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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 ) ) VERACON, INC. ) ) Case No. 93F632 FINDER'S PREFERENCE REQUEST ) REGARDING STATION WNVA790, ) CHICAGO, ILLINOIS ) ORDER Adopted: September 30, 1999 Released: October 1, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On July 15, 1994, Veracon, Inc. (Veracon) filed a petition for reconsideration (Petition) of the June 15, 1994, dismissal of its finder's preference request targeting Station WNVA790, located in Chicago, Illinois, licensed to Calumet Bus Service, Inc. (Calumet). For the reasons discussed below, we reverse the June 15, 1994, action, grant Veracon's Petition, and award a dispositive preference to Veracon for Station WNVA790. II. BACKGROUND 2. On October 26, 1993, Veracon filed a finder's preference request (Request) targeting Calumet's authorization to operate Station WNVA790 on frequency pair 853.2375/808.2375 MHz. Veracon alleged in its Request that Calumet failed to timely construct and operate Station WNVA790, in violation of Sections 90.157 and 90.633 of the Commission's Rules. In a supporting declaration to the Request, Mr. Robert Barcal, Sr. (Mr. Barcal), president of Veracon, declared under penalty of perjury that he is a principal of E.S.P. Leasing, which leases repeater space at One First National Plaza in Chicago, Illinois, the same location as the authorized transmitter site for Calumet's Station WNVA790. Mr. Barcal stated that he has access to the repeater site, and that as early as June 1, 1993, he noted that he could not locate any equipment operating on Station WNVA790's authorized frequencies. Mr. Barcal further stated that although Calumet received authorization to operate Station WNVA790 on January 17, 1991, in the name of "Calumet Bus Service, Inc.," it has not had a corporate existence in Illinois since 1960. As evidence that Calumet did not have a corporate existence in Illinois, Veracon provided a copy of a September 3, 1993, notice from the Office of the Secretary of State of the State of Illinois, stating that Calumet Bus Service, Inc. was involuntarily dissolved on December 27, 1960, "for failure to file an annual report and/or pay franchise taxes." 3. As part of Veracon's Request, Mr. Barcal alleged that he monitored Station WNVA790 on two separate occasions in February, 1993, but did not detect any transmissions. Mr. Barcal stated that on September 17, 1993, he personally visited 2323 West 47th Avenue in Gary, Indiana, the control point location reflected on Station WNVA790's authorization, and learned that the control point location was Calumet's business address and the location where it stored its buses. After speaking to both Calumet's office and maintenance managers, and inspecting one of Calumet's bus radios with a frequency counter, Mr. Barcal determined that Calumet's buses were operating on Station KNHQ715 (base/mobile frequency 155.2800 MHz), another station authorized to Calumet, instead of operating on 800 MHz Station WNVA790 (frequencies 853.2375/808.2375 MHz). Mr. Barcal also observed that Calumet's buses were using a VHF radio system with 14" whip antennas, the type typically employed for VHF frequencies. He noted that the antenna on the tower for the base station located at Calumet's Gary, Indiana office was a VHF antenna, although Station WNVA790's authorization is for an 800 MHz system and would employ a shorter 800 MHz radio antenna. 4. At the time the Request was filed, a target licensee was provided a ten (10) day period in which to file an Opposition in a finder's preference proceeding. Therefore, any Opposition to Veracon's Request had to be filed by Calumet by November 10, 1993. By letter dated December 7, 1993, Calumet filed a request for an extension of time until December 17, 1993, in which to file an Opposition. In its extension request, Calumet argued that it had been served with the Request directly by Veracon, and had only recently retained counsel, and Calumet's counsel required additional time to prepare a response. On December 9, 1993, Veracon filed an objection to Calumet's extension request, arguing that Calumet waited approximately one month after being served with Veracon's Request prior to obtaining counsel. On December 17, 1993, Calumet filed its Opposition to Veracon's Request. Calumet's extension request, seeking an extension of time until December 17, 1993, in which to file any Opposition, was granted on June 15, 1994, concurrent with the initial denial of Veracon's Request. Because the extension request was granted, Calumet's Opposition was considered. 5. In its Opposition, Calumet admitted that it was not an Illinois Corporation. Calumet stated that it was a subsidiary of "Vancom Transportation, Inc. of Indiana" (Vancom), and that "Indiana Bus Service, Inc.," a Vancom subsidiary, had assumed the business name of "Calumet Bus Service, Inc.," and later amended the articles of Indiana Bus Service, Inc. to change its name to Vancom-Indiana, Inc. Calumet conceded in its Opposition that it had not informed the Commission of its change in name from Calumet Bus Service, Inc. to Vancom-Indiana, Inc. Calumet further stated that its Opposition to Veracon's Request was untimely filed because "Calumet was under the impression that it would respond to Veracon's Request when the Commission asked for a response." 