![](media/image1.wmf){width="1.375in" height="1.375in"}**Federal
Communications Commission**

**Washington, D.C. 20554**

September 2, 2008

**DA-08-2029**

*In reply refer to*:

1800B3-MJW

Release: September 2, 2008

Koor Communications, Inc.

c/o Dennis J. Kelly, Esq.

Law Office of Dennis J. Kelly

P.O. Box 41177

Washington, DC 20018

> In re: **Koor Communications, Inc.**
>
> WQTH(AM), Claremont, New Hampshire Facility ID No. 85956
>
> File No. BP-19970328AB as modified by
>
> BMAP-20050118AAN
>
> **Petition for Reconsideration**

Dear Counsel:

We have under consideration a Petition for Reconsideration (the
"Petition") filed by Koor Communications, Inc. ("Koor"), former
permittee of Station WQTH(AM), Claremont, New Hampshire, seeking
reconsideration of the letter dated December 20, 2006 (the "*Letter
Decision*"),[^1] denying Koor's request for further tolling of its
construction deadline or, in the alternative, waiver of Section 73.3598
of the Commission's Rules (the "Rules").[^2] For the reasons set out
below, we deny the Petition.

**Background**. Koor received a construction permit for WQTH(AM) on
November 20, 1997.[^3] On January 16, 2005, in the Auction 84 filing
window, Koor tendered a major change application (the "2005 Modification
Application") to change the station's transmitter site and community of
license. The staff granted the application on March 15, 2006. Consistent
with Commission policy, the modified construction permit stated, "the
authority granted herein has no effect on the \[June 13, 2007\]
expiration date of the underlying construction permit." Koor, however,
failed to construct the station by June 13, 2007, and its construction
permit, which had been tolled during the pendency of litigation
involving its initial site, expired by its terms on June 13, 2007.
Earlier, Koor had requested further tolling of its permit, or waiver of
the tolling provisions of Section 73.3598, estimating that it could
complete construction by October 1, 2008, or October 1, 2009.[^4] The
*Letter Decision* denied the tolling and waiver request.

In its Petition, Koor claims that the staff's denial of Koor's request
for further tolling or waiver of Section 73.3598(b) was unwarranted.
First, Koor argues that the Commission "deprived \[Koor\] of six months
and fifteen days of its remaining construction period by FCC inaction on
the modification application -- a circumstance clearly beyond the
control of the applicant."[^5] Second, Koor claims that it has now
purchased a transmitter and has appeared before the cognizant zoning
board "to get a sense of the Board (which is favorable)."[^6] Third,
Koor asserts that it has spent \$ 228,025 in legal fees and other costs
in connection with the proposed station.[^7]

In denying Koor's waiver request, the *Letter Decision* stated that
"\[c\]onsistent with Section 319(b) of the Act, waivers of the
three-year construction deadline are granted for rare and exceptional
circumstances beyond the permittee's control."[^8] Koor notes that the
term "rare and exceptional" does not appear in Section 319 of the
Communications Act of 1934, as amended (the "Act"), which provides for
forfeiture of construction permits unless failure to construct is due to
"causes not under the control of the grantee."[^9] Therefore, Koor
argues, by using the term "rare and exceptional" the staff "attempted to
read into the statute criteria that are not found in the statute."[^10]
In so doing, Koor contends, the staff "unlawfully narrows the intent and
wording of Section 319(b), thereby violating the Administrative
Procedure Act.[^11]

Koor also contends that the Commission impermissibly narrowed the reach
of Section 319(b) of the Act when it adopted Section 73.3598 and,
therein, described the specific causes that would be deemed "not under
the control of the permittee."[^12] Koor argues, "\[h\]ad Congress
wanted the FCC to only consider certain reasons, it was up to Congress,
not the FCC, to narrow Section 319(b)."[^13]

