Federal Communications Commission
Washington, D.C. 20554
October 19, 2016
DA 16-1199
In Reply Refer to:
1800B3-IB
Released: October 19, 2016
Stuart W. Nolan, Jr., Esq.
Legal Works Apostolate
4 Family Life Lane
Front Royal, VA 22630
In re: KUCU(AM), Farmington, NM
Facility ID No. 129609
File Nos. BNP-20001023ADM
BMP-20060209ABX
Petition for Reconsideration
Request for Tolling
Dear Counsel:
We have before us a Petition for Reconsideration (Petition) filed by Western Broadcasters, Inc. 
(Western), permittee of unbuilt station KUCU(AM), Farmington, New Mexico.
1
  Western seeks 
reconsideration of a Decision
2
by the Media Bureau (Bureau) denying its April 4, 2006 request for tolling 
of the station’s construction deadline.
3
  Western argues that circumstances beyond its control, i.e., a 
change in Commission policies for notifying Tribal Nations of proposed tower construction, occurred 
while Western was pursuing a modification of its permit, and that Western would have timely completed 
construction were it not required to repeat time-consuming Tribal notifications already made under a prior 
protocol.
4
  While its Petition was pending, but after permit expiration, Western filed another tolling 
request (September Request) raising new arguments apart from the Tribal notification process.
5
For the 
reasons discussed below, we find no merit to either filing. 
Background.  The Bureau issued the KUCU(AM) permit on September 17, 2003 for a three-year 
term expiring September 17, 2006.  The original permittee declared bankruptcy, and Western acquired the 
permit in an assignment consummated on October 24, 2005.  Western discovered that the original 
                                                          
1
Western Petition for Reconsideration of Denial of Tolling Request (filed June 19, 2006) (Petition).
2
Ellen Mandell Edmundson, Esq., Letter Order, Ref. 1800B-IB (May 19, 2006) (Decision).  
3
Western Request for Tolling of Construction Permit (filed Apr. 4, 2006) (Tolling Request), supplement filed,
Supplement to Request for Tolling of Construction Permit/Waiver Request (filed May 5, 2006).
4
Petition at 2.
5
Western contends therein that: (1) a prior permittee consumed much of the construction period; (2) Western could 
not construct until receiving authority to modify the permit; and (3) construction was delayed due to a serious illness 
of the son of its principal.  Western Request for Waiver of Construction Deadline at 2 (filed Sep. 18, 2006) 
(September Request). 
2permittee had specified towers that were too close together, potentially causing a destructive re-radiating 
effect. To solve that problem, Western filed a Modification Application on February 9, 2006.
6
The Modification Application, which proposed a new transmitter site, was subject to 
environmental processing requirements.  Such environmental requirements include those specified in a 
2004 Nationwide Programmatic Agreement (NPA),
7
which streamlined the procedures for review of 
certain Commission-authorized undertakings under Section 106 of the National Historic Preservation Act 
(NHPA).
8
  Compliance with the NPA’s streamlined procedures satisfies the Commission’s Section 106 
responsibilities with respect to undertakings, such as tower construction, covered by the NPA.
9
  One of 
the Commission’s obligations under the NHPA is to make reasonable and good faith efforts to identify 
and notify Tribal Nations of proposed construction that may affect properties of traditional religious and 
cultural significance.
10
To fulfill its responsibilities, Section 1.1307(a)(4) of the Commission’s rules 
mandates that applicants follow the procedures set forth in the rules of the Advisory Council on Historic 
Preservation (ACHP), 36 CFR Part 800, as modified by the NPA, to ascertain pre-construction whether 
their proposals may affect historic properties such that an environmental assessment must be submitted. 
Under the NPA, applicants must, “[a]s an initial step to enable the Commission to fulfill its duty of 
consultation,” demonstrate reasonable and good faith efforts to identify and notify tribes of proposed 
construction that may affect historic properties to which a tribe attaches religious and cultural 
significance.”
11
As set forth by the NPA, broadcast applicants may notify potentially interested Tribal 
Nations by using the Tower Construction Notification System (TCNS) administered by the Wireless 
Telecommunications Bureau (WTB).
12
  Alternatively, applicants that have a pre-existing relationship with 
                                                          
6
File No. BMP-20060209ABX (filed Feb. 9, 2006) (Modification Application).
7
See Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings 
Approved by the Federal Communications Commission (September 2004), codified at 47 CFR Part 1 (App. C), 
republished at 70 Fed. Reg. 556, 580-88 (Jan. 4, 2005) (NPA).  See also Nationwide Programmatic Agreement 
Regarding the Section 106 National Historic Preservation Act Review Process, Report and Order, App. B, 20 FCC 
Rcd 1073 at 1140-1201 (2004) (NPA Report and Order).  
8
See National Historic Preservation Act, P.L. No. 89-665, 80 Stat 915 (1966), codified as amended at 54 U.S.C. § 
300101 et seq.; Tribal provisions at § 302706(b).  See also, 47 CFR §§ 1.1301-1319 (Commission consideration of
NHPA among other environmental requirements); 36 CFR Part 800 (regulations of the Advisory Council on Historic 
Preservation implementing Section 106); NPA, 47 CFR Part 1 (App. C), Section II(A)(9)(defining “historic 
property” to include certain properties of religious and cultural importance to Tribal Nations).  
9
36 CFR § 800.14(b)(iii).
10
See NHPA, 54 U.S.C. § 302706(b) (in fulfilling Section 106, Federal agencies shall consult with any Tribal Nation 
or Native Hawaiian Organization that attaches religious and cultural significance to historic properties that might be 
affected by a proposed undertaking).  See also ACHP Section 106 Regulations, 36 CFR 800.2(c)(ii) (it is the 
responsibility of the agency to make a reasonable and good faith effort to identify tribes and Native Hawaiian 
Organizations (NHOs) that shall be consulted in the Section 106 process).  Section 800.2 governs the participants in 
the Section 106 process and is unaffected by the streamlined procedures specified in a programmatic agreement. As
the NPA explains, based upon the federal government’s historic trust relationship and fiduciary responsibilities, the 
duty of consultation with federally recognized Tribal Nations rests with the Commission, and cannot be delegated to 
its licensees or applicants.  NPA, 47 CFR Part 1 (App. C), Section IV(A).  However, the NPA also recognizes that 
identifying Tribal Nations that may attach religious and cultural significance to a historic property that might be 
affected by a specific undertaking is the first step to enable such consultation and that applicants, with unique 
knowledge of their proposed projects, are best situated to identify those Tribal Nations in the first instance.  Id. at 
Sections IV(A) and (B); NPA Report and Order, 20 FCC Rcd at 1106-07, paras. 91-92.  
11
NPA, 47 CFR Part 1 (App. C), Section IV (B).
12
See NPA, 47 CFR Part 1 (App. C), Sections IV(B), (E).  TCNS uses geographic areas of interest entered into the 
system by each Tribal Nation, typically by county, to notify the appropriate Tribal Nations of proposed tower 
projects.  After an applicant submits the location and other characteristics of a proposed antenna structure into 
3a Tribal Nation may make initial contact in the manner that is customary to that relationship.
13
  With 
respect to a Tribal Nation that has voluntarily provided information to TCNS, the NPA provides that an 
applicant’s reference to that database constitutes reasonable and a good faith effort to identify historic 
properties to which Tribal Nations attach religious or cultural significance. At the same time the NPA
offers guidance on other relevant sources of information and contacts that could also constitute reasonable 
and good faith efforts.
14
In October 2005, the Commission issued a Declaratory Ruling which further
clarified procedures for Tribal participation under the NPA that address the situation in which a Tribal 
Nation has not responded to an initial contact within 30 days.
15
  
Western claims that it undertook the notification process in accordance with all procedures
announced in the NPA and the Declaratory Ruling.  It initially chose to identify and contact Tribal 
Nations without using TCNS.  Beginning February 17, 2006, Western made two attempts to contact 
potentially interested Tribal Nations.  On March 20, 2006, while Western was awaiting responses to its 
notification attempts, WTB issued a public notice announcing several enhancements to TCNS 
(Enhancement Notice).
16   
The NPA contemplated such processing system upgrades, characterizing TCNS 
as “an evolving tool.”
17
  Western did not receive responses to its Tribal notifications and on March 29, 
2006, as required under such circumstances, referred the matter to the Commission, along with details as 
to the proposed construction and the identity of the non-responding Tribal Nations.
18
  Western chose to 
make this referral to the Commission outside of TCNS as well, using an FCC e-mail address established 
for communication with WTB.
19
     
