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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) MOBILE U.H.F., INC. ) Case No. 94F541 ) FINDER'S PREFERENCE REQUEST ) REGARDING STATION WIG912 ) ORDER Adopted: June 18, 1999 Released: June 23, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On January 15, 1997, Mobile U.H.F., Inc. (MUHF), filed a petition for reconsideration (Petition) of the December 24, 1996, dismissal of its finder's preference request targeting Station WIG912, licensed to Trojan Security Services, Inc. (Trojan). For the reasons set forth below, we reverse the December 24, 1996, action, grant MUHF's Petition, and award a dispositive preference to MUHF for Station WIG912. II. BACKGROUND 2. On December 8, 1994, MUHF filed a finder's preference request (Request) targeting Trojan's authorization to operate Station WIG912 on frequency pair 507/510.8125 MHz. MUHF alleged in its Request that Trojan failed to operate Station WIG912 from December 6, 1993, through December 7, 1994, a period of one year or more, in violation of Section 90.157 of the Commission's Rules. In a supporting declaration to the Request, Mr. Charles R. Wells, president of MUHF, declared under penalty of perjury that MUHF had entered into an agreement with Motorola Communications and Electronics, Inc. (MCE), in which MCE transferred ownership to MUHF of MCE's community repeater located at Mount Lukens, to allow MUHF to convert the facility from a multiple-licensed facility to that of a private carrier. Under the agreement, MUHF would continue to provide repeater service to MCE's existing customers operating on frequency pair 507/510.8125 MHz, including service to Trojan. Mr. Wells stated that MUHF disabled Trojan's Station WIG912 on December 6, 1993, and physically removed the equipment associated with Station WIG912 from Mount Lukens. Mr. Wells alleged that as of December 6, 1993, Trojan ceased operating on Station WIG912, and began operating on MUHF's private carrier station, Station WIJ816, as a private carrier user. Mr. Wells further alleged that Trojan continued to operate on MUHF's Station WIJ816 through December 7, 1994. 3. On June 1, 1995, the instant Request and an accompanying service letter were served on Trojan by the former Office of Operations of the Wireless Telecommunications Bureau. Trojan timely filed an Opposition to the Request on June 30, 1995. In its Opposition, Trojan argued that if MUHF had disabled Trojan's Station WIG912, it had done so without proper notice to Trojan. Trojan alleged that it continued to pay $37.50 per month for repeater service, even after December 6, 1993, the date on which MUHF allegedly dismantled Trojan's system. As evidence of continuous operation of Station WIG912, Trojan provided a copy of a check in the amount of $37.50, made payable to Mobile Radio Service, Inc. (aka MUHF), dated April 10, 1995, as well as a copy of an invoice from MUHF dated March 2, 1994. 4. On July 19, 1995, MUHF filed a document entitled "Supplemental Information" (Supplement). In its Supplement, MUHF argued that Trojan had received proper notice from MUHF that MCE had transferred ownership of MCE's community repeater to MUHF. MUHF alleged that it had explained to Trojan, in writing, as well as verbally through Mr. Glen Dechert, an independent communications consultant, that Trojan was no longer engaging in community repeater operation under call sign WIG912, but was engaging in private carrier operation under call sign WIJ816. A sworn declaration from Mr. Dechert was included with the Supplement, stating that he had made countless attempts to reach an agreement with Trojan to modify Trojan's existing equipment, or provide new equipment at no charge to Trojan, so that Trojan could operate on a different frequency pair, due to heavy usage on MUHF's trunked Station WIJ816. Redacted copies of Mr. Dechert's telephone bills for the period January 16, 1994, though June 15, 1994, were submitted with the Supplement, as evidence that Mr. Dechert had contacted Trojan on behalf of MUHF on at least twenty-eight (28) separate occasions. 5. MUHF's Supplement also contained the sworn declaration of Mr. Erik Schull, an MUHF technician, in which Mr. Schull stated that on or about December 6, 1993, he and another MUHF technician installed a repeater at Mount Lukens to operate on the frequency 507.8125 MHz under MUHF's authorization for Station WIJ816. Mr. Schull stated that after MCE's equipment was removed, he tested the newly installed MUHF repeater and determined that no other repeater was transmitting from Mount Lukens on the frequency 507.8125 MHz. 6. On August 24, 1995, Trojan filed a letter responding to MUHF's Supplement, arguing that Trojan had continued to pay MUHF for community repeater service after December, 1993, without having received notice from MUHF that Trojan was now operating on Station WIJ816, and was no longer operating on Station WIG912. Trojan alleged that it had spoken to MUHF on several occasions after December, 1993, but that the conversations related to complaints that Trojan's "reception was deteriorating." 7. Trojan's August 24, 1995, filing further stated: With respect to the affidavit from Mobile UHF's consultant, Glen Dechert, Mr. Renteria did have several conversations with him but Mr. Renteria expressly notified him that Trojan wanted to keep its license and to keep its same frequency. He also informed Mr. Dechert that Trojan had never been informed of any changes in stations utilized by Motorola or Mobile UHF. Trojan repeatedly refused to sign any agreement with Mobile UHF, as urged by Mr. Dechert, that would effectively cancel its FCC license. 8. MUHF responded to Trojan's August 24, 1995, letter, by filing a letter on September 11, 1995, alleging that the statements in Trojan's August 24, 1995, letter were erroneous. MUHF argued that Trojan must have been on notice of the switch in service providers from MCE to MUHF, because prior to December, 1993, Trojan paid MCE for repeater service, but subsequent to December, 1993, Trojan sent its payment to MUHF. 9. MUHF's Request was denied on December 24, 1996, by the former Office of Operations of the Wireless Telecommunications Bureau. The denial letter stated: The finder alleged that a licensee using a community repeater was moved to a different repeater and therefore has not operated for more than a year. The target licensee states that this, if it happened, occurred without its knowledge. Because the licensee has continuously operated on the appropriate frequency, we find that an award of a finder's preference is not in the public interest. 