> **DA 07-1372**
>
> In Reply Refer to:
>
> 1800B3-KD
>
> Released: March 22, 2007

Mr. Frederick Gauthier De Castro

Radio 780

P.O. Box 154

San German, PR 00683

In re: DWREY(AM), Mulberry, FL

Facility ID No. 54464

File No. BP-19890301AF, modified by

BMP-20000915AAA

> **Petition for Reconsideration of Denial of Tolling Request**

Dear Mr. Gauthier De Castro:

We have before us a Petition for Reconsideration (the "Petition") filed
March 14, 2005, by Radio 780, previous permittee of unbuilt and
cancelled Station WREY(AM), Mulberry, Florida (the "Station"). Radio 780
seeks reconsideration of the January 24, 2005, decision of the Audio
Division (the "Staff Decision")[^1] denying Radio 780's request to toll
the Station's December 21, 2000, construction deadline pursuant to
Section 73.3598(b) of the Commission's Rules (the "Rules").[^2] For the
reasons discussed below, we dismiss the Petition.

**Background.** Radio 780 first received a construction permit for the
Station on November 5, 1996, with a construction deadline of May 5,
1998. On June 22, 1998, in response to a timely-filed extension request,
the staff set a new construction deadline of December 22, 1998.[^3] In
transitioning to a new three-year construction period, the Commission
extended the construction deadline to December 21, 2000, for this
Station and many others.[^4] On November 21, 2000, the staff granted
Radio 780's September 15, 2000, application to modify the permit.[^5]
The permit modification was conditioned on completion of the
International Telecommunications Union ("ITU") process, with a note that
construction of the Station prior to ITU approval would be at Radio
780's risk.[^6] On December 1, 2000, Radio 780 requested "tolling" of
the construction period citing that condition and the ongoing ITU
process, and the staff granted the request on December 21, 2000. By the
terms of the Bureau's action, upon resolution of the ITU matter, the
permittee would receive the 30 remaining days (*i.e.,* the period
between the November 21, 2000, grant of the modification application and
the December 21, 2000, construction deadline) of the Station's
three-year construction period to complete construction of WREY(AM)'s
facilities.

The ITU matter was resolved on December 21, 2000, but the Audio Division
staff did not learn of this fact until November 2004. On November 5,
2004, the staff notified Radio 780 that, due to this development, its
construction period was no longer tolled. The staff reissued the
construction permit without the ITU condition and afforded Radio 780 the
additional 30 days to which it was entitled with the resolution of the
ITU matter. The permit expired on December 5, 2004, without Radio 780
certifying completion of Station construction.

On December 7, 2004, after the WREY(AM) permit had expired, Radio 780
requested additional time to construct, maintaining that further tolling
of the permit was warranted for the following reasons: (1) damage caused
by Hurricane Charlie; (2) a new "critical hours" requirement in the
November 2004 permit; and (3) the additional 30 days allowed for
construction deadline provided too "little time to complete the build."
The Staff Decision dismissed the request, concluding that it was
late-filed and failed to justify tolling pursuant to Section 73.3598(b)
of the Rules.[^7] Accordingly, the Staff Decision informed Radio 780
that the call sign WREY was deleted because construction was not
completed by December 5, 2004, the permit's expiration date.

In its Petition, Radio 780 argues, for the first time, that the
provision contained in its modified permit noting that construction
pending ITU approval would be done at Radio 780's risk precluded it from
either obtaining the funds necessary to build the Station or finding a
buyer for the permit. It further maintains that it would have been able
to obtain funds and commence construction within the allotted 30-day
period had the Commission "recognized the ITU registration on a timely
basis." Radio 780 also argues that, if it had promptly received the ITU
notice from the staff, it would have been able to request additional
time to construct the Station in a timely manner.[^8]

**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.[^9] A petition for reconsideration that simply reiterates
arguments that were previously considered and rejected will be
denied.[^10] We find that the Petition neither demonstrates material
error or omission in the Staff Decision, nor raises any new facts
unavailable to Radio 780 when it filed its initial tolling request.