                                                                                                                                                                                          
TCNS, TCNS generates a letter to Tribal Nations that have indicated an interest in receiving notifications about 
projects in the location where the antenna structure would be located. TCNS also informs the applicant as to which 
Tribal Nations have received this letter. The Tribal Nations may then use TCNS to respond.    
13
Id.; NPA Report and Order, 20 FCC Rcd at 1107, para. 94.  See also FCC Announces Voluntary Tower 
Construction Notification System to Provide Indian Tribes, Native Hawaiian Organizations, and State Historic 
Preservation Officers with Early Notification of Proposed Tower Sites, Public Notice, 19 FCC Rcd 1998 (WTB 
2004). 
14
NPA, 47 CFR Part 1 (App. C), Section IV(B); NPA Report and Order, 20 FCC Rcd at 1107,  para. 89.
15
See Clarification of Procedures for Participation of Federally Recognized Indian Tribes and Native Hawaiian 
Organizations Under the Nationwide Programmatic Agreement, Declaratory Ruling, 20 FCC Rcd 16092, 16094-96,
paras. 7-9, Erratum, 20 FCC Rcd 17995 (2005) (Declaratory Ruling) (advising that if a Tribal Nation fails to 
respond within 30 days after the applicant’s initial contact the applicant should attempt a second contact in a manner 
calculated to elicit a response; that if a Tribal Nation fails to respond to the second contact within 10 days, the 
applicant should refer the matter to the Commission for guidance; and that, consistent with the NPA, the 
Commission will inform a Tribal Nation that has not responded to two reasonable and good faith contacts initiated 
by an applicant that it has an additional 20 days to indicate it has an interest in participating in the Section 106 and 
that, if it does not, the applicant’s obligations under the NPA are discharged).
16
See Changes and Enhancements to the FCC’s TCNS For Indian Tribes, Native Hawaiian Organizations, and the 
Communications Industry, Public Notice, 21 FCC Rcd 2950 (WTB 2006) (Enhancement Notice). 
17
See NPA Report and Order, 20 FCC Rcd at 1106, para. 90.
18
NPA, 47 CFR Part 1 (App. C), Section IV(G) (“An Applicant shall also seek guidance from the Commission 
. . . if an Indian tribe or NHO does not respond to the Applicant's inquiries.”); Declaratory Ruling, 20 FCC Rcd at 
16095-96, paras. 8-10 (2005) (it is consistent with the NPA for an Applicant to refer the matter to the Commission 
for guidance if a Tribal Nation has not responded to a second contact from the applicant). 
19
See Wireless Telecommunications Bureau Announces Electronic Mail Account, Public Notice, 20 FCC Rcd 470 
(WTB 2005).
4The WTB staff responsible for Tribal historic preservation matters used TCNS as a resource in 
processing Western’s referral.  The staff determined that 18 Tribal Nations had, through TCNS, indicated 
an interest in receiving notifications of projects in the geographic area of Western’s proposal, and that 
Western had failed to send notifications to some of them.  The staff discussed this matter with Western’s 
counsel by telephone on March 30, 2006 and April 3, 2006.  The staff also informed Western of several 
problems in Western’s notifications to the remaining Tribes, including the failure to indicate the height of 
the proposed tower.  
Western then repeated the Tribal notification process using TCNS for the first time and, on that 
basis, filed its Tolling Request.  Western alleged that the Enhancement Notice triggered (but did not give 
notice of) a policy shift mandating use of TCNS and that, because no such requirement existed when 
Western commenced its Tribal notifications, Western lost 60 days during which it was required to repeat 
the notification process.
20
  Western’s situation did not fit the tolling standards enunciated in the Rules,
21
so the Bureau considered whether to waive the construction deadline.  The standard for grant of additional 
construction time by waiver is “rare and exceptional circumstances” beyond a broadcast permittee’s 
control that encumber construction.
22
  The Bureau denied any additional time in the May 2006 Decision,
stating that the Enhancement Notice did nothing to change the voluntary nature of TCNS, and attributing
Western’s decision to repeat the notification process to defects in Western’s original notifications.
23
  
Western sought reconsideration on June 19, 2006.  On July 5, 2006, Western notified the Bureau 
that it had completed Tribal notifications, and the Bureau granted the Modification Application.  
Consistent with Bureau practice, the modified permit bore the same September 17, 2006 expiration date 
as the original permit.  On August 11, 2006, Western’s President, E. Boyd Whitney, telephoned the 
Bureau to state that Western did not intend to construct and would return the permit for cancellation.  
Western reconsidered, however.  On September 18, 2006, one day after the permit’s expiration date, new 
counsel for Western submitted the September Request for waiver of the three-year broadcast construction 
period.  The September Request expresses Western’s continued interest in pursuing the pending Petition
and also requests additional time based on several new arguments.
Discussion.  Petition for Reconsideration. Reconsideration is appropriate where an applicant 
demonstrates new facts or an error in the original decision.
24
Western contends that the Bureau erred in 
finding that circumstances preventing Western from meeting the KUCU(AM) construction deadline were
within Western’s control.  Specifically, Western claims that it bears no responsibility for time lost 
                                                          