6. Calumet additionally argued in its Opposition that Mr. Barcal may not have seen the equipment for Station WNVA790 when he visited their repeater site in June of 1993, because their equipment was locked in a cabinet which is accessible only to authorized persons. Calumet also argued that Mr. Barcal may not have heard any transmissions from Station WNVA790 in February, 1993, when he monitored the subject frequencies, since "channel occupancy by two-way radio used in connection with the operation of buses is not heavy." Calumet further argued that Mr. Barcal did not observe any 800 MHz equipment at Calumet's operation center because Calumet had relocated its control point to serve the needs of "Vancom- Illinois," another Vancom subsidiary. Calumet alleged that a control point may be relocated without prior Commission approval, citing former Section 90.61(a) of the Commission's Rules. 7. Calumet additionally argued that use of a station to provide service to a parent or sister subsidiary is not only permissible, but was the Commission's historic practice. In this connection, Calumet stated: "Thus, while initially Station WNVA790 was intended to provide communications service to Calumet, for management and operational reasons not here relevant, the station is now used to serve the needs of Vancom-Illinois, another Vancom subsidiary." As evidence of construction and operation of Station WNVA790, Calumet provided the statement of Mr. Bruce Hamann, Corporate Director of Maintenance at Vancom, certifying that Station WNVA790 was installed during February, 1991, and provided service to "Vancom-Illinois, located at 16950 S. State Street, South Holland, IL., which is and has been a subsidiary of Vancom, Inc. as is and has been Calumet Bus Service, Inc." 8. Veracon timely filed a Reply to Calumet's Opposition on December 29, 1993. In its Reply, Veracon noted various inconsistencies, discussed infra, in Calumet's Opposition. In further support of its evidence indicating that Station WNVA790 had not operated for a period in excess of one year, in violation of the Commission's rules, Veracon submitted a letter from Mr. Richard Lamkey of Nilco, Inc. (Nilco). Mr. Lamkey declared under penalty of perjury that Nilco is licensed to operate on subject frequencies 853.2375/808.2375 MHz in the Chicago area under Call Sign WNQZ339, issued December 20, 1989, and has "never experienced any form of radio traffic that would be or could be associated with a bus transportation service while monitoring our frequency." 9. On February 4, 1994, thirty-seven days after Veracon filed its Reply, Calumet filed an unauthorized pleading entitled "Supplement to Opposition to Finder's Preference Request" (Sur-Reply). As part of its Sur-Reply, Calumet submitted into evidence a work order, three purchase orders, and three invoices to "conclusively prove the timely construction and continuous operation of WNVA790." The site at which Station WNVA790's repeater was delivered and installed is not identified on the documents, nor are the radios identified on which the frequency was programmed. 10. Veracon's finder's preference request was denied on June 15, 1994, by the Office of Operations. The denial letter stated: Veracon has not conclusively demonstrated that Calumet did not construct Station WNVA790 by its construction deadline, nor has it demonstrated that Calumet discontinued operation for more than one year. 11. Veracon timely filed the instant Petition on July 15, 1994. In its Petition, Veracon argued that the June 15, 1994, action was defective in that documentation had not been provided by Calumet to constitute a finding of construction and operation by Calumet of Station WNVA790 at the station's authorized location. Veracon additionally argued that Calumet's late-filed Opposition should not have been considered, since Veracon filed the instant Request prior to the effective date of the amended rules. Veracon further argued that Calumet's late-filed Sur-Reply should not have been considered since Section 1.46(a) of the Commission's Rules, 47 C.F.R.  1.46(a) (1994), states that it is the policy of the Commission that extensions of time shall not be routinely granted. Veracon finally argued that the delegated authority had not carefully considered the evidence when it denied Veracon's Request on June 15, 1994. 