**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. BP-19960829AA       |
|                                  | *) |                              |
| **Birach Broadcasting            | ** | Facility ID No. 19235        |
| Corporation**                    |    |                              |
|                                  | *  |                              |
| Request to Toll the Construction | *) |                              |
| Period for                       | ** |                              |
|                                  |    |                              |
| Modification of Station WDMV(AM) | *  |                              |
| (formerly WGOP(AM)),             | *) |                              |
| Walkersville, Maryland           | ** |                              |
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|                                  | ** |                              |
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|                                  | *) |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 19, 2008 Released: February 20, 2008**

By the Commission:

**I. BACKGROUND**

1\. The Commission has before it for consideration two Applications for
Review filed by Birach Broadcasting Corporation ("Birach"), regarding
its Station WDMV(AM), Walkersville, Maryland, both of which are opposed
by New World Radio, Inc. ("New World").[^1] Birach seeks review of staff
decisions issued on May 18, 2004 (the "May Decision"),[^2] and June 15,
2004 (the "June Decision"),[^3] which denied Birach's two separate
requests for additional time to construct the modified WDMV(AM)
facilities.[^4] For the reasons set forth below, we deny Birach's
Applications for Review.

2\. WDMV(AM) is an operating station currently licensed to Walkersville,
Maryland. On July 18, 2001, the staff issued a construction permit to
the station's then-permittee, Elijah Broadcasting Corporation
("Elijah"), authorizing relocation of the station's transmitter to a
site near Damascus, Maryland (the "Damascus Site"), from which the
station would serve Poolesville, Maryland, instead of Walkersville. The
permit, granted over the objection of New World, required completion of
construction by July 18, 2004. On August 22, 2001, New World filed a
timely Petition for Reconsideration of the permit's grant. Birach
acquired WDMV(AM) and the contested permit by an assignment from Elijah
on December 6, 2002.[^5] On November 26, 2003, the staff affirmed the
grant of the WDMV(AM) modified permit[^6] and also granted Birach's
application to relocate the licensed facilities of a commonly owned
station, Station WGOP(AM), to the same Damascus Site.[^7]

3\. Under the rules then and still in effect, an initial or successor
permittee must complete construction of an authorized facility no later
than three unencumbered years after the grant of the original
permit.[^8] This period can be "tolled" for certain enumerated
"encumbrances" beyond the permittee's control, as follows: acts of God,
administrative or judicial review of a permit grant, failure of a
condition precedent on the permit, or judicial action related to
necessary local, state, or federal requirements.[^9] The Commission has
also recognized that there may be "rare and exceptional circumstances
beyond a permittee's control" other than those delineated above that
could warrant a waiver of the construction period rule.[^10] Requests
for tolling must be filed within 30 days of the event upon which the
request is based.[^11] Requests for waiver of the construction period
rule must be filed as soon as possible after the event, generally within
the same 30-day period applicable to tolling requests.[^12]

4\. Birach filed its first tolling request on March 3, 2004, alleging
that the construction of WDMV(AM) had been encumbered for 27 months
during the pendency of New World's Petition for Reconsideration of the
permit grant. Birach also argued that it needed more time due to local
zoning problems and because it wished to modify the facilities of
WDMV(AM) and WGOP(AM) simultaneously. The staff denied Birach's request
in the May Decision. It stated that neither initial zoning delays nor a
permittee's desire to construct stations simultaneously are grounds for
grant of additional construction time, and that administrative review,
while potentially a basis for tolling, warranted no additional time here
because Birach's tolling notification had been submitted two years
late.[^13] Birach filed a timely Application for Review of the May
Decision on May 27, 2004.

5\. Along with its Application for Review, Birach filed a second request
for tolling, contending that its concurrently filed Application for
Review began a new and separate period of administrative review for
which tolling or waiver would be appropriate. The staff rejected
Birach's claim in the June Decision, concluding that "administrative
review" is a narrowly defined term inapplicable to Birach's claimed
circumstances. On July 9, 2004, Birach filed a timely Application for
Review of the

June Decision. It did not construct by the July 18, 2004, deadline. New
World filed a timely Opposition on July 26, 2004.

