**DA 06-632**

***In Reply Refer to:***

1800B3-SNC

Dennis J. Kelly, Esq.

Law Office of Dennis J. Kelly

P.O. Box 41177

Washington, DC 20018

**Re: AM Auction No. 84**

KWFA(AM), Tye, Texas

Facility ID Number 40403

File Number BMAP-20040130AIG

Marlene V. Borman

Dear Counsel:

This letter is in response to the *Request for Expedited Action, or, in
the Alternative, for Tolling of Construction Permit *that you filed on
February 8, 2006, on behalf of Marlene V. Borman (Borman), permittee of
AM broadcast station KWFA on 1030 kHz at Tye, Texas, and applicant for a
major change in the KWFA facilities in AM Auction No. 84. Borman\'s AM
Auction No. 84 application,\
BMAP-20040130AIG, is one of 15 mutually exclusive (MX) applications in
AM Auction No. 84 MX Group 84-160, a "Category I" group.[^1] Borman
requests that the staff expedite its processing of this group or,
alternatively, toll its outstanding construction permit for a new AM
station in Tye, Texas,\
BP-19870303AG.

The public interest is best served by the orderly and efficient
processing of the very high volume of applications filed in AM Auction
No. 84. In all, 1,311 short-form applications were filed in the AM
Auction No. 84 filing window, more than five times as many as were filed
in the previous AM auction window. 1,123 of the 1,311 applications are
eligible to participate in the auction. Of those deemed eligible, 321
are singleton applications and 802 are MX applications.

To expedite new and enhanced service to the public, the Media Bureau
initially concentrated on singleton AM Auction No. 84 proposals. 229 of
the 321 singleton applicants filed FCC Form 301 applications as
directed. The Media Bureau has disposed of approximately 60 of the
singleton applications to date. We anticipate completing our review of
the singleton applications by May 30, 2006.

Once the processing of the singleton applications was well underway, the
Media Bureau announced the AM Auction No. 84 MX applicants subject to
auction and directed the applicants to file certain required documents
by September 16, 2005.[^2] This filing date was extended to October 31,
2005, due to Hurricane Katrina.[^3] The 802 MX AM Auction No. 84
applications comprise 170 MX groups. There are 77 groups of Category I
MX applications, 89 groups of Category II MX applications,[^4] and 4
groups of Category III MX applications.[^5] Category I and Category II
submissions were due on October 31, 2005. There were no additional
filings required for Category III MX applicants. The staff has already
begun processing the Section 307(b) showings filed by both Category I
and Category II applicants, and the Bureau anticipates that it will
*begin* reviewing the settlements and technical resolution singleton
applications filed by Category I MX applicants on June 1, 2006.

Borman\'s AM Auction No. 84 application, BMAP-20040130AIG, proposes a
major change in the authorized KWFA facilities (change in community of
license from Tye, Texas, to Abilene, Texas, and modified technical
facilities). At least six settlement agreements, several singleton
applications to resolve technical conflicts, and numerous requests for
application dismissals were filed by the 15 applicants in MX Group
84-160. Review of the settlement agreements, singleton applications, and
application dismissals in MX Group 84-160 must be undertaken
simultaneously in order for the staff to determine which singleton
applications are grantable, which singleton applications create new MX
situations, and which MX applications must proceed to auction. Moreover,
the staff must confirm that the settlement requests conform to legal
requirements. The 15-application MX Group 84-160 is indicative of the
complexity of the technical and legal review involved in processing a
Category I MX group. Taking this group out of the processing queue would
needlessly disrupt the staff's overall processing scheme.
Unquestionably, applicants in other Category I groups can make equally
persuasive arguments for "me first" treatment. The attempt to evaluate
such requests can only delay the completion of this major licensing
project. Accordingly, your *Request for Expedited Action* on the
applications in AM Auction No. 84 MX Group 84-160 **IS DENIED**.

Since expedited action on the AM Auction No. 84 MX Group 84-160
applications is herein denied, we also consider your alternative request
that the KWFA construction permit, BP-19870303AG, be tolled until the
Commission acts on modification application BMAP-20040130AIG. You argue
that the length of time the mutually exclusive group has been pending is
a matter beyond the station\'s control. The station\'s circumstances
qualify neither for tolling under Section 73.3598(b) of the Commission's
rules nor for a waiver of the three-year construction period. The
Commission will not grant additional time for a permittee to move from
its original FCC-approved site when the permittee has not demonstrated
that the site became \"unavailable for reasons not attributable to the
permittee.\"[^6] Additional time is not warranted where, as here, the
site change is based on the permittee's voluntary business decision to
change sites and community of license.[^7] Accordingly, your tolling
request **IS DENIED**.

Sincerely,

Susan N. Crawford

Assistant Chief

Audio Division

Media Bureau

cc: Mr. Robert John Williamson

Mark N. Lipp, Esq.

A. Wray Fitch, III, Esq.

Mr. Louis V. Mueller

Ether Mining Corporation

Denise B. Moline, Esq.

Mr. Bret D. Huggins

Jeffrey L. Timmons, Esq.

Frank R. Jazzo, Esq.

Charles A. Cooper, P.E.

Mr. Charles A. Hecht

Electronic Applications Radio Service, Inc.

[^1]: Category I MX groups are MX AM application groups which include at
    least one AM major modification application or one noncommercial
    education application, and are therefore entitled to settle or
    otherwise resolve mutual exclusivities by means of engineering
    solutions. Category I applicants that do not resolve all conflicts
    with other MX auction applications will proceed to Section 307(b)
    analysis, and then to auction, if pertinent.

[^2]: *See* "AM Auction No. 84 Mutually Exclusive Applicants Subject to
    Auction; Settlement Period Announced for Certain Mutually Exclusive
    Application Groups; September 16, 2005 Deadline Established for
    Section 307(b) Submissions," *Public Notice*, 20 FCC Rcd 10563
    (2005).

[^3]: *See* "Auction No. 84 Settlement Period and Section 307(b)
    Submission Deadline Extended to October 31, 2005," *Public Notice*,
    20 FCC Rcd 14492 (2005).

[^4]: Category II MX groups are MX application groups which are
    ineligible for settlement and/or technical resolution, but for which
    a Section 307(b) showing must be filed by each applicant. If the
    Section 307(b) determination for a group is not dispositive, the MX
    application group will proceed to auction.

[^5]: Category III MX groups are MX application groups which are
    ineligible for settlement and/or technical resolution, and no
    Section 307(b) showing is required. These MX application groups will
    proceed directly to auction.

[^6]: *See Streamlining MO&O*, 14 FCC Rcd 17525, 17541, n.56 (1999) (no
    tolling for voluntary site changes even for LPTV and DTV permits
    which, due to circumstances unique to those services, sometimes
    qualify for tolling not applicable to radio permits).

[^7]: *See Texas Grace Communications,* 16 FCC Rcd 19167 (2001).