##  Before the

##  Federal Communications Commission

##  Washington, D.C. 20554

In the Matter of )

)

JOSEPH P. MAYENCHAK, JR. ) Case No. 97F016

d/b/a J & H Radio )

)

Finder's Preference Request )

Regarding Station WIL269 )

New York, New York )

# ORDER

**Adopted: March 24, 2000 Released: March 28, 2000**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

**I. INTRODUCTION**

> 1\. On July 28, 1999, Joseph P. Mayenchak, Jr. d/b/a J&H Radio (J&H)
> filed a petition for

reconsideration[^1] of the June 28, 1999, action by the Chief, Policy
and Rules Branch, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau (Division), canceling J&H's conditional
authorization[^2] to operate Station WIL269 on frequency pair
471.7875/474.7875 MHz in the New York City area,[^3] and awarding a
dispositive preference under the finder's preference program[^4] to
Marina Concrete, Inc. (Marina) for Station WIL269.[^5] For the reasons
set forth below, we affirm the June 28, 1999, action awarding a
dispositive preference for frequency pair 471.7875/474.7875 MHz to
Marina, and deny J&H's Petition.

**II. BACKGROUND**

II. 

2\. On January 15, 1997, Marina filed a finder's preference request[^6]
targeting Automatic Data

Processing's authorization to operate Station WIL269 on frequency pair
471.7875/474.7875 MHz in the

New York City area. Marina alleged in its Request that Station WIL269
had not operated from November 1995, through January 1997, a period in
excess of one year, in violation of Section 90.157 of the Commission's
Rules.[^7] To substantiate its Request, Marina provided, *inter alia*,
the separate declarations of two of Station WIL269's co-channel
licensees, sworn under penalty of perjury, stating that they had
extensively monitored Station WIL269 for activity during a period of ten
and fourteen months, respectively, without detecting any transmissions.
On January 30, 1997, Station WIL269 was assigned to J&H from Automatic
Data Processing on a conditional basis, subject to the outcome of this
proceeding.[^8] On March 11, 1997, J&H was served with Marina's
Request.[^9]

3\. On April 10, 1997, J&H filed an Opposition to Marina's Request.[^10]
In Opposition, J&H did not indicate that the station had continuously
operated, but instead argued only that the Request was procedurally
defective, since Station WIL269 operated on a shared 470 MHz Business
Radio Service channel. J&H argued that only frequencies assigned on an
exclusive basis could be the subject of a finder's preference
proceeding.[^11] By letter dated June 28, 1999, J&H was notified that
its conditional authorization to operate Station WIL269 had cancelled
automatically.[^12] On June 28, 1999, Marina was awarded a dispositive
preference for Station WIL269 under the finder's preference program. The
Division held that since Marina was operating on an exclusive channel,
the Request was not procedurally defective.[^13] J&H filed the instant
Petition on July 28, 1999,[^14] reiterating its original argument that
Station WIL269 could not be the proper target of a finder's preference
proceeding, since Station WIL269 operates on a shared 470 MHz Business
Radio Service channel.[^15]

4\. Marina filed an Opposition to the Petition on August 10, 1999, [^16]
arguing that Station WIL269 is the proper subject of a finder's
preference proceeding, because it became an exclusive channel when it
became loaded to capacity.[^17] A Reply to the Opposition to Petition
was filed on behalf of J&H on August 19, 1999.[^18] J&H argued that only
channels assigned on an exclusive basis in the 800 MHz General Category
Pool are subject to finder's preference proceedings.[^19] To support its
argument, J&H cited a footnote in the Finder's Preference *Order on
Reconsideration,* for the proposition that shared-use channels may only
be targeted if the shared-use channels are in the 800 MHz General
Category Pool.[^20]

**III. DISCUSSION**

III. 5\. Upon evaluation of the entirety of the evidence, we find that
     the record in this proceeding consists

of a *prima facie* showing that Station WIL269 failed to operate from
November 1995, through January 1997, a period in excess of one year. In
this connection, we note that J&H failed to provide any documentation,
such as canceled checks, system maintenance records, equipment serial
numbers, or sworn affidavits from employees using the system, to
demonstrate operation of Station WIL269 during the subject period.[^21]
By contrast, Marina submitted the statements of two co-channel users
operating on the same channel assigned to J&H, attesting that Station
WIL269 had been continuously monitored during the respective periods of
December, 1995, through September, 1996, and November, 1995, through
January, 1997. Both co-channel licensees certified under penalty of
perjury that they did not detect any transmissions on the subject
channel.

6\. We disagree with J&H's contention that this is not an "exclusively
assigned" channel subject to a finder's preference proceeding. First, we
note that former Section 90.173(k) of the Commission's Rules
specifically included 470-512 MHz stations.[^22] Station WIL269 was
authorized to operate in the 470-512 MHz shared band of the former
Business Radio Service. Under the pertinent provisions of former Section
90.313(a)(2) of the Commission's Rules, the maximum channel loading on
frequencies in the 470-512 MHz band in the former Business Radio Service
was ninety (90) units.[^23] Once such a channel had reached its maximum
loading level of ninety (90) units, that channel became exclusive and
new applicants were not eligible to be licensed on the channel's shared
spectrum.[^24] On January 15, 1997, the date the instant Request was
filed, the target licensee was authorized to operate forty-four (44)
mobile units on Station WIL269. The combined loading of the co-channel
licensees equaled one hundred fifteen (115) mobile units on the subject
channel, frequency pair 471.7875/474.7875 MHz.[^25] We therefore
conclude that Station WIL269 was the proper subject of a finder's
preference proceeding. The station achieved exclusive status in the area
in which it operates, through the separate licensing of more than one
licensee. Total mobile loading on the subject channel had exceeded its
maximum loading level of ninety (90) mobile units, due to modification
of loading levels on the channel by the existing co-channel licensees.
In adopting the finder's preference program, the Commission held that
470-512 MHz channels may be the target of finder's preference
proceedings. Specifically, the Commission stated: "\[w\]e adopt our
initial proposal to apply the finder's preference to those frequencies
assigned on an exclusive basis in the 220-222 MHz, 470-512 MHz and
800/900 MHz bands."[^26]

7\. J&H does not dispute the fact that the Commission specifically
included the 470-512 MHz band when it adopted the finder's preference
program. J&H contends, however, that channels in the 470-512 MHz band
cannot be the subject of a finder's preference proceeding, where the
Commission aggregated the loading of more than one license on a 470-512
MHz channel to achieve "exclusivity."[^27] J&H fails to provide any
precedent to support its contention. J&H's analysis also ignores
Subsection (c) of Section 90.313 of the Commission's Rules, which
provides, in pertinent part, that "\[c\]hannel capacity may be reached
either by the requirements of a single licensee or by several users
sharing a channel."[^28] Channel exclusivity occurred on frequency pair
471/7875/474.7875 MHz, in the context of Section 90.313 of the
Commission's Rules, when the subject channel was loaded to capacity. We
also note that the Division's June 28, 1999, decision is consistent with
precedent in the 470-512 MHz band, where a dispositive preference was
awarded to a finder who had filed a finder's preference request against
a station in the 470-512 MHz band, where the channel had achieved
exclusivity by being loaded to capacity, but where the target licensee
was only one of several licensees comprising the total loading count on
the channel.[^29]

> 8\. We also conclude that J&H's argument that only channels assigned
> on an exclusive basis in the

800 MHz General Category Pool may be subject to finder's preference
proceedings is without merit. J&H's reading of the Commission's
clarification of footnote 38 of the *Order on Reconsideration* must be
rejected.

J&H incorrectly interprets footnote 38 to be a dispositive and carefully
implemented rule change intended to expand the finder's preference
program to include shared channels for the first time, in the limited
context of Conventional 800 MHz General Category frequencies. Rather,
footnote 38 specifically references 800 MHz General Category channels in
response to a petition requesting clarification of whether exclusivity
could be reached on shared channels through a compilation of total
loading on the channel. The Commission clarified the issue in the
affirmative, without ever extending the finder's preference program to
include shared channels for which no exclusivity could be obtained
(450-460 MHz channels, for example). In sum, we find that J&H presented
no new facts or arguments that would lead us to change our earlier
decision.

9\. IT IS ORDERED, pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405 and
Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, that the
petition for reconsideration filed by Joseph P. Mayenchak, Jr., d/b/a
J&H Radio, is DENIED. As a result of this action, a dispositive
preference under the finder's preference program is AFFIRMED to Marina
Concrete, Inc., for the frequencies associated with Station WIL269,
formerly conditionally licensed to Joseph P. Mayenchak, Jr. d/b/a J&H
Radio. Marina Concrete has ninety (90) days from the date of release of
this Order to follow regular application requirements and file an
acceptable application with the Commission for the targeted frequencies.

