Baker's petition and awarded a finder's preference to Baker. In awarding the preference, the Office of Operations cited evidence submitted by Baker that the Commission's licensing records listed no end users associated with K-Comm's station, and that Baker had monitored the assigned frequencies over an eleven month period and heard no activity. K-Comm petitioned for reconsideration of the Office of Operations decision. 7 8 3. On November 23, 1999, the Bureau granted the K-Comm Petition, set aside the finder's preference, and reinstated K-Comm's license.' The Bureau found that under the finder's preference rules, the absence of listed end users in the Commission's licensing records was not a rule violation that could form the basis for a finder's preference request. The Bureau also found that because Baker's monitoring efforts occurred over a period of less than one year, it failed to meet its burden of demonstrating that K-Comm had discontinued operation for a year as required to trigger cancellation under Section 90.157." Baker then filed the instant Petition. 4. 9910 III. DISCUSSION We find that the Baker Petition fails to specify any new facts or changed circumstances that would merit reconsideration of the Bureau's denial of Baker's finder's preference request. The Commission created the finder's preference program in order to relieve the scarcity of spectrum in certain frequency bands by creating "new incentives for persons to provide [the Commission with] information about unconstructed, non-operational, or discontinued private land mobile radio systems.... In the Finders Preference NPRM, the Commission addressed instances where a licensee has permanently discontinued operations, and indicated that the "[a]pplicants identifying violations of these requirements may be able to uncover facts of which we are not aware or which we cannot readily ascertain." The Commission stressed that the "establishment of a preference scheme must serve as a supplement to, rather than a substitute for, our existing compliance programs and activities."" Moreover, the Commission specifically excluded loading violations from the scope of the finder's See Letter from W. Riley Hollingsworth, Deputy Associate Bureau Chief, Office of Operations, Wireless 5 1997. • Id. 7 Baker at ¶ 1. 8 Id. at ¶ 5. 9 Id. 10 See Amendment of Parts 1 and 90 of the Commission's Rules Concerning the Construction, Licensing, and Operation of Private Land Mobile Radio Stations, Report and Order, PR Docket No. 90-481, 6 FCC Rcd 7297, ¶ 77 (1991) (Finder's Preference Report and Order). 11 See Amendment of Parts 1 and 90 of the Commission's Rules Concerning the Construction, Licensing, and Operation of Private Land Mobile Radio Stations, Notice of Proposed Rulemaking, PR Docket No. 90-481, 5 FCC Rcd 6401, 22 (1990) (Finder's Preference NPRM). 13 preference program. The Bureau therefore acted properly in rejecting Baker's submission of loading information from the Commission's licensing records as a basis for its finder's request. Because such information was readily available to Commission staff, it did not constitute the type of information that could support a finder's preference claim. 14 15 5. In addition, under the finder's preference program, the finder has the burden of proving that the target licensee violated our rules relating to construction, placement in operation, and continuance of operation. As set forth in Baker, the finder failed to carry its burden in proving a violation of Commission rules. Even if we assume that all facts alleged by the finder are true, we affırm our prior determination that permanent discontinuance of operation has not been proven. Baker's monitoring efforts were for a period of less than one year, while section 90.157 defines "permanent discontinuance" of operation as cessation of operations for a full year.' Baker further argues that KComm is not the real-party-in-interest to the subject license, and that all pleadings filed by K-Comm in opposition to Baker's request for a finder's preference should be considered moot. Baker's allegations concerning real-property-in-interest violations are not the proper subject of a finder's preference request, which is limited solely to violations of our construction and operation requirements. We therefore find that the Baker Petition fails to specify any new facts or changed circumstances that would merit reconsideration or reversal of the Bureau's prior order. Accordingly, we deny Baker's Petition for Further Reconsideration. 16 6. Accordingly, 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) and 405, and sections 0.331 and 1.106 of the Commission's rules, 47 C.F.R. §§ 0.331 and 1.106, the Petition for Further Reconsideration filed by Thomas A. Baker is DENIED. 