**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

# April 9, 2001

**In Reply Refer To:**

1800B3-GDG

Harold K. McCombs, Jr., Esq.

Shapiro, Morin & Oshinsky LLP

2101 L Street, NW

Washington, D.C. 20037-1526

In re: WGNY(AM), Newburgh, NY

Facility No. 63942

File No. BP-19980128AB

Dear Mr. McCombs:

This letter concerns your December 15, 2000 and February 22, 2001
notifications on behalf of Sunrise Broadcasting of New York, Inc.
("Sunrise") that the referenced construction permit be treated pursuant
to the tolling provisions of 47 C.F.R. §73.3598(b)(ii). We grant tolling
based on your first request, but deny the further tolling sought in your
second request.

The referenced permit to modify the existing facilities of WGNY(AM) was
initially granted November 16, 1998, and expires November 16, 2001. On
December 15, 2000, Sunrise notified the staff that the subject permit
was encumbered, pursuant to the *Report and Order* in MM Docket 98-43
("*Streamlining R&O*"), 13 FCC Rcd 23056, 23091 (1998), *recons. granted
in part and denied in part* 14 FCC Rcd 17525 (1999), between December
15, 1999 and September 15, 2000 by the Supreme Court of New York for
Orange County's judicial review of the zoning of its permitted tower
site.

Although we are granting this request, we caution Sunrise that such
requests for treatment pursuant to the Commission's tolling rules, 47
C.F.R. §73.3598(c), generally must be filed within 30 days of the
claimed event. This timing is for the applicant's benefit. Applicants
failing to comply with this rule may have difficulty documenting the
event and place themselves at risk of learning of a potential denial of
tolling after their authorization already expired.

Sunrise's February 22, 2001 notification involves a new judicial review
by the Supreme Court of the State of New York, County of Orange. The new
case concerns the Newburgh Zoning Board of Appeals' ("NZB") refusal to
renew the Sunrise's special use permit. That permit was needed to allow
WGNY to operate at the Darrigo Farm tower site pursuant to a special
temporary authority that we granted, allowing the existing station to
remain operational. Sunrise alleges that this matter is associated with
its attempt to construct its permanent Rock Cut Road facilities because
the objecting party in that proceeding influenced NZB's decision in this
matter. The Commission's rules, 47 C.F.R. §73.3598, limit tolling
considerations to judicial appeals of the grant of a construction permit
and to delay of construction by court cases relating to zoning that is
required to construct or operate the station pursuant to that
construction permit. No such matter is at issue concerning the Rock Cut
Road site, as the new court case involves a different authorization
related to the station's temporary existing facilities at Darrigo Farm.
Sunrise offers no substantial evidence that this new judicial matter
will in any manner impede progress towards completing the authorized
permanent facilities. Accordingly, we reject this additional request for
treatment pursuant to our tolling rules.

Accordingly, Sunrise's December 15, 2000 request for tolling of the
Commission's construction period rules, 47 C.F.R. §73.3598(a), IS
GRANTED and its February 22, 2001 request for additional tolling IS
DENIED. The Commission's records ARE HEREBY REVISED to require Sunrise
to complete construction pursuant to the referenced permit and file the
appropriate license application no later than August 17, 2002.[^1]

Sincerely,

Linda Blair, Chief

Audio Services Division

Mass Media Bureau

[^1]: We calculated this date by recognizing that the referenced permit
    was unencumbered between November 16, 1998 and December 14, 1999,
    *i.e.*, for 12 months/28 days. An additional 23 months/2 day period
    is needed for WGNY(AM) to receive a full three years pursuant to 47
    C.F.R. §73.3598(a). Therefore, we added that period to the September
    15, 2000 finality date of the Court proceeding, *i.e.,* August 17,
    2002.