**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

JKR Partnership ) File No. 96F144

)

Finder\'s Preference Request )

For Specialized Mobile Radio )

Station KNFG248 licensed to )

A & B Electronics, Inc. )

at San Antonio, Texas )

)

)

**MEMORANDUM OPINION AND ORDER**

**Adopted: October 21, 1999 Released: October 21, 1999**

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

# I. Introduction

1.  On January 21, 1997, A & B Electronics, Inc. (A&B), filed a petition
    for reconsideration (Petition) of a decision by the Wireless
    Telecommunications Bureau's Office of Operations awarding a request
    for a finder\'s preference to JKR Partnership (JKR).[^1] For the
    reasons that follow, we find that the finder has failed to meet its
    burden of proof to show that the station was not constructed in a
    timely fashion at its authorized location or prove discontinuance of
    operation. Accordingly, the petition for reconsideration is granted,
    the finder's preference award to JKR is set aside and the license
    for station KNFG248 is reinstated.

# II. Background

2.  On November 5, 1987, the Commission granted American Mobile Systems
    Inc. (AMS), previous licensee of Station KNFG248, a license to
    operate on frequencies 861-865.5625 and 861-865.8125 MHz (ten
    frequencies). On December 14, 1995, JKR filed a finder's preference
    request for KNFG248 alleging that frequencies 861-865.5625 and
    861-865.8125 MHz (ten frequencies) were not timely constructed and
    placed in operation by a construction deadline of December 7, 1993.
    JKR alleged that the frequencies were not constructed based on
    monitoring and a site inspection performed between November 14^th^
    and 16^th^, 1995. On this basis, the finder alleged a violation of
    sections 90.157 and 90.631(e) of the Commission's rules, 47 C.F.R.
    §§ 90.157 and 90.631(e). In its Opposition, Pittencrief
    Communications Inc. (PCI), the parent corporation of A&B, submitted
    a letter from AMS to the Commission stating that the station was
    timely constructed.[^2] On January 2, 1997, the Office of Operations
    granted the finder's preference request because JKR presented
    evidence of the violation of section 90.157, 47 C.F.R. § 90.157 of
    the Commission's rules.

3.  In its Petition, Pittencrief argues again that the finder erred when
    it asserted a violation of section 90.631(e), because the targeted
    frequencies were constructed in 1983. Pittencrief also argued that
    the finder presented insufficient evidence to prove that the station
    discontinued operation. A&B provided a site lease and statements
    from William Cordell, president of Spectrum Engineering Company
    (Spectrum), indicating that the station was operational at its
    primary site during the time period in question. Spectrum manages
    the site for Station KNFG248.

# 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. The Commission, upon
    recovery of the channels from the target licensee, awards the finder
    a dispositive preference for the recovered frequencies.

5.  When it started 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,
    place-in-operation and continuance of operation. JKR's original
    request asserted a violation of section 90.631(e) and incorrectly
    stated the construction deadline as December 7, 1993. Pittencrief
    showed the correct construction deadline was July 9, 1983.
    Therefore, the initial allegation on which the finder's preference
    request rested was incorrect.[^4] The target licensee submitted a
    copy of its station license showing a construction deadline that was
    met approximately five years earlier.

6.  A&B has presented substantial rebuttal evidence that the station was
    constructed and operating in November 1995. Having reviewed all the
    evidence presented, we find that JKR has failed to meet its burden.
    The Commission has specifically held that evidence of sporadic
    monitoring by itself is insufficient and does not conclusively
    demonstrate that the station has permanently discontinued
    operation.[^5] Accordingly, we find that JKR's finder's preference
    request does not state a *prima facie* violation of section 90.157
    of the Commission's rules. Therefore, we grant A&B's petition, set
    aside the finder's preference award to JKR, and reinstate A&B's
    license for station KNFG248.

**IV. Ordering Clauses**

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 in the
    above-captioned Finder\'s Preference Case No. 94F144 IS GRANTED.

8.  IT IS FURTHER 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 award of a finder's preference request for JKR
    Partnership and the notice of cancellation dated January 2, 1997 are
    SET ASIDE.

9.  IT IS FURTHER 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 license for station KNFG248 is REINSTATED.

Federal Communications Commission

William Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: *See* Letter from William H. Kellett, Esq., Office of Operations,
    to A&B Electronics, dated January 2, 1997 (Decision).

[^2]: *See* Opposition to the Finder's Preference Request (Opposition),
    Exhibit 1 -- Radio Station License, filed April 22, 1996.

[^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).

[^4]: *See* In the Matter of JKR Partnership, *Memorandum Opinion and
    Order*, DA 99-2159 (WTB: rel. Oct. 14, 1999).

[^5]: *See* In the Matter of Cellular Design Corporation, *Memorandum
    Opinion and Order*, FCC 99-161, at ¶ 6 (rel. July 9, 1999).