*Pages 1--6 from  Microsoft Word - 46533.doc*
 Federal  Communications  Commission  FCC  05-  40
 Before  the  Federal  Communications  Commission
 Washington,  D.  C.  20554
 In  the  Matter  of
 Texas  Grace  Communications
 Requests  to  Toll  the  Period  to  Construct  Unbuilt  Station  KRZB(  FM)
 Archer  City,  Texas
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 File  No.  BPH-  19960201MB,  as  modified  by
 BMPH-  19990217IB
 MEMORANDUM  OPINION  AND  ORDER
 Adopted:  February  16,  2005  Released:  March  1,  2005
 By  the  Commission:
 1.  The  Commission  has  before  it  several  pleadings  from  Texas  Grace  Communications,  permittee  of  unbuilt  station  KRZB(  FM),  Archer  City,  Texas.  Texas  Grace  seeks  both  reconsideration  and
 review  of  two  staff  letters  dated  January  29,  2004,  which  denied  its  requests  for  additional  construction  time.  1  We  dismiss  Texas  Graces  requests  as  untimely,  for  the  reasons  discussed  below.
 I.  BACKGROUND
 2.  Texas  Grace  received  its  initial  permit  to  construct  KRZB(  FM)  on  October  7,  1996.  In  October  2001,  the  Commission  denied  Texas  Graces  request  for  additional  time  to  construct,  finding
 that  Texas  Grace  was  not  entitled  to  tolling  under  Section  73.3598(  b)  of  the  Commissions  rules.  2  The  Commission  clarified  that  tolling  is  appropriate  only  in  the  narrow  circumstances  enumerated  in
 that  rule  section.  It  rejected  a  tolling  claim  based  on  health  problems  of  Texas  Graces  principal.  It  also  found  that  KRZBs  community  of  license  change  from  Olney  to  Archer  City,  Texas  did  not  create  a  new
 station  entitled  to  a  new  construction  period,  and  rejected  encumbrance  arguments  based  on  associated  rulemaking  proceedings.  3  Nevertheless,  the  Commission  observed  that  prior  to  its  clarification  therein,
 [  a]  permittee,  like  Texas  Grace,  might  have  concluded  that  reliance  on  mere  facilities  modifications  involving  frequency  or  class  would  be  insufficient  to  trigger  tolling,  but  that  a  facility  change  coupled
 with  a  community  of  license  change  might  be  treated  differently.  4  To  avoid  unfairness  to  Texas  Grace,  the  Commission  modified  Texas  Graces  existing  permit,  by  waiver,  to  provide  it  with  an
 additional  three  years  to  construct.  In  so  doing,  the  Commission  expressly  stated  that  the  construction  permit  would  automatically  cancel  unless  Texas  Grace  completed  construction  and  filed  an  application
 1  The  Media  Bureau  has  referred  the  March  8,  2004,  Texas  Grace  petition  for  reconsideration  to  the  Commission
 pursuant  to  47  C.  F.  R.    1.106(  a)(  1).  See  paragraph  4,  infra.
