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Tango Radio, LLC

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Released: November 28, 2012
Federal Communications Commission
Washington, D.C. 20554
November 28, 2012
DA 12-1903
In Reply Refer to:
1800B3-PPD
Released: November 28, 2012
Dan J. Alpert, Esq.
2120 N. 21st Rd.
Arlington, VA 22201
In re:
KANM(FM), Skyline-Ganipa, New Mexico
Facility ID No. 164213
Tango Radio, LLC
File No. BLH-20100412AAD
KNOS(FM), Albany, Texas
Facility ID No. 164214
Tango Radio, LLC
File No. BLH-20100409ABO
KKUL(FM), Trinity, Texas
Facility ID No. 164216
Tango Radio, LLC
File No. BLH-20100412AAC

Petitions for Reconsideration

Dear Counsel:
We have before us three separate Petitions for Reconsideration (“Petitions”), filed by you
(“Counsel”) on behalf of Tango Radio, LLC (“Tango”). The three Petitions are in connections with: (1)
Tango’s Application for License (“KANM License Application”) to cover Construction Permit BNPH-
20050103AAZ, as modified by BMPH-20100330ADB (“KANM CP”); (2) Tango’s Application for
License (“KNOS License Application”) to cover Construction Permit BNPH-20050103AAX, as modified
by BMPH-20100330ADA (“KNOS CP”); and (3) Tango’s Applications for License (“KKUL License
Application”) to cover Construction Permit BNPH-20050103AAW, as modified by BMPH-
20100330ACZ (“KKUL CP”).
All three Petitions seek reconsideration of a February 24, 2011 staff letter in which the Media
Bureau (“Bureau”) dismissed the KANM, KNOS, and KKUL License Applications. All three License
Applications were submitted by Tango, the permittee of the new Stations KANM, channel 240A at
Skyline-Ganipa, New Mexico; KNOS, channel 255A at Albany, Texas; and KKUL, channel 251A at
Trinity, Texas. For the reasons set forth below, we dismiss Tango’s Petitions.1


1 Tango also filed Petitions for Reconsideration to reinstate the construction permits. In seeking reinstatement of the
construction permits, Tango simply referenced its Petitions regarding the dismissal of the License Applications. Our
decision to affirm staff’s dismissal of the License Applications means Tango’s construction permits automatically
expire by operation of law.

Background.

KANM(FM), Skyline-Ganipa, New Mexico. Pursuant to the KANM CP’s terms,
Tango was required to finish construction of the station and file a license application to cover the KANM
CP by April 10, 2010. Tango filed the KANM License Application on April 10, 2010.
On May 19, 2010, Commission staff returned the KANM License Application as unacceptable
for filing pursuant to Section 73.3564(a)(1) of the Commission’s rules.2 Staff deemed the filing
unacceptable because Tango failed to submit the required directional antenna proof of performance,
antenna installation certifications, and radiofrequency radio (“RFR”) measurements required by the
Special Operating Conditions on the KANM CP and failed to construct a main studio prior to filing the
license application. Staff also denied Tango’s associated request for waiver of the main studio rule and
request for program test authority.
On June 23, 2010, Tango submitted a Petition for Reconsideration of the staff’s dismissal of the
KANM License Application, a request for reinstatement of the KANM License Application nunc pro
tunc
, and an amendment to the KANM License Application purportedly containing the items required by
the Special Operating Conditions on the CP. Commission staff promptly reviewed the petition and the
amendment to the KANM License Application. On June 28, 2010, staff granted the petition and
reinstated the KANM License Application. However, staff was unable to act on the KANM License
Application because the amendment submitted by Tango did not contain all of the items required by the
KANM CP. Accordingly, the staff contacted Counsel by telephone and requested an additional
amendment to the KANM License Application containing the required RFR measurements and a detailed
description of the access restrictions in place at the KANM transmitter site.
On July 26, 2010, Tango submitted a second amendment to the KANM License Application.
Commission staff promptly reviewed the amendment and found the data submitted still was not sufficient
to assess compliance with all of the Special Operating Conditions on the KANM CP and the
Commission’s Rules. Once again, staff contacted Counsel by telephone shortly after receipt of the
application amendment and requested another amendment to the KANM License Application containing
the following items:
1. RFR measurements taken with the station operating at full power, i.e. 1.00 kilowatt effective
radiated power; and
2. Photographs showing the locations of the authorized tower and the fence surrounding it that is
required to prevent casual or inadvertent public access to areas in the vicinity of the KANM
transmitting facilities where RFR levels are predicted to exceed general population/uncontrolled
maximum permissible exposure limits.
Thereafter, on November 9, 2010, staff wrote Counsel a letter again asking for the RFR
measurements and photographs, with a deadline of November 30, 2010 to submit the information. On
November 12, 2010 and November 30, 2010, Tango filed two more amendments providing additional
technical data, including RFR measurements taken at full authorized power. Staff’s review of those
amendments showed Tango did not submit the required photographs showing the location of the KANM
transmitting facilitates and the surrounding fence in either of the application amendments. Staff’s review
also showed that the field strength meter used to take the reported RFR measurements was not of
sufficient verifiable accuracy.


2 See 47 C.F.R §73.3564(a)(1) (“Applications that are not substantially complete will not be considered and will be
returned to the applicant.”).
2

Subsequently, in early January, staff contacted Counsel by telephone to again request transmitter
site photographs and full-power RFR measurements taken using an accurate and verifiable RFR field
strength meter. Staff specified a January 30, 2011 deadline for providing the requested information. On
February 3, 2011, Counsel requested an extension of time, for “no later than during the last week of
February,” to amend the KANM License Application to provide the required transmitter site photographs
and RFR measurements. Staff did not act on that extension request.
As of February 24, 2011, Tango had not submitted an acceptable amendment to the KANM
License Application containing the required information, despite staff’s repeated requests and Tango’s
repeated promises to do so. Consequently, pursuant to Sections 0.283 and 73.3568(a)(1) of the
Commission’s Rules, the Bureau dismissed the KANM License Application for failure to prosecute.3 As
a result, the KANM CP expired by operation of law on April 7, 2010, and the call sign for Station KANM
was deleted.
On March 17, 2011, Tango filed the KANM Petition and on March 18, 2011, Tango filed another
amendment with additional measurements and photos, purporting to provide the information initially
requested by staff. Tango seeks reinstatement and grant of the KANM License Application.
KNOS(FM), Albany, Texas. Pursuant to the KNOS CP’s terms, Tango was required to finish
construction of the station and file a license application to cover the KNOS CP by April 10, 2010. Tango
filed the KNOS License Application on April 10, 2010.
On May 17, 2010, Commission staff returned the KNOS License Application as unacceptable for
filing pursuant to Section 73.3564(a)(1) of the Commission’s rules.4 The staff deemed the filing
unacceptable because Tango failed to submit the required directional antenna proof of performance,
antenna installation certifications, and RFR measurements required by the Special Operating Conditions
on the KNOS CP and failed to construct a main studio prior to filing the license application. Staff also
denied Tango’s associated request for waiver of the main studio rule and request for program test
authority.
On June 21, 2010, Tango submitted a Petition for Reconsideration of the staff’s dismissal of the
KNOS License Application, a request for reinstatement of the KNOS License Application nunc pro tunc,
and an amendment to the KNOS License Application purportedly containing the items required by the
Special Operating Conditions on the CP. Commission staff promptly reviewed the petition and the
amendment to the KNOS License Application. On June 23, 2010, staff granted the petition and reinstated
the KNOS License Application. However, staff was unable to act on the KNOS License Application
because the amendment submitted by Tango did not contain all of the items required by the KNOS CP.
Accordingly, the staff contacted Counsel by telephone and requested an additional amendment to the
KNOS License Application containing the required RFR measurements and a detailed description of the
access restrictions in place at the KNOS transmitter site.
On July 26, 2010, Tango submitted a second amendment to the KNOS License Application.
Commission staff promptly reviewed the amendment and found the data submitted still was not sufficient
to assess compliance with all of the Special Operating Conditions on the KNOS CP and the
Commission’s Rules. Once again, staff contacted Counsel by telephone shortly after receipt of the