As a procedural matter, we note that Radio 780's Petition was late-filed
and we will dismiss it on that basis. Petitions for reconsideration must
be filed within 30 days of the date of the action taken (where, as here,
no public notice was issued announcing the determination) and must be
submitted to the Commission's Secretary.[^11] Thus, a petition for
reconsideration of the January 24, 2005, Staff Decision was due 30 days
later, on February 23, 2005. The Commission, except in circumstances not
applicable here, lacks the authority to extend or waive the statutory
30-day filing period for petitions for reconsideration set forth in
Section 405 of the Communications Act of 1934, as amended (the
"Act").[^12] Although the Commission may consider a late-filed petition
for reconsideration if the petitioner shows that its failure to file for
reconsideration in a timely manner resulted from "extraordinary
circumstances,"[^13] no such showing has been made here. While it
appears that Radio 780 attempted to submit the Petition via e-mail to
the Chief of the Audio Division on February 24, 2005, it did not
properly file the Petition with the Commission in accordance with
Section 1.106(h)(i) of the Rules until March 14, 2005, nearly three
weeks after the filing deadline, and provided no explanation as to why
it failed to file its Petition in a timely manner.[^14] In addition, the
Petition relies on facts that were known to Radio 780 when it filed its
initial tolling request (namely, its professed inability to obtain
financing due to the ITU condition in the construction permit) but were
not presented to the Commission at that time. While these procedural
defects are fatal to the Petition, we will nonetheless briefly respond
to Radio 780's arguments.[^15]

The financial difficulties described by Radio 780 are neither tolling
events nor, for the purposes of waiver, "rare and exceptional
circumstances beyond the permittee's control" that prevented
construction.[^16] The Commission has repeatedly held that the
unavailability of funds is not considered a circumstance "beyond the
control" of a permittee.[^17] In fact, despite holding the construction
permit for over eight years, Radio 780 took no steps toward construction
of the Station. Moreover, it has not provided any evidence that it
sought any alternative means of financing the construction of the
Station after realizing that its lender would not be releasing the
funds. Indeed, Radio 780 has provided us with no meaningful
documentation regarding its attempts to secure financing.[^18] As such,
Radio 780 has failed to demonstrate that it has made "diligent and
continual attempts" to complete construction that would warrant a waiver
of Section 73.3598(b) of the Rules.

To the extent that Radio 780 argues that the inclusion of the ITU
language in its modified permit made it difficult for it to obtain
financing, we note that Radio 780 certified when it first applied for
the permit that sufficient liquid assets were on hand or that sufficient
funds were available to it from committed resources to construct the
proposed facility and to operate it for three months without
revenue.[^19] In any event, we reject Radio 780's contention that it was
unable to commence construction due to the timing of the ITU
notification from the Bureau. Radio 780 held the construction permit for
nearly four years before it filed an application to modify the permit
which resulted in the imposition of the ITU condition. Radio 780
arguably could have and should have secured financing and commenced
construction during this time, but failed to do so. Moreover, it was on
notice since the Bureau's December 21, 2000, grant of its tolling
request that it would receive only 30 additional days to construct once
ITU approval had been obtained. We fail to see how it was prejudiced by
the Bureau's delay until 2004 in notifying it that such approval had
been granted. If anything, the delay worked to its advantage, providing
Radio 780 nearly four additional years to make the necessary
arrangements for construction before the additional 30-day period
commence.

Accordingly, pursuant to Sections 405 of the Act and 1.106 of the Rules,
the Petition for Reconsideration filed on March 14, 2005, by Radio 780
IS DISMISSED as untimely-filed.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: *Letter to Radio 780*, Ref. No. 1800B3-IB (MB Jan. 24, 2005).

[^2]: *See* 47 C.F.R. § 73.3598(b).

[^3]: *See* File No. BMP-19980505JF.

[^4]: *Streamlining of Mass Media Applications, Rules, and Processes,*
    Memorandum Opinion and Order, 14 FCC Rcd 17525, 17536 (1999)
    ("*Streamlining MO&O*").

[^5]: File. No. BMP-20000915AAA.

[^6]: The ITU is an international organization within the United Nations
    system in which governments and the private sector coordinate global
    telecom networks and services. The ITU process allows ITU member
    states to coordinate use of radio frequency spectrum to eliminate
    harmful interference between radio stations of different countries.
    In this case, Radio 780's application was submitted by the
    Commission to the ITU for approval because of its potential
    interference with foreign stations, such as those located in Cuba or
    the Dominican Republic.

