**Before the**

##  Federal Communications Commission

**Washington, D.C. 20554**

In the Matter of )

)

)

Richard Duncan d/b/a Anderson )

Communications ) File No. 96F013

)

Finder\'s Preference Request )

For Station KNGZ274, Licensed to )

Morris Communications Inc. )

At Greenville, South Carolina )

**MEMORANDUM OPINION AND ORDER**

**Adopted: October 7, 1999 Released: October 7, 1999**

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

# I. Introduction

1.  On January 23, 1997, Morris Communications, Inc. (Morris), the
    target licensee for Station KNGZ274, 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 861-865.9125
    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 October 10, 1995, Duncan filed a finder's preference request
    alleging that five of the ten frequencies for Station KNGZ274 were
    non-operational and permanently discontinued in violation of section
    90.157 of the Commission's rules. 47 C.F.R. § 90.157. On December
    19, 1996, the Office of Operations granted a partial award to Duncan
    for the five frequencies (861-865.9125 MHz) because the finder
    showed that those frequencies had been discontinued from operation
    for more than one year in violation section 90.157 of the
    Commission's rules. 47 C.F.R. § 90.157. On January 23, 1997, Morris
    filed a petition for reconsideration.

3.  In its Petition, Morris alleges that the decision to grant Duncan a
    partial finder's preference was based on information that Duncan
    provided in his Reply to the Opposition to the Finder's Preference
    Request (Reply) dated January 11, 1996. Morris claims that Duncan
    failed to provide proper service of the Reply in violation of the
    Commission's *ex parte* rules. Consequently, Morris asserts that it
    did not have an opportunity to rebut statements presented in
    Duncan's Reply.

### III. Discussion

4.  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.

5.  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. *Id.* In his finder's
    preference request, Duncan submitted evidence, including a statement
    from a former employee of Morris, who attested that frequencies
    861-865.9125 MHz licensed to station KNGZ274 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. In Morris's Opposition to the Finder's
    Preference Request (Opposition), Morris acknowledged that the
    frequencies targeted by Duncan were not in operation and stated that
    it was voluntarily canceling its authorization for frequencies
    861-865.9125 MHz. Thus, we disagree with Morris that the decision
    was based on statements provided to the Commission in Duncan's
    Reply.

6.  Morris further argues that the Commission should not reward Duncan,
    as a former employee of Morris, with a finder's preference because
    Duncan failed to notify the Commission of the deconstruction of the
    five channels for almost six years. 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.[^4] Therefore, we affirm the previous decision to grant
    Duncan's partial finder's preference request.

# Ordering Clause

7.  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. 96F103, IS
    DENIED.

8.  IT IS FURTHER ORDERED that, the award of a finder\'s preference to
    Richard Duncan d/b/a Anderson Communications, Inc., for frequencies
    861-865.9125, Station KNGZ274, 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 23, 1997.

    ^2^ *See* Letter from Anne Marie Wypijewski, 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^ 47 C.F.R. § 90.173(k); *See Finder's Preference Report &
    Order*, 6 FCC Rcd. at 7308.