 2  See  47  C.  F.  R.    73.3598(  b).
 3  See  Texas  Grace  Communications,  16  FCC  Rcd  19167  (2001)  (  Texas  Grace).
 4  Texas  Grace,  16  FCC  Rcd  at  19171.
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 to  license  the  authorized  facilities  by  October  26,  2004.  Additionally,  the  Commission  advised  that  Texas  Grace  would  not  be  eligible  for  further  extension  of  the  October  26,  2004,  construction  deadline
 because  Texas  Grace  had  already  received  well  in  excess  of  three  unencumbered  years  to  construct.  5
 3.  In  2003,  Texas  Grace  filed  additional  requests  for  tolling,  which  the  staff  denied  or  dismissed.  On  January  29,  2004,  the  staff  denied  reconsideration  in  two  separate  letters.  The  first  letter
 (bearing  a  staff  reference  number  1800B3-  GDG)  found  that  the  staff  had  properly  concluded  that  Texas  Grace  was  not  entitled  to  an  additional  six  months  to  construct  the  station  as  a  result  of  an  alleged  error  by
 the  Federal  Aviation  Administration  (  FAA)  (  FAA  Reconsideration  Denial).  The  second  letter  (bearing  a  staff  reference  number  1800B-  IB)  affirmed  the  initial  staff  determination  that  Texas  Grace  was
 not  entitled  to  an  additional  17  months  based  on  events  in  rulemaking  proceedings,  including  changes  in  the  stations  interference  protection  (  Rulemaking  Reconsideration  Denial).  6  The  Rulemaking
 Reconsideration  Denial  also  dismissed  as  untimely  two  submissions  filed  August  21,  2003,  (the  August  Submissions).  The  August  Submissions,  similar  in  many  ways,  both  sought  to  expand  Texas  Graces  17-
 month  rulemaking-  related  claim  to  23  months  following  the  July  25,  2003,  release  of  a  rulemaking  order.  7  The  two  August  Submissions  differed  primarily  in  that  one  pleading  sought  to  amend  Texas  Graces
 petition  for  reconsideration  and  the  other  sought  consideration  of  the  same  facts  as  a  new  tolling  request.
 4.  On  February  3,  2004,  the  staff  issued  a  consolidated  Public  Notice  announcing,  among  other  things,  its  January  29,  2004  actions  on  Texas  Graces  various  requests.  8  Applications  for  Review
 were  due  within  30  days  of  public  notice,  i.  e.,  by  March  4,  2004.  On  March  8,  2004,  Texas  Grace  filed  three  documents:  an  application  for  review  of  the  FAA  Reconsideration  Denial,  an  application  for  review
 of  the  Rulemaking  Reconsideration  Denial,  and  a  petition  for  reconsideration  concerning  dismissal  of  the  August  Submission  that  Texas  Grace  had  intended  as  a  tolling  request.  On  March  19,  2004,  Texas  Grace
 submitted  amendments  to  each  of  these  documents.
 5.  Texas  Grace  recognizes  that  each  of  its  filings  ordinarily  would  be  considered  untimely.
 5  Id.  at  19174  n.  13.
 6  One  of  Texas  Graces  arguments  centers  on  use  of  staff  reference  numbers.  Such  numbers  are  generic  codes
 that  merely  aid  the  Commissions  staff  in  identifying  the  originating  Division,  sub-  Division  unit,  and  responsible  employee  for  certain  -  typically  unpublished  -  decisions.  In  this  case,  1800B  indicates  that  the  Audio  Division
 originated  the  item.  The  digit  3  in  1800B3  identifies  an  FM  radio  matter  in  the  Audio  Division.
 7  See  Archer  City,  Texas,  18  FCC  Rcd  15532  (MB  2003)  (  2003  Rulemaking  Order).  Specifically,  Texas  Grace
 argues  that  the  three  additional  years  that  the  Commission  granted  in  October  2001  should  not  begin  to  run  until  September  8,  2003,  the  effective  date  of  an  allotment  change  made  in  the  2003  Rulemaking  Order.  That  change,
 which  Texas  Grace  supported,  amended  the  Archer  City  allotment  from  Class  C1  to  Class  C2  and  changed  the  allotments  reference  coordinates.  As  we  have  observed,  the  prior  Class  C1  designation  of  the  Archer  City
 allotment  arose  from  Texas  Graces  successful  counterproposal  in  another  rulemaking  proceeding.  See  Texas  Grace,  16  FCC  Rcd  at  19167  n.  2  (citing  Tipton,  Mangum,  Eldorado  and  Granite,  Oklahoma;  and  Archer  City,
 Texas,  14  FCC  Rcd  21161  (MMB  1999)  (  Oklahoma  R&  O).  Although  the  Oklahoma  R&  O  required  Texas  Grace  to  file  an  implementing  application  by  April  17,  2000,  it  never  did  so.  Id.
 8  See  Broadcast  Applications,  Report  No.  25664  (Feb.  3,  2004).  The  public  notice  summarized  the  history  of
 KRZBs  application  to  modify  its  construction  permit  and  added  the  following  new  information:  1/  29/  04    Petition  for  Reconsideration  filed  6/  9/  03  Denied,  Petition  for  Reconsideration  and  Supplement  filed  8/  21/  03
 dismissed  as  untimely,  Ltr  action  Ref.  1800B3-  IB.  Petition  for  reconsideration  filed  12/  29/  03  Denied,  Ltr.  action,  Ref.  1800B3-  GDG.
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 Nevertheless,  Texas  Grace  argues  that  its  submissions  must  be  considered  timely-  filed  due  to  alleged  defects  9  in  the  public  notice.  Specifically,  Texas  Grace  contends  that:  (1)  the  single  consolidated  notice
 did  not  adequately  distinguish  the  separate  actions  taken  on  January  29,  2004;  (2)  the  notice  did  not  correctly  identify  the  Rulemaking  Reconsideration  Denial  by  the  staff  reference  number  (1800B-  IB)
 which  appeared  on  the  document,  but  rather  by  reference  number  1800B3-  IB  (adding  a  number  3  which  was  not  present  on  the  letter);  and  (3)  the  Public  Notice,  did  not  give  adequate  notice  of  dismissal  of  the
 August  Submissions,  because  Texas  Grace  intended  one  of  these  submissions  to  be  treated  as  a  new  tolling  request,  but  the  notice  described  it  as  a  Supplement  filed  8/  21/  03.
 6.  Based  on  the  alleged  defects  in  public  notice,  Texas  Grace  contends  that  the  February  3,  2004,  date  of  public  notice  should  not  be  used  to  calculate  the  deadline  for  filing  petitions  for
 reconsideration  and  applications  for  review.  Texas  Grace  suggests  that  the  30-  day  deadline  should  be  counted  instead  from  February  9,  2004,  the  date  on  which  Texas  Graces  proprietor  received  copies  of  the
 decision  letters  by  both  mail  and  fax  at  the  address  to  which  he  had  asked  the  U.  S.  Postal  Service  to  forward  his  mail.  Texas  Grace  contends  that  the  staff  itself  attached  some  significance  to  the  date  of
 Texas  Graces  receipt,  by  using  certified  mail,  return  receipt  requested.  Texas  Grace  also  relates  that  the  staff  viewed  receipt  of  documents  by  Texas  Graces  sister  company  important  in  a  different  proceeding,
 in  which  the  staff  reissued  and  redated  a  decision  after  learning  that  the  companies  principal  had  not  received  a  letter  mistakenly  addressed  to  a  previous  residence.  Texas  Grace  concludes  that  the  filing
 deadline  should  be  March  10,  2004,  and  therefore  that  its  March  8,  2004,  filings  were  timely.
 II.  DISCUSSION
 7.  Petitions  for  reconsideration,  applications  for  review,  and  any  supplements  thereto  must  be  filed  within  30  days  of  public  notice,  as  that  term  is  defined  in  Section  1.4(  b)  of  the  rules.  10  When,  as
 here,  the  full  text  of  an  action  document  is  not  released  by  the  Commission,  but  a  descriptive  document  entitled  Public  Notice  describing  the  action  is  released,  public  notice  is  given  on  the  date  on  which  the
 descriptive  Public  Notice  is  released.  11  Thus,  under  the  Commissions  rules,  deadlines  for  filing  petitions  for  reconsideration  and  applications  for  review  are  not  dependent  in  this  case  upon  any  persons
 receipt  of  actual  notice.  12  The  staffs  use  of  certified  mail  in  this  case  does  not  change  the  first  day  to  be
 9  At  the  time  that  Texas  Grace  first  alleged  defects  in  the  Public  Notice  it  had  not  yet  seen  that  Public  Notice
 because  Texas  Grace  incorrectly  expected  it  to  appear  in  the  daily  Broadcast  Actions  reports  while  the  staff  routinely  gives  notice  of  decisions  on  reconsideration  in  the  daily  Broadcast  Applications  reports.  Texas  Grace
 thus  argued  erroneously  that  the  public  notice  announced  only  one  action  taken  on  January  29,  2004,  without  specifying  whether  that  action  was  the  Rulemaking  Reconsideration  Denial  or  the  FAA  Reconsideration  Denial.  On
 March  19,  2004,  after  viewing  the  public  notice,  Texas  Grace  amended  its  claims.  10
 See  47  C.  F.  R.    1.106(  f)  (petitions  of  reconsideration);  47  C.  F.  R.    1.115(  d)  (applications  for  review);  47  C.  F.  R.    1.4(  b).
