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 Federal  Communications  Commission  FCC  00-  265 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  re  Application  of 
 Kemp/  Mesquite,  Inc. 
 for  Modification  of  Construction  Permit 
 for  Station  KVEG(  FM),  formerly  KBJG(  FM), 
 Mesquite,  Nevada 


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 File  No.  BMPH-  980723IA 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  July  24,  2000  Released:  August  11,  2000 
 By  the  Commission: 
 1.  The  Commission  has  before  it  a  March  16,  2000  pleading  styled  “Petition  for  Review”  filed  by 
 Lotus  Broadcasting  Corp.  ("  Lotus")  which  we  treat  as  a  timely  filed  Application  for  Review.  1  Lotus  seeks 
 review  of  a  February  10,  2000,  letter  ruling  by  the  Chief,  Audio  Services  Division,  Mass  Media  Bureau. 
 That  ruling  dismissed  on  procedural  grounds  Lotus’s  petition  for  reconsideration  of  the  staff’s  grant  of  the 
 above-  captioned  application  for  modification  of  the  KVEG(  FM)  construction  permit.  Letter  to  Jerome  S. 
 Boros,  Esq.  and  Andrew  Irving,  Esq.,  Ref.  No.  1800B3-  MFW  (Audio  Services  Division,  February  10, 
 2000).  It  also  stated  that  Lotus’s  substantive  arguments,  which  included  allegations  of  lack  of  candor, 
 would  not  have  raised  any  substantial  and  material  questions  of  fact  concerning  the  applicant’s 
 qualifications,  even  had  the  petition  not  been  dismissed  procedurally. 


 2.  Since  Lotus  did  not  file  a  timely  informal  objection  to  the  modification  application,  it  was 
 required  to  show  good  reason  in  its  petition  for  reconsideration  why  it  was  not  possible  to  participate  in  the 
 earlier  stages  of  the  proceeding.  47  C.  F.  R.  §  1.106(  b)(  1).  The  staff  correctly  determined  that  Lotus  had 
 failed  to  make  that  showing. 


 3.  In  the  Application  for  Review,  Lotus  also  makes  a  new  argument  on  the  merits  that  a 
 November  23,  1999  letter  from  the  applicant  to  the  Commission  lends  support  to  one  of  its  previous 
 allegations  of  lack  of  candor  concerning  Kemp/  Mesquite’s  ability  to  commence  construction  immediately 
 and  the  premise  of  reasonable  site  assurance  that  it  believes  underlies  that  certification.  Since  the 
 referenced  letter  was  not  only  filed  at  the  Commission  but  apparently  served  on  petitioner  2  more  than  two 
 months  prior  to  the  staff  letter  dismissing  petitioner’s  request  for  reconsideration,  petitioner’s  submission  of 
 the  letter  now  rather  than  in  the  context  of  its  petition  for  reconsideration  is  untimely.  See  47  C.  F.  R.  § 
 1.115(  c)  (“  no  application  for  review  will  be  granted  if  it  relies  on  questions  of  fact  or  law  upon  which  the 
 designated  authority  has  been  afforded  no  opportunity  to  pass.”)  In  any  event,  we  note  that  since 


 1  Also  on  file  are  the  following  responsive  pleadings:  Kemp/  Mesquite,  Inc.  ’s  Opposition  to  Petition  for  Review 
 filed  on  March  29,  2000  and  Lotus’s  Reply  to  Opposition  to  Petition  for  Review  filed  on  April  7,  2000. 
 2  Counsel  for  KVEG(  FM)  claims  that  it  served  the  letter,  and  counsel  for  Lotus  does  not  dispute  the  claim  in  its 


 subsequent  pleading. 
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 Federal  Communications  Commission  FCC  00-  265 
 2 
 Kemp/  Mesquite  had  applied  for  a  Bureau  of  Land  Management  (“  BLM”)  permit  to  use  the  BLM  site,  it 
 had,  under  Commission  precedent,  taken  sufficient  action  to  establish  reasonable  site  assurance.  Warren 
 Price  Communications,  Inc.,  5  FCC  Rcd  2906,  2908  (1990)  (“  When  a  site  is  controlled  by  a  government 
 agency,  a  mere  willingness  by  the  government  agency  to  entertain  a  request  for  the  use  of  the  land  in 
 question  is  sufficient  to  provide  reasonable  assurance  of  the  site  availability.”),  citing  Alden 
 Communications  Corp.,  3  FCC  Rcd  3937  (1988).  The  November  23,  1999  letter  that  Lotus  now  submits 
 is  indicative  of  nothing  more  than  the  fact  that  Kemp/  Mesquite  was  mistaken  in  its  original  belief  that  all, 
 not  part,  of  its  tower  was  located  on  BLM  property.  3 


 4.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  47  C.  F.  R.  §  1.115(  g),  the  Application  for 
 Review  filed  by  Lotus  Broadcasting,  Corp.,  IS  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Magalie  Roman  Salas  Secretary 


 3  While  Kemp/  Mesquite  apparently  originally  believed  that  the  entire  proposed  tower  was  on  BLM  property,  in 
 fact  “only  a  small  portion  of  one  of  the  three  guy  wire  anchors”  for  the  tower  was  on  BLM  property. 
 Kemp/  Mesquite  ultimately  slightly  reconfigured  the  tower  so  that  it  sits  entirely  on  private  property  and  signed  a 
 long  term  lease  with  the  property  owner. 
2