3 See 47 C.F.R. §0.283 (conferring delegated authority to Media Bureau to process applications) and 47 C.F.R.
§73.3568(a)(1) (failure to prosecute an application is cause for dismissal).
4 See 47 C.F.R §73.3564(a)(1).
3

application amendment and requested another amendment to the KNOS License Application containing
the following items:
1. RFR measurements taken with the station operating at full power, i.e. 1.00 kilowatt effective
radiated power; and
2. Photographs showing the locations of the authorized tower and the fence surrounding it that is
required to prevent casual or inadvertent public access to areas in the vicinity of the KNOS
transmitting facilities where RFR levels are predicted to exceed general population/uncontrolled
maximum permissible exposure limits.
Thereafter, on November 9, 2010, staff wrote Counsel a letter again asking for the RFR
measurements and photographs, with a deadline of November 30, 2010 to submit the information. On
November 12, 2010 and November 30, 2010, Tango filed two more amendments providing additional
technical data, including RFR measurements taken at full authorized power. Staff’s review of those
amendments showed Tango did not submit the required photographs showing the location of the KNOS
transmitting facilitates and the surrounding fence in either of the application amendments. Staff’s review
also showed the field strength meter used to take the reported RFR measurements was not of sufficient
verifiable accuracy.
Subsequently, in early January, staff contacted Counsel by telephone to again request transmitter
site photographs and full-power RFR measurements taken using an accurate and verifiable RFR field
strength meter. Staff specified a January 30, 2011 deadline for providing the requested information. On
February 3, 2011, Counsel requested an extension of time, for “no later than during the last week of
February,” to amend the KNOS License Application to provide the required transmitter site photographs
and RFR measurements. Staff did not act on that extension request.
As of February 24, 2011, Tango had not submitted an acceptable amendment to the KNOS
License Application containing the required information, despite staff’s repeated requests and Tango’s
repeated promises to do so. Consequently, pursuant to Sections 0.283 and 73.3568(a)(1) of the
Commission’s Rules, the Bureau dismissed the KNOS License Application for failure to prosecute.5 As a
result, the KNOS CP expired by operation of law on April 7, 2010, and the call sign for Station KNOS
was deleted.
On March 17, 2011, Tango filed the KNOS Petition and on March 18, 2011, Tango filed another
amendment with additional measurements and photos, purporting to provide the information initially
requested by staff. Tango seeks reinstatement and grant of the KNOS License Application.
KKUL(FM), Trinity, Texas. Pursuant to the KKUL CP’s terms, Tango was required to finish
construction of the station and file a license application to cover the KKUL CP by April 10, 2010. Tango
filed the KKUL License Application on April 12, 2010.
On May 7, 2010, Commission staff returned the KKUL License Application as unacceptable for
filing pursuant to Section 73.3564(a)(1) of the Commission’s rules.6 Staff deemed the filing unacceptable
because Tango failed to submit the required directional antenna proof of performance, antenna installation
certifications, and RFR measurements required by the Special Operating Conditions on the KKUL CP
and failed to construct a main studio prior to filing the license application. Staff also denied Tango’s
associated request for waiver of the main studio rule and request for program test authority.


