> **DA 08-1851** *In Reply Refer to:*

1800B3-MJW

Released: August 6, 2008

CSN International

c/o Lauren A. Colby, Esq.

10 E. Fourth Street

P.O. Box 113

Frederick, MD 21705-0113

In re: **CSN International** KOGR(FM), Rosedale, California Facility ID
No. 93176

BPED-19990407MD

**Request for Additional Time to Construct**

**Petition for Reconsideration**

Dear Counsel:

We have before us a Petition for Reconsideration ("Petition") filed
January 10, 2007, by CSN International ("CSN"), former permittee of the
captioned station. CSN seeks reconsideration of the December 19, 2006,
letter[^1] ("*Division Letter"*) denying CSN's request for additional
time to construct its authorized facilities.[^2] For the reasons set
forth below, we deny the Petition.

**Background.** The Commission granted CSN a construction permit (the
"Construction Permit") for KOGR(FM) on October 29, 2003. By its terms,
the Construction Permit expired on October 29, 2006, if CSN failed to
construct the station.[^3] CSN, however, did not start construction
until October 24, 2006. When it began to install its antenna that day on
the American Tower Corporation ("ATC") tower specified in the
Construction Permit, CSN learned that the United States Forest Service
("USFS") prohibited installation of broadcast antennas at that
location.[^4] The following day, CSN filed a request with the Commission
to toll the Construction Permit expiration date.

The *Division Letter* denied CSN's tolling request. It held that Section
73.3598(b) of the Commission's Rules ("Rules")[^5] provides for tolling
of construction permit deadlines only in "specific circumstances beyond
a permittee's control that delay construction, including litigation over
government requirements for construction."[^6] It pointed out that there
was no such litigation pending, and that CSN's circumstances did not
"qualify as a tolling event under any other provision of the Rule."[^7]

The *Division Letter* also found that a waiver of Section 73.3598(b) was
unwarranted because CSN was not diligent in ascertaining the
restrictions on construction at its site, having discovered the
restrictions only "three days before its FCC construction permit was
about to expire,"[^8] and that "\[i\]t was incumbent upon CSN to
determine the USFS's requirements and to allow sufficient time to obtain
any necessary permits and approvals."[^9] The *Division Letter* also
noted that the restrictions on installation of broadcast antennas in the
Los Padres National Forest were contained in a draft USFS Forest
Management Plan (the "Management Plan").[^10]

CSN makes three arguments in its Petition. Its principal argument is
that its construction deadline should have been tolled, or Section
73.3598(b) waived, because the USFS allegedly did not follow the
Administrative Procedure Act when it adopted the Management Plan.[^11]
Second, CSN argues that it relied on ATC as "an agent of the Forest
Service" to determine whether the USFS permitted broadcast antennas on
the ATC tower."[^12] Third, CSN submits that the Commission waives
Section 73.3598(b) in "rare and exceptional circumstances." It
encountered those circumstances, CSN argues, because (a) it was
"confronted at the very last moment with an unexpected surprise which it
could not have possibly anticipated,"[^13] *i.e.,* the USFS restriction
on broadcast antennas, and (b) it cannot relocate to a site where such
antennas are permitted.[^14]

**Discussion.** The Commission will consider a petition for
reconsideration only 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 petitioner\'s last opportunity to
present such matters.[^15] CSN has not met those threshold requirements
in its Petition.

First, CSN elected to use a site in a National Forest. It therefore
knew, or should have known, that the site was under USFS jurisdiction. A
diligent applicant would have contacted the USFS before it filed its
application - and remained in contact with the USFS thereafter - to
determine any restrictions on CSN's proposed site.[^16] Thus, CSN's
ignorance of the site restriction was not caused by a lack of "APA
notice" from the USFS to CSN. Instead, it was due to CSN remaining - as
it candidly concedes - "blissfully unaware that there was any
problem"[^17] with its site until its construction period had nearly
expired.[^18]

Second, CSN's purported but improbable reliance on ATC as "an agent of
the Forest Service" does not justify a waiver. It is well established
that applicants and permittees are responsible for ensuring that their
sites are suitable, initially, and that they remain so during the term
of a construction permit. They may delegate, but not abdicate, that
responsibility to third parties.[^19] Thus, it was CSN - not ATC - that
had the ultimate responsibility for ensuring that CSN's broadcast
antenna could be installed on the ATC tower.

