**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | Case Nos. 93F730 and 94F060  |
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| REGENTS OF THE UNIVERSITY OF     | ** |                              |
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| CALIFORNIA                       | *  |                              |
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| Finder's Preference Requests     | ** |                              |
| filed by James A.                |    |                              |
|                                  | *  |                              |
| Kay, Jr. For Conventional        | *) |                              |
| Business Station WNXC946,        | ** |                              |
| Irvine, California               |    |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 28, 2007 Released: March 30, 2007**

By the Commission:

**I. INTRODUCTION**

1.  We have before us an application for review (AFR) filed by James A.
    Kay, Jr. (Kay) on July 30, 2002.[^1] The AFR seeks review of a July
    2, 2002 *Order* by the former Public Safety and Private Wireless
    Division[^2] (Division) of the Wireless Telecommunications
    Bureau.[^3] The Division's *Order* dismissed as repetitious a
    petition for reconsideration filed by Kay on February 14, 2002 that
    sought reconsideration of a January 15, 2002 *Memorandum Opinion and
    Order* by the Commission.[^4] We conclude that the Division's
    *Order* was correct, and accordingly deny the instant AFR.

**II. BACKGROUND**

2.  In 1991, the Commission adopted a Finder's Preference Program
    designed to assist the Commission in the recovery of unused private
    land mobile channels in certain bands.[^5] Finders who offered the
    Commission assistance in the recovery of channels by informing the
    Commission about licensees who were not in compliance with the
    Commission's construction, placed-in-operation, and
    discontinuance-of-operation rules would be given a "dispositive"
    preference to become licensed for the recovered channels.[^6] In
    1993, the Commission clarified that the Finder's Preference program
    would apply to authorizations that granted an extended
    implementation or "slow growth" schedule.[^7]

3.  On August 29, 1991, the Regents of the University of California
    (Regents) was granted a three-year extended implementation schedule
    to construct Station WNXC946, Irvine, California. The slow growth
    period was scheduled to end on August 29, 1994. On December 17,
    1993, Kay filed finder's preference request 93F730.[^8] The
    Licensing Division of the Private Radio Bureau (now the Wireless
    Telecommunications Bureau) dismissed finder's preference request
    93F730 as prematurely filed.[^9] On March 21, 1994, Kay filed a
    petition for reconsideration and, for the first time, alleged that
    Regents did not notify the Commission that it failed to meet certain
    interim construction requirements.[^10] On March 24, 1994, Kay
    submitted a second finder's preference request, 94F060, which
    repeated allegations submitted in the previously filed
    reconsideration petition.[^11]

4.  Regents requested an extension of the slow growth period on July 28,
    1994.[^12] On September 27, 1994, the Land Mobile Branch of the
    Licensing Division extended the Regents' slow growth period until
    April 1996, after finding Regents had made substantial progress
    toward implementation of Station WNXC946.[^13]

5.  On January 24, 1996, the Wireless Telecommunications Bureau, by
    letter decision, denied Kay's reconsideration petition because
    finder's preference request 93F730 was premature.[^14] At that time,
    the Bureau also dismissed finder's preference request 94F060 because
    that request was prematurely filed.[^15] The Bureau explained that,
    at most, finder's preference request 94F060 demonstrated that
    Regents did not meet its interim deadlines.[^16] The Bureau further
    explained that Section 90.629 of the Commission's Rules provides for
    an automatic six-month extension in the event that the Commission
    makes a finding that a licensee has failed to meet its interim
    requirements.[^17] Under this mechanism, the Bureau said, the target
    licensee still holds a valid authorization and is not subject to a
    finder's preference request until the final construction deadline
    and an additional 180 days have passed.[^18]

