**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. BEPCDT-200203201AJL |
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| Request for Extension of Time to | ) | Facility ID No. 9781         |
| Construct Digital Facilities for | * |                              |
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| KXXV-DT, Waco, Texas             | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: July 28, 2004** **Released: August 2, 2004**

By the Commission:

1.  The Commission has before it for consideration an application for
    review filed by Centex Television Limited Partnership (Centex),
    permittee of digital television station KXXV-DT, Waco, Texas,
    seeking review of the October 16, 2002, Memorandum Opinion and Order
    (MO&O) by the Media Bureau (Bureau). In that MO&O, the Bureau denied
    Centex's petition for reconsideration of the Bureau's letter ruling
    of June 14, 2002 (*Letter*), in which it denied Centex's request for
    extension of time to construct KXXV-DT's digital television
    facilities and admonished it for failing to meet the May 1, 2002,
    construction deadline. For the reasons stated below, we deny the
    application for review.

2.  Station KXXV-DT is currently on the air and operating pursuant to
    Special Temporary Authority. [^1] The extension request, therefore,
    is moot. The only issue remaining is whether the admonishment
    imposed by the Bureau was appropriate at the time it was given in
    the *Letter*.

3.  In the *Fifth Report and Order* in its DTV proceeding, the
    Commission announced its willingness to grant, on a case-by-case
    basis, an extension of the applicable DTV construction deadline
    where a broadcaster has been unable to complete construction due to
    circumstances that are either unforeseeable or beyond the
    permittee's control, provided that the broadcaster has taken all
    reasonable steps to resolve the problem expeditiously.[^2] In the
    *Letter,* the basis for denying the extension and imposing the
    admonishment was that Centex had only begun studying the feasibility
    of using its existing tower in February 2002 and, therefore, did not
    know if its tower could support its proposed antenna at the time of
    the extension request. Without knowing this basic fact, there was no
    reasonable basis for Centex to assert that it could meet its
    projected construction date. Therefore, the Bureau found that Centex
    had not met the extension standard.

4.  In its application for review, Centex largely reiterates the
    arguments it advanced on reconsideration; namely, that the
    Bureau: (1) lacked the authority to deny a request for extension on
    June 14, 2002; (2) failed to adequately address Centex's argument
    against imposing sanctions without notice; (3) failed to respond to
    Centex's arguments regarding the Administrative Procedure Act; (4)
    failed to apply the proper standard to KXXV-DT; (5) misstated
    relevant and material facts; (6) acted against the public interest;
    and (7) erred by not giving similarly situated parties similar
    treatment.

5.  On the first issue, Centex claims that the Bureau's authority to
    deny a request for extension of time to construct a DTV facility did
    not take effect until July 5, 2002, twenty-one days after it denied
    Centex's request for KXXV-DT. On May 24, 2002, the Commission
    adopted its order regarding *Remedial Steps for Failure to Comply
    with Digital Television Construction Schedule.*[^3] In that order,
    the Commission granted the Bureau delegated authority to deny
    extension requests, and set up a graduated series of sanctions to be
    imposed on permittees who did not comply with construction
    deadlines. Centex contends that these changes were not effective
    until 30 days after they were published in the Federal Register.
    Federal Register publication took place on June 4, 2002. *See*
    *Broadcast Services, Television Stations*.[^4] According to Centex,
    this meant the Bureau could not deny extension applications prior to
    July 5, 2002.

6.  In making its argument Centex ignores the following language in
    paragraph 24 of the *Remedial Steps Order*:

> Given the importance of this matter, we direct the Media Bureau to
> continue processing pending DTV extension requests on a case-by-case
> basis during the pendency of this rulemaking, utilizing the full range
> of permissible sanctions, including those set forth in this Notice, to
> ensure that licensees complete construction of their DTV facilities in
> an expeditious manner. As we stated in our November DTV MO&O, the
> Bureau may grant up to two six-month extensions or deny such
> extensions under its delegated authority.[^5]

Based on this language, it is clear that the Bureau had the authority to
deny Centex's extension request on June 14, 2002, and to impose
appropriate sanctions. In addition, we find that the Bureau had the
delegated authority to act on the extension request prior to the
*Remedial Steps Order*. In *Advanced Television Systems*, the Commission
delegated authority to the Chief, Mass Media Bureau, to grant an
extension of time for up to six months beyond the applicable
construction deadline, upon demonstration by the applicant that the
standard for extension had been met. The Bureau could only grant two
extensions under this delegated authority.[^6] This authority was
subsequently affirmed in the November, 2001 *Memorandum Opinion and
Order on Reconsideration in Review of the Commission's Rules and
Policies Affecting the Conversion to Digital Television,*[^7] in which
the Commission directed the Bureau to examine closely each extension
request and promptly notify the applicants of any denial of a request.
Accordingly, the Bureau had the authority to deny extension requests
well before the adoption of the *Remedial Steps Order*.

