Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. BPH-19960201MB,     |
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| Texas Grace Communications       | ) | as modified by               |
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| Requests to Toll the Period to   | * | BMPH-19990217IB              |
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| Construct Unbuilt Station        | * |                              |
| KRZB(FM)                         | * |                              |
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| Archer City, Texas               | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 16, 2005 Released: March 1, 2005**

By the Commission:

1\. The Commission has before it several pleadings from Texas Grace
Communications, permittee of unbuilt station KRZB(FM), Archer City,
Texas. Texas Grace seeks both reconsideration and review of two staff
letters dated January 29, 2004, which denied its requests for additional
construction time.[^1] We dismiss Texas Grace's requests as untimely,
for the reasons discussed below.

**I. BACKGROUND**

2\. Texas Grace received its initial permit to construct KRZB(FM) on
October 7, 1996. In October 2001, the Commission denied Texas Grace's
request for additional time to construct, finding that Texas Grace was
not entitled to "tolling" under Section 73.3598(b) of the Commission's
rules.[^2] The Commission clarified that tolling is appropriate only in
the narrow circumstances enumerated in that rule section. It rejected a
tolling claim based on health problems of Texas Grace's principal. It
also found that KRZB's community of license change from Olney to Archer
City, Texas did not create a new station entitled to a new construction
period, and rejected encumbrance arguments based on associated
rulemaking proceedings.[^3] Nevertheless, the Commission observed that
prior to its clarification therein, "\[a\] permittee, like Texas Grace,
might have concluded that reliance on mere facilities modifications
involving frequency or class would be insufficient to trigger tolling,
but that a facility change coupled with a community of license change
might be treated differently." [^4] To avoid unfairness to Texas Grace,
the Commission modified Texas Grace's existing permit, by waiver, to
provide it with an additional three years to construct. In so doing, the
Commission expressly stated that the construction permit would
automatically cancel unless Texas Grace completed construction and filed
an application to license the authorized facilities by October 26, 2004.
Additionally, the Commission advised that Texas Grace would not be
eligible for further extension of the October 26, 2004, construction
deadline because Texas Grace had already received well in excess of
three unencumbered years to construct.[^5]

3\. In 2003, Texas Grace filed additional requests for tolling, which
the staff denied or dismissed. On January 29, 2004, the staff denied
reconsideration in two separate letters. The first letter (bearing a
staff reference number 1800B3-GDG) found that the staff had properly
concluded that Texas Grace was not entitled to an additional six months
to construct the station as a result of an alleged error by the Federal
Aviation Administration ("FAA") ("*FAA Reconsideration Denial*"). The
second letter (bearing a staff reference number 1800B-IB) affirmed the
initial staff determination that Texas Grace was not entitled to an
additional 17 months based on events in rulemaking proceedings,
including changes in the station's interference protection ("*Rulemaking
Reconsideration Denial*").[^6] The *Rulemaking Reconsideration Denial*
also dismissed as untimely two submissions filed August 21, 2003, (the
"*August Submissions*"). The *August Submissions*, similar in many ways,
both sought to expand Texas Grace's 17-month rulemaking-related claim to
23 months following the July 25, 2003, release of a rulemaking
order.[^7] The two *August Submissions* differed primarily in that one
pleading sought to amend Texas Grace's petition for reconsideration and
the other sought consideration of the same facts as a new tolling
request.

4\. On February 3, 2004, the staff issued a consolidated Public Notice
announcing, among other things, its January 29, 2004 actions on Texas
Grace's various requests.[^8] Applications for Review were due within 30
days of public notice, *i.e.,* by March 4, 2004. On March 8, 2004, Texas
Grace filed three documents: an application for review of the *FAA
Reconsideration Denial*, an application for review of the *Rulemaking
Reconsideration Denial*, and a petition for reconsideration concerning
dismissal of the *August Submission* that Texas Grace had intended as a
tolling request. On March 19, 2004, Texas Grace submitted amendments to
each of these documents.

5\. Texas Grace recognizes that each of its filings ordinarily would be
considered untimely. Nevertheless, Texas Grace argues that its
submissions must be considered timely-filed due to alleged defects[^9]
in the public notice. Specifically, Texas Grace contends that: (1) the
single consolidated notice did not adequately distinguish the separate
actions taken on January 29, 2004; (2) the notice did not correctly
identify the *Rulemaking Reconsideration Denial* by the staff reference
number (1800B-IB) which appeared on the document, but rather by
reference number 1800B[3]{.underline}-IB (adding a number 3 which was
not present on the letter); and (3) the Public Notice, did not give
adequate notice of dismissal of the *August Submissions*, because Texas
Grace intended one of these submissions to be treated as a new tolling
request, but the notice described it as a "Supplement filed 8/21/03."

