Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) COX COMMUNICATIONS, INC. ) Case No. 94F559 ) Finder's Preference Request ) Regarding Station WNLI362 ) San Diego, California ) ORDER Adopted: October 18, 1999 Released: October 19, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On October 18, 1995, Agnes Pennington d/b/a Communications Licensing Consultants (CLC), filed a petition for reconsideration of the September 21, 1995, dismissal of its finder's preference request targeting Station WNLI362, San Diego, California. For the reasons discussed below, we affirm the September 21, 1995, action and dismiss the CLC 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. Pursuant to this program, an entity who submitted evidence that an existing license in the above-referenced bands had cancelled automatically for failure to construct, place- in-operation, or continue to operate its station in compliance with the Commission's Rules was entitled to obtain a preference for use of the licensed frequencies in the assigned area. 3. On December 27, 1994, CLC filed a finder's preference request targeting Station WNLI362. In its request, CLC alleged that the target licensee, Cox Communications, Inc. (Cox) failed to construct its station and place it in operation within eight months as required by Section 90.633 of the Commission's Rules. Specifically, CLC alleged that it had for four months continuously monitored Station WNLI362 at its licensed site on Mount Otay, San Diego, California, and had not detected any transmissions emanating from this location. Moreover, CLC claimed that Cox was "illegally transmitting" on frequency 856.6000 MHz at San Miguel Mountain, a location beyond Cox's license coordinates. 4. On March 6, 1995, the former Office of Operations of the Wireless Telecommunications Bureau (Bureau) notified Cox of CLC's finder's preference request and, Cox, subsequently, filed an opposition on April 5, 1995. In its opposition, Cox presented substantial proof that it had constructed on the Mount Otay site, following its request to relocate from Mount Cowles to Mount Otay on September 18, 1992. Cox claims that it operated at the Mount Otay location until February, 1994, at which time it moved the transmitter for Station WNLI362 to San Miguel Mountain. Cox readily admits that it did not file a modification application until June 8, 1994, which, because of a clerical error by the National Association of Business and Educational Radio (NABER), was not received by the Commission prior to the the filing of CLC's finder's preference request. Nevertheless, Cox argues that it was operational at all times during this period, and that its filing error is not grounds for grant of a finder's preference request. On April 13, 1995, the Commission granted Cox a special temporary authorization to continue to operate Station WNLI362 from San Miguel Mountain. 5. On April 18, 1995, CLC filed a reply to Cox's Opposition and a motion to accept its late -filed pleading. In its reply, CLC requested leave to amend its finder's preference request to expand the scope of possible rule violations by Cox to include permanent discontinuance of service as proscribed by Section 90.157 of the Commission's Rules. Subsequently, both parties filed further supplemental information. On September 21, 1995, the former Office of Operations denied CLC's finder's preference request finding that since the request was "based solely on a violation of 47 C.F.R.  90.633, and the finder has not carried its burden of showing that a violation of that rule occurred, the finder's request is denied." On October 18, 1995, CLC filed a petition seeking reconsideration of the Office of Operations denial of its finder's request. In response, Cox filed an opposition on November 1, 1995. III. DISCUSSION 6. First, CLC argues that the former Office of Operations failed to address CLC's request to amend its finder's preference request and "should acknowledge that Station WNLI362 was not operated at the authorized location for a period in excess of one year and should permit CLC to amend its finder's request to conform to those facts." As the September 21, 1995, Denial Letter did not directly speak to the late-filed pleadings in this matter, we will address the issue in this Order. When the Commission implemented the finder's preference program it determined that Section 1.45 of the Commission's Rules would govern the filing deadlines for all pleadings. Section 1.45 of the Commission's Rules requires parties to file a reply, if desired, "within 5 days after the time for filing oppositions has expired." The former Office of Operations notified Cox of the finder's preference request filed by CLC on March 6, 1995, thereby establishing an April 5, 1995 cut-off date for the filing of an opposition and an April 10, 1995 deadline for replies. CLC's Reply was filed on April 18, 1995, clearly after the established deadline. 7. Moreover, from the inception of the finder's preference program, the Commission required a finder's request to contain certain specific information, including the rule section that the target allegedly violated and a detailed statement regarding the nature of that violation. It would be unduly burdensome to both the Commission and the target licensee to allow a finder to rely on information provided in a target's opposition statement to amend its request to include additional rule violations. Allowing a finder to amend its request under these circumstances could result in an unwieldy pleading cycle. In this case, it appears that CLC was aware that Cox was transmitting from the San Miguel site, but elected not to ascertain if a discontinuance of operation violation had occurred prior to submitting its finder's preference request regarding Station WNLI362. Accordingly, we affirm the decision by the former Office of Operations to consider neither the late-filed reply nor any of the further unauthorized supplemental information filed by the parties. 8. Moreover, assuming arguendo that we were able to authorize the late-filed pleadings and amend CLC's finder's request to reference the discontinuance of operation claim pursuant to Section 90.157 of the Commission's Rules, we find that the underlying merits of CLC's amended request do not warrant a reversal of the decision by the former Office of Operations. As the Commission has previously discussed in Cassell, the primary motivation for the finder's preference program was to "facilitate a means for recapturing unused channels so that licensing opportunities could be provided in those areas where there is limited available spectrum." The Commission went on to explain that the program should not be utilized "as a means to disrupt service being provided to the public by alleging license cancellation based on minor variations from authorized parameters." Moreover, as discussed above, the Commission only anticipated the filing of a finder's preference request in response to specific violations of the Commission's Rules governing construction and operation. While Cox's unauthorized relocation appears to have been in violation of Sections 90.135 and 90.169 of the Commission's Rules, it does not negate the fact that Cox presented sufficient evidence of both construction and continuous operation. 9. Second, CLC argues that the evidence provided by Cox in its opposition was tainted, because of CLC's failure to make its unsworn declaration under penalty of perjury as required by Section 1.16 of the Commission's Rules, and therefore, should not have been relied upon by the former Office of Operations in making its decision. We note that Cox's Opposition contained the following Declaration by Paul R. Workman, Director of Technical Services for Cox: I have read the forgoing "Opposition to Finder's Preference Request for Business Radio Station WNLI362" and the facts stated therein are true and correct to the best of my knowledge and belief. We find CLC's argument to be without merit. The Commission, because it was concerned that some parties might have used the finder's program to "harass other licensees or in other ways violate our rules or other federal laws," required finder's requests to be "attested to by the applicant or a principal of the applicant either in the form of an affidavit or declaration under penalty of perjury." The target licensee, however, did not bear the burden of proof in a finder's proceeding and, therefore, while the Commission expects all pleadings submitted to be truthful, it did not require a similar filing requirement for the target licensee. Accordingly, we find the declaration submitted by Cox through Paul Workman to be sufficient. 10. Finally, CLC argues that Cox failed to present any evidence of possession of transmitting equipment, and that therefore, the decision by the former Office of Operations to deny CLC's finder's preference request was in error. We disagree. The Office of Operations correctly concluded that Cox provided sufficient evidence to rebut CLC's claim on non-construction, including information related to the possession or rental of the appropriate equipment. IV. CONCLUSION AND ORDERING CLAUSES 11. For the reasons discussed above, the denial of Agnes Pennington d/b/a Communications Licensing Consultants finder's preference request against Station WNLI362 is AFFIRMED. 12. 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 Agnes Pennington d/b/a Communications Licensing Consultants is DENIED. 13. 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