******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) BILLY J. RUTLEDGE ) ) Request for a Finder's Preference Against ) Station WNKS326, Tacoma, Washington, ) Licensed to Jen-Shen Song ) MEMORANDUM OPINION AND ORDER Adopted: March 29, 1999 Released: April 8, 1999 By the Commission: I. Introduction and Executive Summary 1. The Commission has before it for consideration: (a) a letter issued by the Private Radio Bureau ("Bureau") on May 21, 1993, affirming the grant of a finder's preference request to Billy J. Rutledge ("Rutledge") against Specialized Mobile Radio (SMR) Station WNKS326, Tacoma, Washington, of which Jen-Shen Song ("Song") is the licensee; (b) an Application for Review of that action, filed by Song on June 21, 1993; and (c) an opposition to the Application for Review filed by Rutledge on July 6, 1993. Song maintains that the staff impermissibly granted the finder's preference to Rutledge and seeks reinstatement of his license for Station WNKS326. For the reasons discussed below, we will grant the Application for Review, deny Rutledge's finder's preference request, and reinstate Song's license. II. Background 2. In 1991, the Commission established the finder's preference program to supplement its compliance review efforts in the private land mobile radio service. The program was designed to provide an incentive to survey private land mobile usage and identify licensees who had failed to construct, place in operation, or continue to operate their stations. Specifically, if an entity adequately demonstrated that a license assigned on an exclusive basis in the 220-222 MHz, 470-572 MHz or 800-900 MHz bands had cancelled automatically for failure to comply with certain of our construction or operational rules, that entity could obtain a preference for the use of the licensed frequencies in the assigned area. The finder's preference program was terminated for 800 MHz SMR stations on December 15, 1995. 3. Finder's Preference Request. On December 31, 1992, Rutledge filed a finder's preference request against Station WNKS326, pursuant to Section 90.173(k) of the Commission's Rules. Rutledge contended that Station WNKS326 had not been operated for one year or more and that, therefore, Song's license for that station had automatically cancelled pursuant to Section 90.157 of the Commission's Rules. In support, Rutledge provided an affidavit from Wade L. McKin, a former Chief Technician for Song's station. McKin stated: (a) in April 1992, while employed by Song, he removed the transmitters associated with Station WNKS326; (b) just prior to removing them, he observed that the transmitters had not been not connected to any antenna system; and (c) during the summer of 1991, when a previous Chief Technician visited the site of Station WNKS326, the transmitters were not connected to any antenna system at that time either. Rutledge further contended that Station WNKS326, whose license was originally granted on May 15, 1989, had not been "placed in operation" as defined by Section 90.631(f) of the Commission's Rules, because the licensee had not placed any mobile units on the system. Rutledge did not, however, provide any factual basis for this contention. In his opposition, Song claimed that Station WNKS326 was "operational" until April 1992, and he submitted information which included: (a) a telephone bill; (b) correspondence to the Commission about an alleged interference problem in 1990; (c) a letter from Mr. Alan Robinson ("Robinson") of DTS Communications ("DTS") indicating that DTS had constructed Station WNKS326 in June 1989; and (d) a letter from Michael J. Bingaman ("Bingaman"), indicating that Accu-Comm, Inc. ("Accu-Comm") had been assigned a "demo I.D. number" for five mobile units on WNKS326 since 1989. On February 16, 1993, the Bureau's Licensing Division awarded a dispositive preference to Rutledge and notified Song that his license for Station WNKS326 had automatically cancelled, pursuant to Section 90.157(b) of the Commission's Rules. 4. Petition for Reconsideration. On March 18, 1993, Song filed a petition seeking reconsideration of the February 16, 1993, staff action. Song submitted the following information with his petition: (a) a declaration from Bingaman, indicating that Accu-Comm operated five mobile units on Station WNKS326 until April 8, 1992; (b) a declaration from Song indicating that he and others had made test transmissions over Station WNKS326 on April 7, 1992; and (c) a letter from Robinson indicating that he had observed Song and others apparently making test transmissions on April 7, 1992. Song argued, among other things, that this information established that Station WNKS326 was indeed operating up until April 1992. In his opposition, Rutledge argued, among other things, that the Commission cannot credit Song with the mobile units referred to in Bingaman's declaration because neither Accu-Comm nor Bingaman was authorized to operate any mobile units in association with Station WNKS326. On May 21, 1993, the Licensing Division denied Song's petition. 5. Application for Review. On June 21, 1993 Song timely filed an Application for Review of the staff action of May 21, 1993. In addition to providing the information that accompanied his petition for reconsideration, Song provided the following new information: (a) 13 photographs identified as pictures of the site and apparatus of station WNKS326, taken between August 18, 1991, and April 5, 1992; and (b) a declaration from James Milam, another of Song's former Chief Technicians, who indicated that, contrary to the claim in McKin's affidavit, Milam observed that the transmitters for Station WNKS326 were connected to an antenna when he visited the station during the Summer of 1991. Song also argued that the Bureau's decision was erroneous because Song had provided information proving that Station WNKS326 was operating until April 8, 1992. In his opposition, Rutledge argued that (a) Song's Application for Review is unacceptable for filing because it does not specify with particularity the grounds on which Song relies; (b) that the Commission is barred from considering the additional information submitted with Song's Application for Review; (c) and that the Commission cannot credit Song with mobile units referred to in Bingaman's declaration because neither Accu-Comm nor Bingaman was authorized to operate any mobile units in association with Station WNKS326. III. Discussion 6. Initially we conclude that Song's Application for Review is acceptable for filing because Song does indeed specify, with particularity, the grounds on which he is relying. Section 1.115(b)(2) of the Commission's Rules requires that an application for review set forth with particularity from an enumerated list the factors which warrant Commission consideration of the questions presented. Among the factors identified in Section 1.115(b)(2), is "an erroneous finding as to an important or material question of fact." In the instant case, Song argues that the Bureau's decision was erroneous because Song provided information to the staff proving that Station WNKS326 was operating until April 8, 1992. The question of whether Station WNKS326 was operating up until April 8, 1992, is unquestionably a matter of material importance because, if that station was operating until April 8, 1992, then its operation had not been discontinued for one year or more at the time of Rutledge's finder's preference claim (December 31, 1992). In order to qualify for a finder's preference pursuant to Section 90.157 of the Commission's Rules, Rutledge was required to demonstrate a discontinuance for one year or more. Under the circumstances, we conclude that Song's Application for Review meets the standard set forth in Section 1.115(b)(2) of the Commission's Rules and is acceptable for filing. 7. Additionally, we will not consider the new information that Song provided with his Application for Review. Pursuant to Section 1.115(c), "no application for review will be considered if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass." In the instant case, Song's Application for Review contains new information and advances new arguments based on that information that the Bureau had no opportunity to consider. Accordingly, pursuant to Section 1.115(c), we will not consider the new information or arguments advanced by Song for the first time in his Application for Review. There is also information which Song first presented to the Bureau's staff with his Petition for Reconsideration, i.e., a declaration from Bingaman, indicating that Accu-Comm operated five mobile units on Station WNKS326 until April 8, 1992. Although the Bureau's staff did not consider this information in its decision ruling upon the Petition for Reconsideration, we find, pursuant to Section 1.106(c)(2) of the Commission's Rules, that the public interest requires consideration of this information. 8. To sustain the grant of a finder's preference to Rutledge requires us to draw an inference that Station WNKS326 was not connected to an antenna at any time between the summer of 1991 and April 1992. That inference is derived, if at all, from an affidavit of former Chief Technician, Wade McKin. In his affidavit, McKin stated that he personally visited the site in April 1992 and noticed at that time that the transmitters were not connected to an antenna. McKin further states that the transmitters were also not connected to an antenna when another, unnamed former Chief Technician visited the site of Station WNKS326 in the summer of 1991. The statement in McKin's affidavit that Station WNKS326 was not connected to an antenna in the summer of 1991 is suspect. McKin did not visit the station in the summer of 1991, did not personally observe the station in the summer of 1991, and is incapable of attesting to any facts about the status of the station in the summer of 1991. In finder's preference cases, the finder has the burden of proving the facts necessary to establish a finder's preference claim. While McKin's affidavit is minimally sufficient to support a claim for a finder's preference, it is not conclusive and can be overcome by other evidence. 9. Such other evidence consists of the declaration of Michael J. Bingaman, who states that one entity of which he is aware, Accu-Comm, in fact operated five mobile units on Song's system up until April 1992, when the station was dismantled. Rutledge does not dispute Bingaman's assertion that Accu-Comm operated mobile units on the station up until April 1992. Rather, Rutledge claims that Accu-Comm's mobile units cannot be credited because Accu-Comm did not have an end-user license authorizing it to operate units on Song's SMR. However, Accu-Comm did have a license for Business Radio Station WNLZ914 which authorized it to make demonstration transmissions over SMRs throughout the State of Washington, including Song's station. Thus, the operation of Accu-Comm's mobile units over Station WNKS326 was authorized and can be credited. In sum, the operation by Accu-Comm of mobile units on Station WNKS326 up until April 1992 is patently inconsistent with Rutledge's claim that the station was not operating before that time. Thus, the Bingaman declaration defeats any inference that could arguably be drawn from McKin's affidavit. IV. Conclusion and Ordering Clauses 10. Based on the foregoing, Rutledge has not sustained his burden with respect to his finder's preference request. Rutledge's finder's preference request is substantively unavailing because Song has demonstrated to our satisfaction that Station WNKS326 was operating up until April 1992, when it was dismantled. 11. ACCORDINGLY, IT IS ORDERED that the Application for Review filed by Jen-Shen Song on June 21, 1993, IS GRANTED. 12. IT IS FURTHER ORDERED, that the Finder's Preference Request filed by Billy J. Rutledge on December 31, 1992, IS DENIED. 13. IT IS FURTHER ORDERED, that Jen-Shen Song's license for Specialized Mobile Radio Station WNKS326 IS REINSTATED. 14. IT IS FURTHER ORDERED that a copy of this Order SHALL BE SENT by Certified Mail - - Return Receipt Requested -- to Jen-Shen Song at 511 Thomas Road, Downingtown, Pennsylvania 19336- 3035, and to counsel for Billy J. Rutledge, Kathleen Kaercher, Esq., Brown & Schwaninger, 1835 K Street, N.W., Suite 650, Washington, D.C. 20006. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary