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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 ) ) J-MAC COMMUNICATIONS ) Case No. 96F079 ) Finder's Preference Request ) Regarding Station WPAJ860 ) Fort Smith, Arkansas ) ORDER ON RECONSIDERATION 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 4, 1997, J-MAC Communications (J-MAC) filed a waiver request for consideration of an untimely petition (Waiver Request) and a petition for reconsideration (Petition) of the January 10, 1997, award to Didier Communications Services, Inc. (Didier) of a finder's preference request targeting Station WPAJ860, Fort Smith Arkansas. For the reasons discussed below, we affirm the January 10, 1997, action and dismiss the Petition. II. BACKGROUND 2. On November 29, 1995, Didier filed a finder's preference request targeting Station WPAJ860. In its request, Didier alleged that J-MAC failed to timely construct its station in accordance with Section 90.633 of the Commission's Rules. On February 21, 1996, J-MAC was notified of the Didier finder's preference request and, subsequently, filed an opposition addressing the causes for its delayed construction. On January 10, 1997, the former Office of Operations of the Wireless Telecommunications Bureau (Bureau) awarded a dispositive preference to Didier and sent a notice of license cancellation to J- MAC by certified letter. On April 4, 1997, J-MAC filed a Waiver Request along with its Petition seeking reconsideration of the January 10, 1997, award of a dispositive finder's preference. III. DISCUSSION 3. Waiver Request for Acceptance of Untimely Filed Petition. J-MAC argues that it never received the January 10, 1997 notification of license cancellation and only became aware of these findings on April 2, 1997, through personal inquiry and the intervention of a third party. Thus, it contends that it should be allowed to seek reconsideration of the action as of the date it learned of the decision because it had no earlier knowledge of it. 4. Section 405 of the Communications Act (Act), as implemented by Section 1.106(f) of the Commission's Rules, establishes that a petition for reconsideration must be filed within 30 days from the release date of the Commission's action. The 30-day period is calculated in accordance with Section 1.4(b)(5) of the Commission's Rules. As stated above, the letter cancelling J-MAC's license was dated January 10, 1997. This established January 11, 1997, as the first day of the 30-day period. Thus, J- MAC's Petition should have been filed no later than February 10, 1997. Because the filing period is prescribed by statute, the Commission may not ordinarily waive or extend the filing period. The filing period may be extended only in the "extraordinary case" where the late-filed petition was due to the Commission's failure to give notice. On January 10, 1997, the Bureau's former Office of Operations complied with the personal notice requirement by sending the letter addressing license cancellation for Station WPAJ860 and also a copy of the Didier award letter to J-MAC by certified mail to the address for J-MAC listed in the Commission's database. Further, J-MAC does not suggest Commission error in failing to give notice - - only that the notification was never received. Based on these facts, we do not believe that J-MAC has demonstrated defective notice in this instance and, thus, we deny J-MAC's request for an extension of the filing deadline. 5. Petition for Reconsideration. As stated above, the Commission generally is without authority to extend or waive the statutory 30-day filing period for petitions for reconsideration specified in Section 405 of the Act. However, assuming arguendo that we were able to address the underlying merits of J- MAC's Petition, we find that the Petition fails to convey any substantial evidence of new facts or changed circumstances which would warrant a reversal of the finder's preference award to Didier. First, J-MAC contends that the station was, in fact, timely constructed in 1993, but was not active on its frequency between August 1, 1995 and November 17, 1995, due to equipment malfunction. This statement directly contradicts J-MAC's earlier assertion that construction was delayed and not completed until after July, 1995. Moreover, no additional evidence of timely station completion is presented in the Petition. Furthermore, on May 4, 1993, the Consumer Assistance Branch of the former Office of Operations requested information concerning J-MAC's construction of Station WPAJ860, however, the Commission's database does not reflect that a response was received from J-MAC. Second, J-MAC argues that the finder, Didier, did not present sufficient evidence to warrant the cancellation of J-MAC's license. However, as was stated in the notice of license cancellation, the finder provided adequate evidence, consisting of a "monitoring log and the declaration of the site manager that the station was not constructed in a timely fashion", to establish a prima facie case of failure to construct. J-MAC presents no new evidence to rebut these assertions. IV. CONCLUSION AND ORDERING CLAUSES 6. For the reasons discussed above, the grant of the finder's preference requests filed by Didier Communications, Inc. against Station WPAJ860 is AFFIRMED. 7. 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 Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, that the waiver request filed by J-MAC Communications is DENIED. 8. 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 J-MAC Communications is DISMISSED. 9. 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