20
Tolling Request at 2-3.
21
See 47 CFR § 73.3598(b) (tolling for natural disasters, administrative review, and judicial review).
22
The Commission can waive any of its rules if special circumstances warrant deviation from the general rule and 
such deviation would serve the public interest.  See NetworkIP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 
2008).  See also WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), aff’d, 459 F.2d 1203 (D.C. Cir.1972), cert. 
denied, 409 U.S. 1027 (1972).  Deviation from the construction period rule may be appropriate and in the public 
interest where rare and exceptional circumstances beyond the permittee’s control encumbered construction.  
Biennial Regulatory Review—Streamlining of Mass Media Applications, Rules, and Processes, Report and Order, 13 
FCC Rcd 23056 (1998), recon. granted in part and denied in part, Memorandum Opinion and Order, 14 FCC Rcd 
17525, 17541, para. 42 (1999).  See 47 U.S.C. § 319(b).  
23
The Bureau ordinarily would not have reached the merits of a tolling request based on difficulties moving to a site 
for which the applicant did not yet hold a permit.  See Steven Wendell, Memorandum Opinion and Order, 28 FCC 
Rcd 4857, 4857, para. 3 (2013).  The Bureau considered Western’s request because Western would have 
encountered the same Tribal notification process even had it proposed to make the necessary modifications at its 
existing site.  
24
See 47 CFR § 1.106.
5repeating the Tribal notification process because the Commission has not provided applicants with 
sufficient notice of that process, as required under Section 552(a)(1)(B) of the Administrative Procedure 
Act (APA).
25
  Western characterizes that section as requiring agencies to publish “their procedural rules 
of general applicability” in the Federal Register.
26
  It notes that the requirement serves to put “an end to 
‘file cabinet rules’ unknown to the public and trotted out by Federal agencies on an ad hoc basis when 
remembered.”
27  
Western alleges that the Tribal notification process violates the APA because parties 
undertaking the process outside of TCNS have no way of knowing: (1) that Tribal notices must contain 
tower height; and (2) which Tribal Nations have interests in particular areas.
28
  Western also argues that 
the Commission failed to announce in the Enhancement Notice that TCNS use would thereafter allegedly 
become mandatory – its ostensibly voluntary nature rendered meaningless because TCNS is the only way 
for an applicant to fulfill its NPA notification obligations.  Western contends that it did not learn of height
requirements and Tribal interests until WTB staff personally notified it of deficiencies, and that it is unfair
to hold Western accountable for time lost while satisfying unpublished requirements.
29
As explained 
below the Commission has not formulated any rule, substantive or procedural, nor is there an unwritten 
internal policy, beyond what is expressly stated in the NPA, published in the Federal Register and in the 
Code of Federal Regulations, regarding the contents of Tribal notifications and the procedures applicants 
should follow to identify and contact potentially affected Tribal Nations. Accordingly, Western could not 
have been prevented from meeting its construction deadline by some new, unpublished Tribal notification 
requirement that should have been published in the Federal Register under Section 552(a)(1)(B).
We are not persuaded that any lack of clarity in the Commission’s Tribal notification procedures 
was to blame for Western’s failure to meet the construction deadline.  Western incorrectly faults the 
Commission for having “no FCC rule or published policy statement” providing sufficiently detailed 
requirements about Tribal notification.
30
  Section 552(a)(1)(B), upon which Western relies, requires only 
that the agency must publish a description of the “method by which [the agency’s] functions are 
channeled and determined, including the nature and requirements of all formal and informal procedures
available.”
31
By publishing the NPA in the Federal Register, the Commission, in accordance with 
Section 552(a)(1)(B), has provided adequate public notice about Tribal notifications.
32
  Having done so,
the Commission had no obligation to promulgate a rule or issue further guidance detailing the essential 
elements of, or procedures for, tribal notifications unless or until it changes the procedures and policies 
established in the NPA.
33
  
                                                          
25
Petition at 5-6, citing 5 U.S.C. § 552(a)(1)(B).  
26
Id.  
27
Petition at 6, citing Advanced Electronics, Memorandum Opinion and Order, 21 FCC 2d 239, 244, para. 7 (Rev. 
Bd. 1970).  
28
Id. at 5-6.  
29
Id. at 1, 6-7.
30
Id. at 5.
31
5 U.S.C. § 552(a)(1)(B). 
32
The purpose of 5 U.S.C. § 552(a)(1)(B) is to “guide the public in determining where and by whom decisions are 
made, as well as where they may secure information and make submissions and requests.” S. Rep. No. 89-813, at 6 
(1965).  
33
See Hudson v. U.S., 766 F.2d 1288, 1291 (9th Cir. 1985).  (IRS Commissioner did not violate the APA by failing 
to publish guidelines that were unnecessary to give the appellant notice that his actions violated the law; City of 
Santa Clara v. Andrus, 572 F.2d 660 (9
th
Cir. 1978) (Section 552 requires the publication and promulgation of 
established agency rules and policies). Additionally, an applicant with actual notice of a requirement cannot claim 
6The Commission’s published guidance to the public about Tribal notification meets APA 
requirements. While the Rules do not contain a specific list of Tribal notification elements, Section 
1.1307(a)(4) specifies that “an applicant shall follow the procedures set forth in the Advisory Council on 
Historic Preservation, 36 CFR Part 800, as modified and supplemented by the [NPA] . . . [t]o ascertain 
whether a proposed action may affect properties that are listed or eligible for listing in the National 
Register of Historic Places such that preparation of an Environmental Assessment is required.
34
   The 
NPA, which is included as an Appendix to Part 1 of the Rules, provides a means of streamlining the 
identification and notification process vis-à-vis Tribal Nations that may attach religious and/or cultural 
significance to a proposed antenna site that satisfies the Commission’s Section 106 responsibilities and 
expressly imposes affirmative obligations on FCC applicants.
35
  The specific procedures applicants must 
follow are set forth in considerable detail in Section IV of the NPA.
36
  The text of the NPA,
37
and the 
accompanying NPA Report and Order, published together in the Federal Register,
38
include the 
requirements to identify potentially affected Tribal Nations, and to provide them with “all information 
reasonably necessary”
39
to evaluate any effect on properties of religious and cultural significance.
40
Western acknowledges the NPA’s requirements, but contends that nothing therein would suggest 
that tower height is essential information. We disagree.  Section IV(F)(3) of the NPA specifies that “an 
applicant shall provide [in its Tribal notifications] all information reasonably necessary for the Indian 
tribe or NHO to evaluate whether Historic Properties of religious and cultural significance may be 
affected.” The NPA identifies indirect visual effects as potentially adverse
41
and establishes tower heights 
and distances as a starting point for analysis.
42
  It is thus evident from the NPA that any potential visual 
                                                                                                                                                                                          
