**Before the**

##  Federal Communications Commission

**Washington, D.C. 20554**

In the Matter of )

)

)

Richard Duncan d/b/a Anderson )

Communications ) File No. 96F092

)

Finder\'s Preference Request )

For Station WNFY616, Licensed to )

Morris Communications Inc. )

at Greenville, South Carolina )

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 16, 1999 Released: November 16, 1999**

By the Deputy Chief, Commercial Wireless Division, Wireless
Telecommunications Bureau:

# I. Introduction

1.  On January 21, 1997, Morris Communications, Inc. (Morris), the
    target licensee for Station WNFY616, filed a petition for
    reconsideration (Petition)[^1] of a decision by the Wireless
    Telecommunications Bureau's Office of Operations granting a partial
    award of a finder's preference (Award) for frequencies 856-860.1125
    MHz to Richard Duncan d/b/a Anderson Communications (Duncan).[^2]
    For the reasons discussed below, the petition for reconsideration
    filed by Morris is denied.

# II. Background

2\. On April 20, 1989, an authorization for frequencies 856-860.1125 and
861-865.3625 MHz was granted to Morris for station WNFY616. On February
2, 1990, Morris notified the Commission that it had constructed
frequencies 861-865.3625 MHz for Station WNFY616. The licensee did not
notify the Commission that frequencies 856-860.1125 had been constructed
by the authorized deadline, February 2, 1990.

3\. On December 4, 1995, Duncan filed a finder's preference request
alleging that five of the ten frequencies for Station WNFY616,
856-860.1125 MHz, were not timely constructed by February 2, 1990.
Therefore, according to Duncan, the licensee was in violation of section
90.631 of the Commission's rules, 47 C.F.R. § 90.631. On December 19,
1996, the Office of Operations granted a partial award to Duncan for the
five frequencies (856-860.1125 MHz) because the finder showed that those
frequencies had not been placed in operation within one year of the
license grant date in violation of section 90.631 of the Commission's
rules, 47 C.F.R. § 90.631.

4\. In its petition, Morris states that it constructed all frequencies
for which it was licensed, but admits that it did not construct
frequencies 856-860.1125 by the construction deadline of February 2,
1990. Morris also states that the service area in question has unique
and compelling needs, which would be unserved if Morris loses authority
to operate the subject frequencies.

### III. Discussion

III. 5\. The Commission created the finder\'s preference program in
     order to relieve the scarcity of spectrum in several frequency
     bands by creating \"new incentives for persons to provide \[the
     Commission with\] information about unconstructed, non-operational,
     or discontinued private land mobile radio systems\....\"[^3] Under
     the finder\'s preference program, a person could file a finder\'s
     preference request by presenting the Commission with evidence
     leading to the cancellation of a license due to the licensee\'s
     noncompliance with certain regulations.

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1.  When it established the finder's preference program, the Commission
    decided that the finder has the burden of proving that the target
    licensee violated our rules relating to construction, placement-
    in-operation, and continuance of operation.[^4] In his finder's
    preference request, Duncan submitted evidence, including a statement
    from a former employee of Morris, who attested that frequencies
    856-860.1125 MHz licensed to station WNFY616 were not in operation.
    The Office of Operations based its decision to grant Duncan a
    partial award on the evidence submitted by Duncan in his finder's
    preference request.

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2.  Morris states that the finder's preference request was based on
    personal differences arising out of a contractual dispute between
    Morris and Duncan. Morris further argues that the Commission should
    not reward Duncan, as a former employee of Morris, with a finder's
    preference because the finder's preference program was not intended
    for this type of retaliatory purpose. While it is true that the
    Finder's Preference Program was not designed to adjudicate
    allegations such as civil claims or alleged violations of Commission
    rules other than the rule violations specified in section 90.173(k)
    of the Commission's rules,[^5] Duncan has met his burden to prove
    that Morris did not construct frequencies 856-860.1125 MHz by the
    construction deadline of February 2, 1990. Accordingly, we affirm
    the previous decision to grant Duncan's partial finder's preference
    request.

# IV. Ordering Clause

3.  Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 405
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i)
    and 405, and sections 0.331 and 1.106 of the Commission\'s rules, 47
    C.F.R. §§ 0.331 and 1.106, the Petition for Reconsideration filed in
    the above referenced Finder\'s Preference Case, No. 96F092, IS
    DENIED.

4.  IT IS FURTHER ORDERED that, the award of a finder\'s preference to
    Richard Duncan d/b/a Anderson Communications, Inc., for frequencies
    856-860.1125, Station WWNFY616, Greenville, South Carolina, IS
    AFFIRMED. Richard Duncan d/b/a Anderson Communications, Inc., has 90
    days from the date of this order to file an application with the
    Commission for the awarded frequencies. If the target licensee files
    an application for review of this decision, the filing of an
    application SHALL BE TOLLED.

Federal Communications Commission

William W. Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: ^1^

[^2]: ^21^ Petition for Reconsideration filed January 21, 1997.

    ^2^ *See* Letter from William H. Kellett, Esq., Office of
    Operations, to Frederick M. Joyce, Esq., dated December 19, 1996.

[^3]: ^3^ *See* Amendment of Parts 1 and 90 of the Commission\'s Rules
    Concerning the Construction, Licensing, and Operation of Private
    Land Mobile Radio Stations, *Report and Order*, PR Docket No.
    90-481, 6 FCC Rcd. 7297, 7309, ¶ 77 (1991) (*Finder's Preference
    Report & Order)*.

[^4]: ^4^ *Id.*

[^5]: ^5^ 47 C.F.R. § 90.173(k); *see Finder's Preference Report &
    Order*, 6 FCC Rcd. at 7308; s*ee* *also* Richard Duncan d/b/a
    Anderson Communications, *Memorandum Opinion & Order,* DA 99-2108
    (WTB/CWD: rel. October 10, 1999).