**Before the**

##  Federal Communications Commission

##  Washington, D.C. 20554

In the Matter of )

)

LANS SERVICE CORPORATION ) File No. 96F227

)

Station WCC724, )

North Bergen, New Jersey )

Licensed to Interstate Grocer )

Distribution Systems, Inc. )

# ORDER

**Adopted: March 21, 2000 Released: March 23, 2000**

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

# I. INTRODUCTION

1.  On July 7, 1999, Lans Service Corporation (Lans Service) filed a
    petition for reconsideration (Petition)[^1] of the June 25, 1999,
    dismissal[^2] of its finder's preference request targeting Station
    WCC724, licensed to Interstate Grocer Distribution Systems, Inc.
    (Interstate Grocer), located in North Bergen, New Jersey, by the
    Policy and Rules Branch (Branch), Public Safety & Private Wireless
    Division. For the reasons set forth below, the Petition is denied.

    **II. BACKGROUND**

2.  On June 13, 1996, Lans Service filed a finder's preference request
    (Request)[^3] targeting Interstate Grocer's authorization to operate
    Station WCC724 on frequency pair 478.6125/481.6125 MHz. Lans Service
    alleged in its Request that Interstate Grocer failed to operate
    Station WCC724 for a period in excess of one year, in violation of
    Section 90.157 of the Commission's Rules.[^4]

3.  On June 25, 1999, the Request was dismissed for failure to target a
    station that was properly the subject of a finder's preference
    proceeding.[^5] On July 7, 1999, Lans Service filed the instant
    Petition, requesting reversal of the June 25, 1999, action.[^6] Lans
    Service argues in its Petition that Station WCC724 was the proper
    subject of a finder's preference proceeding. Lans Service alleges
    that it could have acquired authority to operate two (2) mobile
    units on frequency pair 478.6125/481.6125 MHz, if the Request had
    resulted in a dispositive preference. Lans Service further argues
    that the interpretation of the Commission's *Report and Order* in PR
    Docket 90-481, which is relied upon in the June 25, 1999, letter,
    "is inconsistent with previous decisions where finder's requests for
    partial use of one or more channels in the 'exclusive' bands
    (*i.e.*, 220-225, 470-512, 800/900 MHz) have been entertained."[^7]

    **III. DISCUSSION**

4.  Lans Service argues that Station WCC724 was the proper subject of a
    finder's preference proceeding. We disagree. Station WCC724 was
    authorized to operate in the 470-512 MHz shared band in the Motor
    Carrier Radio Service. A finder's preference can only be applied to
    frequencies in the 470-512 MHz band if the targeted frequencies were
    assigned on an exclusive basis.[^8] On the date Lans Service filed
    its Request, Station WCC724 was not operating on an exclusive
    channel, and was therefore not the proper subject of a finder's
    preference proceeding.

5.  In this regard, we note that under the pertinent provisions of
    former Section 90.313(a)(5) of the Commission's Rules, the maximum
    channel loading on frequencies in the 470-512 MHz band in the Motor
    Carrier Radio Service at the time of filing of this Request was
    seventy (70) units.[^9] Our records reflect that there were
    sixty-eight (68) mobiles operating on shared channel
    478.6125/481.6125 MHz at the time the Request was filed.[^10] Until
    the channel reached its maximum loading level, new applicants were
    eligible to be licensed on the same frequencies as Station WCC724,
    in the same geographic area, by submitting an application. The
    Commission specifically disallowed the filing of finder's preference
    requests involving channels that have not reached maximum
    loading.[^11] The Commission stated:

    Our analysis of the record confirms that employing the costly,
    resource-intensive effort required in submitting a finder's
    preference request is *only* justified if the frequencies acquired
    are exclusive assignments. As the *Notice*[^12] explained, there can
    be no preclusion of eligible new applicants from being licensed on
    shared spectrum. A "preference" awarded to an applicant applying for
    a shared channel would, therefore, offer no *greater* opportunity
    for acquiring a particular channel than that which is "already
    available under current frequency coordination procedures."[^13]

6.  The Commission further stated that it reserved the right to extend
    the application of finder's preference to certain channels that were
    currently shared, if the burden of processing and investigating the
    additional finder's preference requests could be absorbed by its
    staff. A decision to extend the application to shared channels was
    never made, and 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.[^14] While Lans Service argues that the Branch's
    interpretation was inconsistent with previous finder's preference
    requests, it failed to provide supporting case precedent to such
    effect.

7.  Based on the record in this proceeding, we find no basis to reverse
    the Branch's June 25, 1999, decision. We agree with the Branch's
    determination that the subject station was not a proper subject for
    a finder's preference proceeding because it was not operating on a
    channel being licensed on an exclusive basis.

# ORDERING CLAUSE

8.  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 by
    Lans Service Corporation IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

> Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration (July 7, 1999) (Petition).

[^2]: *See* Letter to George Petrutsas, counsel to Lans Service
    Corporation, from John J. Borkowski, Federal Communications
    Commission (June 25, 1999).

[^3]: Finder's Preference Request (June 13, 1996).

[^4]: 47 C.F.R. § 90.157.

[^5]: *See* Letter to George Petrutas, counsel to Lans Service
    Corporation, from John J. Borkowski, Federal Communications
    Commission (June 25, 1999).

[^6]: *See* Letter to John J. Borkowski, Federal Communications
    Commission, from George Petrutsas, counsel to Lans Service
    Corporation (July 7, 1999).

[^7]: *Id.* at 2.

[^8]: *See, Amendment of Parts 1 and 90 of the Commission's Rules
    Concerning the Construction, Licensing and Operation of Private Land
    Mobile Radio Stations*, PR Docket No. 90-481, *Report and Order*, 6
    FCC Rcd 7297, 7304 at para. 44 (1991) (*PLMRS Report and Order*).

[^9]: 47 C.F.R. §90.313(a) (5) (1996).

[^10]: Interstate Grocer was authorized to operate twenty-two (22)
    mobile units on Station WCC724. K&D Transport, Inc. was authorized
    to operate forty-six (46) mobile units on Station WII598. The
    combined loading equaled sixty-eight (68) mobiles.

[^11]: *See* *supra* n. 8.

[^12]: *Notice of Proposed Rule Making*, PR Docket No. 90-481, 5 FCC Rcd
    6401 (1990).

[^13]: *See PLMRS Report & Order*, 6 FCC Rcd at 7304, ¶ 44, n. 79.

[^14]: *See Report and Order* 13 FCC Rcd 23816 (1998).