6.  On February 23, 1996, Kay submitted a consolidated application for
    review of the Bureau's decision.[^19] On January 15, 2002, the
    Commission denied the application for review.[^20] The Commission
    agreed with the Bureau that Kay's finder's preference requests were
    premature.[^21] With respect to the reconsideration petition, the
    Commission found that the Bureau properly denied the petition
    because Commission precedent dictates that Kay could not allege a
    new rule violation on reconsideration that he had not alleged in his
    initial finder's preference request.[^22] The Commission also noted
    that the reconsideration petition was not based on new or previously
    undiscovered facts or circumstances and therefore was procedurally
    defective under Section 1.106(c)(1) of the Commission\'s Rules.[^23]
    The Commission also concluded that there was no public interest
    reason to consider the petition pursuant to Section
    1.106(c)(2).[^24]

7.  On February 14, 2002, Kay filed a petition for reconsideration of
    the Commission's decision.[^25] On July 2, 2002, the Division
    dismissed the petition as repetitious.[^26] The Division concluded
    that the petition was defective under Section 1.106(b)(3) of the
    Commission\'s Rules, which provides that a petition for
    reconsideration of an order denying an application for review which
    fails to rely on new facts or changed circumstances may be dismissed
    by the staff as repetitious because the petition reiterated
    arguments already considered and rejected by the Commission in
    denying the application for review.[^27] On July 30, 2002, Kay filed
    the present AFR of the Division's decision.[^28]

**III. DISCUSSION**

8.  A petition for reconsideration lies only if it establishes new
    circumstances or contains new facts. Kay's circumstances have not
    changed since the day he filed his premature finder's preference
    request. Here, Kay argues otherwise. He says there were new facts in
    his petition. First, Kay claims that the Commission should not have
    granted Regents' unopposed request for extended implementation.
    Second, he claims that Regents' license automatically expired by
    operation of rule before Kay filed his finder's preference request.
    Kay claims that the Division erred in not addressing these claims in
    the order dismissing his petition as repetitious. What Kay
    characterizes as new facts, however, are just allegations. The first
    allegation \-- the unsupported claim that the Commission should not
    have granted Regents an extended implementation period \--
    challenges a previously unchallenged licensing matter. The second
    \-- that Regents' license expired \-- is unsupported. Thus, instead
    of offering new facts, Kay launched a collateral attack on licensing
    issues that go back to 1991. The Division evaluated Kay's filing
    against the standards for petitions for reconsideration. It found no
    change in circumstances. It found no new facts. It disregarded the
    allegations. It found the petition repetitious and dismissed it.
    Kay's application for review similarly is also meritless and we deny
    it.

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I.  **ORDERING CLAUSES**

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9.  IT IS ORDERED that pursuant to Sections 4(i) and 5(c) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 155(c),
    and Section 1.115(g) of the Commission's Rules, 47 C.F.R. §
    1.115(g), the Application for Review filed by James A. Kay, Jr. on
    July 30, 2002 IS DENIED.

10. IT IS FURTHER ORDERED that the Petition for Reconsideration filed by
    James A. Kay, Jr. on January 13, 2003 IS DISMISSED AS MOOT.

11. IT IS FURTHER ORDERED THAT this proceeding IS TERMINATED.

    FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: James A. Kay, Jr. Application for Review (filed July 30, 2002)
    (AFR).

[^2]: The Commission reorganized the Wireless Telecommunications Bureau
    effective November 13, 2003, and the relevant duties of the Public
    Safety and Private Wireless Division were assumed by the Public
    Safety and Critical Infrastructure Division. *See* Reorganization of
    the Wireless Telecommunications Bureau, *Order*, 18 FCC Rcd 25414,
    25414 ¶ 2 (2003).

[^3]: Regents of the University of California, *Order*, 17 FCC Rcd 12891
    (WTB PSPWD 2002) (*Order*).

[^4]: Regents of the University of California, *Memorandum Opinion and
    Order*, 17 FCC Rcd 1393 (2002) (*MO&O*).