**II. DISCUSSION**

**A. Procedural Matters**

6\. The filing deadline for oppositions to Birach's Application for
Review of the May Decision was June 6, 2004, ten days from the May 27,
2004, filing date of the Application for Review.[^14] New World's July
14, 2004, Opposition was approximately six weeks late. New World
explains that, as a non-party to the proceeding, it did not learn of the
May Decision until after the pleading cycle had closed, because the May
Decision was neither published nor placed on public notice. Birach
argues that the untimely Opposition should not be considered.[^15]

7\. The applicable filing deadline for oppositions was based on the
filing date of the Application for Review, not of the May Decision being
challenged therein.[^16] Therefore, New World's claimed lack of notice
of the May Decision does not justify the late filing of its Opposition.
A public notice announcing the filing of Birach's Application for Review
was issued on June 3, 2004.[^17] When, as here, there are fewer than
seven days following public notice to file a timely responsive pleading,
a potential filer seeking additional time must file a motion for
extension of time by the due date and (in addition to serving a copy on
the parties) orally notify all parties and the Commission staff of its
motion.[^18] New World failed to follow that procedure and shows no good
cause for its failure to have done so. Accordingly, we deny New World's
request for leave to late-file and dismiss its untimely-submitted
Opposition. We will, however, consider New World's views in the context
of its separate and timely filing concerning the June Decision.

**B. Substantive Issues**

8\. *[Ability to Refile.]{.underline}* As an initial matter, we note
that the staff's denial of Birach's request for tolling has a very
limited substantive effect due to WDMV(AM)'s licensed status. The staff
noted in the June Decision that, because WDMV(AM) is a licensed station,
denial of tolling treatment would not prevent Birach from refiling its
request to move the station to the Damascus Site as an application to
modify the licensed WDMV(AM) facilities.[^19] Under the rules then in
effect, such a modification was considered a major change that could be
requested only during an AM major change filing window.[^20] However, in
2006, while the Applications for Review were pending, the Commission
modified its rules to reclassify changes in communities of license as
minor changes that could be filed at any time.[^21] Thus, Birach has had
the ability since that time to withdraw its Applications for Review in
favor of a new modification application for the same facilities which,
if granted, would result in the issuance to it of a construction permit
with a full three-year construction period. Birach has not pursued that
alternative. Rather, on November 14, 2006, it filed a minor change
application for facilities other than those specified in its expired
WDMV(AM) modified permit.[^22] This new application remains pending
because it has been contested.[^23] In view of these circumstances, we
will consider the merits of Birach's tolling arguments.

9\. *[Notification of Administrative Review (May
Decision).]{.underline}* Tolling or waiver of a station's construction
period is triggered by a notification to the Commission by the
permittee; such action does not occur automatically.[^24] The
notification requirement serves to ensure permittee construction
diligence and to avoid *post hoc* permittee temporizing.[^25] Birach
notified the Commission of its first tolling claim over two years after
the event on which it relied.[^26] As noted above, the Commission's
rules require that requests for tolling be filed within 30 days of the
event upon which the request is based. The May Decision therefore
correctly concluded that the WDMV(AM) permit was not eligible for
tolling treatment or construction period waiver.

10\. We reject Birach's contention that the timely notification
requirement in Section 73.3598(c) of the Rules is inapplicable to events
which, like New World's reconsideration filing, occur as the result of
proceedings before the Commission. In establishing the requirement of
timely notification, the Commission did not limit the rule to matters
outside of the agency. Indeed, the Commission specifically required
notification of the commencement and termination of administrative
review, which by definition is limited to matters pending within the
Commission.[^27] Although the Commission and its staff are aware of
matters within the agency, they cannot be expected to infer whether and
to what extent such matters may impact the construction plans of a
permittee or assignee.[^28]

11\. In the instant case, it was the responsibility of Elijah,
WDMV(AM)'s permittee at the time of New World's Petition, to notify the
Commission in accordance with Section 73.3598(c) of any impact that the
Petition would have on Elijah's plans to construct. As the Commission
has advised Birach in a case involving a different station, an assignee
of a station will not receive additional construction time based on
mistakes made by its assignor.[^29] Moreover, Birach acquired the permit
from Elijah while the New World Petition remained pending, and it became
Birach's responsibility to notify the Commission of any impact that the
Petition would have on Birach's construction plans.

12\. Nor are we persuaded by Birach's argument that we should waive the
timely notification requirement. Birach contends that it did not
immediately seek tolling because it was awaiting staff action on an
application to modify WGOP(AM) so that it could build the two stations
concurrently. Birach argues that consolidation of the two stations at a
single site would serve the public interest,[^30] and that the staff
should have known that "it would not have been practical to construct"
WDMV(AM) independently of WGOP(AM) because the stations would share
towers and a ground system. Birach further contends that its counsel had
advised it that it would be unwise from a local perspective to pursue
zoning until the Commission had granted both construction permits.
Birach claims that it began the local zoning process for WDMV(AM) and
WGOP(AM) promptly upon the staff's grant of the WGOP(AM) modification
application, but that the zoning process had proven to be more
cumbersome than anticipated. Based on prior experience, Birach believed
that it "had plenty of time to complete the zoning procedures prior to
the expiration" and requested additional time only once it became clear
that local authorities would not complete the zoning process prior to
expiration.[^31]

13\. These circumstances neither excuse the late notification nor
provide good cause for waiving the notification rule. The Commission
established the timely notification requirement to remedy various
problems with the Commission's enforcement of broadcast station
construction requirements, caused in part when permittees did little to
construct and requested additional time shortly before permit
expiration.[^32] The notification process is simple, and can generally
be accomplished by means of a short letter. Here, for the first 27
months of the WDMV(AM) construction period, Elijah and Birach did little
either to construct or to notify the Commission of other intentions.
Birach's explanation for its failure to notify the Commission earlier
seems to indicate that it expected that the staff would deduce Birach's
intent to delay construction of WDMV(AM) by noticing that the
unconditional WDMV(AM) permit shared some common geographic coordinates
with Birach's separate modification application for WGOP(AM). Even
accepting *arguendo,* that there are public interest advantages to use
of a shared site for the two stations, such matters would justify
neither a significant delay in seeking zoning approval nor in
notification to the Commission of a tolling claim based on
administrative review. The Commission has long advised permittees to
commence the local zoning process at the earliest possible date, and has
previously advised *this* permittee -- Birach -- against making
last-minute requests for waiver of the construction period rules. [^33]
Birach's decision not to seek zoning for the WDMV(AM) project until 27
months into the station's construction period, and its failure to have
notified the Commission immediately of its tolling claim were clearly
matters within its control.[^34]

14*. [Definition of Administrative Review (June Decision).]{.underline}*
The Rules provide for tolling of the broadcast construction period when
construction is prevented by "administrative review," which the rules
define as "petitions for reconsideration and applications for review of
*the grant* of a construction permit."[^35] Birach's Application for
Review of the June Decision argues that Commission consideration of an
Application for Review qualifies as "administrative review" and that the
June Decision's denial of tolling while Birach had a pending Application
for Review was therefore erroneous. New World, in contrast, fully
supports the staff's analysis.

15\. We affirm the staff's June Decision conclusion that our
consideration of the Application for Review in the instant proceeding
does not constitute administrative review warranting tolling. Birach's
Application for Review concerns a permittee's own challenge of the
*denial* of its request for *tolling,* not an opposing party's challenge
of the *grant* of the permittee's initial construction permit, as
administrative review is defined. The former does not encumber
construction, but only maintains the original construction deadline. The
Commission has previously held that no additional time is warranted
under such circumstances.[^36]

**III. ORDERING CLAUSES**

16\. Accordingly, IT IS ORDERED That the Application for Review filed on
May 18, 2004, by Birach Broadcasting Corporation concerning tolling of
its construction permit (File No. BP-19960829AA) IS DENIED, and that the
Request of New World Radio for leave to file a late Opposition to that
Application for Review IS DENIED and that New World's July 14, 2004,
Opposition IS DISMISSED.

17\. IT IS FURTHER ORDERED That the Application for Review filed on June
15, 2004, by Birach Broadcasting Corporation concerning tolling of its
construction permit (File No. BP-19960829AA) IS DENIED, and that the
timely Opposition by New World Radio IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: New World is the licensee of Station WUST(AM), Washington, D.C.
    Also before the Commission are responsive pleadings.

[^2]: *See Letter to Lauren A. Colby, Esq.* (MB May 18, 2004).

