**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Mildred Ballentine ) File Nos. 94F351, 94F362, 94F367, 94F368

Ralph Smith, Jr. ) 94F369, 94F370

Jonathan Schatz )

Elsie Johnson )

Benjamin Evanson )

Brent Crowder )

)

Finder\'s Preference Requests )

Against Specialized Mobile Radio )

Stations WPCJ864, WPCJ306, WPCF965 )

WPCF931, WPCJ308, WPCJ307

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 2, 1999 Released: November 2, 1999**

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

# Introduction

1\. On January 10 and January 14, 1997,[^1] Cathy Fougnes, George
Nitecki, Charles Russell, Jr., Ray Heffron, Susan Palmer, and Linda
Schafer (hereinafter Petitioners or Finders) filed Petitions for
Reconsideration (Petitions) of a decision by the Wireless
Telecommunications Bureau's Office of Operations (Office of Operations)
denying Petitioner's requests for finder\'s preferences against the
above captioned Stations.[^2] The target licensees, Mildred Ballentine,
Ralph Smith, Jr., Jonathan Schatz, Elsie Johnson, Benjamin Evanson, and
Brent Crowder (hereinafter Licensees), filed a Consolidated Opposition
to the Petitions for Reconsideration (Opposition). For the reasons
discussed below, we deny the Petitions.

# Background

2\. In August 1994, Petitioners filed finder's preference requests for
the above stations located on the Bank One Tower building in
Indianapolis, Indiana. [^3] The finders alleged that the stations had
not been constructed by their respective deadlines in violation of
section 90.633 of the Commission's rules, 47 CFR § 90.633. The finders
included the statement of a consultant who stated that he saw that the
stations were not connected to power or antennae. The finders included
photographs showing various transmission equipment. The consultant also
stated that he monitored the stations' operation and heard no activity
on the frequencies. In a consolidated opposition to the finders'
requests, the licensees included the statement of the network manager,
who asserted that he constructed the stations within the deadlines, as
well as invoices and site access logs. [^4] On December 16, 1996, the
Office of Operations denied the finder's requests, having concluded that
in light of the rebuttal evidence submitted by the licensees, the
evidence presented by the finders was insufficient to conclusively prove
non-construction.

# Discussion

3.  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\....\" [^5] 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.

4.  In their nearly identical requests, the finders submitted the
    statement of Frank Swindler, who gained access to the tower site on
    several dates in order to document the status of the target stations
    and take photographs showing that the equipment was not
    connected.[^6] Mr. Swindler further stated that he monitored the
    relevant frequencies and inquired of other SMR operators and site
    managers about the status of the stations.[^7] He stated that he
    concluded that the frequencies were not being used. In rebuttal, the
    licensees submitted the statement of a technician attesting to the
    proper construction of the stations by the deadline date, site logs
    showing that the technician was present at the site, and invoices
    for the station equipment.

5.  The finder has the burden of conclusively demonstrating that a
    violation of a specific Commission rule(s) has occurred.[^8] The
    photographs submitted by the finders do not in any way identify the
    stations as those of the target licensees and, in fact, identical
    photographs were submitted for multiple call signs without any
    attempt to differentiate them. While the finders stated they
    monitored the frequencies, no logs were included. An allegation of
    sporadic monitoring is insufficient to demonstrate
    non-operation.[^9] In sum, the evidence presented by the finders was
    insufficient, and the finders failed to meet their burden to
    demonstrate the stations were not constructed. Therefore, we deny
    the individual petitions for reconsideration.

## Ordering Clause

6\. 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 Petitions for Reconsideration in the
above‑captioned Finder\'s Preference Cases ARE DENIED.

Federal Communications Commission

William W. Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: The Petition for File No. 94F369 was filed on January 10, 1997.
    The others were filed as stated on January 14, 1997.

[^2]: *See* Letter from Anne Marie Wypijewski, Esq. Office of Operation,
    to A.B. Cruz, Esq. dated December 16, 1996, (File Nos. 94F351,
    94F362, 94F367, 94F368, 94F370) or Letter from William H. Kellett,
    Esq. to Susan Jane Palmer dated December 12, 1996 (File No. 94F369).

[^3]: 94F351 for WPCJ864 filed August 10, 1994; 94F362 for WPCJ306 filed
    August 12, 1994; 94F367 for WPCF965 filed ­­­­August 16, 1994; 94F368
    for WPCF931 filed August 16, 1994; 94F370 for WPCJ307 filed August
    16, 1994; and 94F369 for WPCJ308 filed August 11, 1994.

[^4]: The licensees had all entered into management agreements with Cell
    Call Inc. under which CellCall was to operate and maintain the
    stations on behalf of the licensees.

[^5]: *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*).

[^6]: *See* e.g. File No. 94F351 Request of Cathy Fougnies, Exhibit A

[^7]: *Id.* affidavit of Frank Swindler

[^8]: *Finder's Preference Report & Order* at ¶ 68

[^9]: *See* In the Matter of Cellular Design Corporation, FCC 99-161
    (rel. July 9, 1999).