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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In re Application of            )
                                )
WOMEN BROADCASTERS, INC.        )       File No. BPH-890921NF
                                )       File No. BMPH-951024JB
For Reinstatement of Construction Permit)
For Unbuilt Station WVZC(FM)    )
Montauk, New York               )
                                )


                  MEMORANDUM OPINION AND ORDER


   Adopted:  June 3, 1997               Released:  June 13, 1997

By the Commission:

     1.  The Commission has before it a June 10, 1996 application for review filed by Women
Broadcasters, Inc. ("WBI").  WBI seeks review of a May 9, 1996 letter ruling ("the letter ruling")
from the Chief, Audio Services Division, which denied an October 23, 1995 petition for
reconsideration of the cancellation of WVZC(FM)'s original construction permit and dismissed
WBI's application for reinstatement of the cancelled permit.  For the reasons stated below, we
deny WBI's application for review.

                            BACKGROUND

     2.  The original construction permit for WVZC(FM) was granted on August 12, 1991, and
required that construction of the WVZC(FM) facilities be completed by February 12, 1993.  On
February 11, 1993, an application was filed requesting a first extension of time to construct which
reported to the Commission that zoning problems had made it difficult for WBI to obtain an
available and suitable transmitter site on Long Island, New York.  That extension application
stated that WBI had initiated negotiations with C&S Radio-Southfork, L.P. ("C&S"), licensee of
WBEA(FM), Montauk, New York, concerning joint use of the WBEA(FM) tower and that "we
have concluded that this is our only realistic alternative, and are inaugurating final negotiations
to secure such a lease . . . ."  WBI pledged that a modification of construction permit application
would be filed upon completion of negotiations concerning the new transmitter site.  The
extension application was granted on April 20, 1993; construction of the station was to be
completed by October 20, 1993.

     3.  WBI subsequently filed a second extension request on October 15, 1993, stating that
WBI had "reached a meeting of the minds relative to the use of tower space on the existing tower
occupied by existing station WBEA(FM)."   During the pendency of the second extension
application, WBI filed a modification application specifying the WBEA(FM) tower and then
amended it to include a certification that WBI would begin construction immediately upon grant
of that application.  The staff granted the extension and modification applications on December
14, 1994; construction of the station was to be completed by June 14, 1995. 

     4.  WBI failed to file either an application for extension of time to construct or an
application for license to cover that permit by the June 14, 1995 expiration date.  Thus, on
September 22, 1995, Commission staff issued a letter informing WBI that its construction permit
had been cancelled and call sign WVZC(FM) deleted.   

     5.  On October 23, 1995, WBI filed a petition for reconsideration of the cancellation and
the above-captioned application to reinstate the cancelled permit.  The petition for reconsideration
explained that the terms of the tower lease agreement that formed the basis of the second
extension were not terms that "C&S intend[ed] to insist on," see note 1 supra, that WBI was again
attempting to finalize the arrangement with C&S relative to the leasing and use of the
WBEA(FM) tower and that further negotiations were required, thus delaying construction.  WBI
also explained that the lease of the WBEA(FM) tower was part of a broader proposed business
arrangement which had been discussed between principals of WBI and C&S since 1993 and
which would include, inter alia, the implementation of a local marketing agreement and
acquisition of a minority ownership interest in WBI by C&S or a related C&S entity.  In this
regard, C&S had submitted an October 11, 1994 draft memorandum outlining the terms of the
business arrangement to WBI. 

     6.  The plan was never finalized.  WBI asserted that it made continuing, unsuccessful
efforts to contact C&S for a period of several months prior to the expiration of the second
extension period on June 14, 1995, but was unable to secure C&S's attention to the
"understandings previously given."  In fact, at some point in March 1995, the WBEA(FM)
general manager had informed a WBI principal that the C&S President no longer thought that an
arrangement with WBI made financial sense.  Nonetheless, on June 13, 1995, counsel for WBI
faxed a proposal to C&S, outlining the terms of a proposed lease agreement.  Specifically, the
agreement would provide for a monthly rental fee of $700 for an initial lease term of five years.
Compare note 1 supra.  The proposal stated that this letter of reasonable assurance superseded all
prior letters of reasonable assurance and was expressly subject to the execution of a definitive
lease agreement.  On June 14, 1995, the day the permit expired, C&S responded by faxing to
WBI its draft counter proposal.  C&S proffered that WBI's rental fee would be based upon the
cost of constructing and maintaining the WBEA(FM) tower and would bear no relation to rents
payable on other towers on Long Island.  WBI rejected C&S's counter offer.    

     7.  As noted, on September 22, 1995, when WBI had failed to file either a third extension
request or an application for a license to cover the construction permit, the staff notified WBI that
the construction permit had been cancelled and the call sign deleted.  The May 9, 1996 letter
ruling by the Chief, Audio Services Division denied reconsideration of the September 22 action.
The letter ruling found that, despite WBI's efforts to shift responsibility to C&S for the lack of
construction progress, WBI, as permittee, was ultimately responsible for proceeding expeditiously
with construction.  It concluded that WBI's decision to engage in protracted negotiations with
C&S regarding tower space and other matters was strictly a business decision that did not justify
grant of a third extension. 