Koor alleges that, by not further tolling Koor's construction permit or
granting a waiver of Section 73.3598(b), the staff engaged in an
unconstitutional "taking" within the meaning of the Fifth Amendment to
the United States Constitution.[^14] Koor also faults the staff for not
finding that the prevailing winter weather conditions in New Hampshire
justified a waiver of Section 73.3598(b).[^15] It contends that the
staff was "irrational" when it applied, to Koor's proposed 5-tower AM
array, the same three-year construction period allowed for relatively
simple installations, *e.g.*, pole-mounted FM translators.[^16] Koor
also argues that the staff treated Koor inconsistently because Koor's
circumstances parallel those of certain analog television stations that
are converting their facilities to digital operation and have been
granted the equivalent of extensions of time to complete the
conversion.[^17] Finally, Koor cites a 1929 Court of Appeals decision
for the proposition that the Federal Radio Commission should grant a
construction permit if a permittee has expended substantial amounts of
money in preparing for station construction but is unable timely to
construct for reasons beyond its control.[^18]

**Discussion.** The Commission will consider a petition for
reconsideration when the petitioner shows either a material error in the
Commission\'s original order, or raises additional facts not known or
existing at the time of the petitioner\'s last opportunity to present
such matters.[^19] A petition for reconsideration that simply reiterates
arguments that were previously considered and rejected will be
denied.[^20] We find that Koor's Petition reiterates its earlier
arguments and neither demonstrates material error or omission in the
*Letter Decision*, nor raises any material new facts unavailable at the
time of its initial tolling or waiver request. Nonetheless, we briefly
address Koor's arguments below.

First, the staff's denial of Koor's waiver request was not a "taking" of
Koor's property within the meaning of the Fifth Amendment. It is well
established that there is no property interest in a Commission permit or
license.[^21]

Second, the staff correctly rejected Koor's argument that Section
73.3598(b) should be waived because winter conditions in New Hampshire
may be harsh. In the *Streamlining MO&O* the Commission made it clear
that differences in regional weather conditions do not excuse permittees
from timely constructing their authorized facilities.[^22]

Third, the asserted complexity of Koor's system relative to other
broadcast facilities, such as translators, does not justify waiving
Section 73.3598(b). The *Streamlining Order* provided a uniform
three-year construction period for all broadcast facilities. We take
notice that, in the normal course, diligent broadcast permittees,
including those constructing AM stations with directional arrays, have
completed construction of their authorized facilities within three
years.[^23]

Fourth, the staff's reference, in the *Letter Decision*, to "rare and
exceptional" circumstances that merit tolling of a construction permit -
for reasons other than those stated in Section 73.3598(b)(i)-(ii) -
tracks the language in the *Streamlining MO&O.*[^24] It is clear from
the context, there, that the Commission was not establishing a new "rare
and exceptional" waiver criterion; it was merely explaining that it
anticipated that circumstances justifying a waiver, other than those
specifically mentioned in Section 73.3598(b)(i)-(ii), would, in fact, be
rare and exceptional, *i.e.,* not common and routine.[^25] In so saying,
the Commission neither restricted nor extended the reach of Section
319(b) of the Act.

Similarly, Koor is wrong in stating that "Section 73.3598 . . .
illegally circumscribes the range of 'causes not under the control of
the grantee' that the Commission may consider in determining whether to
allow additional time for the construction of a broadcast station."[^26]
The Rule states that the construction period "shall toll" for the
reasons enumerated therein - not that it "shall toll [only]{.underline}"
for those reasons. Thus, as the *Letter Decision* recites[^27] - and
Koor acknowledges by filing its waiver request - the circumstances
described in Section 73.3598(b)(i)(ii) are not exhaustive of the those
under which the Commission will toll a construction permit deadline.