[^3]: *See Letter to Lauren A. Colby, Esq.* (MB June 15, 2004).

[^4]: At the time of the staff decisions, WDMV(AM), Walkersville,
    Facility ID No. 19235, operated under call sign WGOP(AM). Call sign
    WDMV(AM) was used by a different Birach station at Pocomoke City,
    Maryland, Facility ID No. 5347. The staff has since approved a call
    sign swap by the Birach stations. WDMV(AM) and WGOP(AM) now
    designate the Walkersville and Pocomoke City facilities,
    respectively. Birach also received permits that, if constructed,
    would change the stations' communities of license, as follows:
    WDMV(AM) to Poolesville, Maryland and WGOP(AM) to Damascus,
    Maryland. The instant Order refers to the stations by their current
    call signs and communities.

[^5]: *See* File No. BAL-20021118ABX, granted November 26, 2002.

[^6]: *See Letter to New World Radio, Inc.* (MB Nov. 26, 2003).

[^7]: The WGOP(AM) permit originally required completion of construction
    by November 26, 2006, but the staff granted a waiver extending that
    deadline to November 26, 2007, based on events occurring between
    2005 and 2006. *See Letter to Bruce A. Henoch, Esq*. (MB Nov. 16,
    2006). Birach subsequently surrendered the WGOP(AM) construction
    permit and the Bureau dismissed a petition against that permit filed
    by the Damascus Residents for Responsible Tower Siting ("DRRTS").
    *See* Broadcast Actions, Public Notice, Report No. 26611 (Nov. 13,
    2007). DRRTS has a pending request for reconsideration of that
    action. Birach also has a pending application to make a minor
    modification to WGOP(AM), filed on November 2, 2007, which is
    similarly contested by DRRTS.

[^8]: *See* 47 C.F.R. § 73.3598(a). *See also* *1998* *Biennial
    Regulatory Review \-- Streamlining of Mass Media Applications,
    Rules, and Processes*, Report and Order, 13 FCC Rcd 23056, 23092
    (1998) ("*Streamlining Order"*), *aff'd,* Memorandum Opinion and
    Order, 14 FCC Rcd 17525, 17539-40 (1999) ("*Streamlining MO&O*").

[^9]: *See* 47 C.F.R. § 73.3598(b); *see also* *Wendell & Associates*,
    Memorandum Opinion and Order, 17 FCC Rcd 18576, 18577 (2002)
    ("*Wendell*").

[^10]: *See Streamlining MO&O*, 14 FCC Rcd at 17541; *Texas Grace
    Communications*, Memorandum Opinion and Order, 16 FCC Rcd 19167
    (2001) ("*Texas Grace"*). *But see Wendell*, *supra* n.9, 17 FCC Rcd
    at 18577 (waiver denied when permittee failed to prosecute
    diligently its modification application and commence preliminary
    construction efforts); *Birach Broadcasting Corporation*, Memorandum
    Opinion and Order, 18 FCC Rcd 1414 (2003) ("*Birach I*"*)*
    (assignee's greater broadcast experience not a relevant good cause
    for waiver of construction period rule), *recon. denied,* 20 FCC Rcd
    5764 (2005) ("*Birach II").*

[^11]: *See* 47 C.F.R. § 73.3598(c).

[^12]: *See Birach I, supra* n.10, 18 FCC Rcd at 1416.

[^13]: *See* May Decision at 2 (citing *Streamlining Order, supra* n.8,
    13 FCC Rcd at 23091).

[^14]: *See* 47 C.F.R. § 1.45(b).

[^15]: Specifically, Birach argues that the staff has already considered
    and denied New World's challenges to the grant of WDMV(AM)'s
    construction permit, and New World did not seek Commission review of
    those decisions. *See* Opposition to Request for Leave at 3.

[^16]: The May Decision was a staff letter of the type not generally
    released or placed on a public notice, but rather mailed to parties
    to the proceeding. New World was not a party.

[^17]: *See Broadcast Applications*, Public Notice, Report No. 25749
    (June 3, 2004).

[^18]: 47 C.F.R. § 1.46(c).

[^19]: *See* June Decision at 2.