     8.   In the application for review, WBI argues that it was entitled to an extension pursuant
to 47 C.F.R. Section 73.3534(b)(3), since no progress had been made for reasons clearly beyond
the control of the permittee and since the permittee took all possible steps to expeditiously resolve
the problem and proceed with construction.  WBI challenges the letter ruling's determination that
WBI's business judgment was the reason that no construction had occurred.  WBI avers that "a
tower owner's sudden decision to deny access [emphasis added] to a transmitter site for which it
had previously provided reasonable assurance of availability is a factor beyond the permittee's
control which justifies an extension." (App. at p. 15).   WBI asks the Commission to consider
these arguments in light of the difficulty in locating an available and suitable tower site on Long
Island. 

     9.  The application for review also argues that the letter ruling improperly considered
events occurring outside of the relevant December 14, 1994 to June 14, 1995 construction period,
as the tower rental terms in the C&S June 14, 1995 counter proposal letter were specifically
rejected by WBI after this time period.  If the Commission is to rely upon events occurring after
June 14, 1995, WBI states, it must then consider WBI's subsequent efforts to locate an alternative
site and its March 19, 1996 letter to the Commission reporting the successful location of such an
alternative tower site.

                           DISCUSSION 

     10.  The staff properly cancelled WVZC(FM)'s permit because WBI failed to timely file
an extension application prior to the June 14, 1995 expiration of its construction period, as
extended.  Moreover, the application to replace the expired permit that accompanied WBI's
petition for reconsideration failed to satisfy the requirements of the applicable rule, 47 C.F.R.
Section 73.3534(b).  Though WBI maintains that it did not construct because of circumstances
beyond its control, we agree with the staff that this is a mischaracterization of the facts.  

     11.  WBI's representation to the Commission that it had obtained reasonable assurance for
a tower site in September 1993, as well as its certification that construction would begin
immediately upon grant of the modification application, obligated WBI to commence the business
of construction.  However, WBI neither ordered any equipment, nor proceeded with any
construction.  Indeed, WBI merely continued to hope for a "definitive agreement" with C&S.  
The fact is that for approximately 28 months the arrangement between the two parties never
proceeded beyond the negotiation stage.  
 
     12.  WBI asserts that it acted in good faith to implement the contemplated arrangement
with C&S, but that C&S made an "exclusive" and "sudden" decision not to carry out the
September 24, 1993 agreement by submitting its June 14, 1995 counter proposal that the tower
rent be based upon the actual cost of tower construction.  WBI's contention that this rental term
constitutes a denial of access to the WBEA(FM) tower does not follow.  Even if the Commission
were to assume, arguendo, that after C&S provided a reasonable assurance of site availability on
September 24, 1993, the sole reason that no progress toward construction occurred was the
unilateral intransigence of C&S, precedent would not permit an extension based on the record
before us.  A permittee has the obligation to ascertain expeditiously the potential intransigence
of a lessor, where negotiations with that lessor have provided the basis for the Commission to
grant a prior extension.  Contemporary Communications, 11 FCC Rcd 5230, 5231 (1996).  The
instant facts demonstrate that WBI has not fulfilled this obligation.  WBI continued to negotiate
with C&S until the day its second extension expired. 

     13.  WBI's reliance on William J. Kitchen, 7 FCC Rcd 4169, 4170, (1992) is misplaced.
In Kitchen, the Commission granted an extension because of the "unique difficulties" in securing
a lease resulting from the unusual and protracted governmental approval processes required in
American Samoa.  Nor is Community Service Telecasters, Inc., 6 FCC Rcd 6026 (1991)
controlling.  There, too, FAA and zoning approval difficulties were at issue.  Here, we agree with
the staff, that private business decisions -- not governmental processes -- are the key factor in the
failure to construct. 

     14.  Finally,  WBI contends that the letter ruling wrongly considered WBI's decision to
not accept C&S's June 14, 1995 proposal, because a "formal" rejection occurred at a later,
unspecified date.  WBI decided not to accept the C&S offer on the day the construction period
expired, and the letter ruling properly considered that decision.  Whether WBI "formally" rejected
the proposal at a later date is not relevant.  Nor is the Commission obligated, as WBI asserts, to
consider efforts made by WBI to acquire another site in March 1996 -- after the permit was
cancelled.  Applicants for extension of construction permit are not entitled to "credit" for
construction efforts that occur after the expiration of the authorized construction period.  SeeRainbow Broadcasting Company, 11 FCC Rcd 1167-68 (1995) (subsequent history omitted).

     15.  Accordingly, IT IS ORDERED, That pursuant to Section 1.115 of the Commission's
rules, 47 C.F.R. Section 1.1115, the June 10, 1996 application for review filed by Women
Broadcasters, Inc. IS DENIED.    

                              FEDERAL COMMUNICATIONS COMMISSION


                              William F. Caton
                              Acting Secretary