12. Calumet timely filed an Opposition to Veracon's Petition on July 28, 1994. In its Opposition to Petition, Calumet argued that it had not disclosed the name of its corporate parent in its initial application for Station WNVA790, because "no FCC land mobile application does." Calumet also argued that it was irrelevant that its application for Station WNVA790 did not provide information relating to provision of service to corporate affiliates, because "such information is not required." Calumet further argued that it was irrelevant that its site lease for Station WNVA790 did not specify the frequency for the station because "site leases typically do not." In response to Veracon's argument that Calumet's late-filed Opposition and late-filed Sur-Reply should not have been accepted, Calumet argued that it was in the public interest to accept the pleadings. III. DISCUSSION 13. Veracon asserts that the initial decision did not accurately gauge the sufficiency of its evidence. In this connection, Veracon contends that it set forth prima facie evidence of non-operation of Station WNVA790 in its Request, but based upon Calumet's evidence, although inconclusive, Veracon's Request was denied on June 15, 1994. After reviewing the entire record in this proceeding, including all pleadings relating to the instant Petition, we agree with Veracon and are reversing the initial decision, because we find that Calumet's rebuttal to Veracon's non-operational claims is insufficient. Calumet had originally provided some evidence that it had constructed and operated during the subject period, in its effort to refute Veracon's Request, but the evidence was not frequency or station-specific. Although Calumet had been provided an opportunity to rebut Veracon's claims, and was at risk of losing its license, Calumet failed to provide any verifiable evidence that it had constructed Station WNVA790, or, if constructed, that Station WNVA790 had not ceased operations for a period in excess of one year, in violation of our rules. Calumet's "Site Agreement," for example, which it had submitted with its Opposition, did not list Calumet, Station WNVA790, or frequencies 853.2375/808.2375 MHz. The site agreement was between Nationwide Radio Communications, Inc. and Vancom, and pertained to an unidentified 800 MHz repeater. While such repeater could have been Station WNVA790, it is equally plausible that it was not. 14. Calumet also argued that Veracon had not observed any 800 MHz equipment when Mr. Barcal visited Calumet at its originally authorized location, because Calumet had moved Station WNVA790's control point location without the Commission's prior knowledge. Calumet stated that prior Commission approval of a change in control point location was not required. Although prior Commission approval was not required to change a control point location, Calumet was required to submit a modification application to the Commission within thirty (30) days of changing Station WNVA790's control point location, pursuant to former Sections 90.135(a)(5) and 90.135(e) of the Commission's Rules, if indeed such a control point location change did occur. The existence of a subsequent follow-up application that had been filed by Calumet to modify its license would lend credence to its representation that it moved an actual control point. Inability of Calumet to document such a change in control point location, on the other hand, renders Calumet's explanation that it changed its control point as nothing more than an unsupported allegation. Thus, we are not persuaded that such allegation adequately rebuts Veracon's finder's preference showing. 15. Further, Calumet attempts to rely upon the argument that although it may appear as if it was not operating Station WNVA790, its sister subsidiary, Vancom-Illinois, was allegedly operating the station. Calumet has not, however, met its burden of proof in demonstrating the veracity of this proposition. Specifically, Calumet has not provided conclusive evidence of construction and operation of Station WNVA790 either in its own name or in the name of Vancom-Illinois. 16. Having further reviewed all of the evidence in this matter, we find that Veracon has sufficiently demonstrated that Calumet failed to timely construct and operate Station WNVA790, in violation of the Commission's rules. Calumet provided insufficient evidence to rebut the substantial showing made by Veracon. We believe that if Calumet had in fact constructed and operated Station WNVA790, it could have provided a coherent description of the construction and operation of the station, or construction and operation by its sister subsidiary, with substantial corroborating evidence. Instead, Calumet has provided unsubstantiated allegations with a variety of reasons advanced for inadequate evidentiary support for those allegations. Thus, we conclude that Calumet failed to make the showing required to retain its station license. IV. CONCLUSION AND ORDERING CLAUSES 17. For the reasons stated above, the dismissal of the finder's preference request filed by Veracon, Inc. against Station WNVA790 IS REVERSED. Accordingly, a dispositive preference under the finder's preference program IS AWARDED to Veracon, Inc. for Station WNVA790, formerly licensed to Calumet Bus Service, Inc. Veracon, Inc. 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. 18. 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 Petition for Reconsideration filed by Veracon, Inc. IS GRANTED. 19. 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