license application to cover the
construction permit nor any request for a waiver or tolling of the construction deadline prior to the
Permit’s expiration. Instead, Moates filed the Petition on December 10, 2007, after the expiration of the
construction permit.
In the Petition, Moates argues that reconsideration of the Permit’s automatic expiration and a
waiver of Section 73.3598 are warranted because of unexpected delays in a Media Bureau (“Bureau”)
proceeding proposing rule changes to permit AM stations to use FM translators to provide “fill-in”
service.2 Moates states that after the rulemaking is complete, he intends to identify a minority- or small
business-owned AM station for rebroadcast over the Station.3 Moates specifically states that such an AM
broadcaster has not yet been identified due to the delays.4 He assures the Commission that “[o]nce this . .
. proceeding is complete . . . [he] is confident that this FM translator will be able to serve the public
interest by rebroadcasting the signal of a qualified AM station.”5

1See Broadcast Actions, Public Notice, Report No. 45861 (MB Nov. 15, 2004).
2 See Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations, Notice of Proposed
Rulemaking, 22 FCC Rcd 15890 (2007) (“Translator NPRM”).
3 Petition at 1.
4 Id.
5 Petition at 1-2. The rulemaking has concluded since the Petition was filed. See Amendment of Service and
Eligibility Rules for FM Broadcast Translator Stations
, Report and Order, 24 FCC Rcd 9462 (2009) (“Translator
Rulemaking Order
”), modified, 27 FCC Rcd 3364, 3394-95 (2012).

Discussion.

The Commission will consider a petition for reconsideration only when the
petitioner shows either a material error in the Commission’s original order or raises additional facts not
known or existing at the time of the petitioner’s last opportunity to present such matters.6 The Permit at
issue expired automatically as a matter of law on November 9, 2007, pursuant to its terms and Section
73.3598(e) after Moates failed to either complete construction or file a covering license application by
that date.7 Because the Commission did not “dismiss” the Permit or take any affirmative action but rather
the Permit expired as a matter of law pursuant to Section 73.3598(e),8 we will dismiss the Petition as
procedurally defective.9
We will, however, consider the merits of Moates’s request for the relief, i.e., reinstatement of the
Permit nunc pro tunc pursuant to waivers of the automatic forfeiture and construction deadline provisions
of Section 73.3598.10 The Commission’s rules may be waived only for good cause shown.11 Waiver of
the Rules, however, is only appropriate if special circumstances warrant a deviation from the general rule
and the deviation will serve the public interest.12 The Commission has previously stated that waivers of
broadcast construction deadlines are appropriate only when construction has been prevented by “rare and
exceptional circumstances” beyond the permittee’s control.13 Furthermore, the Commission has broad
discretion in determining whether circumstances alleged to have prevented timely construction were
clearly beyond the permittee’s control.14
Moates’s request fails to meet this stringent standard. The NPRM alleged to have interfered with
construction was not released until August 15, 2007, at which time only three months remained under the
construction permit until the permit was rendered automatically expired as a matter of law15 – and the
Rules promulgated therein were not adopted until June of 2009, long after the Permit had expired.

6 47 C.F.R. § 1.106; WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff’d sub nom. Lorain
Journal Co. v. FCC
, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 387 U.S. 967 (1966).
7 47 C.F.R. § 73.3598(e).
8 See, e.g., Cranesville Block Company, Inc., Letter, 27 FCC Rcd 2018, 2019 (MB 2012) (ministerial steps of
marking construction permit as cancelled and deleting it in the Commission’s database were not Commission
actions; construction permit expired by its own terms).
9 See 47 C.F.R. § 1.106(a)(1) (providing that the Commission considers only petitions seeking reconsideration of “a
final Commission action”).
10 See, e.g., id. at 2020 (considering a procedurally defective petition for reconsideration as a waiver request); Three
Eagles of Lincoln, Inc.
, Letter, 24 FCC Rcd 13483, 13485 (MB 2009) (denying a petition for reconsideration as
procedurally defective and also denying the petition when considered as a request for a waiver).
11 47 C.F.R. § 1.3.
12 NetworkIP, LLC v. FCC, 548 F.3d 116, 125-28 (D.C. Cir. 2008) (“NetworkIP”); Northeast Cellular Telephone
Co. v. FCC
, 897 F.2d 1164, 1166 (D.C. Cir. 1990).
13 1998 Biennial Regulatory Review – Streamlining of Mass Media Applications, Rules and Processes,
Memorandum Opinion and Order, 14 FCC Rcd 17525, 17541 (1999).
14 See New Orleans Channel 20, Inc., v. FCC, 830 F.2d 361, 365-66 (D.C. Cir. 1987) (stating that “so long as the
agency does not display evident disregard for its precedents, no violation occurs” when the agency refuses to
exercise its discretion and denies a waiver request).
15 The comment period for the Translator NPRM ended on January 7, 2008, after Moates’s construction permit had
expired as a matter of law. See Media Bureau Announces Comment and Reply Comment Dates for the Notice of
Proposed Rulemaking Regarding Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations
,
Public Notice, 22 FCC Rcd 19442 (2007). Moates’s claim about delay in the rulemaking is unsupported.
2