exemption due to faulty APA publication.  See 5 U.S.C. § 552(a)(1).  Western acknowledges that it was aware of 
general Tribal notification requirements outlined in the NPA and Declaratory Ruling.  Petition at 2-4.  However, it 
claims that it was affected by subsequent unpublished requirements that can be satisfied only by using TCNS.  Id.
34
47 CFR §1.1307(a)(4)(i).
35
See NPA, 47 CFR Part 1 (App. C), Section IV.
36
Id. at Sections IV(B) (TCNS and non-TCNS methods to identify potentially affected Tribal Nations), IV(C) 
(contacting Tribal Nations through TCNS or non-TCNS methods depending on Tribal preferences), IV(E) (role of 
pre-existing Tribal relationships in selecting a contact method), IV(G) (referral of matters to the Commission).
37
Id., Section IV(F).
38
“Nationwide Programmatic Agreement for Review Under the National Historic Preservation Act; Final Rule,” 70 
Fed. Reg. 556 (Jan. 4, 2005) (providing notice of revisions to the Commission’s rules that implement the NPA, of 
the addition of Appendices B and C to 47 CFR Part 1, and a summary of the NPA Report and Order).  
39
  Id., NPA, 47 CFR Part 1 (App. C), Section IV(F)(3).
40
An undertaking has an “effect” when the undertaking “may alter characteristics of the property that may qualify 
the property for inclusion in the National Register ... [including] alteration to features of a property’s location, 
setting, or use....” 36 CFR § 800.5(a)(1).  An “effect” is “adverse” when it may “diminish the integrity of the 
property’s location, ... setting ..., feeling, or association.” Id. Examples of “adverse effects” include physical 
destruction, and the introduction of visual, audible, or atmospheric elements that are out of character with the 
property or alter its setting.
41
See NPA, 47 CFR Part 1 (App. C), Sections II(A)(3) (defining Area of Potential Effects) and VI(C)(3) and (4)
(visual effects).  Such effects can “introduce visual elements that diminish or alter the setting.”  Id. at Section 
VI(C)(3). 
42
NPA, 47 CFR Part 1 (App. C), Section VI(C)(4).  See NPA Report and Order, 20 FCC Rcd at 1114-15, paras. 
112-113.  In particular, the NPA recognizes that each undertaking has one Area of Potential Effects (APE) for direct 
7effect of a tower cannot be evaluated without information about tower height. Regarding the visual 
effects of a proposed tower on Historic Properties to which a tribe or NHO attaches religious and cultural 
significance, a tribe or NHO could not reliably evaluate such effects if it did not know the height of the 
applicant’s tower. When an agency revises its rules to specifically mandate compliance with written, 
detailed procedures in an agreement referenced in the rule and publishes the amended rule and the full 
text of the agreement in the Code of Federal Regulations and in the Federal Register, the agency has 
given sufficient notice of applicable pre-construction environmental requirements an applicant must 
complete under section 1.1307(a)(4) and the NPA.
43
  Moreover, the NPA and NPA Report and Order
amply explain the nature and purpose of the Tribal notification process, how TCNS can be useful if the 
applicant voluntarily chooses to use it,
44
and the opportunity of applicants to seek guidance and additional 
information from the Commission in order to complete the process.
45
  Western’s complaint about lack of 
notice thus lacks merit.
46
  
Similarly flawed are Western’s related claims that the Commission violated the APA by: (1) not 
publishing the identities of Tribal interests in particular geographic areas;
47
(2) making such information 
available only after an applicant uses TCNS; and (3) adopting an unpublished policy mandating use of 
TCNS.
48
  Western’s continued claim of a TCNS mandate triggered by the Enhancement Notice is not 
only repetitious but erroneous.  As stated in the Decision, "there were no policy changes requiring 
Western to repeat any portion of the [Tribal notification] process."
49
  The Enhancement Notice, which 
describes TCNS as “voluntary,” merely added some new user-friendly features that improve its utility but 
in no way establish that TCNS is mandatory or the only effective means to identify Tribal Nations that are 
interested in particular areas.
50
Now that all federally recognized Tribal Nations voluntarily participate in 
                                                                                                                                                                                          
