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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 ) ) DALE KANE d/b/a ) KANE COMMUNICATIONS ) Case Nos. 93F513 & 93F514 ) Finder's Preference Request ) Regarding Station WIK209 ) Los Angeles, California ) 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 June 23, 1993, Dale Kane d/b/a Kane Communications (Kane) filed a petition for reconsideration (Petition) of the May 25, 1993, cancellation of its license to operate Station WIK209, a station operating out of the Los Angeles vicinity, at three of Station WIK209's four authorized sites. An amended finder's preference request had been filed against the three sites by Roto Rooter Service and Plumbing Company (Roto Rooter) on February 16, 1993. The three sites were awarded to Roto Rooter on May 25, 1993, by the former Office of Operations of the Wireless Telecommunications Bureau (Office of Operations). For the reasons set forth below, we affirm the May 25, 1993, action, and deny Kane's Petition. II. BACKGROUND 2. On February 8, 1993, Roto Rooter filed a finder's preference request (Request) targeting Kane's authorization to operate Station WIK209 on frequency pair 472/475.2375 MHz at Mount Lukens, Oat Mountain, and Sierra Peak, three of Station WIK209's four authorized sites. Roto Rooter, a co-channel licensee operating on frequency pair 472/475.2375 MHz under call sign WNBL642, alleged in its Request that Kane failed to construct and operate Station WIK209, in violation of Sections 90.155 and 90.157 of the Commission's Rules. The Request was dated January 29, 1993, and noted that: "A copy of this filing will be "hand delivered to Dale Kane of Kane Communications on February 5, 1993." Attachments to the Request were not filed. 3. On February 16, 1993, Roto Rooter filed an amended finder's preference request (Amended Request). The Amended Request, also dated January 29, 1993, contained the same allegations of non- construction and non-operation of the three subject sites contained in the initial Request, but noted that: "A copy of this filing will be hand delivered to Dale Kane of Kane Communications on February 5, 1993, via Federal Express Ticket #6350215815." The Amended Request included twenty-two (22) color photographs as attachments. Although the Request did not contain attachments, both the Request and the Amended Request stated: "Attached photo exhibits show the position and location in the building in which Mr. Kane has allegedly constructed. As you can see there are no repeater boxes on this respective frequency." The Amended Request included a statement from Mr. Kirk B. Fybel, spectrum coordinator of Motorola Communications & Electronics, certified under penalty of perjury, stating that he had inspected the Sierra Peak site of Station WIK209, but did not observe any station operating on the subject frequencies. Both the Request and the Amended Request stated: "Based upon site inspections and monitoring by our vendor (Motorola - Kirk Fybel) we are certain that these transmitters do not exist." 4. Kane never filed an Opposition to the Request or Amended Request. Roto Rooter was awarded a dispositive preference under the finder's preference program for the Sierra Peak site of Station WIK209 on March 10, 1993. On March 11, 1993, Kane was notified via certified mail that the Sierra Peak and Mount Lukens sites of Station WIK209 had been cancelled. On April 20, 1993, the Cancellation Letter was returned by the U.S. Post Office marked "Unclaimed - 4/14/93." On May 25, 1993, the Office of Operations sent Roto Rooter a corrected award letter, notifying Roto Rooter that it was awarded a dispositive preference under the finder's preference program for Station WIK209's Mount Lukens, Oat Mountain and Sierra Peak sites, the three sites targeted by Roto Rooter in its Request and Amended Request. Also, on May 25, 1993, the Office of Operations sent Kane a corrected cancellation notice, notifying Kane that its authorization to operate Station WIK209 at its Mount Lukens, Oat Mountain and Sierra Peak sites had cancelled automatically, based upon Roto Rooter evidence of violation of Sections 90.155 and 90.157 of the Commission's Rules. 5. Kane timely filed the instant Petition on June 23, 1993. Attached to Kane's Petition was a copy of Roto Rooter's Amended Request. In its Petition, Kane argued that the May 23, 1993, action was defective in that Roto Rooter sought a dispositive preference solely for Station WIK209's Sierra Peak site, but had been awarded two additional sites. Kane alleges that it had never received notice that Station WIK209's Mount Lukens and Oat Mountain sites had also been targeted. 6. Kane additionally argues that Roto Rooter had not served a complete copy of its filing to Kane because Kane had never received the photographic attachments. Kane also alleged that Roto Rooter had failed to provide proof of service on Kane of the finder's preference proceeding, stating: Roto Rooter by way of their request dated January 29, 1993, asserts an intention to serve Dale Kane on February 5, 1993, via Federal Express Ticket #6350215815. It is simply logic one cannot represent they have performed an act, (serving a copy of said Request upon Dale Kane), prior to the occurrence of such Act. As the letter in which the alleged proof of service it contained was dated January 29, 1993, this is precisely what Roto Rooter has attempted to do. 7. Kane argues that Roto Rooter did not make out a prima facie case because Roto Rooter did not provide any evidence that Kane had failed to timely construct and continuously operate Station WIK209. Kane alleges that Roto Rooter had made serious misrepresentations to the FCC because Mr. Danny Lynton, corporate officer of Roto Rooter, stated in a document dated January 29, 1993, that Mr. Fybel had conducted an inspection and had monitored Station WIK209. Kane alleges that it was impossible for Mr. Lynton to make this representation on January 29, 1993, since in Mr. Fybel's statement, dated February 5, 1993, he stated that he had inspected the Sierra Peak site on February 3, 1993. 