FCC 80-533
336 Federal Communications Commislfion Reports
Declaratory Ruling . .~I'"
Premature- Construction - ,..~'.··~,)I
Request for declaratory ruling that pouring of concrete footings
for proposed broadcast tower does not constitute premature
construction in violation of Section 319(a) of Communications Act
granted. Expenditure of funds to pour concrete is not the type of
construction intended to be precluded by the language of Section
319(a). p, "
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In Re Request by
Patton Communications Corporation
For Declaratory Ruling
September 10, 1980
Patton Communications Corporation
C/o Gordon & Healy, Chartered
1821 Jefferson Place, N.W.
Washington, D.C. 20036
Gentlemen:
IN REPLY REFER TO:
8900-RH
This refers to your December 20, 1979 request for a declaratory
ruling that the pouring of concrete footings for a broadcast tower does
not, byitself, constitute premature construction in violation of Section
319(a) of the Communications Act of 1934, as amended, 47 U.S.C.
319(a). Section 319(a) of the Act, in pertinent part, provides:
No license shall be issued under the authority of this Act for the operation of any
station the construction of which is begun or is continued after this Act takes
effect, unless a pennit for its construction has been granted by the Commission.
In this regard, you have stated that the purpose of Section 319(a)
was to discourage broadcast applicants from making considerable
investments in the construction and installation of broadcast facilities
and then using those investments to exert undue pressure on the
Commission to authorize service. You further state that expenditures
for concrete footings are probably the least expensive item (approxi 
mately several hundred dollars) associated with constructing a broad-
81 F.e.e. 2d
Patton Communications Corporation
337
cast facility and, thus, would be of little use to exert undue pressure on
the Commission. Therefore, it is your belief that the digging of a hole
and the pouring of concrete footings is not the type of construction
intended to be precluded by the language of Section 319(a).
You also state that you are the licensee of several radio broadcast
stations located in Michigan and that as a practical matter it is
impossible to pour concrete footings for towers about six months of the
year because either the ground is too frozen to be dug or the concrete
will not properly cure. As a consequence, you state that a construction
permit issued between November and April in northern states is
effectively conditioned to an April commencement date. You assert
that this situation results in unnecessary delays in constructing new or
modified facilities.
A ruling on your request must necessarily be made upon an analysis
of the Congressional intent in enacting Section 319(a) and past
Commission application of the statute. We focused on the Congressio 
nal intent of 319(a) many years ago in WSA V, Inc., 10 RR 402 (1955),
aff'd sub nom, WJIV-TV, Inc., 231 F. 2d 725 (1956), stating:
the Congressional intent and objective underlying [Section 319(a)] was to discour 
age applicants from making large investments and using such investments as
"improper pressure" on the licensing authority. Aside from general reference to
"considerable expenditures" related to "land installations" . . . special buildings
... special transmitting equipment ...", Congressicmal e:rp1'e88Um is devoid of
specifU: reference to tM type of preliminary steps which an applicant might take in
connection with comtructWn of"specUd buildings" or "land installations." It is also
barren of reference to intent or motive of construction. At the time this
requirement for securing of a construction permit (antecedent to obtaining a license
to operate) was urged in Congress, the following situation prevailed: in view of the
then existing state of the radio art, construction of a station to the extent it
involved installation of radio equipment was dependent upon the "wave length" a
station was to use; the necessity of securing a permit prior to such construction was
thus intended to reduce pressure on the licensing authority in that the latter's
decision to establish zones of wave lengths was not to be influenced by the fait
accompli of prior comtruction of wn8iderable proportion. Expenditures are there 
fore related to construction of facilities the principal value of which lies in their use
for proposed broadcast purposes. [Emphasis added.]
The WSA V, Inc. case involved the premature construction of three
steel sleeves intended for use as support for a television tower and
construction of a room, both on the roof of the applicant's (licOt1See's)
present studio and transmitter site. We held that the~three steel
sleeves fell within the purview of Section 319(a) sinceti~was no
evidence that the three sleeves used together could be· used for
anything other than to support the proposed tower. With regard to the
room, however, we found its construction outside the purview of
Section 319(a) since it had, in and of itself, no intrinsic television
facility function.
81 F.e.c. 2d
Since the WSA V, Inc. decision we have continued to permit the
acquisition of equipment! and construction of facilities
2
which, in and
of themselves, have no intrinsic function related only to the proposed
new facility. On the other hand, the Commission has found violation of
Section 319(a) where prior to issuance of a construction permit: (1) a
studio to transmitter link (STL) was constructed, Merri'TTUlCk Valley
Communications, Inc. 20 FCC 2d 161 (1969), (2) foundations, footings,
towers, antennas and wave guides were constructed and installed in
connection with two cable television relay service (CARS) facilities,
Westinghouse Broadcasting Co., Inc., 49 FCC 2d 1171 (1974), and (3)
microwave equipment (wave guides, antennas, or passive reflectors)
which is mounted on an existing tower, Premature Construction in the
Cable Antenna Relay Service, 39 RR 2d 1515 (1977). This Commission
approach indicates that, given no specific Congressional direction as to
the types of preliminary steps an applicant might take in connection
with construction of land installations, the Commission has found all
such preliminary steps having an intrinsic broadcast use, related to the
proposed facility, to come within the statute's purview.
In light of the above, the literal language of Section 319(a) must be
read in conjunction with our companion statutory responsibility to
provide a prompt institution of broadcast service. In order to promote a
prompt institution of broadcast service, Section 319(b) of the Act
requires that a construction permit specify both a required date of
commencement of construction and a required date of completion of
construction. Itis readily apparent that in certain parts of the country,
during winter months, ground conditions would foreclose the digging
of holes and the pouring of concrete footings. Consequently, a
significant aspect of the construction of a broadcast facility, i.e., the
tower, could not commence. As a corollary, a substantial delay in the
commencement of construction could make impractical the completion
of construction by the required date set forth on the construction
permit. Therefore, it would be anomalous to interpret Section 319(a) in
a context that may hinder a permittee from complying with Section
319(b) with respect to required dates of commencement and completion
of construction.
This view is reinforced by a review of the legislative history of
Section 319(a). It is clear that the overriding Congressional concern
Wh.q the prejudicial effect that a substantial expenditure would have
on Comlnission consideration of a particular application. The relatively
minore~rditureof funds to pour concrete is not prejudicial to our
consideratWin of an application. In fact, such an expenditure is usually
1 {/A - Columbia Cablevi8icm, Inc., 55 FCC 2d 656 (1975), F08f.ering &pa:tuLed UtJe of
UHF Television Channell, 4 FCC 2d 839, 846 (1966), ChildruB Broadc48ti:ng Corp., 24
RR 669 (1962).
2 Spectrum Communications, Inc., 40 FCC 2d 467 (1974), JejferĞm Radio Corp., 29 FCC
878 (1960),Ha~,Inc., 15 RR 332 (1957).
81 F.C.C. 2d
:,.:!" Patton Communications Corporation 339
substantially less than the purchase of broadcast equipment which is
permitted under current Commission policy.
Therefore, the Commission concludes that the pouring of concrete
footings sho'Jld not be construed as being within the ambit of the
construction proscription contained in Section 319(a) of the Act.
.. ,-,,"
By DIRECI10N OF THE COMMISSION,
WILLIAM J. TRICARICO, Secretary.
..  
;'t ,',
81 F.C.C. 2d