Fifth, the fact that Koor had to await the opening of a filing window to
tender its 2005 Modification Application and then await Commission
processing of the application did not somehow "deprive" Koor of a
portion of its unencumbered construction period and thus justify a
waiver. As noted *supra*, waiver of Section 73.3598(b) is justified only
when failure to construct is attributable to "causes not under control
of the grantee." An applicant's failure to factor the Commission's
auction and application processing procedures into its planning is an
error entirely its responsibility and wholly within its control.[^28]

Sixth, assuming, *arguendo,* that *Richmond* - a 1929 case involving the
Federal Radio Commission - is still good law, it would be inapposite
here. Although Koor may have incurred significant expenses in connection
with its permit, we cannot find that, as in *Richmond,* "completion \[of
the station\] was prevented by causes not under \[the permittee's\]
control."[^29] Koor's decision not to prosecute its original site and,
instead, to file for a change in site and principal community, was not
mandated by the Commission, local regulatory authority, or any other
third party.[^30] It was Koor's voluntary, and speculative, business
decision.[^31] We also note that, in *Richmond,* the construction permit
was extended on a finding that the permittee "acted . . . with diligence
its efforts to construct the station within the time allowed by the
permit." 35 F.2d at 884. Here, however, there is no indication that Koor
has diligently pursued permission to use its new site. For example, as
of the date of its Petition - which was filed only 145 days before
Koor's construction permit expired - Koor had only "begun the process of
filing for the necessary permits."[^32] Koor could well have sought
those permits before it filed its modification application or while it
waited for the filing window to open and during the time the Commission
was processing its application.[^33] Finally, we reject Koor's premise
that the Commission's granting Special Temporary Authorizations to
television stations to provide additional time for conversion to digital
operation is inequitable to Koor. We see no decisional similarity
between AM broadcast and digital television stations and note that, in
the *Streamlining MO&O,* the Commission established a different
construction policy for DTV stations.[^34]

**Decision/Action.** Koor has neither demonstrated material error nor
omission in the *Letter Decision*. Accordingly, IT IS ORDERED, that the
Petition for Reconsideration filed January 19, 2007, by Koor
Communications, Inc. IS DENIED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: *Letter to Dennis Kelly, Esq.,* Dec. 20, 2006.

[^2]: 47 C.F.R. § 73.3598 ("Section 73.3598").

[^3]: The initial construction permit, issued November 20, 1997,
    required Koor to complete construction within eighteen months.
    Thereafter, the expiration date of the Koor construction permit, and
    that of other permittees, was extended to December 21, 2000. *See*
    *1998 Regulatory Review - Streamlining of Mass Media Applications,
    Rules and Processes*, Report and Order, 13 FCC Rcd 23056, 23092
    (1998) ("*Streamlining Order*"), *recon. granted in part and denied
    in part*, Memorandum Opinion and Order, 14 FCC Rcd 17525, 17536
    (1999) (*Streamlining MO&O*)*.* Pursuant to 47 C.F.R. § 73.3598(b),
    the construction permit tolled when Koor filed a judicial appeal of
    a zoning decision denying Koor access to its initially proposed
    site. Thereafter, and before the appeal had been decided, Koor filed
    its major change application to relocate its station to a new site
    and to change its community of license. The litigation (concerning
    the former site) remained in the courts until August. 31, 2005. When
    the tolling period ended, the staff adjusted the permit expiration
    date to June 13, 2007. The staff granted Koor's major change
    application on March. 15, 2006. On August. 31, 2006, Koor requested
    that the construction deadline be extended, at a minimum, to March
    15, 2009. It argued that, following grant of its major amendment,
    the "clock" for the construction deadline should have been reset to
    give Koor an additional three years to construct, *i.e.*, it argued
    that construction permits issued pursuant to a major change
    application should be treated in the same manner as initial
    construction permits. On Nov. 7, 2006, Koor amended its request to
    report that it had not yet obtained zoning approval for its new site
    and argued that waiver of Section 73.3598(b) was warranted because
    it had encountered delays "not under control of the grantee" within
    the meaning of 47 U.S.C. § 319(b). The December 20, 2006, *Letter
    Decision,* however, found that Koor was not entitled to further
    tolling of its construction deadline because the factors that Koor
    alleged entitled it to additional tolling, *i.e.*, the sums it had
    spent toward construction, the track record of its principal, winter
    weather in the area, pendency of zoning proceedings, and the
    presence of a nuclear power plant within the station's proposed
    coverage area, did not qualify for tolling under Section 73.3598(b).
    *Letter Decision* at 1‑2. The staff concluded that Koor had failed
    to demonstrate that a waiver of the Section 73.3598(b) tolling
    provisions was warranted. It pointed out that Koor's claim that it
    might receive zoning approval for its new site in three months was
    speculative. It also found that each reason Koor advanced for its
    waiver request involved matters within Koor's control. *Id.* at 2-3.