[^20]: *See* 47 C.F.R. § 73.3571(a)(1) (2004). WDMV(AM)'s operations
    from the Damascus Site would not provide the community of
    Walkersville with the requisite city grade signal coverage. Birach
    failed to take advantage of its opportunity to file a major change
    application for WDMV(AM) during the AM filing window that opened on
    January 26, 2004.

[^21]: *See Revision of Procedures Governing Amendments to FM Table of
    Allotments and Changes of Community of License in the Radio
    Broadcast Services*, Report and Order, 21 FCC Rcd 14212, 14213-23
    (2006).

[^22]: *See* File No. BP-20061114ABV. The pending application would
    retain Walkersville as the station's community of license, use the
    currently licensed site, but increase power from 5 to 50 kW using a
    new four-tower directional array. In contrast, the expired permit
    that is the subject of the current proceeding would change the
    community of license from Walkersville to Poolesville and increase
    daytime power from 5 to 25 kW at the new Damascus Site. Under the
    Rule prohibiting inconsistent or conflicting applications, Birach
    could not both re-file an application for the Damascus Site and
    pursue its application for the new site. *See* 47 C.F.R. § 73.3518.

[^23]: The minor change application has been contested by DRRTS. *See*
    Informal Objection (Jan. 19, 2007).

[^24]: *See* 47 C.F.R. § 73.3598(c).

[^25]: *See Birach I, supra* n.10, 18 FCC Rcd at 1416.

[^26]: Under such circumstances, ordinary staff practice is to consider
    whether tolling is appropriate as of a date 30 days prior to the
    permittee's notification. *See, e.g., Letter to Lauren Colby, Esq.,*
    21 FCC Rcd 1260 (MB 2006). That practice is based upon a reasonable
    reading of Section 73.3598(c), which embodies the 30-day
    notification requirement, in conjunction with Section 73.3598(b),
    which recognizes that certain events can continue to prevent
    construction for considerable periods. On February 1, 2004, *i.e.,*
    30 days prior to Birach's first tolling notification, the WDMV(AM)
    construction permit was unencumbered because New World's Petition
    for Reconsideration had been denied three months earlier, and no
    appeal of that decision had been taken.

[^27]: *See* 47 C.F.R. § 73.3598(c) and (d); *Streamlining MO&O, supra*
    n.8, 14 FCC Rcd at 17541.

[^28]: *See generally Bembenista v. U.S.,* 866 F.2d 493 (D.C. Cir. 1989)
    (dismissing Federal Tort Claims Act claim allegedly contained in
    documents submitted with a different claim because "to ask an agency
    to contemplate the nuances of every sentence in such a submission
    would hold it to a standard that even a court would be pressed to
    match."); Instructions to FCC Form 303-S, page 7, Item 4 (license
    renewal applicant must report to the Commission all Commission
    determinations of rule violations by the station to enable
    determination of whether the violations preclude renewal under 47
    U.S.C. § 309(k). The Rules impose an affirmative obligation on
    licensees, permittees and applicants to affirmatively report certain
    information to the Commission, even if that information relates to
    other proceedings before the agency. *See* 47 C.F.R. § 1.65(a)
    ("Each applicant is responsible for the continuing accuracy and
    completeness of information furnished in a pending application or in
    Commission proceedings involving a pending application."); 47 C.F.R.
    §1.65(c) ("All broadcast permittees and licensees must report
    annually to the Commission any adverse finding or adverse final
    action taken by any court or administrative body that involves
    conduct bearing on the licensee's character qualifications. . . .").

[^29]: *See Birach I*, *supra* n.10, 18 FCC Rcd at 1416.

[^30]: *See* Application for Review of May Decision at 5.

[^31]: *Id.* at 3.

[^32]: *See Streamlining MO&O, supra* n.8, 14 FCC Rcd at 17539.

[^33]: *See Birach I, supra* n.10, 18 FCC Rcd at 1416.

[^34]: We observe that the staff's basis for granting additional
    construction time to Birach's co-owned station WGOP(AM) would
    provide no basis for grant of additional time to WDMV(AM). The
    events that formed the basis for the staff's WGOP(AM) action
    involved county government activities that began in July 2005, over
    a year after the WDMV(AM) permit had expired.

[^35]: 47 C.F.R. § 73.3598(b)(ii) (emphasis added).

[^36]: *See Texas Grace, supra* n.10, 16 FCC Rcd at 19172.