6\. Based on the alleged defects in public notice, Texas Grace contends
that the February 3, 2004, date of public notice should not be used to
calculate the deadline for filing petitions for reconsideration and
applications for review. Texas Grace suggests that the 30-day deadline
should be counted instead from February 9, 2004, the date on which Texas
Grace's proprietor received copies of the decision letters by both mail
and fax at the address to which he had asked the U.S. Postal Service to
forward his mail. Texas Grace contends that the staff itself attached
some significance to the date of Texas Grace's receipt, by using
certified mail, return receipt requested. Texas Grace also relates that
the staff viewed receipt of documents by Texas Grace's sister company
important in a different proceeding, in which the staff reissued and
redated a decision after learning that the companies' principal had not
received a letter mistakenly addressed to a previous residence. Texas
Grace concludes that the filing deadline should be March 10, 2004, and
therefore that its March 8, 2004, filings were timely.

**II. DISCUSSION**

7\. Petitions for reconsideration, applications for review, and any
supplements thereto must be filed within 30 days of public notice, as
that term is defined in Section 1.4(b) of the rules.[^10] When, as here,
the full text of an action document is not released by the Commission,
but a descriptive document entitled "Public Notice" describing the
action is released, public notice is given on the date on which the
descriptive "Public Notice" is released.[^11] Thus, under the
Commission's rules, deadlines for filing petitions for reconsideration
and applications for review are not dependent in this case upon any
person's receipt of actual notice.[^12] The staff's use of certified
mail in this case does not change the first day to be counted for
determining the filing deadline for seeking review or reconsideration.
The use of certified mail was a mere staff courtesy.

8\. Texas Grace has not shown that the Public Notice in the instant case
was defective. Texas Grace misconstrues the role of the public notice
process in preserving a party\'s right of review of agency actions. A
public notice which initiates the 30-day period for seeking review or
reconsideration is \"adequate only if it alert\[s\] interested parties
to documents which would allow them to determine whether their interests
were implicated.\"[^13] The instant Public Notice, which identifies
letter actions concerning Texas Grace and station KRZB, clearly
satisfies this requirement.

9\. With respect to exact wording of the notice, the Commission and
staff have wide latitude regarding the information included, provided
that the notice gives \"fair warning\" of the scope of the described
action.[^14] The instant notice accurately reflects that the staff
denied reconsideration of two Texas Grace filings dated June 9, 2003,
and December 29, 2003, and also dismissed two August 21, 2003, Texas
Grace filings as untimely. We reject as meritless Texas Grace's
contention that the staff was required to use multiple public notices to
dispose of several Texas Grace submissions. Texas Grace's complaint that
one internal routing code listed in the public notice did not correspond
exactly to the code listed on the letter is equally unpersuasive. The
staff's public notice was sufficient to permit someone exercising
reasonable diligence to identify and locate the action documents
described therein.[^15]

10\. Finally, we address the staff's dismissal as untimely of the
*August Submission* characterized by Texas Grace as a "new and separate"
tolling request. This filing both repeats arguments raised previously
and claims that Texas Grace is entitled to additional time based on the
*2003 Rulemaking Order*. To the extent that this filing relies on the
*2003 Rulemaking Order,* the dismissal was erroneous. It was
timely-filed within thirty days of that *Order.*[^16] However, the
staff's dismissal of the filing as untimely was harmless error, given
that the arguments raised therein were without merit. As the Commission
has held previously with respect to this particular construction permit,
permittees may not rely on rulemaking proceedings, including those
involving changes in allotment reference coordinates, to toll a permit
or waive a construction deadline.[^17] Moreover, when the Commission
waived Section 73.3598 and extended Texas Grace's construction deadline
to October 26, 2004, the permittee had already received an unencumbered
construction period in excess of the three years specified in the rule.
On that basis, the Commission advised Texas Grace it would be ineligible
for any further extension of the October 26, 2004, construction deadline
and that its construction permit would expire automatically on that date
unless it had completed construction and timely filed a license
application.[^18] In these circumstances, no event arising during the
additional three-year period that began October 26, 2001, including the
release of the 2003 *Rulemaking Order*, constituted a tolling event
within the meaning of the rule or provided a basis for a further
extension of the permit's expiration date. In accordance with our *Texas
Grace* order, the KRZB(FM) construction permit automatically cancelled.