5 See 47 C.F.R. §0.283 and 47 C.F.R. §73.3568(a)(1).
6 See 47 C.F.R §73.3564(a)(1).
4

On June 11, 2010, Tango submitted a Petition for Reconsideration of the staff’s dismissal of the
KKUL License Application, a request for reinstatement of the KKUL License Application nunc pro tunc,
and an amendment to the KKUL License Application purportedly containing the items required by the
Special Operating Conditions on the CP. Commission staff promptly reviewed the petition and the
amendment to the KKUL License Application. On June 18, 2010, staff granted the petition and reinstated
the KKUL License Application. However, staff was unable to act on the KKUL License Application
because the amendment submitted by Tango did not contain all of the items required by the KKUL CP.
Accordingly, staff contacted Counsel by telephone and requested an additional amendment to the KKUL
License Application containing the required RFR measurements and a detailed description of the access
restrictions in place at the KKUL transmitter site.
On July 26, 2010, Tango submitted a second amendment to the KKUL License Application.
Commission staff promptly reviewed the amendment and found the data submitted still was not sufficient
to assess compliance with all of the Special Operating Conditions on the KKUL CP and the
Commission’s Rules. Once again, staff contacted Counsel by telephone shortly after receipt of the
application amendment and requested another amendment to the KKUL License Application containing
the following items:
1. RFR measurements taken with the station operating at full power, i.e. 1.00 kilowatt effective
radiated power; and
2. Photographs showing the locations of the authorized tower and the fence surrounding it that is
required to prevent casual or inadvertent public access to areas in the vicinity of the KKUL
transmitting facilities where RFR levels are predicted to exceed general population/uncontrolled
maximum permissible exposure limits.
Thereafter, on November 9, 2010, staff wrote Counsel a letter again asking for the RFR
measurements and photographs, with a deadline of November 30, 2010 to submit the information. On
November 12, 2010 and November 30, 2010, Tango filed two more amendments providing additional
technical data, including RFR measurements taken at full authorized power. Staff’s review of those
amendments showed Tango did not submit the required photographs showing the location of the KKUL
transmitting facilitates and the fence surrounding them in either of the application amendments. Staff’s
review also showed that the field strength meter used to take the reported RFR measurements was not of
sufficient verifiable accuracy.
Subsequently, in early January, staff contacted Counsel by telephone to again request transmitter
site photographs and full-power RFR measurements taken using an accurate and verifiable RFR field
strength meter. Staff specified a January 30, 2011 deadline for providing the requested information. On
February 3, 2011, Counsel requested an extension of time, for “no later than during the last week of
February,” to amend the KKUL License Application to provide the required transmitter site photographs
and RFR measurements. Staff did not act on that extension request.
As of February 24, 2011, Tango had not submitted an acceptable amendment to the KKUL
License Application containing the required information, despite staff’s repeated requests and Tango’s
repeated promises to do so. Consequently, pursuant to Section 0.283 and 73.3568(a)(1) of the
Commission’s Rules, the Bureau dismissed the KKUL License Application for failure to prosecute.7 As a
result, the KKUL CP expired by operation of law on April 7, 2010, and the call sign for Station KKUL
was deleted.


7 See 47 C.F.R. §0.283 and 47 C.F.R. §73.3568(a)(1).
5

On March 17, 2011, Tango filed the KKUL Petition and on March 18, 2011, Tango filed another
amendment with additional measurements and photos, purporting to provide the information initially
requested by staff. Tango seeks reinstatement and grant of the KKUL License Application.

Discussion.

