# FEDERAL COMMUNICATIONS COMMISSION

**Washington, D.C. 20554**

## March 29, 2001

**In Reply Refer To:**

1800B3-GDG

Matthew H. McCormick, Esq.

Reddy, Begley & McCormick, LLP

2175 K Street, N.W.

Suite 350

Washington, D.C. 20037-1845

In re: WSNL(AM), Flint, MI

Facility ID: 42078

File No. BP-19971126AC

Dear Mr. McCormick:

This letter concerns the uncontested February 16, 2001 (as amended March
1, 2001) request filed on behalf of Midwest Broadcasting Corp.
("Midwest") for waiver of the Commission's rules, 47 C.F.R. §73.3598, to
permit tolling of the referenced permit. For the reasons detailed below,
we will grant Midwest's request for waiver.

The referenced application was filed November 26, 1997 as the result of
an AM Interference Reduction Agreement with Citicasters Co.'s
("Citicasters") Columbus, Ohio station WTVN(AM). The parties agreed that
WSNL would reduce its nighttime power to permit WTVN to increase its
nighttime power. Although the agreement required that the stations
implement the agreement simultaneously, the applications were
inadvertently not processed simultaneously. Midwest's uncontested
application was granted March 25, 1998, requiring completion of
construction by March 25, 2001; Citicasters' contested application was
granted September 16, 1999, requiring completion of construction by
September 16, 2002. Further, Citicasters' permit has been the subject of
judicial review since December 21, 1999. Neither party, therefore, has
had the opportunity to fulfill the terms of their agreement while the
status of WTVN's permit remains subject to review.

Section 73.3598(b)(ii) of the Commission's rules permits tolling for
judicial review purposes "when construction is delayed by any cause of
action pending before any court of competent jurisdiction relating to
any necessary local, state or federal requirement for the construction
or operation of the station." Midwest concedes that its station is not
directly subject to either administrative or judicial review, but that
the pending Court proceeding involving Citicasters' Columbus, Ohio
permit nonetheless directly affects it.

The Commission can waive any of its rules, upon a finding of good cause
consistent with the public interest. *Wait Radio v. FCC*, 418 F.2d 1153
(D.C. Cir. 1969), *cert. denied* 409 U.S. 1027 (1972). With respect to
waiver of our tolling rules, the Commission recognizes that "there may
be rare and exceptional circumstances . . . which would warrant the
tolling of construction time." *Memorandum Opinion and* Order in MM
Docket 98-43, 14 FCC Rcd 17525, 17541 (1999). We believe such
circumstances exist in this matter.

The Commission believes that the public interest is served by
encouraging interstation agreements proposing a reduction in AM
interference. *In the Matter of Policies to Encourage Interference
Reduction Between AM Broadcast Stations*, 5 FCC Rcd 4492, 4494 (1990).
To encourage such proposals, the Commission modified its contingent
applications rule, 47 C.F.R. §73.3517(c), to accept two or more AM
modification applications "that are contingent upon granting of both, if
granting such contingent applications will reduce interference to one or
more AM stations or will otherwise increase the area of
interference-free service." The WSNL and WTVN applications were
simultaneously filed but not simultaneously granted, placing the former
at a distinct disadvantage while it awaits finality of the latter's
situation. We believe that the public interest benefits inherent to the
Interference Reduction Agreement between the stations cannot be achieved
until both stations implement the approved changes.

Accordingly, Midwest's request for waiver of the Commission's tolling
rules, 47 C.F.R. §73.3598(b), IS GRANTED and the licensee MUST NOTIFY,
pursuant to 47 C.F.R. §73.3598(c), this office in writing within thirty
days of the resolution of the tolling event to enable the staff to
modify the Commission's records to reflect the appropriate period the
referenced permit was encumbered. If the tolling event is not resolved
within one year from the date of this letter, Midwest must submit a
status report on that date and at 6-month intervals thereafter. While
the related applicant, Citicasters, has not to date sought tolling
treatment, we strongly urge both parties to the WSNL/WTVN Interference
Reduction Agreement to coordinate their efforts regarding the
construction of the approved facilities.

Sincerely,

Linda Blair

Chief, Audio Services Division

Mass Media Bureau

cc: Charles R. Naftalin, Esq.