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FCC Denies Application for Review by Steven Wendell.

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Released: April 4, 2013

Federal Communications Commission

FCC 13-43

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Steven Wendell
)
File Nos. BNP-20001023ACT

)
and BMP-20080214AHR
Request for Tolling of Construction Period
)
Facility ID No. 134960
and Application for Modification of
)
WXNH(AM), Jaffrey, New Hampshire
)

MEMORANDUM OPINION AND ORDER

Adopted: April 3, 2013

Released: April 4, 2013

By the Commission:
1.
The Commission has before it for consideration an Application for Review1 filed on
October 13, 2009, by Steven Wendell (“Wendell”), permittee of unbuilt station WXNH(AM), Jaffrey,
New Hampshire. Wendell seeks review of a letter decision by the Media Bureau, Audio Division (the
“Bureau”)2 which denied reconsideration of a decision to terminate “tolling” treatment for WXNH(AM)’s
construction permit3 and dismissed as moot a separate petition for reconsideration of the dismissal of an
application to move transmitter sites.4 In the Letter, the Bureau found that Wendell’s inability to
construct was not a matter beyond his control and that his circumstances did not qualify for tolling under
the Commission’s rules.5
2.
Upon consideration of the Application for Review and the entire record, we conclude that
Wendell has failed to demonstrate that the Bureau erred. The Bureau properly decided the matters raised,
and we uphold its decision for the reasons stated in its Letter.
3.
In addition, we reject Wendell’s claim that the Bureau’s decision to terminate tolling
based on zoning litigation was “arbitrary and capricious.” Wendell claims to have reported “regularly and
candidly” on the zoning litigation and states that he spent substantial sums in reliance on the tolling
decision.6 Our review of the record, however, shows that, as the Bureau noted in the Letter, Wendell was
not entitled to tolling under Commission rules because the zoning litigation related to an alternate site
rather than the site authorized in Wendell’s construction permit.7 The problem here is that Wendell’s
initial filings did not clearly identify the zoning litigation as involving an alternate site. Indeed, the

1 On October 28, 2009, Principle Broadcasting Network New York, LLC (“Principle”), licensee of co-channel
station WLIE(AM), Islip, New York, filed an Opposition to Application for Review.
2 Christopher Imlay, Esq., Letter, 24 FCC Rcd 11809 (2009) (“Letter”).
3 Christopher Imlay, Esq., Letter, Ref. 1800B3-IB (MB Mar. 5, 2008).
4 See Broadcast Actions, Public Notice, Rep. No. 46771 (July 14, 2008).
5 See 47 C.F.R. §73.3598(b).
6 Application for Review at 16.
7 See Letter, 24 FCC Rcd at 11812.

Federal Communications Commission

FCC 13-43

timing of the zoning litigation suggested otherwise. Wendell had represented that the litigation
commenced in August 2004, almost two years before he first filed his application to change the
transmitter site in April 2006.8 The Bureau’s mistaken belief that Wendell was relying on litigation
pertaining to zoning of the permitted site should have been evident to Wendell from the Bureau’s June 1,
2006 initial grant of tolling, which stated that “Tolling will continue until the earlier of a court decision
[resolving the zoning issue] that becomes final or the Commission’s grant of your modification
application thereby mooting the litigation concerning zoning for the current site.”9 Wendell did nothing
to correct this misimpression. It was not until October 2007, more than a year after the tolling grant, that
Wendell disclosed that the zoning litigation did not relate to the site authorized in the construction permit,
in a footnote to a pleading filed in response to a third-party’s “Petition to Terminate Tolling.”10 The
Bureau’s decision to terminate tolling under these circumstances was thus warranted. Furthermore, the
Bureau acted fairly in nonetheless giving Wendell the benefit of nearly two years additional time for
construction that he had received erroneously, and by affording him an opportunity to document
circumstances that might warrant additional construction time by waiver. Any resulting investment in the
zoning litigation was the result of Wendell’s own conduct. Based on this record, we reject Wendell’s
argument that the Bureau’s action was arbitrary and capricious.
4.
ACCORDINGLY, IT IS ORDERED that, pursuant to section 5(c)(5) of the
Communications Act of 1934, as amended, 47 U.S.C. § 155(c)(5), and section 1.115(g) of the
Commission’s rules, 47 C.F.R. § 1.115(g), the Application for Review IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary

8 See Tolling Request at 4 and Exhibit J.
9 Letter to Steven Wendell (June 1, 2006) at 1-2 (emphasis added).
10 Opposition to Petition to Terminate Tolling at 2, n.1.
2

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