7.  Centex also argues that the Bureau failed to adequately address its
    arguments regarding imposing sanctions without notice in accordance
    with the Administrative Procedure Act. In its MO&O, the Bureau
    rightly stated that admonishment is not an "unusual or excessively
    punitive remedy." Admonishment is a routine sanction for violation
    of the Commission's rules and it does not require a rulemaking in
    order for the Bureau to issue an admonishment when those rules have
    been violated.[^8] Although the NPRM sought comment on the
    suitability of the entire range of sanctions that were to be imposed
    for failure to meet DTV build-out deadlines, at the time of the
    *Letter* the Bureau already had the power to issue an admonishment
    for a violation of our Rules.[^9] Therefore, no notice was necessary
    and the Administrative Procedure Act was not implicated.

8.  Next, Centex claims that the Bureau failed to apply the proper
    standard to KXXV-DT's request. Centex states that the delays it
    encountered in trying to construct its DTV station were unforeseen
    and outside its control. Centex claims that, among the unforeseeable
    circumstances, was the discovery that it could not use its existing
    antenna plate to bolt its new antenna to its tower. In the *Fifth
    Report and Order in MM Docket No. 87-268*,[^10] the Commission
    referred to circumstances such as the inability to "obtain zoning or
    FAA approvals, or similar constraints, or the lack of equipment
    necessary to transmit a DTV signal" as among the kind of obstacles
    beyond a permittee's control that would justify an extension of a
    DTV construction deadline.[^11] The fact that Centex made a mistake
    in evaluating the suitability of its antenna plate and had to revise
    its antenna proposal does not rise to a level of circumstances that
    are either unforeseeable or beyond the licensee's control.

9.  Centex also claims that the Bureau misstated relevant and material
    facts in the MO&O when it said that Centex's construction schedule
    was based on overly optimistic assumptions as demonstrated by the
    fact that its construction schedule had "already slipped by
    approximately one month." Centex claims that its projected date of
    completion remained essentially accurate in spite of unforeseen
    delays beyond its control. Although Centex claims the Bureau
    misstated relevant facts regarding the construction schedule, Centex
    itself stated in its Petition for Reconsideration that its
    construction schedule had "slipped by approximately one month."[^12]
    Furthermore, as the *Letter* stated, Centex's construction schedule
    was premised on the outcome of a tower study that had not been
    completed at the time it made its projections. Centex may have
    wanted the Bureau to reach a different conclusion, but it cannot
    claim that the Bureau misstated facts, especially when the Bureau
    was quoting Centex.

10. Centex contends that the Bureau erred in the *Letter* when it stated
    that Centex had ample time to select its antenna system. The Bureau
    stated, and Centex does not deny, that Centex had not selected its
    antenna system eleven months after its construction permit was
    issued. Centex does not explain why eleven months is an unreasonably
    short amount of time in which to select an antenna system or what it
    believes would have constituted a reasonable amount of time.

11. Centex asserts that it would have had time to construct its station,
    but for the fact that its construction permit was not issued until
    nineteen months following the filing of its application. We
    disagree. The Commission has held that "the pendency of applications
    at the Commission or the failure of the Commission to act on an
    application within a particular time period does not give rise to
    any equitable claim by a party allegedly harmed."[^13] Moreover, the
    record indicates that the processing of Centex's application was
    delayed because of concerns regarding the level of interference that
    would be caused by its proposed operations.[^14]

12. Centex contends the Bureau erred in the *Letter* when it did not
    find an extension justified because "Centex's antenna installer
    would not schedule an installation date until a firm antenna
    delivery date had been set." FCC Form 337 states that an extension
    may be granted based on the "unavailability of work or tower
    crews."[^15] Centex does not claim, however, that a tower crew was
    actually unavailable. Centex only states that the installer would
    not schedule its crew until Centex had a firm date for the delivery
    of the antenna. That is not the same thing as the crew being
    unavailable and is not adequate to support a request for extension.