[^4]: *See* *id* at 2.

[^5]: Petition at 3.

[^6]: *Id.*

[^7]: Koor claims to have spent \$ 98,700 in legal fees (including the
    zoning proceeding and appeal to the New Hampshire court), \$ 58,000
    in engineering fees, \$ 8,725 in Commission filing fees, \$2,600 for
    surveyors and consultants and \$ 60,000 for equipment. *Id.* at 4.

[^8]: *Letter Decision* at 5 (citing *Streamlining MO&O,* 14 FCC Rcd at
    17541).

[^9]: *Petition* at 5. ("Section 73.3598 of the FCC's rules illegally
    circumscribes the range of 'causes not under control of the grantee'
    that the Commission may consider in determining whether to allow
    additional time for the construction of a broadcast station." \* \*
    \* "Refusal to extend the expiration of the construction permit
    would be illegal as 'otherwise not in accordance with
    law.'"(*citing* 5 U.S.C. § 706(2)(A)).

[^10]: *Id.*

[^11]: *Id.*

[^12]: *Id.* at 5.

[^13]: *Id.*

[^14]: *Id.* ("Koor further submits that refusal to extend the time
    period for construction would be contrary to Koor's right not to be
    deprived of a property right without due process of law under
    Amendment 5 to the federal Constitution . . . .")*.*

[^15]: *Id.*

[^16]: *Id.* at 6.

[^17]: *Id.*

[^18]: *Id.* (citing *Richmond Development Corp. v. Federal Radio
    Commission,* 35 F.2d 883 (D.C. Cir. 1929) ("*Richmond*")).

[^19]: *See* 47 C.F.R. § 1.106. *See also WWIZ, Inc.*, Memorandum
    Opinion and Order, 37 FCC 685, 686 (1964) ("*WWIZ*"), *aff\'d sub
    nom. Lorain Journal Co. v. FCC*, 351 F.2d 824 (D.C. Cir. 1965),
    *cert. denied*, 387 U.S. 967 (1966).

[^20]: *See WWIZ,* 37 FCC at 686.

[^21]: *See*, *e.g.*, *FCC v. Sanders Brothers Radio Station*, 309 U.S.
    470, 475 (1940); *Quincy Cable TV, Inc. v. FCC*, 768 F.2d 1434, 1460
    (D.C. Cir. 1985); *National Association of Broadcasters v. FCC*, 740
    F.2d 1190, 1198 (D.C. Cir. 1984). *See* *also* *Mobile Relay
    Associates*, 457 F.3d 1,12 (D.C. Cir. 2006) and cases cited therein.

[^22]: *See* *Streamlining MO&O,* 14 FCC Rcd at 17539. (Finding that
    factors such as weather may cause construction delays, but -- given
    the expanded three-year construction period -- such factors are not
    so insurmountable that they excuse parties' lack of diligence in
    planning and implementing their authorized facilities.)

[^23]: We reject Koor's claim that the modified construction permit
    should have extended the construction deadline by three years. *See
    Texas Grace Communications,* Memorandum Opinion and Order, 16 FCC
    Rcd 19167, 19171 (2001) ("a construction deadline would not be
    extended when, as here, the Commission modifies a station\'s
    original permit at the station\'s request . . .").

[^24]: *Streamlining MO&O*, 14 FCC Rcd at 17541. ("We realize that there
    may be rare and exceptional circumstances other than those
    delineated here which would warrant the tolling of construction
    time, *i.e*., circumstances in which, for reasons not discussed
    here, a permittee is prevented from completing construction within
    three years for reasons beyond its control such that the permittee
    would be entitled to tolling of the construction time under Section
    319(b). In these very limited circumstances, we will entertain
    requests for waiver of our strict tolling provisions.")

[^25]: *Id.*

[^26]: Petition at 5.

[^27]: *Letter Decision* at 3.

[^28]: *See* *Dennis J. Kelly*, Letter, 23 FCC Rcd 4786-4788 (MB 2008)
    (citing *Streamlining MO&O,* 14 FCC Rcd at 17540*.* ("The Commission
    stated that its intention 'was simply, within the bounds of the
    statute, to establish an incentive for all applicants to plan
    construction carefully, even prior to applying for a permit and,
    once a permit is received, to bring to the construction process the
    same degree of urgency brought to other business endeavors.' In that
    way, the Commission sought to minimize instances in which applicants
    filed for permits without taking preliminary steps to ensure that
    they could begin \-- much less complete\-- construction.")

[^29]: *Richmond,* 35 F.2d at 884. We also note that, in this early
    Federal Radio Commission case, the court found that the delay
    incurred by extension of a one-month permit had no significant
    public interest consequences. *Id.* at 885. Sixty-nine years later,
    in the *Streamlining Order,* the Commission noted that unwarranted
    extensions of construction permits had resulted in "warehousing" of
    spectrum with a concomitant denial of new service to the public. It
    therefore found that strict enforcement of three-year construction
    deadlines was "responsive to statutory requirements" and,
    "strike\[s\] the balance between the fundamental public interest in
    expediting new broadcast service and preventing the warehousing of
    spectrum . . . ." *Streamlining Order,* 13 FCC Rcd at 23094.

[^30]: Thus, Koor does not qualify for further tolling. The
    *Streamlining* *MO&O* specifically stated that modification
    applications "attributable to the permittee" would not toll
    construction deadlines. *Streamlining MO&O,* 14 FCC Rcd at 17541,
    n.56. ("We reiterate that we will afford no additional time to
    permittees who make a business decision not to use the site approved
    in the construction permit . . . .")

[^31]: Koor claims it filed its major change application on the
    speculation that the "City of Lebanon [might]{.underline} never
    allow a multi-tower, directional AM array to be erected" at Koor's
    original authorized site." Petition at 2 (emphasis supplied). *See*
    *Royce International Broadcasting Co.,* Memorandum Opinion and
    Order, 45 CR 329 (2008). ("The selection of a transmitter site is an
    independent business decision within a permittee's control."(citing
    *Streamlining MO&O,* 14 FCC Rcd at 17539)).

[^32]: Petition at 3.

[^33]: *See* *Birach Broadcasting Corp.,* Memorandum Opinion and Order,
    23 FCC Rcd 3141, 3146 (2008). ("The Commission has long advised
    permittees to commence the local zoning process at the earliest
    possible date . . . .")

[^34]: *See, e.g., Streamlining MO&O*, 14 FCC Rcd at 17541. (Tolling
    provided for certain low power television stations "due to the
    unique nature of this secondary service and the impact of the advent
    of DTV upon the spectrum available for these permittees." Tolling
    also provided for DTV stations "where a necessary modification
    application or rule making proposal was delayed while the Commission
    finalized its DTV allotment table.") The Commission found no such
    unique circumstances with respect to AM broadcast facilities,
    directional or otherwise.