Third, CSN has not established that its surprise at learning broadcast
antennas were not permitted on the ATC tower justifies a waiver under
the "rare and exceptional circumstances" exception discussed in the
Commission's *Streamlining* proceeding*.*[^20] The threshold requirement
for a "rare and exceptional circumstances" waiver is that failure to
timely construct facilities is due to "reasons beyond \[a permittee's\]
control. . . ."[^21] Here, however, CSN's failure to inform itself - and
remain informed - about USFS restrictions on its site was a matter
entirely within its control.[^22]

**Decision/Action.** CSN has not shown a material error or omission in
the Division Letter. Accordingly, IT IS ORDERED, that the Petition for
Reconsideration filed by CSN International IS DENIED.

> Sincerely,
>
> Peter H. Doyle
>
> Chief, Audio Division
>
> Media Bureau

[^1]: *Letter to Lauren Colby, Esq*., Dec. 19, 2006.

[^2]: *See* *Division Letter* at 1.

[^3]: *See* 47 C.F.R. § 73.3598(a),(e). (Construction permits are
    forfeited automatically, without further Commission action, if the
    permittee fails to construct its authorized facilities and file a
    license application before the permit expires.)

[^4]: The ATC tower is on Plowshare Peak in the Los Padres National
    Forest which is under USFS jurisdiction.

[^5]: 47 C.F.R. § 73.3598(b) ("Section 73.3598(b)").

[^6]: *Division Letter* at 1.

[^7]: *Id.* at 2.

[^8]: *Id.*

[^9]: *Id.*

[^10]: The USFS issued the draft Management Plan more than a year before
    CSN's construction permit expired. *Id.*

[^11]: CSN claims it had "no notice, actual or constructive, of the
    \[Management Plan\]," which, CSN claims, was posted only on a
    website, was not published in the Federal Register and "to this day
    \[\] has never been adopted as a final rule." It submits, therefore,
    that the revised plan "cannot bind CSN," because the USFS
    promulgated it without the notice and comment required by the APA.
    *See* Petition at 4

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

[^13]: *Id.* at 6.

[^14]: *Id.*

[^15]: *See* 47 C.F.R § 1.106. *See also WWIZ, Inc.*, Memorandum Opinion
    and Order, 37 FCC 685, 686 (1964), *aff\'d sum nom. Lorain Journal
    Co. v. FCC*, 351 F.2d 824 (D.C. Cir. 1965), *cert. denied*, 387 U.S.
    967 (1966).

[^16]: Applicants and permittees are required to ensure that their sites
    remain available. *See* *Marlene V. Borman* , Letter, 23 FCC Rcd
    4786, 4788-4789 (2008) (citing *1998 Regulatory Review -
    Streamlining of Mass Media Applications, Rules, and Processes*,
    Memorandum Opinion and Order, 14 FCC Rcd 17525, 17540 (1999)
    ("*Streamlining MO&O"*); *Arizona Number One Radio*, Decision, 103
    FCC 2d 551, 555 (Rev. Bd. 1986)).

[^17]: Petition at 4.

[^18]: With diligence, CSN could have identified the restriction on
    broadcast antennas well before its permit expired and challenged the
    USFS restriction on APA or other grounds.

[^19]: *See KM Radio of St. Johns*, Memorandum Opinion and Order and
    Notice of Apparent Liability, 19 FCC Rcd 5847 (2004) (actions of
    engineering contractor); *Belo Broadcasting Corp*., Decision, 68 FCC
    2d 1479, 1486 (1978) *aff\'d sub nom. Wadeco, Inc. v. FCC*, 628 F.2d
    122 (D.C. Cir. 1980) (purported reliance on former counsel).

[^20]: *Streamlining* *MO&O,* 14 FCC Rcd at 17541.

[^21]: *Id.*

[^22]: CSN's argument that a waiver is warranted because it lacks an
    alternative site is undercut by the fact it did not timely exhaust
    its remedies at the ATC site. For example, CSN - had it exercised
    diligence - could timely have initiated litigation against the USFS,
    Petition at 3, or timely have sought a special use permit pursuant
    to 36 C.F.R. § 251.54. *Id.* at 5. It did neither.