FEDERAL COMMUNICATIONS COMMISSION

# Washington, D.C. 20554

## April 12, 2001

In Reply Refer To:

1800B3-GDG

David M. Hunsaker, Esq.

Putbrese Hunsaker & Trent, P.C.

100 Carpenter Drive/Suite 100/P.O. Box 217

Sterling, VA 20167-0217

Jeffrey D. Southmayd, Esq.

Southmayd & Miller

1220 19^th^ Street, N.W.

Suite 400

Washington, D.C. 20036

> In re: WREL-FM, Buena Vista, VA Facility No. 19672

File No. BPH-19891109ID

as modified by BMPH-19981116IF

WJMA-FM, Orange, VA

Facility No. 54872

File No. BMLH-19891213KE

Dear Counsel:

This letter concerns the March 26, 2001 Progress Report filed pursuant
to the staff's February 28, 2001 letter extending the period for tolling
Equus Communications, Inc.'s referenced permit ("Equus") to upgrade
WREL-FM's licensed facilities from Channel 244A to Channel 244B1.

[Background]{.underline}. On October 10, 2000, the staff approved
Equus's request for tolling, noting that the referenced permit is
conditioned so that WREL-FM may not commence program test authority
operations on Channel 244B1 or receive grant of its license application
until Piedmont Communications, Inc. ("Piedmont") commences program test
authority operations and receives its license grant for WJMA-FM, Orange,
Virginia, on Channel 255A. The staff emphasized that Equus and Piedmont
were close to concluding an eleven-year process originating in a 1989
allocations proceeding, and that it is "unwilling to permit continued
delays in instituting new service to the public which would be realized
by the commencement of operation by WREL-FM on channel 244B1." The
Commission's records were therefore modified to reflect that the
referenced permit expired February 10, 2001.

On February 12, 2001, Equus reported that substantial progress towards
resolving this matter but requested a brief extension of the period to
coordinate further with Piedmont regarding construction of the approved
facilities. The staff agreed, modifying WREL-FM's permit to require
completion of construction by March 25, 2001 or, in the alternative, to
require a report on any continuing difficulties. Equus's March 26, 2001
report indicates that there are scheduling difficulties with the tower
crew shared with Piedmont, and that Equus now expects to resolve this
remaining matter by May 25, 2001.

[Discussion]{.underline}. The Commission provides for the tolling in
circumstances "there is the failure of a Commission-imposed condition
precedent to commencement of operation." *Memorandum Opinion and Order*
in MM Docket 98-43, 14 FCC Rcd 17525, 17540 (1999). In such cases, we
"will not consider the permit of the initiating party forfeit provided
that the permittee notifies the staff that construction is complete and
the station is ready for operation prior to the expiration of the
permit." *Id*.

While the condition in association with other factors prevented the
commencement of authorized operations in past years, the stations should
within the period now requested be able to resolve the remaining
impediment to implementing their respective changes with Equus having
constructed by the May 25, 2001 date specified in its current request.
We will therefore modify the Commission's database to specify May 25,
2001 as the date for completion of Equus's authorized construction and,
as ordered in our October 10, 2000 letter, for the simultaneous
notification to Piedmont that WREL-FM is ready to commence program test
operations.

This notification, in turn, requires that Piedmont simultaneously
suspend operations on Channel 244A and implement its approved change to
Channel 255A. If Piedmont is unable to commence operations on Channel
255A at this juncture, it must remain silent until it is ready to resume
on its new channel. We remind Piedmont that, pursuant to 47 C.F.R.
§73.1740(c), the licensee of any station failing to transmit broadcast
signals for any consecutive 12-month period expires as a matter of law
at the end of that period. *See also* 47 U.S.C. §312(g).

Accordingly, the Commission's database IS MODIFIED to specify May 25,
2001 as the date by which Equus must complete the authorized
construction and file the appropriate license application to cover the
referenced permit. Further, Equus IS ORDERED TO SIMULTANEOUSLY NOTIFY
Piedmont Communications, Inc. that it is ready to commence operations
pursuant to the Commission's program tests rules, 47 C.F.R. §73.1620.
Finally, Piedmont IS ORDERED TO NOTIFY the staff, upon receipt of
Equus's program test statement that it in turn is implementing
operations on Channel 255A pursuant to its licensed parameters or, in
the alternative, that it has suspended operations pending resumption of
operations on Channel 255A.[^1] We do not contemplate revisiting this
matter.

Sincerely,

Linda Blair, Chief

Audio Services Division

Mass Media Bureau

[^1]: We remind Piedmont that it may conduct program tests in accordance
    with the provisions of 47 C.F.R. §73.1620 provided its transmission
    facilities comply in all respects with the referenced license,
    except for the channel specified above, and that it must file a
    license application (FCC Form 302) within 10 days of commencing
    program tests on Channel 255A.