11\. In any event, Texas Grace's untimely arguments are without merit.
First, it contends that it is entitled to approximately six additional
months[^19] due to certain FAA problems in 2003 relating to the
termination of a 2001 FAA study of the permitted facilities and a 2003
study which Texas Grace states was needed to "facilitate reinstatement
of KRZB's tower rights."[^20] Those problems, however, related to
studies which were never required. In 1999 the FAA issued a no hazard
determination for the tower specified in the Archer City construction
permit. That determination explicitly stated that the no hazard
determination would remain in effect until "the date prescribed by the
FCC for completion of construction," *i.e.,* October 26, 2004.[^21] This
condition, routinely included by the FAA in determinations associated
with applications for broadcast station construction permits,
establishes that the 1999 no hazard determination was sufficient for
construction of the KRZB facilities and that the 2001 FAA study and 2003
restudy of these same facilities were unnecessary. As the FAA stated
when it terminated the 2003 study, the expiration date of the FAA's 1999
study "became the same as the FCC expiration" date once the Commission
issued the Texas Grace construction permit in 1999, and "\[b\]y FAA
policy, no further study was ever required for this structure."[^22] The
FAA thus terminated the 2003 study after it was advised that Texas Grace
held an FCC construction permit. Providing additional time to construct
based on difficulties encountered by Texas Grace in obtaining a
redundant FAA clearance is clearly unwarranted.

12\. Second, Texas Grace contends that it is entitled to a 23-month
period starting with grant of the new three-year construction period and
ending on the effective date of a staff decision downgrading the Archer
City allotment to Class C2.[^23] In adopting rules establishing a
three-year construction period, the Commission explicitly rejected a
request to toll construction periods during "the pendency of petitions
for rulemaking affecting a station's frequency and/or class . . .
."[^24] Subsequently, the Commission rejected Texas Grace's identical
contention in the *Texas Grace* decision.[^25] Similarly, we conclude
that no additional time to construct is warranted based on the
rulemaking to restore the Class C2 allotment to Archer City.

**III. ORDERING CLAUSES**

13\. Accordingly, IT IS ORDERED, that each of the Applications for
Review filed by Texas Grace Communications on March 8, 2004, ARE
DISMISSED as untimely.

14\. IT IS FURTHER ORDERED, that the Petition for Reconsideration filed
by Texas Grace Communications on March 8, 2004, IS DISMISSED as
untimely.

15\. IT IS FURTHER ORDERED, that the Amendments to the above-referenced
Applications for Review and to the Petition for Reconsideration filed by
Texas Grace on March 19, 2004, ARE DISMISSED AS MOOT.

> **FEDERAL COMMUNICATIONS COMMISSION**

Marlene H. Dortch

Secretary

[^1]: The Media Bureau has referred the March 8, 2004, Texas Grace
    petition for reconsideration to the Commission pursuant to 47 C.F.R.
    § 1.106(a)(1). *See* paragraph 4, *infra*.

[^2]: *See* 47 C.F.R. § 73.3598(b).

[^3]: *See Texas Grace Communications,* 16 FCC Rcd 19167 (2001) ("*Texas
    Grace")*.

[^4]: *Texas Grace,* 16 FCC Rcd at 19171.

[^5]: *Id.* at 19174 n.13.

[^6]: One of Texas Grace's arguments centers on use of staff reference
    numbers. Such numbers are generic codes that merely aid the
    Commission's staff in identifying the originating Division,
    sub-Division unit, and responsible employee for certain - typically
    unpublished - decisions. In this case, "1800B" indicates that the
    Audio Division originated the item. The digit "3" in "1800B3"
    identifies an FM radio matter in the Audio Division.

[^7]: *See Archer City, Texas*, 18 FCC Rcd 15532 (MB 2003) ("*2003
    Rulemaking Order*"). Specifically, Texas Grace argues that the three
    additional years that the Commission granted in October 2001 should
    not begin to run until September 8, 2003, the effective date of an
    allotment change made in the *2003 Rulemaking Order.* That change,
    which Texas Grace supported, amended the Archer City allotment from
    Class C1 to Class C2 and changed the allotment's reference
    coordinates. As we have observed, the prior Class C1 designation of
    the Archer City allotment arose from Texas Grace's successful
    counterproposal in another rulemaking proceeding. *See Texas Grace*,
    16 FCC Rcd at 19167 n.2 (citing *Tipton, Mangum, Eldorado and
    Granite, Oklahoma; and Archer City, Texas*, 14 FCC Rcd 21161 (MMB
    1999) ("*Oklahoma R&O").* Although the *Oklahoma R&O* required Texas
    Grace to file an implementing application by April 17, 2000, it
    never did so. *Id.*

[^8]: *See Broadcast Applications,* Report No. 25664 (Feb. 3, 2004). The
    public notice summarized the history of KRZB's application to modify
    its construction permit and added the following new information:
    "1/29/04 -- Petition for Reconsideration filed 6/9/03 Denied,
    Petition for Reconsideration and Supplement filed 8/21/03 dismissed
    as untimely, Ltr action Ref. 1800B3-IB. Petition for reconsideration
    filed 12/29/03 Denied, Ltr. action, Ref. 1800B3-GDG."