[^5]: *See* Amendments 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 (1991) (*Finder's Preference* *Report and
    Order*). In 1998, the Commission eliminated the Finder's Preference
    Program. *See* Amendment of Part 90 Concerning the Commission's
    Finder's Preference Rules, *Report and Order*, WT Docket No. 96-199,
    13 FCC Rcd 23816 (1998).

[^6]: *Finder's Preference* *Report and Order*, 6 FCC Rcd at 7302 ¶ 30,
    7305 ¶ 49.

[^7]: Amendment of Part 90 of the Commission's Rules Governing Extended
    Implementation Periods, *Report and Order*, PR Docket No. 92-210, 8
    FCC Rcd 3975, 3977 ¶ 14 (1993).

[^8]: Finder's Preference Request (filed Dec. 17, 1993).

[^9]: Letter dated Feb. 17, 1994 from William H. Kellett, Attorney,
    Licensing Division to Kathleen A. Kaercher, Esq. The letter also
    noted that the finder's preference request failed to identify any
    rule violation. *Id*.

[^10]: James A. Kay, Jr. Petition for Reconsideration at 1-2 nn.1-2
    (filed Mar. 21, 1994) (citing letter dated Jan. 13, 1994 from Henry
    L. Richter, on behalf of the University of California to Ralph
    Haller, Chief, Private Radio Bureau).

[^11]: Finder's Preference Request (filed Mar. 24, 1994).

[^12]: Letter dated July 28, 1994 from Jack C. Lockhart, on behalf of
    the Regents of the University of California to Terry L. Fishel,
    Chief, Land Mobile Branch.

[^13]: Letter dated Sept. 27, 1994 from Terry L. Fishel, Chief, Land
    Mobile Branch, to Jack C. Lockhart, on behalf of the Regents of the
    University of California.

[^14]: Letter dated Jan. 24, 1996 from W. Riley Hollingsworth, Deputy
    Associate Bureau Chief, Office of Operations, to Robert J. Keller,
    Esq., and Willi K. Bokenkamp.

[^15]: *Id*.

[^16]: *Id*.

[^17]: *Id*. (citing 47 C.F.R. § 90.629).

[^18]: *Id*. (citing former 47 C.F.R. § 90.173(k)(2)). *See* 47 C.F.R. §
    90.629(c).

[^19]: James A. Kay, Jr. Application for Review (filed Feb. 23, 1996).

[^20]: *See MO&O*, 17 FCC Rcd at 1396 ¶ 11.

[^21]: *See id.* at 1395 ¶¶ 7-8.

[^22]: *Id.* at 1395-96 ¶ 9 (citing 47 C.F.R. § 1.106(c); Peterson
    Electric, Inc., *Memorandum Opinion and Order*, 15 FCC Rcd 314
    (1999)).

[^23]: *Id.* (citing 47 C.F.R. § 1.106(c)(1) (incorporating 47 C.F.R. §
    1.106(b)(2)(i)-(ii))).

[^24]: *Id.* (citing 47 C.F.R. § 1.106(c)(2)).

[^25]: James A. Kay, Jr. Petition for Reconsideration (filed Feb. 14,
    2002).

[^26]: *See Order*, 17 FCC Rcd at 12893 ¶ 7.

[^27]: *Id.* at 12892-93 ¶ 2 (citing 47 C.F.R. § 1.106(b)(3)).

[^28]: In addition, on January 13, 2003, Kay filed a petition for
    reconsideration (PFR) of the December 13, 2002 action by the
    Division granting Regents' application (FCC File No. 500078) for
    authority to operate a new station at a different location in
    Irvine, California on some of the same frequencies as Station
    WNXC946. James A. Kay, Jr. Petition for Reconsideration (filed Jan.
    13, 2003). The PFR argues that the application should not have been
    granted while the instant AFR was still pending, or should have been
    granted conditioned on the resolution of the AFR. *See* PFR at 2.
    Because we are resolving the AFR herein, we dismiss the January 13,
    2003 PFR as moot.