**Before the**

##  Federal Communications Commission

**Washington, D.C. 20554**

In the Matter of )

)

JOY RHEINS ) File No. 94F443

)

Finder\'s Preference Request )

For Specialized Mobile Radio )

Station WNSM957, Licensed to )

Jeff Comm Corp. at Grieg, New York )

**MEMORANDUM OPINION AND ORDER**

**Adopted: September 22, 1999 Released: September 22, 1999**

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

# I. Introduction

1.  On January 31, 1997, Joy Rheins (Ms. Rheins) filed a petition for
    reconsideration (Petition)[^1] of a decision by the Wireless
    Telecommunications Bureau's Office of Operations denying her request
    for a finder\'s preference for Specialized Mobile Radio (SMR)
    Station WNSM957, licensed to Jeff Comm Corp. (Jeff Comm).[^2] For
    the reasons discussed below, Ms. Rheins's petition for
    reconsideration is denied.

# II. Background

2.  On September 7, 1994, Ms. Rheins filed a finder's preference request
    for WNSM957 alleging that the station was non-operational and
    permanently discontinued in violation of section 90.157 of the
    Commission's rules. On January 2, 1997, the Office of Operations
    denied the finder's preference request because Ms. Rheins failed to
    carry her burden and demonstrate that a rule violation occurred. Ms.
    Rheins filed a petition for reconsideration on January 31, 1997.

3.  Ms. Rheins alleged that there were no authorized end users on the
    station. In its opposition, Jeff Comm provided copies of end user
    applications submitted to the Commission and a declaration by Rex
    Ennis, president of Jeff Comm, stating that end users were operating
    on the system. Jeff Comm submitted an FCC Form 800A letter stating
    that the station was timely constructed and a list of the
    frequencies in operation. In her Petition, Ms. Rheins asserted that
    the target licensee's evidence was vague.

### 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.

5.  Ms. Rheins's petition relies entirely on the assertion that the
    target licensee's evidence of construction and operation is vague.
    Ms. Rheins has not submitted evidence of any investigation or a
    statement from any witness having personal knowledge of the status
    of Station WNSM957. Instead, Ms. Rheins's allegations are based on
    information that there were no end users listed on the Commission's
    loading card associated with Station WNSM957.

6.  When it established 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, placement-
    in-operation, and continuance of operation.[^4] In evaluating Ms.
    Rheins's evidence, we note that the Commission permits end users
    operating on other stations to "roam" between stations without
    separate authorizations.[^5] Jeff Comm presented substantial
    rebuttal evidence that mobile users were in fact operating on the
    system as "roamers." Therefore, we find that Joy Rheins did not
    demonstrate that the target licensee did not place WNSM957 in
    operation or did not permanently discontinue operation of the
    station. We affirm the Office of Operations' decision to deny the
    finder's preference request.

# Conclusion and 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 filed by
    Joy Rheins in Finder\'s Preference Case No. 94F443 IS DENIED.

Federal Communications Commission

William Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: ^1^

[^2]: ^21^ Petition for Reconsideration filed January 31, 1997.

    ^2^ *See* Letter from William J. Kellett, Esq., Office of
    Operations, to A. B. Cruz III, Esq., dated January 2, 1997 (*Office
    of Operations Decision*).

[^3]: ^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) (*Finder's Preference
    Report & Order)*.

[^4]: ^5^

[^5]: ^6^ *See* Amendment of Part 90 of the Commission\'s Rules
    Governing the Application Requirements for End-Users in the 800 MHz
    Private Land Mobile Band, *Report and Order*, 51 Fed. Reg. 18794
    (1986).