13. Centex next claims that the Bureau erred in denying an extension
    because Centex could not guarantee to a "metaphysical certainty"
    that it would commence its digital operations by a certain date. The
    Bureau never asked for any such certainty. In accordance with our
    rules, the Bureau required Centex to "set forth the date by which
    one reasonably expects under its circumstances to complete
    construction."[^16] As the Bureau stated in its *Letter*, Centex's
    construction projections at the time of its extension request did
    not have any reasonable basis because, among other things, Centex
    did not even know if its tower would support its antenna.
    Furthermore, at the time of the request, Centex did not know what
    antenna system it would be using. Until those fundamental issues
    were resolved, Centex's projections regarding its construction
    schedule were mere speculation.

14. Centex goes on to claim that the Bureau disserved the public
    interest by denying its extension request. Centex claims that it was
    constrained by the denial to alter its original plans to build a
    full-power facility, rather than the lower power facility it
    ultimately built, and that it would have provided Spanish-language
    programming on the full-power system. Centex asserts that it should
    have been allowed more time to build because a full-power facility
    would have better served the public interest. Notwithstanding these
    claims, as the Bureau correctly noted, Centex did not present
    adequate evidence to support its extension request. In the *Remedial
    Steps Order,* the Commission recognized that some licensees who were
    making good faith efforts to build out their DTV facilities in a
    manner consistent with our rules faced hardships and challenges that
    were beyond their control and that, in those few situations, an
    extension might be warranted. Centex has failed, however, to show
    that it had met the enumerated extension criteria. Under the
    circumstances, the Bureau was correct in determining that
    enforcement of the Commission's rules and deadlines would serve the
    public interest.

15. Finally, Centex claims that the Bureau erred by not giving similarly
    situated parties similar treatment.[^17] Centex contends that
    commonly-owned station KFDA-TV, Amarillo, Texas was granted an
    extension even though it relied on similar facts in comparable
    markets. As the Bureau stated in its MO&O, Centex's argument does
    not take into account that KFDA's construction delay was not solely
    caused by equipment and antenna issues, but was also caused by a
    conflict with a rulemaking proceeding involving KCBD-TV, Lubbock,
    Texas. Resolution of that rulemaking conflict affected initiation of
    the construction of KFDA-TV's digital facilities. Centex next
    contends that its treatment was not consistent with that afforded to
    KWKT(TV), Waco, Texas. Centex argues that KWKT(TV) also experienced
    equipment delays. Once again, the Bureau distinguished this case by
    pointing out that the extension granted to KWKT(TV), relied on its
    financial hardship showing. Centex made no such showing. We,
    therefore, reject Centex's contention that it was treated
    differently than similarly situated parties.

16. ACCORDINGLY, IT IS ORDERED THAT, the application for review, filed
    by Centex Television Limited IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: *See* File No. BEDSTA-20030522AJG.

[^2]: *Advanced Television Systems and Their Impact upon the Existing
    Television Broadcast Service, Fifth Report and Order,* 12 FCC Rcd
    12809 (1997) (*Advanced Television Systems*).

[^3]: 17 FCC Rcd 9962 (2002) (*Remedial Steps Order*)

[^4]: 67 Fed. Reg. 38423 (June 4, 2002).

[^5]: *Remedial Steps Order*, 17 FCC Rcd at 9968.

[^6]: *Advanced Television Systems*, 12 FCC Rcd at 12841.

[^7]: 16 FCC Rcd 20594, 20612 (2001).

[^8]: *See, e.g., Standards for Assessing Forfeitures*, 6 FCC Rcd 4695
    (1991).

[^9]: *Id.*

[^10]: 12 FCC Rcd 12809, 12841 (1997) (*Fifth Report and Order*).

[^11]: *Id*.

[^12]: Centex Petition for Reconsideration at n. 18.

[^13]: *See Deleted Station WPHR(FM),* 11 FCC Rcd 8513, 8516 (1996);
    *see also Community Service Telecasters, Inc.,* 6 FCC Rcd 6026, 6029
    (1991); *Rebecca Radio,* 5 FCC Rcd 2913 (1990).

[^14]: *See Letter from Brendan Holland to Magalie Roman Salas,
    Secretary, Federal Communications Commission,* dated March 19, 2001.

[^15]: *FCC Form 337, Jan. 2002, Question by Question Instructions to
    Application for Extension of Time to Construct a Digital Television
    Broadcast Station*.

[^16]: *Id*.

[^17]: *Citing Melody Music, Inc. v FCC,* 345 F.2d 730 (1965).