physical impacts and another for indirect visual effects.  NPA Report and Order, 20 FCC Rcd at 1114, para.112.
The APE for visual effects varies depending on height of the tower.  There is a rebuttable presumption that the APE
is the area from which the tower will be visible within ½ mile of the proposed tower for a tower that is 200 feet or 
less in height, ¾ mile for a tower more than 200 feet but no more than 400 feet in height, and 1.5 miles for a taller 
tower. Id.  The Commission has stated that “the height of a tower will be a factor in determining whether to depart 
from the presumed APE.”  Id. at 1115, para. 116.  In particular, these presumed heights and distances are “a starting 
point for analysis” and “departure may more often be warranted for the tallest towers.”  Id.
43
  See Malkan FM Assoc. v. FCC, 935 F.2d 313 (D.C. Cir. 1991) (APA did not require that the Commission publish 
notice in the Federal Register that the height limit prescribed by the US-Mexico Treaty is lower than that prescribed 
by the Commission’s rules where the rules referenced the treaty’s existence and explicitly stated that antenna height 
is “limited in certain cases by international agreement” so as to afford notice applicants should consult the treaty).
44
NPA Report and Order, 70 Fed. Reg. 556, 561, para. 39 (Jan. 4, 2005).
45
NPA, 47 CFR Part 1 (App. C), Section IV(G) (“Applicants shall [] seek guidance from the Commission . . . if the 
Indian Tribe or NHO does not respond [and]  are strongly advised to seek guidance from the Commission in cases of 
doubt.”  
46
See Bamford v. FCC, 535 F.2d 78, 82 (D.C. Cir. 1976), cert. denied, 429 U.S. 895 (1976).
47
Petition at 5-6.
48
Id. at 3.  
49
Decision at 2-3.  
50
Enhancement Notice, 21 FCC Rcd at 2950-52.  For example, WTB added functions making it possible for Tribal 
Nations to respond to multiple applicants as a single batch and for applicants to specify whether their Commission 
referrals were preceded by attempts to notify Tribal Nations independently.  To the extent that Western is suggesting 
that its Tribal notification/referral outside of TCNS was adequate prior to the Enhancement Notice but somehow 
transformed into a deficient filing thereafter, Western is incorrect.  Its notification was equally deficient before and 
after the Enhancement Notice because notification requirements were unchanged.  
8TCNS, an applicant seeks information directly from every Tribal Nation when it elects to use TCNS to 
satisfy its notification responsibilities under Section 1.1307(a)(4) of the Rules.
51
  When an applicant 
voluntarily enters the location and other basic information about proposed tower construction into TCNS, 
the system automatically forwards the information to any Tribal Nation that has indicated an interest in 
tower construction in a particular geographic area.
52
Thus, use of TCNS eliminates the possibility that an 
applicant will overlook any Tribal Nation that may be interested in participating in the historic 
preservation review for that site or will omit information that precludes a Tribal Nation from reasonably 
evaluating the effects on Historic Properties of religious and cultural significance to a notified Tribal 
Nation.  In this manner TCNS provides a safe harbor by which an applicant can satisfy its Tribal 
notification requirements under Section 1.1307(a)(4). Nevertheless, a broadcast applicant’s decision to 
use or not to use TCNS remains voluntary and Western points to nothing that eliminates an applicant’s 
explicit option under the text of the NPA not to utilize TCNS to fulfill its identification and notification
responsibilities.
53
  
Western’s desire for a Commission-published list of specific Tribal interests that applicants might 
use before or instead of using TCNS, fails to recognize that TCNS is a “double-blind” system.
54
  Tribal 
Nations that participate in TCNS express an interest in being contacted regarding proposed tower 
construction in a particular geographic area but do not disclose to the Commission the precise location of 
sites of religious and cultural significance to the Tribal Nation.  Moreover, no applicant -- including one 
that voluntarily uses TCNS -- can ascertain the geographic areas of interest of any Tribal Nation.  Rather, 
an applicant that elects to rely on TCNS learns the identity of those Tribal Nations that might have an 
interest in participating in the Section 106 process for its proposed construction through a TCNS-
generated confirmation that identifies the Tribal Nations to which TCNS has forwarded the proposal for 
that one project, based on general (and confidential) information that Tribal Nations voluntarily submitted 
to the Commission through TCNS.
As recognized by the NPA, there are certain restrictions against the public disclosure of
information submitted to the Commission regarding the location of sensitive historic resources under the 
Commission’s rules, the NHPA and applicable federal laws.
55
Apart from the confidential nature of this 
information, release of information from which the public might learn locations of Tribal cultural and 
religious sites would discourage Tribal Nations from voluntarily participating in TCNS and seriously 
undermine the system's utility in fulfilling the Commission's Section 106 responsibilities.
56
  Western 
asserts no legally plausible theory under the APA that would require the publication of confidential, 
sensitive, and private information internal to TCNS.
                                                                                                                                                                                          