8. Kane's final argument is that Station WIK209 was timely constructed and continuously operated at all three subject sites, with the exception of a one-month period beginning on December 27, 1992. Kane argues that since the equipment was removed at the end of December, 1992, and Roto Rooter targeted the site in a finder's preference proceeding approximately one month later, the Sierra site had not discontinued operations for a period in excess of one year at the time the Sierra site became the subject of a finder's preference proceeding. Kane alleges that Roto Rooter and Kane had complained to each other that each operator believed that the other operator was causing harmful interference at Oat Mountain on their shared frequencies. Kane therefore argues in his Petition that Roto Rooter's complaints of interference by Kane at Oat Mountain were evidence that Kane must have been operating at Station WIK209's Oat Mountain site, or there would not have been an interference dispute. Evidence of Roto Rooter's alleged complaints was not included by Kane with the Petition. III. DISCUSSION 9. Kane's initial argument in the Petition is that Roto Rooter had not sought a dispositive preference for Station WIK209's Mount Lukens and Oat Mountain sites. We disagree. Both the Request and the Amended Request list Station WIK209 and the three subject sites, stating: Target licensee's call sign and location of licensed facility being pursued: WIK209 Sierra Peak, Corona, Orange, CA (33-51-00/117-39-05) Mount Lukens, Montrose, Los Angeles, CA (34-16-05/118-14-10) Oat Mtn., Northridge, Los Angeles, CA (34-19-32/118-35-01). Roto Rooter's separate statement by Mr. Fybel relating to Station WIK209's Sierra Peak site corroborates non-construction and non-operation at that specific site. The additional corroborative evidence concerning Station WIK209's Sierra Peak site does not void Roto Rooter's claim against Station WIK209's Mount Lukens and Oat Mountain sites. 10. Kane's second argument in the Petition is that Kane had not been served with a complete copy of Roto Rooter's filing, because Kane had not received the photographic attachments. We disagree. Even if the photographs were not received, we consider such error to be harmless under the circumstances presented. In this connection, we note that even if the photographs are not considered, we believe that Roto Rooter has provided other evidence sufficient to demonstrate cancellation of the Mount Lukens, Oat Mountain, and Sierra Peak sites of Station WIK209. 11. Kane additionally argues that Roto Rooter had failed to provide proof of service on Kane of the finder's preference proceeding relating to Station WIK209, and instead, only asserted an intention to serve Dale Kane via Federal Express. We disagree. The Amended Request, the text of which was received by Kane, was filed on February 16, 1993, and appears to be a refiling of the Request filed on February 8, 1993, as well as the photographic attachments, Mr. Fybel's statement, and an amended notice of service on Kane. Moreover, the substance of Kane's contentions acknowledge receipt of the Amended Request without the photographic attachments. 12. Kane argues that Mr. Fybel's written statement and his inspection did not exist on January 29, 1993, the date typed on Mr. Lynton's Request and Amended Request. While it appears that Mr. Lynton's Request and Amended Request were misdated, we nonetheless note that the record reflects that Mr. Fybel's inspection occurred prior to the filing of the Request on February 8, 1993, as well as the filing of the Amended Request on February 16, 1993. Significantly, Kane has not disputed the results of that inspection as reported in Mr. Lynton's letter. Thus we do not believe that such a dating error should alter the outcome in this proceeding. 13. Based upon our review of the record in this proceeding, we find that Roto Rooter had provided Kane with sufficient notice to allow Kane to rebut Roto Rooter's claims. We further find that Kane could have done so by filing an Opposition to the Request or Amended Request. Significantly, Kane failed to rebut Roto Rooter's claims by filing an Opposition. Other than a bare statement that Station WIK209 was timely constructed and had not permanently discontinued operations, Kane failed to provide any objective and documentary evidence, even in his Petition, that he had complied with the Commission's construction and operation rules. 14. Upon evaluation of the entirety of the evidence submitted by both parties in this matter, we therefore find that Roto Rooter satisfied its burden of proof and demonstrated that Kane failed to construct and continuously operate Station WIK209 at the subject sites in accordance with Sections 90.155 and 90.157 of the Commission's Rules. We therefore affirm the May 25, 1993, action awarding a dispositive preference under the Finder's Preference program to Roto Rooter for Station WIK209's Mount Lukens, Oat Mountain and Sierra Peak sites. IV. CONCLUSION AND ORDERING CLAUSES 15. For the reasons stated above, 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), 405, and Sections 1.104(b) and 1.106(f) of the Commission's Rules, 47 C.F.R.  1.104(b), 1.106(f), the Petition for Reconsideration filed by Dale Kane d/b/a kane Communications IS DENIED. 16. Accordingly, grant of the finder's preference requests filed by Roto Rooter Service and Plumbing Company on February 8, 1993, and February 16, 1993, ARE AFFIRMED. Roto Rooter 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 three targeted sites on frequency pair 472/475.2375 MHz. 17. 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