[^9]: At the time that Texas Grace first alleged defects in the Public
    Notice it had not yet seen that Public Notice because Texas Grace
    incorrectly expected it to appear in the daily "Broadcast Actions"
    reports while the staff routinely gives notice of decisions on
    reconsideration in the daily "Broadcast Applications" reports. Texas
    Grace thus argued erroneously that the public notice announced only
    one action taken on January 29, 2004, without specifying whether
    that action was the *Rulemaking Reconsideration Denial* or the *FAA
    Reconsideration Denial.* On March 19, 2004, after viewing the public
    notice, Texas Grace amended its claims.

[^10]: *See* 47 C.F.R. § 1.106(f) (petitions of reconsideration); 47
    C.F.R. § 1.115(d) (applications for review); 47 C.F.R. § 1.4(b).

[^11]: 47 C.F.R. § 1.4(b)(4).

[^12]: 47 C.F.R. § 1.4(b)(5). As Texas Grace observes, the staff has
    discretion to reissue a decision on its own motion if the decision
    contains a mistake, such as an inaccurate address. No such mistake
    occurred here, however, and the circumstances do not provide a basis
    for the staff to reissue decisions that were properly addressed and
    timely mailed to Texas Grace's official address of record in
    Mississippi. Texas Grace acknowledges, and U.S. Postal Service
    records confirm, that the January 29, 2004, decisions were received
    at Texas Grace's official address in Mississippi on February 5,
    2004; Texas Grace, however, had requested that the Postal Service
    temporarily forward all mail to an unofficial address in New York.
    The Postal Service delivered the forwarded decisions to Texas
    Grace's proprietor in New York on February 9, 2004, the same day
    that he contacted the staff to request that the decisions also be
    sent to him via fax. There is no argument that Texas Grace did not
    receive the documents.

[^13]: [*Hispanic Information and Telecommunications Network v. FCC,*
    865 F.2d 1289, 1295 (D.C. Cir.
    1989).](http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1989014646&ReferencePosition=1295)

[^14]: *See* *KOLA, Inc.,* 11 FCC Rcd 14297, 14310 (1996) (citing
    [*Ridge Radio Corporation v. FCC*, 292 F.2d 770, 773 (D.C. Cir.
    1961)](http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1961114095&ReferencePosition=773)).
    For example, where the Commission addresses multiple matters in a
    single action document, a public notice identifying the document and
    primary action is sufficient. *Id.*

[^15]: *See Thomas W. Tittle*, 5 FCC Rcd 1196, 1197 (1990) (interested
    parties must exercise reasonable diligence in reviewing public
    notices).

[^16]: *See 2003 Rulemaking Order,* 18 FCC Rcd at 15532. However,
    insofar as the filing additionally attempts to "update and adjust" a
    November 2002, tolling request which was denied in May 2003, and
    relies on other matters occurring more than 30 days prior to the
    request, such as rulings between October 2001 and May 2003, those
    arguments were untimely. *See* 47 C.F.R. § 73.3598(c). The other
    *August Submission,* submitted as an untimely amendment to a
    Petition for Reconsideration, was properly dismissed as untimely.
    *See* 47 C.F.R. § 1.106(f).

[^17]: *See* *Texas Grace,* 16 FCC Rcd at 19170-71. Nowhere did the
    Commission, as Texas Grace suggests, link the running of the
    additional three-year period to Texas Grace's restoration of the
    Archer City allotment to Class C2. The *2003 Rulemaking Order*'s
    substitution of channel 248C2 for channel 248C1 occurred because
    Texas Grace voluntarily sought and obtained modification of the
    permit to specify channel 248C1, but then failed to timely file the
    required implementing application. *See supra* n.7.

[^18]: *Id.* at 19174 n.13.

[^19]: The FAA arguments are based on the period June 5, 2003 through
    November 25, 2003.

[^20]: Application for Review of FAA Matters at ii.

[^21]: *Determination of No Hazard to Air Navigation (FAA Aeronautical
    Study No. 99-ASW-2013-OE)* (Aug. 13, 1999) at 1 (submitted as
    Exhibit F to Application for Review of FAA Matters).

[^22]: *Termination of Aeronautical Study No. 2003-ASW-3016-OE* (Nov.
    25, 2003) at 2 (submitted as Exhibit D to Application for Review of
    FAA Matters).

[^23]: *See supra.* n.7. The period at issue begins October 26, 2001 and
    ends September 8, 2003.

[^24]: *See 1998 Biennial Regulatory Review, Streamlining of Mass Media
    Applications, Rules, and Processes,* 14 FCC Rcd 17525, 17538-39
    (1999).

[^25]: *Texas Grace*, 16 FCC Rcd at 19170-71.