**DA 08-2308**

*In Reply Refer to*:

1800B3-JWR

Released: October 17, 2008

Harry C. Martin, Esq.

Fletcher, Heald & Hildreth PLC

1300 N. 17^TH^ Street, 11^th^ Floor

Arlington, Virginia 22209

Re: W230BH(FX), Montauk, NY

Facility ID No. 139393

File No. BLSTA-20070702AZF Request for Special Temporary

Authority

File No. BLFT-20080616AEH

Application for License

Dear Mr. Martin:

This concerns the above-referenced application (the "Application") for
license to cover construction permit filed June 16, 2008, by Community
Bible Church ("CBC"), permittee of FM translator station W230BH (FX),
Montauk, New York ("Station"). Accompanying the license application is
CBC's Request for Waiver of Section 73.1740(c) of the Commission's Rules
("Request"),[^1] as amended on September 23, 2008, requesting that the
Commission not declare that the Station's license had expired as a
matter of law because the Station did not operate for a consecutive
12-month period. For the reasons stated below, we grant both the waiver
request and the Application.

> **Background**. The initial construction permit for W230BH was granted
> to Bridgelight, LLC ("Bridgelight") on April 7, 2004, with an
> expiration date of April 4, 2007.[^2] The originally authorized tower
> site, which is owned by Pinnacle Towers LLC a/k/a Crown Castle
> (\"Pinnacle\"), could not be utilized because a required building
> permit had not been obtained prior to construction. Because
> Bridgelight anticipated that it would take approximately a year to
> obtain the building permit, on March 14, 2007, it filed a modification
> application to relocate to a new site where construction could be
> timely completed before the April 4, 2007, expiration date. [^3] The
> staff granted this application two days later, on March 16, 2007. On
> March 20, 2007, Bridgelight commenced Station operations from the new
> site and filed a covering license application, which was granted on
> April 18, 2007.[^4]
>
> CBC acquired the Station from Bridgelight on April 24, 2007.[^5] On
> May 4, 2007, CBC filed a Notification of Suspension of
> Operations/Request for Silent STA, stating that the station had been
> silent since April 3, 2007.[^6] On May 14, 2007, CBC filed a
> modification application proposing to relocate to the originally
> authorized Pinnacle tower site, which was granted on May 17, 2007.[^7]
> On July 2, 2007, CBC filed a request to extend its authority to remain
> silent, which remains pending.[^8] On June 16, 2008, CBC filed the
> subject application for license,[^9] which includes a request to waive
> Section 73.1740(c) of the rules, because the Station had been silent
> for more than 12 consecutive months and as a consequence, pursuant to
> the Rule, its license had expired as a matter of law.
>
> **Request for Waiver***.* In support of its Request, CBC states that,
> within a few weeks after commencing operations, the owner of the site
> unexpectedly evicted the station. CBC indicates that the station's
> facilities were inconsistent with zoning in a residential area and had
> to be dismantled. On May 4, 2007, CBC filed the Silent STA Request,
> stating that the Station had been silent since April 3, 2007, and on
> May 14, 2007, CBC filed the May 2007 Modification Application. CBC and
> Pinnacle then jointly applied to the Town of East Hampton\'s Planning
> Board for permission to place the Station at the Pinnacle site. The
> Planning Board approved the plan on November 28, 2007, and it
> ultimately issued a building permit on April 22, 2008.
>
> CBC states that during the first week of April 2008, when it was
> expecting the issuance of the building permit "any day,"[^10] it
> discovered a discrepancy in the antenna structure registration number
> (\"ASR\") data applicable to the Pinnacle tower. [^11] Specifically,
> CBC states that its construction permit specified an ASR number of
> 1229148, and that unknown to CBC, the tower Pinnacle wanted CBC to
> use, which is at the same coordinates, has an ASR of 1224868. In
> preparing for construction, however, CBC learned that the
> Commission\'s records for ASR No. 1224868 contained incorrect
> information and were otherwise inconsistent with CBC\'s construction
> permit. CBC states that it promptly notified Pinnacle of the
> discrepancies, and that, based on its own study, Pinnacle determined
> that both the Commission\'s and the Federal Aviation Administration's
> ("FAA") records for the proposed tower were incorrect. Thereupon,
> Pinnacle filed for a new no-hazard determination from the FAA and,
> subsequently, for a modified ASR for the tower.[^12]
>
> While the administrative proceedings resolving the ASR discrepancies
> were pending before the Commission and FAA, CBC states that it was
> told by Pinnacle that CBC could use the tower, but at its own risk,
> until the records for the tower were corrected by the FAA and the
> Commission. On May 1, 2008, Pinnacle presented CBC with a letter
> containing a release designed to protect Pinnacle from any liability
> should CBC proceed before FCC approval and Commission tower
> registration had been obtained. CBC states that it declined to sign
> the release because it was unwilling to violate the Commission's
> rules. Pinnacle and CBC subsequently executed a site lease on June 13,
> 2008. CBC indicates that it completed construction immediately
> thereafter, filing the Application on June 16, 2008.
>
> CBC states that it was ready and willing to construct the authorized
> facilities on the Pinnacle tower well before the April 18, 2008,
> silence deadline, but, due to the discrepancy in the ASR data, which
> it brought to Pinnacle's attention, and the consequent \"additional
> and unanticipated administrative resolution,\" the resulting delays
> were beyond CBC\'s control.