 11  47  C.  F.  R.    1.4(  b)(  4).
 12  47  C.  F.  R.    1.4(  b)(  5).  As  Texas  Grace  observes,  the  staff  has  discretion  to  reissue  a  decision  on  its  own
 motion  if  the  decision  contains  a  mistake,  such  as  an  inaccurate  address.  No  such  mistake  occurred  here,  however,  and  the  circumstances  do  not  provide  a  basis  for  the  staff  to  reissue  decisions  that  were  properly
 addressed  and  timely  mailed  to  Texas  Graces  official  address  of  record  in  Mississippi.  Texas  Grace  acknowledges,  and  U.  S.  Postal  Service  records  confirm,  that  the  January  29,  2004,  decisions  were  received  at
 Texas  Graces  official  address  in  Mississippi  on  February  5,  2004;  Texas  Grace,  however,  had  requested  that  the  Postal  Service  temporarily  forward  all  mail  to  an  unofficial  address  in  New  York.  The  Postal  Service  delivered
 the  forwarded  decisions  to  Texas  Graces  proprietor  in  New  York  on  February  9,  2004,  the  same  day  that  he  (continued.)
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 counted  for  determining  the  filing  deadline  for  seeking  review  or  reconsideration.  The  use  of  certified  mail  was  a  mere  staff  courtesy.
 8.  Texas  Grace  has  not  shown  that  the  Public  Notice  in  the  instant  case  was  defective.  Texas  Grace  misconstrues  the  role  of  the  public  notice  process  in  preserving  a  party's  right  of  review  of
 agency  actions.  A  public  notice  which  initiates  the  30-  day  period  for  seeking  review  or  reconsideration  is  "adequate  only  if  it  alert[  s]  interested  parties  to  documents  which  would  allow  them  to  determine  whether
 their  interests  were  implicated."  13  The  instant  Public  Notice,  which  identifies  letter  actions  concerning  Texas  Grace  and  station  KRZB,  clearly  satisfies  this  requirement.
 9.  With  respect  to  exact  wording  of  the  notice,  the  Commission  and  staff  have  wide  latitude  regarding  the  information  included,  provided  that  the  notice  gives  "fair  warning"  of  the  scope  of  the
 described  action.  14  The  instant  notice  accurately  reflects  that  the  staff  denied  reconsideration  of  two  Texas  Grace  filings  dated  June  9,  2003,  and  December  29,  2003,  and  also  dismissed  two  August  21,  2003,
 Texas  Grace  filings  as  untimely.  We  reject  as  meritless  Texas  Graces  contention  that  the  staff  was  required  to  use  multiple  public  notices  to  dispose  of  several  Texas  Grace  submissions.  Texas  Graces
 complaint  that  one  internal  routing  code  listed  in  the  public  notice  did  not  correspond  exactly  to  the  code  listed  on  the  letter  is  equally  unpersuasive.  The  staffs  public  notice  was  sufficient  to  permit  someone
 exercising  reasonable  diligence  to  identify  and  locate  the  action  documents  described  therein.  15
 10.  Finally,  we  address  the  staffs  dismissal  as  untimely  of  the  August  Submission  characterized  by  Texas  Grace  as  a  new  and  separate  tolling  request.  This  filing  both  repeats  arguments
 raised  previously  and  claims  that  Texas  Grace  is  entitled  to  additional  time  based  on  the  2003  Rulemaking  Order.  To  the  extent  that  this  filing  relies  on  the  2003  Rulemaking  Order,  the  dismissal  was  erroneous.  It
 was  timely-  filed  within  thirty  days  of  that  Order.  16  However,  the  staffs  dismissal  of  the  filing  as  untimely  was  harmless  error,  given  that  the  arguments  raised  therein  were  without  merit.  As  the
 Commission  has  held  previously  with  respect  to  this  particular  construction  permit,  permittees  may  not  rely  on  rulemaking  proceedings,  including  those  involving  changes  in  allotment  reference  coordinates,  to
 toll  a  permit  or  waive  a  construction  deadline.  17  Moreover,  when  the  Commission  waived  Section
 (Continued  from  previous  page)  contacted  the  staff  to  request  that  the  decisions  also  be  sent  to  him  via  fax.  There  is  no  argument  that  Texas
 Grace  did  not  receive  the  documents.
