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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 ) ) CECO ) Case No. 94F191 ) Finder's Preference Request ) Regarding Station WSB467 ) New Orleans, Louisiana ) ORDER Adopted: August 31, 1999 Released: September 1, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On April 2 1997, Linda S. Schafer (Schafer) filed a petition for reconsideration (Schafer Petition) of the March 6, 1997, set aside of an award to Schafer of a finder's preference request targeting Station WSB467, New Orleans, Louisiana. For the reasons discussed below, we affirm the March 6, 1997, action and dismiss the Schafer Petition. II. BACKGROUND 2. In 1991, the Commission established the finder's preference program to augment its compliance review efforts in the private land mobile radio service. The program was fashioned to provide incentives for individuals to survey licenses assigned in the 220-222 MHz, 470-572 MHz and 800-900 MHz bands in order to identify licensees who had failed to construct, place in operation or continue to operate their stations. Specifically, if an entity demonstrated that an existing license in the above-referenced bands had cancelled automatically for failure to comply with the Commission's Rules, then that entity was entitled to obtain a preference for use of the licensed frequencies in the assigned area. 3. In 1993, the Commission clarified certain aspects of the finder's preference program, including the effect the program would have on licensees in the Conventional 800 MHz General Category Pool. These channels could be the subject of a finder's preference request only if assigned on an exclusive basis to one or more licensees. Exclusivity on a General Category channel is accomplished among one or more licensees, when the total number of mobiles licensed on the channel equals 70 or more. If a channel in the Conventional 800 MHz General Category Pool is loaded to 70 or more units, then the Commission will not authorize any additional co-channel licensees in the area. It was only when a General Category channel was loaded to this extent in a geographic area that a licensee on the channel could be the subject of a finder's preference claim. When a finder successfully targets a co-channel licensee, the target license is deleted from the Commission's database after the finder's application for authorization is processed. There are instances, however, where a loaded channel in this band may not be the subject of a finder's preference request. A finder's preference claim does not lie against a target licensee, where the combined loading of the other non-targeted, co-channel licensees exceeds 70. 4. On June 15, 1994, Schafer filed a finder's preference request targeting Station WSB467. In her request, Schafer alleged that the target licensee, CECO, failed to construct its station in substantial accordance with its system parameters pursuant to Section 90.633 of the Commission's Rules. Specifically, Schafer provided the signed statement of Kenneth W. Smith, a certified surveyor. Mr. Smith stated that there were no visible antennas at the coordinates specified for Station WSB467. Schafer also provided photographs of the licensed site in which no construction was visible. On August 29, 1994, the former Office of Operations of the Wireless Telecommunications Bureau (Bureau) attempted to notify CECO by certified letter of Schafer's finder's request. The Notification was returned by the postal service as undeliverable and, consequently, CECO did not file an opposition. On December 8, 1994, counsel for Schafer requested expedited service on Schafer's finder's preference request. On January 11, 1995, the Bureau's former Office of Operations awarded a dispositive preference to Schafer and sent a notice of license cancellation to CECO by certified letter. 5. On February 9, 1995, following the award of the dispositive preference to Schafer, DBMLA, a co-channel licensee with CECO, filed a timely petition for reconsideration of the award. DBMLA stated that its license, on the channel in question, authorized a total of 71 mobiles, and that consequently, the channel was not a proper subject for a finder's preference request. Subsequently, on March 29, 1995, Schafer filed her application for authorization (FCC Form 600) for Station WSB467. On June 16, 1995, Schafer notified the Commission of a change of address. The Office of Operations agreed with DBMLA's findings and, on March 6, 1997, granted the DBMLA Petition and set aside Schafer's dispositive award for Station WSB467. On April 2, 1997, Schafer filed the petition for reconsideration that we are considering in this Order, seeking reinstatement of the finder's preference award for Station WSB467. III. DISCUSSION 6. Schafer complains that she was not properly notified of the DBMLA Petition and only became aware of the pleading after the Commission sent out its March 6, 1997, Set Aside Letter. When the DBMLA Petition was filed with the Commission, it was accompanied by a certificate of service containing Schafer's address at 3735 Baxter Avenue. Although we agree that the postal service was unable to deliver the DBMLA Petition to Schafer, because she was no longer located at the 3735 Baxter Avenue address, we find, nevertheless, that Schafer received constructive notice of DBMLA's Petition. Section 1.47(d) of the Commission's Rules provides that "documents may be served upon a party, his attorney, or other duly constituted agent by delivering a copy or by mailing a copy to the last known address." Section 1.5 of the Commission's Rules specifies that the mailing address furnished by a licensee on its most recent application will be used by the Commission for official correspondence unless the licensee notifies the Commission to the contrary. As referenced above, the Commission was not apprised of Schafer's change of address until June 16, 1995. Therefore, on February 9, 1995, DBMLA properly served Schafer at her last known address of 3735 Baxter Avenue. 7. Schafer also puts forth several arguments pertaining to DBMLA's qualifications as a licensee. She argues that the Commission was in error in granting DBMLA an authorization for frequency 851.2875 MHz, that DBMLA failed to construct, and that, therefore, DBMLA was, in fact, not loaded to 70 mobile units. Based upon our review of the record and the Commission's database, we find these arguments to be unsubstantiated and without merit. DBMLA was properly coordinated and authorized as a new licensee on April 29, 1994. At the time of DBMLA's authorization, CECO was the only other co- channel licensee within seventy miles of DBMLA's coordinates. Since CECO was not loaded to 70 mobiles at the time DBMLA's application for authorization was filed, the channel was available for assignment to other licensees. Furthermore, the Commission's database reflects a showing of construction from DBMLA on October 11, 1994. The database does reflect a lapse in service from July 22, 1997 to September 22, 1997, at which time DBMLA's license was reinstated. We, however, do not believe that this finding is relevant to the Schafer petition because the three-month lapse in service was not permanent. Finally, as was referenced in the Set Aside Letter, DBMLA was indeed fully loaded to 70 mobiles at the time Schafer's request was filed. Therefore, we conclude that Station WSB467 was never a proper subject of a finder's preference request. Accordingly, we affirm the set aside of the grant of Schafer's finder's preference request and deny Schafer's petition for reconsideration. IV. ORDERING CLAUSES 8. For the reasons discussed above, the set aside of the finder's preference award to Linda S. Schafer against Station WSB467 IS AFFIRMED. 9. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, that the petition for reconsideration filed by Linda S. Schafer IS DENIED. 10. 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