**Discussion**. Section 73.1740(c) of the Rules, which implements
Section 312(g) of the Communications Act of 1934, as amended (the
"Act"),[^13] provides that the license of any broadcasting station that
fails to transmit broadcast signals for any consecutive 12-month period
expires as a matter of law at the end of that period, notwithstanding
any provision, term, or condition of the license to the contrary. It is
undisputed that the Station had suspended operation for 12 consecutive
months, beginning on April 3, 2007. Although Section 312(g) provides for
the forfeiture of a broadcast license under such circumstances, it also
allows the Commission the discretion, where appropriate, to extend or
reinstate a forfeited license, notwithstanding more than 12 months of
station silence. Specifically, in pertinent part, Section 312(g)
provides, ". . . the Commission may extend or reinstate such station
license if the holder of the station license prevails in an
administrative or judicial appeal, the applicable law changes, or for
any reason to promote equity and fairness.\"[^14]

Although the Station ceased broadcasting and remained off the air for
more than 12 consecutive months, we find that CBC diligently pursued the
proper building permit from the local authorities and was prevented from
constructing by administrative resolution of the ASR discrepancies, for
which it was not responsible and which it dutifully reported to the
tower owner. In particular, we believe it would be unduly harsh to
penalize CBC for conscientiously initiating actions which directly
promoted the integrity of the ASR system and advanced air safety
goals.[^15] Therefore, we find this case warrants the exercise of our
discretion under Section 312(g) of the Act.

**Action**. Accordingly, IT IS ORDERED, that the Request of Community
Bible Church for waiver of Section 73.1740(c) of the Commission's Rules
IS GRANTED

IT IS FURTHER ORDERED, that the application for license (File No.
BLFT-20080616AEH) IS HEREBY GRANTED, and the request for Special
Temporary Authorization to remain silent (File No. BLSTA-20070702AZF) IS
DISMISSED AS MOOT.

Sincerely,

Peter H. Doyle

> Chief, Audio Division
>
> Media Bureau

cc: Community Bible Church

[^1]: 47 C.F.R. §73.1740, "Minimum Operating Schedule."

[^2]: File No. BNPFT-20030812ACH.

[^3]: File No. BMPFT-20070314ACF.

[^4]: File No. BLFT-20070320ANE.

[^5]: *See* File No. BAPFT-20070215AAI, granted April 2, 2007.

[^6]: File No. BLSTA-20070504ACU (the "Silent STA Request"). The staff
    approved the request for authority to remain silent on May 8, 2007.
    CBC indicated in this request that it had received permission to
    locate W230BH at its preferred site, a tower owned by Crown Castle.

[^7]: File No. BPFT-20070514AGN (the "May 2007 Modification
    Application").

[^8]: File No. BLSTA-20070702AZF.

[^9]: File No. BLFT-20080616AEH.

[^10]: *See* September 23, 2008 amendment, "Request for Waiver of
    Section 73.1740(c) of the Rules, at ¶ 5. CBC indicates that the Fire
    Marshall had signed off on the permit on March 28, 2008.

[^11]: An ASR number is issued by the Commission during the registration
    process to identify an antenna structure. Once obtained, this number
    must be used in all filings related to this structure. 47 C.F.R. §
    17.2(d). The Commission\'s Antenna Structure Registration program
    was revised in 1996, resulting in a streamlined filing process and
    greater public access to ASR information. The Commission has
    expanded the public\'s ability to research existing records on the
    Internet, and began providing expanded database, daily transaction
    and Federal Aviation Administration files for downloading. ASR
    procedures also allows an electronic filer to determine, at the time
    of filing, whether its application will be granted, reducing delay
    and transactional costs associated with the registration of antenna
    structures. *See Section 257 Report to Congress*, Report, 15 FCC Rcd
    15376 (2000).

[^12]: The new Tower Registration was completed on May 8, 2008. *See*
    Tower Registration No. 1224868.

[^13]: 47 U.S.C. § 312(g).

[^14]: *Id*.

[^15]: *See Section 257 Report to Congress, supra*.