In all three Petitions, Tango claims reconsideration is appropriate because staff may
have been unaware of Tango’s requests for additional time to submit the required information by the end
of February 2011. Because Tango did not receive a response to its extension request, it presumed the
request had been granted, which would have allowed Tango until the end of February to submit the
requested measurements and photographs. Tango claims now it was working to get the Commission the
requested information by March 2011, when “unexpectedly, without warning” the Commission dismissed
all three license applications on February 24, 2011.
Tango also seeks reconsideration because it was in contact with staff. Tango claims the Commission
incorrectly dismissed the three license applications for failure to prosecute because Tango had been in
regular contact with staff and had filed numerous amendments, evidencing responsiveness to staff’s
requests and its intent to prosecute the license applications.
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 changed circumstances or unknown
additional facts not known or existing at the time of petitioner’s last opportunity to present such matters.8
As discussed below, Tango has not met this test.
In all three Petitions, Tango appears to be relying on its request for an extension of time as
evidence of either new circumstances or error by the Commission. Tango first presumed the extension
had been granted and now presumes staff may not have been aware of the extension request. However, it
was Tango’s error to rely on its own presumptions. Section 1.46 of the Commission’s rules clearly states
it is our policy that extensions of time may not be routinely granted.9 Because none of the extensions
were granted, Tango was required to comply with the January 30, 2011 deadline.10
Moreover, Tango argues since it had been in constant contact with the Commission, it was clear
Tango intended to prosecute the applications. This argument ignores the fact the staff provided Tango
numerous opportunities to provide the requested information over the course of almost one year. At some
point, staff had to resolve the pending applications and could not indefinitely wait for Tango’s compliance
with the Special Operating Conditions on the KANM, KNOS, and KKUL CPs. Ultimately, to resolve the
pending applications, staff gave Tango a final opportunity to file all the required information for all three
license applications by January 30, 2011. Tango provides no adequate explanation for its failure to
comply with the numerous requests and opportunities to submit the requested information by the
specified deadline.


8 See 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), and National
Association of Broadcasters
, Memorandum Opinion and Order, 18 FCC Rcd 24414, 24415 (2003). It is also
appropriate to consider new facts not previously presented when such consideration is required in the public interest.
See 47 C.F.R. § 1.106(c)(2).
9 See 47 C.F.R. § 1.46; Royce International Broadcasting Co., 23 FCC Rcd 9010 (2008).
10 Tango requested an extension until “no later than during the last week of February” to file the KANM, KNOS,
and KKUL License Applications. Thus, even if Tango’s presumption was correct, it still failed to comply with its
own proposed filing deadline.
6

Tango has not presented any new facts or raised any material error in the Commission’s dismissal
of the KANM, KNOS, and KKUL License Applications. We cannot condone Tango’s failure to provide
the appropriate information at the required time. Consequently, staff action was proper in dismissing the
KANM, KNOS, and KKUL License Applications. Accordingly, we will deny Tango’s KANM, KNOS,
and KKUL Petitions for Reconsideration.
Finally, we reject Tango’s proffered amendment to its KANM, KNOS, and KKUL License
Applications. As discussed above, the applications were dismissed because of Tango’s failure to provide
information repeatedly requested by staff. Accordingly, Tango cannot, after the fact, proffer the
requested information and claim that it is entitled to reinstatement nunc pro tunc of its applications.11
Therefore, we will not consider Tango’s latest amendments of March 18, 2011, which purportedly
produced the requested information.

Conclusion.

Accordingly, IT IS ORDERED the Petitions for Reconsideration filed by Tango
Radio, LLC on March 17, 2011, ARE DENIED. Construction Permit BMPH-20100330ACZ for Station
KANM, Skyline-Ganipa, New Mexico; Construction Permit BMPH-20100330ADA for Station KNOS,
Albany, Texas; and Construction Permit BMPH-20100330ACZ for Station KKUL, Trinity, Texas
EXPIRED BY OPERATION OF LAW on April 10, 2010, without further action by the Commission.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau


11 See Canyon Area Residents, Memorandum Opinion and Order, 14 FCC Rcd 8152, 8154 (1999), quoting Colorado
Radio Corp. v. FCC
, 118 F. 2d 24, 26 (D.C. Cir. 1941). The Commission has stated before, “[w]e cannot allow a
party to ‘sit back and hope that a decision will be in its favor and, when it isn’t, to parry with an offer of more
evidence. No judging process in any branch of government could operate efficiently or accurately if such a
procedure were allowed.’”
7

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