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                             WASHINGTON, D.C.  20554 
                                    
                           IN REPLY REFER TO:  
                                                                                                                1800B3-CRB

Dawn M. Sciarrino, Esq.
Fisher, Wayland, Cooper, Leader & Zaragoza, L.L.P.
2001 Pennsylvania Avenue, NW
Suite 400
Washington, D.C.  20006


 In re:     KFKQ(FM), New Holstein, WI., Application to Extend Time to Construct 
      File No. BMPH-950417JB


Dear Counsel:

 We have on file the above-captioned application for unbuilt station KFKQ(FM), New
Holstein, Wisconsin, filed on behalf of the permittee, Frederick W. Kinlow, d/b/a FWK
Broadcasting Co. ("FWK").  We also have before us a "Petition" filed against the extension
request submitted by Mark Heller ("Heller"), and FWK's Opposition to that petition.  For the
following reasons, we will deny FWK's application.

 An application to extend time to construct must satisfy 47 C.F.R.  73.3534(b) by
showing either that substantial progress toward completion of construction has been made or
that a circumstance beyond the permittee's control prevented completion of construction and
that the permittee took all possible steps to resolve the problem and proceed with construction. 
We have noted that "[i]mplicit in this requirement is the fact that a permittee's extension
application will be judged according to the progress made during the most recent construction
period."  See Panavideo Broadcasting, Inc., 6 FCC Rcd 5259, 5259 (1991).  In Panavideo, we
also pointed out that because each extension application presents different facts, "some
situations might warrant several extensions over a period of years where a permittee continues
to make steady progress, while another permittee might not justify even a first extension." Id.
at 5260. 

 As justification for its instant extension request, filed on April 17, 1995, FWK claims
that factors beyond its control precluded construction during the most recent period. 
Specifically, FWK states that Economy R.F., its antenna tower contractor, began construction
of the antenna tower during February 1995, with construction to have been completed in late
March 1995.  FWK claims that severe winter weather forced cessation of construction, and
that the conflicting schedule of the construction crew delayed its return.  Nonetheless,
according to FWK, completion of the antenna tower was anticipated during May 1995.  In his
objection to the extension request, Heller alleges generally that FWK has "used the process of
amending applications" to delay, not expedite, the construction process, and that further
extension is not warranted. 

 On the record before us, we conclude that the circumstances alleged by FWK to have
prevented construction fail to warrant further extension, and that any delay in completing
construction was due to FWK's own choosing and not due to circumstances beyond its control. 
In this regard, we note that FWK's original construction permit was granted on June 26, 1987
with construction to have been completed by December 26, 1988.  In connection with its first
extension request, FWK cited the pending proposals to modify FM station WGGQ, Waupun,
Wisconsin, to a Class C-2 station, which in turn required changing the operating frequency of
station KFKQ and restricting the transmitter site to land not under control of FWK, as a
circumstance beyond its control which prevented construction.  This problem was resolved
when the Commission ordered station KFKQ to change frequency from Channel 258A to
Channel 226A in FCC Docket No. 88-270.  Thereafter, we granted FWK's extension request
on February 28, 1989.  Since then, FWK has submitted five additional extension requests and
two modifications. 

  Pursuant to the rationale stemming from Panavideo, our focus is necessarily on the
extension request before us and information submitted with it, including relevant pleadings. 
Nonetheless, the entire case history must be considered to obtain the proper context.  Here, we
first note that in neither the instant application, nor in any of its previous extension requests,
has FWK supported its assertions with corroborating documentation.  We have no evidence to
support anything that FWK is claiming, including whether or not it currently has a site. 
Second, our decisions to grant FWK's previous extension requests were based on a
combination of "substantial progress" analyses or factors "clearly beyond the control" of FWK. 
See 47 C.F.R.  73.3534 (b)(2)(3).  However, as noted in relevant precedent, cited above, a
permittee's extension application will be judged according to the progress made during the
most recent construction period, in this case between October 17, 1994, when we granted
FWK's fifth extension request, and April 17, 1995, when this extension period expired.  During
this period, FWK has made no progress toward completion of construction.  As justification,
FWK maintains, in essence, that it was impossible for it to obtain a tower contractor, who was
both willing and able to do the job, during the period between the time when its second
construction permit to replace the original, expired permit was granted on May 26, 1993, and
when its sixth extension request was filed on April 17, 1995, a two-year period.  In the
absence of supporting documentation, we find it implausible that FWK was unable to locate a
company capable of erecting a tower if it were truly committed to doing so. 

 Moreover, FWK cannot rely on our past acquiescence concerning its failure to submit
corroborating documentation for its claims.  The prior grants were based on our reliance on
FWK's good faith concerning its assertions.  Here, the original construction permit was
outstanding for over three years prior to its expiration in September 1990.  The second permit
was granted almost three years later in May 1993, and now 30 months later virtually no
progress has been made, and absolutely none in the past 6-12 months.  Despite repeated
promises that it would be on the air by now, FWK has still not commenced actual construction
of its tower.  We find compelling that in its fifth extension request, dated August 15, 1994,
FWK claimed, "[a]ll that remains is completion of the station antenna/tower transmission
facility ...  It is anticipated Station KFKQ(FM) shall be operational on or before than (sic)
October 26, 1994."  In support of the instant extension request, FWK reiterates this
representation but substitutes the anticipated date of commencement of operation to May 31,
1995.  From its showing, we cannot conclude that FWK is unequivocally committed to
complete construction.  We also note that FWK's decision not to complete construction,
because of difficulty arising from using an unwilling or negligent tower erector, is a private
judgment and does not provide a basis for extension of the instant construction permit, where,
as here, expeditious efforts to overcome such setbacks have not been pursued.  See Greenfield
Television, 2 FCC Rcd 4332 (1987) (extension request denied because the permittee failed to
make diligent efforts to overcome setbacksafter a significant time had passed). 

  Furthermore, a review of the documents submitted in support of the instant application
has revealed certain unexplained factual inconsistencies.  Although we are concerned about
these apparent discrepancies in FWK's representations, since we are denying the application to
extend time to construct and cancelling the construction permit, we do not find designation for
hearing on issues of misrepresentation or lack of candor to be appropriate at this time. 
Instead, we caution FWK to take greater care ensuring the accuracy of any of its future
communication with the Commission.  

      Accordingly, the application for extension of time in which to construct filed by
Frederick W. Kinlow, d/b/a FWK Broadcasting Co. (BMPH-950417JB) IS DENIED, the
construction permit IS CANCELLED, and the call sign IS DELETED.  Based on our action,
the informal objection filed by Mark Heller IS GRANTED to the extent indicated herein. 
  
      Sincerely, 



      Linda Blair, Acting Chief
      Audio Services Division                           
      Mass Media Bureau

cc:   Mark Heller
 Frederick W. Kinlow

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