51
See 47 CFR § 1.1307(a)(4).
52
NPA Report and Order, 20 FCC Rcd at 1106, para. 89.
53
See Tower Construction Notification System Industry Handout (WTB March 2006) available at
http://wireless.fcc.gov/outreach/notification/TCNS_industry.pdf  (last accessed May 20, 2016) (TCNS allows tower 
builders “to voluntarily submit a notification to the Commission of a proposed tower construction”).  
54
See infra. n.56.
55
NHPA, 54 U.S.C. § 307103 (formerly Section 304) (the federal agency, after consultation with the Secretary, shall 
withhold disclosure from the public information about the location of a historic resource if it is determined that 
disclosure may cause a significant invasion of privacy, risk harm to the historic resources, or impede the use of a 
traditional religious site by practitioners); NPA, Section IV(I).
56
Tribal Nations may have privacy concerns about locations of sacred places and the disclosure of such information.    
See generally 36 CFR §§ 800.4(b)(i) and 800.11(c)(1).   Accordingly, TCNS is a secure “double-blind” system that 
protects the confidentiality of both applicants' and Tribal Nations' information from third parties.
9Nor does the Commission have an obligation under the APA to publish the information that is 
accessible electronically to applicants that do use TCNS because, as the Commission has made clear, 
TCNS is not the only repository of such information or the only permissible means for an applicant to 
contact a Tribal Nation. Applicants opting not to use TCNS receive additional guidance through the NPA.  
For example, the text of the NPA and the related NPA Report and Order,
57
acknowledge the benefits 
offered by TCNS, but also provide guidance on other sources that might be consulted by applicants that 
choose not to use TCNS.
58
  In doing so, the NPA cautions applicants of the need to consult a combination 
of secondary sources because “frequently, Historic Properties of religious and cultural significance to 
Indian tribes are located on ancestral, aboriginal or ceded lands,” far removed from the Tribal Nation's 
modern location.
59
Similarly, the Commission has specifically stated that “an Applicant’s initial attempts 
at making these [Tribal] contacts should be undertaken through TCNS or as otherwise authorized under 
the [NPA].”
60
  In turn, Section IV(E) of the NPA provides that "[a]n Applicant that has a pre-existing 
relationship with an Indian tribe" has the option to make such contacts "in the manner that is customary to 
that relationship or in such other manner as may be accepted by the Indian tribe . . . ."
61
The decision to 
identify and contact Tribal Nations without using TCNS was Western’s choice alone.  Notably, Western 
has not shown or alleged that, as contemplated by the NPA, it has any pre-existing relationships with the 
Tribal Nations it contacted, or that the contact methods and truncated information it provided were 
customary or acceptable within any such relationships.
The NPA places the burden on the applicant to submit substantially complete information needed
for the Commission to satisfy its obligations under Section 106.
62
Western omitted information regarding 
tower height, which was a material omission that delayed completion of the Section 106 process 
prescribed by the NPA and the Commission’s final determination as to the effects on historic properties of 
Western’s proposed tower.  The Bureau then afforded Western an opportunity to provide missing tower 
height and to notify Tribal Nations that Western had not contacted.    Western’s initial decision to proceed 
                                                          
57
NPA Report and Order, 20 FCC Rcd at 1110, para. 100 (noting that voluntary use of TCNS will facilitate the 
identification of Tribal Nations that may attach religious and cultural significance to Historic properties that may be 
affected by proposed construction in a particular geographic area but that the NPA provides guidance regarding 
other means of identifying potentially affected Tribal Nations).
58
NPA, 47 CFR Part 1 (App. C), Section IV(B) (“[Other] reasonable and good faith efforts [to identify potentially 
affected Tribes or organizations] may include, but are not limited to, seeking relevant information from the relevant 
[State/Tribal Historic Preservation Officers], Indian tribes, state agencies, the U.S. Bureau of Indian Affairs (BIA), 
or, where applicable, any federal agency with land holdings within the state (e.g., the U.S. Bureau of Land 
Management).  Although these agencies can provide useful information in identifying potentially affected Indian 
tribes, contacting BIA, the [State Historic Preservation Officer] or other federal and state agencies is not a substitute 
for seeking information directly from Indian tribes that may attach religious and cultural significance to a potentially 
affected Historic Property…”).
59
Id.
60
Clarification of Procedures for Participation of Federally Recognized Indian Tribes and Native Hawaiian 
Organization Under the Nationwide Programmatic Agreement, 20 FCC Rcd 16092, 16094, para. 7 (2005), citing 
NPA Sections IV(B) an IV(E).
61
NPA, 47 CFR Part 1 (App. C), Section IV(E).
62
See Wireless Properties, LLC, Order, 30 FCC Rcd 7707, 7717, para. 24 (2015) (finding that an applicant’s failure 
to list all historic properties potentially affected by a proposed tower in its Submission Packet to the SHPO filed 
pursuant to Section VII(A) of the NPA was a material omission that warranted the Commission reopening the 
Section 106 process for the applicant’s tower because the incomplete submission had precluded the informed 
determination as to historic property effects contemplated by Section 106). 
10
outside of TCNS and the omissions in its notifications resulted from its own choices.  The Decision 
correctly found that Western’s repetition of the Tribal notification process was not a circumstance beyond 
its control for purposes of waiving the construction deadline.  
September Request.  Next we address the September Request, which was filed after the permit 
expired. Whether considered as a new request for tolling
63
or as a supplement to the Petition for 
Reconsideration, the September Request was untimely and is, therefore, dismissed.  However, for the sake
of a complete record, we consider these arguments and conclude that they are without merit.   
Western argues that the construction deadline should toll because:  (1) the staff was considering 
the pending petition for reconsideration of tolling denial; (2) Western had little time to construct because 
the previous permittee’s bankruptcy coupled with the Tribal notification process consumed most of the 
construction period; and (3) the son of Western’s Vice President and 80 percent equity-holder, Douglas 
Scharbauer, was in a near-fatal accident in August 2006 (the final month of the permit) and Mr. 
Scharbauer had to focus his attention on his son’s medical care.  None of these circumstances qualify for 
tolling which, as described earlier, is limited to encumbrances caused by natural disasters, petitions for 
reconsideration of the permit’s grant, and certain court proceedings.
64
Nor, as explained below, would 
Western’s circumstances warrant a waiver of the three-year construction period.
As stated above, the standard for grant of additional construction time by waiver is “rare and 
exceptional circumstances” beyond a broadcast permittee’s control that encumber construction.  It is well 
settled that a permittee’s own request for review of a Commission action warrants no additional 
construction time.
65
  With respect to Western’s argument that it had little time to construct because it 
obtained the permit late in the term after the former permittee experienced difficulties, a former 
permittee’s circumstances or assignment of the permit to a new party do not provide an independent basis 
for waiver.
66
  Waivers of the construction period are intended to replace time lost for encumbrances 
beyond a permittee’s control, not to afford a successor permittee additional time to construct.
67
  Finally, 
                                                          