Rather, Moates’s decision to refrain from constructing his station was the result of his private business
calculations, including apparent procrastination until the end of the initial three-year construction period
and his preference to use the FM translator to rebroadcast an AM station, which the Rules did not allow
either when Moates applied for the construction permit for the Station or at any point during the Permit’s
three-year term. As a result, and unlike cases in which the Commission has recognized that a permittee
encountered circumstances beyond its control,16 Moates has not demonstrated any sufficiently “rare and
exceptional circumstances” that would justify a waiver of the three-year construction deadline and other
requirements pursuant to Section 73.3598. In addition, granting a waiver of Section 73.3598(a) of the
Rules here would undermine the public interest in enforcing a Rule that promotes rapid construction of
stations and introduction of new and expanded service.
Finally, Moates notes that “the Commission is reportedly considering extensions of expiring
construction permits in certain circumstances where minorities and small businesses may benefit.”17 In
2008, the Commission adopted changes to the Rules to facilitate ownership diversity in the broadcasting
industry.18 The rule allowing additional construction time applied solely to “issued and outstanding
construction permits” sold or transferred to “eligible entities.”19 In 2011, however, the United States
Court of Appeals for the Third Circuit vacated the Commission’s “eligible entity” definition and
remanded all provisions of the Diversity Order that rely on the “eligible entity” definition.20 Subsequent
to the Third Circuit’s decision, the Bureau suspended application of the eligible entity rule provisions and
policies in all contexts.21 In announcing this course of action, the Bureau stated that, for pending
applications, if the construction permit has expired, the construction permit is forfeited and the Bureau
will dismiss the assignment application.22 In any event, Moates would have been ineligible for the
extension because he was an original permittee rather than an “eligible entity” assignee acquiring an
outstanding construction permit.23

16 See, e.g., Atlanta Area Broadcasting, Inc., Letter, 18 FCC Rcd 5034 (MB 2003) (granting a waiver of the three-
year construction period when a government entity acquired an authorized broadcast transmitter site through
exercise of its condemnation powers); Texas Grace Communications, Memorandum Opinion and Order, 16 FCC
Rcd 19167 (2001) (waiving Section 73.3598(a) sua sponte as a result of perceived lack of clarity caused by the
Commission itself with respect to whether a facility change coupled with a community of license change is
sufficient to warrant tolling of the construction period). Compare to Steven Wendell, Letter, 24 FCC Rcd 11809
(MB 2009) (rejecting a permittee’s request for a waiver of construction deadline because the inability to timely
construct was rooted in the permittee’s own error in selecting a site on which a proposed tower array could not be
built); KSBN Radio, Inc. Winchester, Nevada, Memorandum Opinion and Order, 19 FCC Rcd 20162, 20167 (2004)
(affirming the staff’s denial of a waiver request when the permittee learned of a troublesome local zoning ordinance
and did not try to resolve the problem in a manner consistent with Commission requirements).
17 Petition at 2.
18 Promoting Diversification of Ownership in the Broadcast Services, Report and Order and Third Further Notice of
Proposed Rulemaking, 23 FCC Rcd 5922 (2008) (“Diversity Order”).
19 Diversity Order, 23 FCC Rcd at 5930.
20 Prometheus Radio Project v. FCC, 652 F.3d 431, 465-71 (3rd Cir. 2011). The Third Circuit determined that the
Commission’s definition of “eligible entity” was arbitrary and capricious because it lacked “a sufficient analytical
connection to the primary issues th[e] Order intended to address.” Id. at 471.
21 See Media Bureau Provides Notice of Suspension of Eligible Entity Rule Changes and Guidance on the
Assignment of Broadcast Station Construction Permits to Eligible Entities
, Public Notice, 26 FCC Rcd 10370
(2011).
22 Id.
23 Diversity Order, 23 FCC Rcd at 5963. The Rule permitted eligible entities that acquired “an issued and
outstanding construction permit . . . the time remaining on the construction permit or eighteen months from the
3

For the foregoing reasons, Moates has not demonstrated good cause to justify a waiver of the
Commission’s Rules governing timely construction of broadcast stations.

Conclusions/Actions.

Accordingly, IT IS ORDERED that the Petition for Reconsideration filed
on December 10, 2007, IS DISMISSED and, when treated as a request for waiver, IS DENIED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau

consummation of the assignment or transfer of control . . . to complete construction and file for an application for
license.” Id.
4

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