[^7]: Specifically, we held that the alleged connection between the
    damage to the site by Hurricane Charlie and the non-construction was
    too remote to justify tolling of the construction permit, since, at
    the time that the Hurricane hit the area, Radio 780 had neither
    commenced nor scheduled construction of the Station. Staff Decision
    at 2. We further held that none of the other circumstances presented
    by Radio 780 warranted tolling of the permit. *Id.*

[^8]: Radio 780 reiterates the argument raised in its December 7, 2004,
    filing that it did not request tolling for hurricane damage within
    30 days of its occurrence because its permit was already tolling
    based on the ITU condition. This argument was properly rejected in
    the Staff Decision, which stated that "even if we were to waive the
    30-day filing requirement, which we do not, the tolling request
    would fail on the merits." Staff Decision at 1. As such, we will not
    revisit this argument here.

[^9]: 47 C.F.R. § 1.106. *See also WWIZ, Inc*., Memorandum Opinion and
    Order, 37 FCC 685, 686 (1964), *aff'd* *sub nom. Lorain Journal Co.
    v. FCC*, 351 F.2d 824 (D.C. Cir. 1965), *cert. denied*, 387 U.S. 967
    (1966).

[^10]: *See WWIZ, Inc*., 37 FCC at 686 (stating that "it is universally
    held that rehearing will not be granted merely for the purpose of
    again debating matters on which the tribunal has once deliberated
    and spoken").

[^11]: 47 U.S.C. § 405; 47 C.F.R. §§ 1.106(f), (i).

[^12]: 47 U.S.C. § 405. *See* *Reuters Limited v. FCC*, 781 F.2d 946,
    951-52 (D.C. Cir. 1986); *Pueblo Radio Broadcasting Service*,
    Memorandum Opinion and Order, 6 FCC Rcd 1416 (1991); *Panola
    Broadcasting Co*., Memorandum Opinion and Order, 68 FCC 2d 533
    (1978).

[^13]: *Gardner v. FCC*, 530 F.2d 1086, 1091-92 (D.C. Cir. 1976);
    *Richardson Independent School District*, Memorandum Opinion and
    Order, 5 FCC Rcd 3135, 3136 (1990).

[^14]: *See ACR Electronics, Inc*., Order on Reconsideration, 18 FCC Rcd
    11000, 11001-02 (2003) (holding that a petition must be properly
    filed and timely before the Commission will consider the
    petitioner\'s request for reconsideration).

[^15]: *See* 47 C.F.R. § 1.106(c). *See also* *See Carolyn Hagedorn*,
    Memorandum Opinion and Order, 11 FCC Rcd 1695, 1696 (1996) (staff
    did not err in refusing to consider new facts in applicant's
    petition for reconsideration, even where facts arguably were an
    "expansion" of matters raised in initial application).

[^16]: Specifically, radio permits may be tolled by administrative or
    judicial review of the grant of the subject permit, by court
    proceedings related to a necessary legal, state, or federal
    requirement, by natural disaster "acts of God," or by failure of
    Commission-imposed condition precedent. 47 C.F.R. § 73.3598(b);
    *Streamlining MO&O*, 14 FCC Rcd at 17540. *See also WAIT Radio v.
    FCC*, 418 F.2d 1153 (D.C. Cir. 1969) (discussing waiver standard).

[^17]: *Texas Grace Communications*, Memorandum Opinion and Order, 16
    FCC Rcd 19167, 19173 (2001) (holding that a permittee's financial
    difficulties are not grounds for tolling); *Letter to John
    Garziglia*, Esq., Ref. No. 1800B3-KDY (MMB, Aug. 30, 1996) (holding
    that the permittee's loss of funding was not a circumstance "beyond
    its control"); *L.E.O. Broadcasting, Inc*., Letter, 2 FCC Rcd 1810,
    1811 (MMB 1987) (holding that unavailability of funds was not a
    circumstance "beyond the control" of the permittee, where it had not
    taken all possible steps to procure new financing). *Cf.* *Horseshoe
    Bay Centex Broadcasting Co*., Memorandum Opinion and Order, 5 FCC
    Rcd 7125, 7128 (1990) (finding that permittee's loss of funding was
    a circumstance "beyond its control," where it had "made diligent and
    continual attempts to complete construction ... only to see its
    efforts unexpectedly and summarily defeated by the repeated
    cancellation of committed financing from traditional capital
    sources.").

[^18]: *See Carolyn Hagedorn*, 11 FCC Rcd at n. 4 (noting that
    applicant's failure to "detail any efforts to obtain alternate
    financing" was alternative ground for denying extension request).

[^19]: *See* Application BP-19890301AF. *Cf.* Instructions for FCC Form
    301, General Instruction K (Sept. 2005) (application form in use
    today, which no longer contains a financial certification, continues
    to require reasonable assurance of committed financing sufficient to
    construct and operate without revenue for three months).