10\. This action is taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration (filed July 28, 1999) (Petition).

[^2]: J&H Radio filed Assignment Application Number D054896 on September
    26, 1996, seeking assignment of Station WIL269 from Automatic Data
    Processing to J&H Radio. The assignment application was
    conditionally granted on January 30, 1997, pending the outcome of
    the instant finder's preference proceeding.

[^3]: *See* Letter to Marjorie K. Conner, counsel to Joseph P.
    Mayenchak, Jr., d/b/a J&H Radio, from John J. Borkowski,

    Federal Communications Commission (dated June 28, 1999).

[^4]: The Commission eliminated the finder's preference program with
    respect to the 220-222 MHz band and in the 470-512 MHz, 800 MHz and
    900 MHz Private Land Mobile Radio bands as of July 29, 1998.
    Finder's preference requests for these frequencies pending as of
    July 29, 1998, however, are being processed. *See Report and Order*,
    13 FCC Rcd 23816 (1998).

[^5]: *See* Letter to Lloyd Coward, counsel to Marina Concrete, Inc.,
    from John J. Borkowski, Federal Communications Commission (dated
    June 28, 1999).

[^6]: Finder's Preference Request (filed January 15, 1997) (Request).

[^7]: Request at 1 (citing 47 C.F.R. §90.157 (1997)).

[^8]: *Supra* note 2.

[^9]: *See* Service Letter from William H. Kellett and Anne Marie
    Wypijewski, Federal Communications Commission, to Joseph P.
    Mayenchak, Jr. (dated March 11, 1997).

[^10]: Opposition (filed April 10, 1997).

[^11]: *Id.* at 1-2.

[^12]: *Supra* note 3.

[^13]: *Supra* note 5.

[^14]: *Supra* note 1.

[^15]: *Id.* at 2.

[^16]: Opposition to Petition for Reconsideration (filed August 10,
    1999) (Opposition to Petition).

[^17]: *Id.* at 2.

[^18]: Reply to Opposition to Petition for Reconsideration (filed August
    19, 1999) (Reply).

[^19]: *Id.* at 3.

[^20]: *Id*. (citing Amendment of Parts 1 and 90 of the Commission's
    Rules Concerning the Construction, Licensing and Operation of
    Private Land Mobile Radio Stations, *Memorandum Opinion and Order*,
    PR Docket No. 90-481,

    8 FCC Rcd 6690, 6693, at n. 38 (1993) (*Order on Reconsideration*).

[^21]: *See generally* In the Matter of Dale Kane d/b/a Kane
    Communications, *Order*, 13 FCC Rcd 18735 (1999); In the Matter of
    Veracon, Inc., 1999 WL 777529 (F.C.C.) (WTB PSPWD rel. Oct. 1, 1999)
    (target licensees of finder's preference proceedings did not prevail
    after failing to provide any objective and documentary evidence of
    compliance with the Commission's construction and operation rules).

[^22]: *See* 47 C.F.R. § 90.173(k) (1997) which states that "any
    eligible person may seek a dispositive preference for a channel
    assignment on an exclusive basis in the 220-222 MHz, 470-512 MHz,
    and 800/900 MHz bands by submitting information that leads to the
    recovery of channels in these bands."

[^23]: 47 C.F.R. § 90.313(a)(2) (1997).

[^24]: *Id.*

[^25]: Norman Phillips was authorized to operate five (5) mobile units
    on co-channel Station KNS872; New York Hospital was authorized to
    operate twenty-four (24) mobile units on co-channel Station WIL572;
    Computer Associates International was authorized to operate thirty
    (30) mobile units on co-channel Station WIL596; Horizon
    Communications was authorized to operate nine (9) mobile units on
    co-channel Station WIM494; and Atlantic Telecommunications was
    authorized to operate three (3) mobile units on co-channel Station
    WIM603.

[^26]: *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 at 7304, para. 44 (1991).

[^27]: *Supra* note 1 at 2.

[^28]: 47 C.F.R. § 90.313(c) (1997).

[^29]: *See*, *e.g*., Mobile UHF, Inc., *Order* (WTB PSPWD rel. June 23,
    1999) *aff'd*, *Memorandum Opinion and Order,* FCC 00-43 (Feb. 15,
    2000).