63
47 CFR § 73.3598(e) (“Any construction permit for which construction has not been completed and for which an 
application for license has not been filed, shall be automatically forfeited without any further affirmative 
cancellation by the Commission.”).  Cf. Clear Channel Broad. Licenses, Inc., Memorandum Opinion and Order, 26
FCC Rcd 7153 (2011) (affirming staff’s sua sponte waiver of Section 73.3598(e) and acceptance of license 
application filed two days late where the facilities authorized in the construction permit were fully built by 
expiration of the permit). 
64
47 CFR § 73.3598(b).  See Texas Grace Commc’ns, Memorandum Opinion and Order, 16 FCC Rcd 19167, 
19172, para. 13 (2001) (Texas Grace) (illness of permittee’s principal not a basis for tolling).  
65
See Texas Grace, 16 FCC Rcd at 19173, para. 16. Unlike “administrative review” (defined as a petition for 
reconsideration or application for review of the grant of a construction permit), a permittee’s unilateral petition for 
reconsideration of denial of tolling does not call the validity of the underlying permit into question and is not a third 
party action beyond the permittee’s control encumbering construction. See 47 CFR § 73.3598(b)(ii); Birach Broad.
Corp., Memorandum Opinion and Order, 23 FCC Rcd 3141, 3146, para. 15 (2008) (citing Texas Grace, 16 FCC 
Rcd at 19172, para. 13)).  
66
See Birach Broad. Corp., Memorandum Opinion and Order, 18 FCC Rcd 1414, 1416, para. 6 (2003), recon. 
denied, 20 FCC Rcd 5764 (2005) (rejecting request for additional time where former permittee had done little and 
new permittee acquired permit only one day prior to expiration). Moreover, Western did not raise these waiver 
arguments in a timely manner.  Requests for waiver must be filed as soon as practicable after the event forming the 
basis for the request, generally within 30 days.  See 47 CFR §73.3598(c); Birach Broad. Corp., 23 FCC Rcd at 
3142, para. 9.
67
See Cram Commc’ns, Memorandum Opinion and Order, 23 FCC Rcd 658, 663, para. 14 (2008); KWFA(AM), Tye, 
Texas, Letter Order, 23 FCC Rcd 4786, n.9 (MB 2008). 
11
the injury to Mr. Scharbauer’s son, while unfortunate, provides no basis for waiver. The Commission 
expects permittees to delegate matters they are unable to carry out themselves.
68
  Nothing in the record 
demonstrates circumstances making it impossible for Western’s President or another person authorized by 
Western to have moved construction forward during the limited period of time the Vice President was not 
available.  Accordingly, we find the September Request without merit.
Conclusions/Actions.  Accordingly, Western’s petition for reconsideration IS DENIED and its 
September request for additional time IS DISMISSED as late-filed.  The KUCU(AM) construction permit 
has expired on its own terms and will be deleted from the Commission’s database.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
                                                          
68
Accordingly, the Commission has declined to grant additional time based on delays allegedly due to health 
problems of a sole proprietor.  See Texas Grace, 16 FCC Rcd at 19168, para. 3.