**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

JKR Partnership ) File No. 96F146

)

Finder\'s Preference Request )

For Specialized Mobile Radio )

Station WNIC901 licensed to )

Pittencrief Communications, Inc. )

at San Antonio, Texas )

)

**MEMORANDUM OPINION AND ORDER**

**Adopted: October 14, 1999 Released: October 14, 1999**

By the Deputy Chief, Wireless Telecommunications Bureau:

# I. Introduction

1.  On January 14, 1997, JKR Partnership (JKR) filed a petition for
    reconsideration (Petition) [^1] of a decision by the Wireless
    Telecommunications Bureau's Office of Operations (Office of
    Operations) denying its request for a finder\'s preference against
    Station WNIC901, licensed to Pittencrief Communications, Inc.
    (Pittencrief). [^2] For the reasons discussed below, JKR's petition
    for reconsideration is denied.

# II. Background

2.  On June 29, 1987, the Commission granted Gary Hollister, a previous
    licensee of Station WNIC901, a license to operate on frequencies
    856-860.1875.[^3] In its Opposition, Pittencrief submitted the
    statement of Gary Hollister that the station was constructed by June
    29, 1988. On December 14, 1995, JKR filed a finder's preference
    request for WNIC901 alleging that frequencies 856-860.1875 were not
    timely constructed and placed in operation by a construction
    deadline of October 22, 1994. JKR alleged that the frequencies were
    not constructed based on monitoring performed on one day in
    November 1995. On this basis, the finder alleged a violation of
    section 90.631(e) of the Commission's rules, 47 C.F.R. § 90.631(e).
    On January 8, 1997, the Office of Operations denied the finder's
    preference request because JKR failed to carry its burden to
    demonstrate that a rule violation occurred.

3.  JKR also argued that it made a *prima facie* case showing violations
    of sections 90.631(e), 90.631(f) and 90.157 of the Commission's
    rules, 47 C.F.R. §§ 90.631(e), 90.631(f) and 90.157. In its
    Opposition to the Petition for Reconsideration, Pittencrief argued
    the finder erred when it asserted a violation of section 90.631(e),
    because the targeted frequencies were constructed in 1988.
    Pittencrief also argued that the finder could not assert violations
    of other Commission rules in its Petition.

# 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\....\"[^4] 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.  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, placement 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 October 22, 1994. Pittencrief showed the
    correct construction deadline was June 29, 1988. Therefore, the
    initial allegation on which the finder's preference request rested
    was erroneous. The target licensee submitted a copy of its station
    license showing a construction deadline that was met approximately
    five years earlier. We further reject JKR's attempt on
    reconsideration to introduce new allegations of violations of other
    Commission rules. We therefore find that JKR has failed to meet its
    burden to present a *prima facie* evidence showing a violation of
    rule 90.631(e). We agree with the Bureau's previous decision and
    affirm it for the reasons stated therein.

**IV. Ordering Clauses**

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 Petition for Reconsideration filed by
    JKR Partnership in the above‑captioned Finder\'s Preference Case No.
    96F146 IS DENIED.

Federal Communications Commission

Gerald P. Vaughan

Deputy Chief

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration filed January 14, 1997.

[^2]: *See* Letter from W. R. Hollingsworth, Deputy Associate Bureau
    Chief, Wireless Telecommunications Bureau, to George Petrutsas,
    Esq., dated January 8, 1997 (Office of Operations Decision).

[^3]: *See* Opposition to the Finder's Preference Request (Opposition),
    Exhibit 1 -- Radio Station License, filed April 22, 1996.

[^4]: *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).