Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) NATIONAL SCIENCE & ) TECHNOLOGY NETWORK, INC. ) Case No. 95F756 ) Finder's Preference Request ) Regarding Station WIK720, ) Riverside County, CA ) ORDER Adopted: October 20, 1999 Released: October 20, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On November 14, 1995, National Science & Technology Network, Inc. (National Science) filed a petition for reconsideration (Petition) of the November 6, 1995, dismissal of its finder's preference request targeting Station WIK720, located in Corona and Rancho Cucamonga, Riverside County, California, to Southern California Alarm Service (Southern California Alarm). For the reasons set forth below, we grant National Science's Petition, reverse the November 6, 1995, action, and award a dispositive preference to National Science for frequency pair 472.3125/475.3125 MHz. II. BACKGROUND 2. On May 24, 1995, National Science filed a finder's preference request (Request) targeting Southern California Alarm's authorization to operate Station WIK720 on frequency pair 472.3125/475.3125 MHz. National Science alleged in its Request that Southern California Alarm failed to operate Station WIK720 from May 16, 1994, through May 16, 1995, a period of one year or more, in violation of Section 90.157 of the Commission's Rules. In a supporting declaration to the Request, Mr. Al Hoffman, consultant/engineer for National Science, declared under penalty of perjury that on May 16, 1995, he telephoned Southern California Alarm and was told by the owner, Mr. Robbin Koziel, that "the system had been shut down more than one year ago because the company was now using an 800 MHz SMR system...." Mr. Hoffman additionally declared that Mr. Koziel informed him that the system equipment associated with Station WIK720 was being stored in a shed, and that he had negotiated with Mr. Koziel to purchase the equipment. 3. On September 13, 1995, the instant Request and an accompanying service letter were served on Southern California Alarm by the former Office of Operations of the Wireless Telecommunications Bureau. Southern California Alarm timely filed an Opposition to the Request on September 29, 1995. In Opposition, Mr. Koziel argued that Southern California Alarm had been operating Station WIK720 for over thirteen years and continued to use the system on a daily basis. Mr. Koziel stated that Southern California Alarm's license "is vital to the economic stability of our business," and that he had "made many attempts to contact these people who are attempting to get control of my license for their own monetary gains." No other evidence, other that Mr. Koziel's statement regarding operation, was provided to corroborate continuous operation of Station WIK720. 4. On October 5, 1995, National Science timely filed a Reply to Southern California Alarm's Opposition. In its Reply, National Science denied receiving phone calls or messages from Southern California Alarm, and reiterated that when it had contacted Southern California Alarm, Mr. Koziel had indicated that Station WIK720 was not in operation because Southern California Alarm was using an 800 MHz trunked SMR system. 5. National Science's Request was denied on November 6, 1995, by the former Office of Operations of the Wireless Telecommunications Bureau. The denial letter stated: The request is premised entirely on the hearsay report that Mr. Koziel, president of Southern California Alarm Service, admitted that the station has permanently discontinued operation. Mr. Koziel has presented a statement that he does in fact use the system. The finder has the burden of proof in this matter and has failed to carry the burden in this case. 6. National Science timely filed the instant Petition on November 14, 1995. In its Petition, National Science argued that the November 6, 1995, action was defective in that the decision was premised entirely upon Mr. Koziel's unsworn statement that Station WIK720 had not discontinued operations. 7. Southern California Alarm filed an opposition to National Science's Petition on December 1, 1995. In opposition, Mr. Koziel of Southern California Alarm argued that he had never spoken to Mr. Hoffman on the telephone or in person. He reiterated that Southern California Alarm relies on the frequencies associated with Station WIK720 as part of its business installing security systems. 8. On February 6, 1996, an FCC investigator from the Los Angeles field office monitored frequency pair 472.3125/475.3125 MHz, the frequencies associated with Station WIK720. No transmissions associated with Station WIK720 were detected during a sixty (60) minute monitoring period. After monitoring the subject frequency pair, the FCC investigator visited Southern California Alarm's office and requested a visual inspection of the system associated with Station WIK720. Access to the system was initially denied, but the FCC investigator was invited to return in three hours to view the system with Mr. Koziel. After leaving the premises, the FCC investigator observed, for the first time, a signal on base frequency 472.3125 MHz, but did not detect any transmissions on mobile frequency 475.3125 MHz. 9. The FCC investigator returned to Southern California Alarm's office at the appointed time to meet with Mr. Koziel. During a discussion, Mr. Koziel informed the FCC investigator that Station WIK720 did not have repeater service. Mr. Koziel further informed the FCC investigator that Southern California Alarm was currently using a 900 MHz system, but desired to use the 470 MHz system associated with Station WIK720, because the 470 MHz system was less expensive to operate for local calls. Mr. Koziel explained that Southern California Alarm was using "talk around," communicating from one vehicle to another on Station WIK720, without going through a repeater. 10. By letter dated September 9, 1996, the former Office of Operations of the Wireless Telecommunications Bureau requested additional information from Southern California Alarm relating to Southern California Alarm's repeater service associated with Station WIK720. Southern California Alarm was provided ten (10) calendar days from the date of the request to provide the additional information. On September 20, 1996, Southern California Alarm filed its response to the September 9, 1996, information request. In response, Mr. Koziel noted that Southern California Alarm was currently receiving repeater service from Mobile Relay Associates, and provided photocopies of the face of three checks from Southern California Alarm made payable to Mobile Relay Associates. The checks were not station or frequency specific, and they did not include a reference line. Mr. Koziel also stated that he had enclosed a copy of Southern California Alarm's contract with Mobile Relay, dated February 13, 1996, with his response. A copy of the contract, however, was not attached to the letter. III. DISCUSSION 11. In the matter before us, Southern California Alarm originally stated that it had operated during the subject period, in its effort to refute National Science's allegation of non-operation. Based on Southern California's statement that it had operated on the subject frequency pair, National Science's Request was denied on November 6, 1995. After reviewing the entire record in this proceeding, we now find that Southern California Alarm failed to provide any conclusive evidence that it had operated the two frequencies associated with Station WIK720 at any time during the subject period of May 16, 1994, through May 16, 1995. In its response to the September 9, 1996, inquiry letter, Southern California Alarm submitted a photocopy of three checks dated February, March and June of 1996, but the checks were not station-specific and were for payment to Mobile Relay Associates, allegedly for repeater service, subsequent to the subject time period. As a result, we find that Southern California Alarm has not provided any conclusive evidence during the course of this proceeding that it operated Station WIK720 during the subject period. 12. Moreover, we find that Southern California Alarm failed to operate its base station on all of its assigned frequencies, in violation of the Commission's Rules. In this connection, Southern California Alarm admits that it had discontinued repeater service and was using a 900 MHz system, as well as frequency 472.3125 MHz, one of its two 470-512 MHz frequencies, in "talk around" mode, without the use of a repeater. Our rules require transmission and reception of radio signals between a base station and a mobile station for a system to be "placed in operation." At the time of an on-site inspection by an FCC investigator, Southern California Alarm was operating on only one of its two assigned frequencies, and was operating between mobile stations, instead of transmitting and receiving through a base station. 13. Upon evaluation of the entirety of all the evidence, we therefore find that there is not sufficient evidence in the record indicating that Southern California Alarm operated Station WIK720 from May 16, 1994, through May 16, 1995. Southern California Alarm failed to provide any documentation, such as station-specific canceled checks, system maintenance records, equipment serial numbers, or sworn affidavits from employees using the system, to demonstrate operation of Station WIK720 during the subject period. Under the Commission's Rules, a license for a station cancels automatically upon permanent discontinuance of operation for a period of one year or more. We therefore reverse the November 6, 1995, dismissal of National Science's finder's preference request, and award a dispositive preference under the finder's preference program to National Science for Station WIK720. IV. CONCLUSION AND ORDERING CLAUSES 14. For the reasons stated above, the dismissal of the finder's preference request filed by National Science and Technology, Inc., against Station WIK720 IS REVERSED. A dispositive preference under the finder's preference program IS AWARDED to National Science and Technology, Inc., for Station WIK720, formerly licensed to Southern California Alarm Service. National Science and Technology, 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. 15. 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 pursuant to Sections 1.104(b) and 1.106(f) of the Commission's Rules, 47 C.F.R.  1.104(b), 1.106(f), that the Petition for Reconsideration filed by National Science and Technology, Inc. IS GRANTED, as set forth above. 16. 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