1. In this Order, we grant the above-referenced applications to assign various 900 MHz Specialized Mobile Radio ("SMR") licenses from Motorola, Inc., Motorola SMR, Inc., and Motorola Communications and Electronics, Inc. (collectively, "Motorola") to FCI 900, Inc. (“FCI 900"), a subsidiary of Nextel Communications, Inc. ("Nextel"). We deny the request of Southern LINC (“Southern") that we deny these assignments." II. BACKGROUND 2. On September 25, 2000, pursuant to section 310(d) of the Communications Act of 1934, as amended ("the Communications Act"), Motorola and Nextel filed applications seeking Commission consent for Motorola to assign 59 900 MHz SMR licenses to Nextel.* Nextel has a nationwide licensed-area footprint, and is the largest service provider using SMR frequencies, with approximately 6.7 million subscribers in the United States at the end of 2000. Nextel uses 5 1 Applications of Motorola for Consent to Assign Licenses to FCI 900, Inc., filed Sept. 23, 2000, ULS File Nos. 0000224876, 0000224877, 0000224878 ("Applications"). 2 See Comments of Southern LINC, filed Nov. 20, 2000 (“Southern Comments"). 3 47 U.S.C. § 310(d). 4 5 The "900 MHz❞ SMR band refers to spectrum allocated in the 896-901 and 935-940 MHz bands. See 47 C.F.R. §90.603. Other SMR frequencies are found in the "800 MHz" band, which refers to spectrum allocated in the 806824 and 851-869 MHz bands. See 47 C.F.R. §90.603; see also 47 C.F.R. § 90.7 (defining "specialized mobile radio system"). See Nextel website at www.nextel.com/about/information/corporate/profile.shtml. See also The State of the SMR Industry: Nextel and Dispatch Communications, Strategis Report, September 2000 ("Strategis Report, SMR"), at 5; In the Matter of Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services, 15 FCC Rcd 17,660, (rel. Aug. 18, 2000) ("Fifth CMRS Competition Report"), at 70. The second largest service provider using 6 its facilities in the 900 MHz band for analog dispatch service. However, the vast majority of Nextel's subscribers purchase any of a variety of services over a digital, wide-area SMR network using Nextel's 800 MHz SMR licenses, provided by Nextel on a single handset. On this handset, Nextel offers a bundled service that provides a customer with interconnected mobile voice along with trunked dispatch service (marketed under the brand name "Direct Connect") that allows instant, real-time conferencing on a one-to-one or one-to-many basis. Customers can also subscribe to other optional services, including paging, text/numeric messaging, and wireless Internet access. In addition to its 800 MHz and 900 MHz SMR holdings, Nextel holds licenses in the 220 MHz band and Guard Band manager licenses in the 700 MHz band. Nextel also has an attributable interest in Nextel Partners, Inc., which provides digital wireless communications services on its own 800 MHz SMR frequencies in mid-sized and smaller markets throughout the United States. 9 7 12 10 3. Motorola is the sole supplier of Nextel's wide-area SMR handsets" and owns approximately 15 percent of Nextel." Motorola provides the iDEN12 infrastructure and subscriber unit equipment used throughout Nextel's domestic markets and most of its international markets. Nextel works closely with Motorola to improve existing products and develop new technologies. In urban markets, Motorola, like Nextel, uses its 900 MHz SMR facilities to provide analog, noninterconnected dispatch services." In non-urban markets, Motorola has not yet built out its 900 MHz systems. 14 13 SMR frequencies is Southern with approximately 200,000 subscribers. See Southern LINC website at www.SouthernLINC.com, Press Release (Aug. 29, 2000). Direct ConnectR provides trunked dispatch customers with an expanded dispatch service area and higher voice quality and extra security than analog trunked dispatch. See Letter from Laura L. Holloway to Magalie Roman Salas, Secretary, Federal Communications Commission, dated March 8, 2000 (“Nextel March 8 Ex Parte Presentation") at Attachment 1, Affidavit of Greg Rosston ("Rosston Affidavit") at 14. Upon request, Direct Connect may be purchased separately from interconnected mobile voice. Applications, Exhibit B ("Public Interest Statement") at 2-3; Nextel Reports Record Year 2000 Financial Results, News Release, Nextel Communications, Inc. (Feb. 16, 2001). In the Matter of Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services, 14 FCC Rcd 10,145, 10,17632 (citing Nextel Reports 1998 Results, News Release, Nextel Communications, Inc., Feb. 23, 1999). See Strategis Report, SMR at 47; see also 47 C.F.R. § 20.6(d)(2). Public Interest Statement at 1-2. Nextel SEC Form 10K Statement (filed March 30, 2000) at 6 (providing information for period ending December 31, 1999). Motorola developed iDEN, a digital technology that allows users to integrate, into one unit, the features of dispatch radio, interconnected mobile voice, short message service, and data transmission. This technology, which is currently available only on 800 MHz channels, allows service providers to have six times the capacity as on an analog SMR network. See www.motorola.com |