 13  Hispanic  Information  and  Telecommunications  Network  v.  FCC,  865  F.  2d  1289,  1295  (D.  C.  Cir.  1989).
 14  See  KOLA,  Inc.,  11  FCC  Rcd  14297,  14310  (1996)  (citing  Ridge  Radio  Corporation  v.  FCC,  292  F.  2d  770,
 773  (D.  C.  Cir.  1961)).  For  example,  where  the  Commission  addresses  multiple  matters  in  a  single  action  document,  a  public  notice  identifying  the  document  and  primary  action  is  sufficient.  Id.
 15  See  Thomas  W.  Tittle,  5  FCC  Rcd  1196,  1197  (1990)  (interested  parties  must  exercise  reasonable  diligence  in
 reviewing  public  notices).
 16  See  2003  Rulemaking  Order,  18  FCC  Rcd  at  15532.  However,  insofar  as  the  filing  additionally  attempts  to
 update  and  adjust  a  November  2002,  tolling  request  which  was  denied  in  May  2003,  and  relies  on  other  matters  occurring  more  than  30  days  prior  to  the  request,  such  as  rulings  between  October  2001  and  May  2003,  those
 arguments  were  untimely.  See  47  C.  F.  R.    73.3598(  c).  The  other  August  Submission,  submitted  as  an  untimely  amendment  to  a  Petition  for  Reconsideration,  was  properly  dismissed  as  untimely.  See  47  C.  F.  R.    1.106(  f).
 17  See  Texas  Grace,  16  FCC  Rcd  at  19170-  71.  Nowhere  did  the  Commission,  as  Texas  Grace  suggests,  link  the
 running  of  the  additional  three-  year  period  to  Texas  Graces  restoration  of  the  Archer  City  allotment  to  Class  C2.  The  2003  Rulemaking  Orders  substitution  of  channel  248C2  for  channel  248C1  occurred  because  Texas  Grace
 (continued.)
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 73.3598  and  extended  Texas  Graces  construction  deadline  to  October  26,  2004,  the  permittee  had  already  received  an  unencumbered  construction  period  in  excess  of  the  three  years  specified  in  the  rule.  On  that
 basis,  the  Commission  advised  Texas  Grace  it  would  be  ineligible  for  any  further  extension  of  the  October  26,  2004,  construction  deadline  and  that  its  construction  permit  would  expire  automatically  on
 that  date  unless  it  had  completed  construction  and  timely  filed  a  license  application.  18  In  these  circumstances,  no  event  arising  during  the  additional  three-  year  period  that  began  October  26,  2001,
 including  the  release  of  the  2003  Rulemaking  Order,  constituted  a  tolling  event  within  the  meaning  of  the  rule  or  provided  a  basis  for  a  further  extension  of  the  permits  expiration  date.  In  accordance  with  our
 Texas  Grace  order,  the  KRZB(  FM)  construction  permit  automatically  cancelled.
 11.  In  any  event,  Texas  Graces  untimely  arguments  are  without  merit.  First,  it  contends  that  it  is  entitled  to  approximately  six  additional  months  19  due  to  certain  FAA  problems  in  2003  relating  to  the
 termination  of  a  2001  FAA  study  of  the  permitted  facilities  and  a  2003  study  which  Texas  Grace  states  was  needed  to  facilitate  reinstatement  of  KRZBs  tower  rights.  20  Those  problems,  however,  related  to
 studies  which  were  never  required.  In  1999  the  FAA  issued  a  no  hazard  determination  for  the  tower  specified  in  the  Archer  City  construction  permit.  That  determination  explicitly  stated  that  the  no  hazard
 determination  would  remain  in  effect  until  the  date  prescribed  by  the  FCC  for  completion  of  construction,  i.  e.,  October  26,  2004.  21  This  condition,  routinely  included  by  the  FAA  in  determinations
 associated  with  applications  for  broadcast  station  construction  permits,  establishes  that  the  1999  no  hazard  determination  was  sufficient  for  construction  of  the  KRZB  facilities  and  that  the  2001  FAA  study  and
 2003  restudy  of  these  same  facilities  were  unnecessary.  As  the  FAA  stated  when  it  terminated  the  2003  study,  the  expiration  date  of  the  FAAs  1999  study  became  the  same  as  the  FCC  expiration  date  once
 the  Commission  issued  the  Texas  Grace  construction  permit  in  1999,  and  [  b]  y  FAA  policy,  no  further  study  was  ever  required  for  this  structure.  22  The  FAA  thus  terminated  the  2003  study  after  it  was
 advised  that  Texas  Grace  held  an  FCC  construction  permit.  Providing  additional  time  to  construct  based  on  difficulties  encountered  by  Texas  Grace  in  obtaining  a  redundant  FAA  clearance  is  clearly
 unwarranted.
 12.  Second,  Texas  Grace  contends  that  it  is  entitled  to  a  23-  month  period  starting  with  grant  of  the  new  three-  year  construction  period  and  ending  on  the  effective  date  of  a  staff  decision  downgrading
 the  Archer  City  allotment  to  Class  C2.  23  In  adopting  rules  establishing  a  three-  year  construction  period,  the  Commission  explicitly  rejected  a  request  to  toll  construction  periods  during  the  pendency  of  petitions
 (Continued  from  previous  page)  voluntarily  sought  and  obtained  modification  of  the  permit  to  specify  channel  248C1,  but  then  failed  to  timely  file
 the  required  implementing  application.  See  supra  n.  7.
 18  Id.  at  19174  n.  13.
 19  The  FAA  arguments  are  based  on  the  period  June  5,  2003  through  November  25,  2003.
 20  Application  for  Review  of  FAA  Matters  at  ii.
 21  Determination  of  No  Hazard  to  Air  Navigation  (FAA  Aeronautical  Study  No.  99-  ASW-  2013-  OE)  (Aug.  13,
 1999)  at  1  (submitted  as  Exhibit  F  to  Application  for  Review  of  FAA  Matters).
 22  Termination  of  Aeronautical  Study  No.  2003-  ASW-  3016-  OE  (Nov.  25,  2003)  at  2  (submitted  as  Exhibit  D  to
 Application  for  Review  of  FAA  Matters).
 23  See  supra.  n.  7.  The  period  at  issue  begins  October  26,  2001  and  ends  September  8,  2003.
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 for  rulemaking  affecting  a  stations  frequency  and/  or  class  .  .  .  .  24  Subsequently,  the  Commission  rejected  Texas  Graces  identical  contention  in  the  Texas  Grace  decision.  25  Similarly,  we  conclude  that
 no  additional  time  to  construct  is  warranted  based  on  the  rulemaking  to  restore  the  Class  C2  allotment  to  Archer  City.
 III.  ORDERING  CLAUSES
 13.  Accordingly,  IT  IS  ORDERED,  that  each  of  the  Applications  for  Review  filed  by  Texas  Grace  Communications  on  March  8,  2004,  ARE  DISMISSED  as  untimely.
 14.  IT  IS  FURTHER  ORDERED,  that  the  Petition  for  Reconsideration  filed  by  Texas  Grace  Communications  on  March  8,  2004,  IS  DISMISSED  as  untimely.
 15.  IT  IS  FURTHER  ORDERED,  that  the  Amendments  to  the  above-  referenced  Applications  for  Review  and  to  the  Petition  for  Reconsideration  filed  by  Texas  Grace  on  March  19,  2004,  ARE
 DISMISSED  AS  MOOT.
 FEDERAL  COMMUNICATIONS  COMMISSION
 Marlene  H.  Dortch  Secretary
 24  See  1998  Biennial  Regulatory  Review,  Streamlining  of  Mass  Media  Applications,  Rules,  and  Processes,  14
 FCC  Rcd  17525,  17538-  39  (1999).
 25  Texas  Grace,  16  FCC  Rcd  at  19170-  71.
6