10. MUHF timely filed the instant Petition on January 15, 1997. In its Petition, MUHF argued that the December 24, 1996, action was defective in that documentation had not been provided by Trojan to constitute a finding of operation of Station WIG912. MUHF argued that Trojan had failed to provide any documentation, such as canceled checks, to show operation of Station WIG912 during the period December 6, 1993, through December 7, 1994. MUHF further argued that any operation by Trojan of frequency pair 507/510.8125 MHz, after December 6, 1993, was on MUHF's Station WIJ816 as a private carrier user, since the transmitting equipment for Trojan's Station WIG912 had been removed by MUHF from Mount Lukens on December 6, 1993, and never replaced. 11. Trojan filed an opposition to MUHF's Petition on February 3, 1997. In opposition, Trojan argued that after MUHF purchased the repeater site from MCE, Trojan was forced to "spend thousands of dollars to lease radios on another frequency so that Trojan's day-to-day business operations could continue." 12. By letter dated October 8, 1997, the Policy and Rules Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, requested additional information from Trojan relating to Trojan's alleged operation of Station WIG912 during the subject period of December 6, 1993, through December 7, 1994. Trojan was provided thirty calendar days from the date of the request to provide the additional information (i.e., any response had to be filed no later than November 7, 1997). On November 10, 1997, Trojan filed its response to the October 8, 1997, information request. In response, Trojan provided, inter alia, the declaration of its vice-president, who stated under penalty of perjury that Trojan had "been placed at a disadvantage by a radio service company usurping our frequency and providing a shared trunked system to their clients...." Trojan provided two statements from radio rental firms, as proof that Trojan was forced to rent radios "following the piracy of its frequency by Mobile." Trojan also provided copies of checks made payable to MUHF, during the subject period. While the checks were not station or frequency specific, they nonetheless included the notation of MUHF's customer number for Trojan in the reference line. III. DISCUSSION 13. We note, as an initial matter, that the burden of proof in a finder's preference proceeding rests with the finder. In the matter before us, MUHF argues that it had entered into an agreement with MCE, in which MCE transferred ownership to MUHF of MCE's community repeater. As part of the agreement, MUHF provided repeater service to MCE's existing customers, including Trojan. MUHF alleges that it dismantled Trojan's operating equipment for Station WIG912 on December 6, 1993, and began providing service to Trojan on Station WIJ816 as a private carrier user. Trojan originally provided some evidence that it had operated during the subject period, in its effort to refute MUHF's Request, but the evidence was not station-specific. Based on Trojan's evidence that it had operated on the subject frequency pair, albeit not station-specific, MUHF's Request was denied on December 24, 1996. 14. Based upon our review of the record in this proceeding, we now find that Trojan failed to provide any conclusive evidence that it had operated Station WIG912 at any time during the period December 6, 1993, through December 7, 1994. There is no refutation on the record that the equipment associated with Trojan's Station WIG912 was disabled on December 6, 1993, and physically removed from Mount Lukens, rendering the station non-operational. With its Opposition, Trojan submitted a copy of a cancelled check dated April 10, 1995, as evidence of operation of Station WIG912. The check, however, was not station-specific and was for payment to MUHF for service subsequent to the subject time period. We find that there is evidence in the record that Trojan was provided some type of notice that MCE had entered into an agreement with MUHF, since Trojan began to make its monthly service payments to MUHF, and not to MCE, after December, 1993. MUHF provided the declaration of an independent communications consultant, sworn under penalty of perjury, that Trojan had been notified that it was operating on Station WIJ816, and not Station WIG912, as of December, 1993. Trojan has not provided any conclusive evidence during the course of this proceeding that it operated Station WIG912 during the subject period. Rather, Trojan admits that it sought cellular service while it was also paying MUHF for service, due to what Trojan considered to be loss of operating ability on Station WIG912. 15. Upon evaluation of the entirety of all the evidence submitted by both parties in this matter, we therefore find that MUHF satisfied its burden of proof and demonstrated that Trojan did not operate station WIG912 from December 6, 1993, through December 7, 1994. Under the Commission's Rules, a license for a station cancels automatically upon permanent discontinuance of operation for a period of one year or more. We therefore reverse the December 24, 1996, dismissal of MUHF's finder's preference request, and award a dispositive preference under the Finder's Preference program to MUHF for Station WIG912. IV. CONCLUSION AND ORDERING CLAUSES 16. For the reasons stated above, the dismissal of the finder's preference request filed by Mobile U.H.F., Inc. against Station WIG912 IS REVERSED. A dispositive preference under the finder's preference program IS AWARDED to Mobile U.H.F., Inc., for Station WIG912, formerly licensed to Trojan Security Services, Inc. Mobile U.H.F. has ninety (90) days from the date of release of this Order to follow regular application requirements and file an acceptable application with the Commission for the targeted frequencies. 17. IT IS ORDERED, pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405, and pursuant to Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, that the Petition for Reconsideration filed by Mobile U.H.F., Inc. IS GRANTED. 18. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau