Federal Communications Commission DA 99-2393
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matter of )
)
SMARTROUTE SYSTEMS ) 
LIMITED PARTNERSHIP ) Case No. 95F842
)
Finder's Preference Request ) 
Regarding Station KBI821 ) 
Boston, Massachusetts )
ORDER
Adopted: November 2,1999 Released: November 2,1999
By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:
L INTRODUCTION
1. On May 8, 1997, SmartRoute Systems Ltd. Partnership (SmartRoute) filed a petition for 
reconsideration (Petition)1 of the October 23, 1996, award of a dispositive preference under the 
finder's preference program2 to A.D. Fillebrown, Inc. (ADF), for Boston area Station KBI821. For 
the reasons set forth below, we affirm the October 23, 1996, action awarding frequency pair 
472.4625/475.4625 MHz to ADF, and deny SmartRoute's Petition.
H. BACKGROUND
2. On September 11, 1995, ADF filed a finder's preference request (Request) targeting 
Consolidated Freightways' authorization to operate Station KBI821 on frequency pair 
472.4625/475.4625 MHz in the Boston area.3 ADF alleged in its Request that Station KBI821 had not 
operated for a period in excess of one year, in violation of Section 90.157 of the Commission's Rules.4 
To substantiate its Request, ADF provided, inter alia, a copy of a work order from Motorola C&E,
'Petition for Reconsideration (filed May 8, 1997).
2The Commission eliminated the finder's preference program with respect to the 220-222 MHz band and in 
the 470-512 MHz, 800 MHz and 900 MHz Private Land Mobile Radio bands as of July 29, 1998. Finder's 
preference requests for these frequencies pending as of July 29, 1998, however, are being processed. See Report 
and Order, 13 FCC Red 23816 (1998).
Binder's Preference Request (filed September 11, 1995).
4See 47 C.F.R. § 90.157 (1995).
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Inc. (Motorola), reflecting removal by Motorola on April 22, 1994, of the system equipment associated 
with Station KBI821.5
3. Additionally, ADF stated in its Request that it had continuously monitored Station KBI821 
during regular business hours for a two-month period from August to September, 1995, without 
detecting any transmissions.6 Attached to the Request was a declaration, certified under penalty of 
perjury, by Allan D. Fillebrown, president of ADF, attesting to the truth and accuracy of the 
information submitted on behalf of ADF.7 On September 25, 1995, the former Office of Operations of 
the Wireless Telecommunications Bureau (Office of Operations) served the instant Request on 
Consolidated Freightways, the licensee of record on the date of service.8
4. On July 26, 1995, SmartRoute filed an application seeking assignment of Station KBI821 from 
Consolidated Freightways.9 On December 8, 1995, this application was granted. On October 23, 
1996, ADF was awarded a dispositive preference for Station KBI821 under the finder's preference 
program.10 Consolidated Freightways, the former licensee of Station KB 1821, was notified by letter 
dated October 23, 1996, that the authorization to operate Station KBI821 had cancelled 
automatically." On December 20, 1996, ADF filed an application for the frequencies associated with 
Station KBI821, attaching a copy of the Award Letter to its application. 12
5. SmartRoute alleges that it did not receive notice of the finder's preference proceeding from 
the Office of Operations until April 9, 1997, approximately six months after the October 23, 1996, 
action cancelling Station KBI821's authorization.13 On April 9, 1997, Bureau staff provided
'Request at 10. 
6Request at 2. 
'Request at 11.
'Letter from William H. Kellett and Anne Marie Wypijewski, Federal Communications Commission, to 
Consolidated Freightways (September 25, 1995) (Service Letter). Any Opposition to the Request had to be filed 
on or before October 25, 1995. An Opposition to the Request was not filed.
9See Application Number 95084160303, filed on July 26, 1995, requesting assignment from Consolidated 
Freightways to SmartRoute Systems Ltd. Partnership (Assignment Application).
'"Letter from William H. Kellett, Federal Communications Commission, to Alan S. Tilles, Esquire, counsel 
to ADF (October 23, 1996) (Award Letter).
"Letter from William H. Kellett, Federal Communications Commission, to Consolidated Freightways 
(October 23, 1996) (Cancellation Letter). On October 23, 1996, however, SmartRoute was the licensee of 
record of Station KBI821, having already taken assignment of the station from Consolidated Freightways.
l2See Application No. D065224, filed on December 20, 1996 (ADF Application). Further action on the ADF 
Application has been held in abeyance, pending the outcome of the instant Petition.
l3See Petition at 1-2.
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SmartRoute with copies of the October 23, 1996, Award and Cancellation Letters. 14 Upon learning of 
the Cancellation Letter and the ADF Application requesting authorization to operate the frequencies 
associated with Station KBI821, SmartRoute filed the instant Petition, seeking reversal of the October 
23, 1996, action cancelling the authorization to operate Station KBI821.15 On May 13, 1997, 
SmartRoute filed a Motion for Stay, requesting that the Bureau stay the processing of the ADF 
Application until the matters raised in SmartRoute's Petition were resolved.16
6. In its Petition, SmartRoute argues that ADF failed to meet its burden of proving that a 
violation of the Commission's Rules had occurred.17 SmartRoute noted that Consolidated Freightways 
was the holder of approximately 220 licenses at the time the Request was filed, and alleged that the 
work orders provided by ADF were not station or frequency specific, and could have related to any of 
Consolidated Freightway's stations. 18 SmartRoute further stated:
Fillebrown proffered Motorola work orders in 
an effort to prove that the station had been 
deconstructed in 1994. However, Fillebrown did 
not provide any indication of the provenance 
of the work orders, or any independent verification 
of their meaning or their original. It is not even 
explained how these work orders came into 
Fillebrown's possession. 19
7. SmartRoute additionally argued that the two month monitoring period conducted by ADF was 
insufficient and should be disregarded.20 SmartRoute did not provide any other arguments in its 
Petition, and never stated that Station KBI821 was operational continuously during the subject period.
8. On May 21, 1997, ADF filed an Opposition to SmartRoute's Petition.21 ADF argues in its 
Opposition that SmartRoute's Petition was devoid of merit and should be dismissed.22 ADF explained 
that after monitoring Station KBI821 during 1995, Mr. Fillebrown contacted Mr. Robert F. Driscoll of
"Letter from William H. Kellett, Federal Communications Commission, to SmartRoute Systems Ltd. 
Partnership (April 9, 1997).
15Supra note 1.
"Motion for Stay (filed May 13, 1997).
"Petition at 2.
"Id. at 4.
I9Ai at 2-3.
20Id at 5.
"Consolidated Opposition to the Petition for Reconsideration (May 21, 1997) (Opposition).
22Id at iii.
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Consolidated Freightways, and inquired about acquiring the repeaters which Consolidated Freightways 
no longer utilized.23 A copy of Mr. Fillebrown's long distance telephone bill, covering the period 
August 25, 1995, through September 24, 1995, was attached to the Opposition, as evidence that Mr. 
Fillebrown had contacted Mr. DriscolFs telephone number on two separate occasions, with time 
totalling 26 minutes.24
9. In its Opposition, ADF also stated that Mr. Driscoll arranged for Motorola, Consolidated 
Freightway's service shop, to provide ADF with copies of Motorola's invoices for Station KBI821's 
repeater equipment.25 One of the invoices stated that the system had been removed from operation on 
April 22, 1994.26
10. ADF further argues in its Opposition that SmartRoute's Petition was untimely filed, since it 
was filed on May 8, 1997, more than six (6) months after the Commission's October 23, 1996, 
dispositive preference award to ADF.27 ADF noted that when it filed its Request, Consolidated 
Freightways was the licensee of record of Station KBI821, and was therefore the proper party of the 
instant finder's preference proceeding.28 ADF contends that Consolidated Freightways failed to notify 
SmartRoute of the pending Request, because Station KBI821 was already out of operation at the time 
the Request was filed.29
11. On June 2, 1997, SmartRoute filed a Motion to Strike certain statements contained in ADF's 
Reply.30 Specifically, SmartRoute argues that ADF's initial Request was deficient, and that its Reply 
contained supplemental evidence submitted to demonstrate aprimafacie showing to support its initial 
Request.31 SmartRoute additionally argues that we may not consider any statement relating to who 
ADF did or did not contact at Consolidated Freightways or Motorola, regarding Station KBI821.32
23Id at 1-2.
24M at Exhibit 1.
2SId at 2.
2<7<i at 2.
11 Id. at 4.
"Id at 5.
"Id at 5-6.
'"Motion to Strike (filed June 2, 1997).
31 Id at 2.
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Finally, SmartRoute argues that the sworn statement of Mr. Fillebrown, contained at the end of ADF's 
Reply, fails to support the facts within the Reply, because Mr. Fillebrown did not indicate which of 
the facts in the Reply he knew to be correct, versus the facts he believed to be correct.33
12. On June 2, 1997, SmartRoute also filed a Reply to ADF's Opposition.34 The Reply contained 
the same arguments as the Motion to Strike, as well as an allegation mat ADF had not demonstrated 
eligibility for use of the subject frequencies.35 SmartRoute argued that ADF was licensed for at least 
seven other stations in the area (Stations WIK258, KAB8106, KAB8I07, WRP822, WIK362, 
KAE2127 and WIM357) at the time the Request was filed, and was therefore not eligible to be 
licensed to operate Station KBI821.36 SmartRoute additionally questioned the loading of ADF's 
stations, stating: "The Bureau may very well question whether Fillebrown is fully loaded on each of 
the channels, and whether Fillebrown meets the eligibility requirements to apply for an additional channel."37
m. DISCUSSION
13. In addressing SmartRoute's allegations contained in the Petition, we note that SmartRoute 
initially argues that it should have been served with a copy of the Request at the time the Request was 
served on Consolidated Freightways. We disagree. Consolidated Freightways was the licensee of 
record on September 25, 1995, the date of service, and was properly served with the Request.
14. At the time of assignment of Station KBI821 from Consolidated Freightways to SmartRoute, 
SmartRoute "stood in the shoes" of Consolidated Freightways. The assignor may only convey that 
which the assignor actually holds.38 In light of the filing of ADF's Request on September 11, 1995, 
Consolidated Freightways conferred upon SmartRoute an authorization which was the target of a 
finder's preference proceeding. We note that the instant Request was listed on the Bureau's weekly 
listing of pending finder's preference matters, as well as displayed in the Public Reference Room, as
"Id at 3.
34Reply to Consolidated Opposition to the Petition for Reconsideration (June 2, 1997) (Reply).
"Id at 6-7.
36Id at 6.
"Id at 6-7.
™See Jefferson Radio Company, Inc. v. FCC, 340 F.2d 781, 783 (D.C. Cir. 1964) (where the Commission 
had terminated the authority to operate the radio station, there was no authorization susceptible of being 
assigned). See also Letter to Ms. Cheryl E. Cox of Lone Star, from D'wana R. Terry, Federal Communications 
Commission (dated September 29, 1999), ordering Lone Star to cease operating on frequencies 
936.0000/897.0000 MHz, which had been assigned to Lone Star on September 29, 1998, from Waste 
Management, since the underlying authorization held by Waste Management had been previously set aside on 
May 19, 1995.
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of the date of filing.39 A due diligence search by SmartRoute, made prior to the time of filing the 
Assignment Application, would have revealed that Station KBI821 was the target of a pending finder's 
preference proceeding. Because SmartRoute was not served with a copy of the Cancellation Letter 
until April 9, 1997, we are considering the instant Petition as a timely filed Petition.40
15. SmartRoute additionally argues that ADF failed to meet its burden of proving that a violation 
of the Commission's Rules had occurred. SmartRoute noted that Consolidated Freightways held 
approximately 220 licenses at the time the Request was filed, and that Motorola's work order relating 
to the deconstruction of a system was not station or frequency specific.41 We disagree with 
SmartRoute's interpretation of the record evidence. Although the April 22, 1994, work order did not 
refer to Station KBI821, the work order is linked to the station, in that Station KBI821's sole repeater 
was located at One Beacon Street in Boston at the time the Request was filed. The repeater location 
was not moved until SmartRoute modified the site as part of its Assignment Application.42
16. At the time the Request was filed, Consolidated Freightways was licensed for three other 
470-512 MHz systems in Massachusetts (WSY489, KSZ665 and KNBD688). None of the other 
Massachusetts stations were licensed to operate from One Beacon Street in Boston.43 The April 22, 
1994, work order clearly states:
SERVICE REQUESTED: REMOVE BASE FROM 
1 BEACON AND RETURN TO CUSTOMER.
SERVICE PERFORMED: REMOVED AND DIS 
CONNECTED BASE, DELIVERED TO EMERY 
TERMINAL BOSTON AIRPORT.44
"The listing may currently be viewed on the FCC's web site (www.fcc.gov), and has always been made 
available to the public for viewing in the Commission's Public Reference Room or by contacting the 
Commission's copy contractor. See e.g. Public Notices released, April 10, 1992, October 27, 1993, and 
September 8, 1994 (notice to the public that the current listing of pending finder's preference request is available 
from ITS, the Commission's copy contractor).
40See 47 C.F.R. § 1.106(f) (a petition for reconsideration shall be filed within 30 days from the date of 
public notice of the final Commission action, as that date is defined in Section 1.4(b) of the Commission's Rules, 
47 C.F.R. § 1.4(b). Section 1.4(b)(5) of the Commission's Rules, 47 C.F.R. § 1.4(b)(5), states that if a 
document is neither published in the Federal Register nor released, and a Public Notice is not released, the date 
to be used when computing time is the date on the document sent to persons affected by the action. By letter 
dated April 9, 1997, SmartRoute was sent a copy of the Cancellation Letter).
41Opposition at 4. 
42Reply at 8. 
43Reply at 8. 
MSupra note 3.
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17. We additionally disagree with SmartRoute's argument that the two month monitoring period 
conducted by ADF was insufficient and should be disregarded. ADF's monitoring evidence was not 
provided as the sole evidence of non-operation of Station KBI821. Rather, the monitoring evidence 
was provided to corroborate ADF's allegation that Station KBI821 was not in operation during the 
subject period.
18. We also considered SmartRoute's Motion to Strike certain statements contained in ADF's 
Reply and we deny SmartRoute's Motion to Strike. We find that ADF's Request was not deficient, 
and that its Reply did not contain supplemental evidence which should have initially been contained in 
its Request, as alleged by SmartRoute.45 The statements contained in the Reply were filed in direct 
response to the allegations made by SmartRoute in its Opposition. In its Opposition, SmartRoute 
questioned the authenticity of the work orders and the manner in which they were obtained by ADF. 
In the Reply, ADF provided details relating to the genuineness and origin of the work orders. 
Although SmartRoute questioned the wording of Mr. Fillebrown's declaration relating to ADF's 
Reply, we find that Mr. Fillebrown's declaration that the statements contained in the Reply were "true 
and correct to the best of my knowledge and belief is in conformance with Section 1.16 of the 
Commission's Rules.46
19. We further disagree with SmartRoute's allegation that ADF was not eligible for the 
frequencies associated with Station KBI821. Our licensing records reflect that at the time the Request 
was filed, ADF was licensed to operate Stations KAB8106, KAB8107, WRP822 and KAE2127, but 
those stations were on shared channels operating below 470 MHz and were not subject to loading 
requirements.47 ADF was additionally licensed to operate Stations WIK362 and WIM357, but the 
channels were operating in the 470-512 MHz band and were fully loaded at the time the Request was filed.48
20. Upon evaluation of the entirety of all the evidence, we therefore find that the record in this 
proceeding consists of a prima facie showing that Station KBI821 failed to operate for a period in 
excess of one year. In this connection, we note that SmartRoute failed to provide any documentation, 
such as canceled checks, system maintenance records, equipment serial numbers, or sworn affidavits 
from employees using the system, to demonstrate operation of Station KBI821 during the subject
455«prot note 30 at 1-2. 
4647 C.F.R. § 1.16.
"See 47 C.F.R. § 90.173 (frequencies assigned pursuant to this rule are available only on a shared basis and 
will not be assigned for the exclusive use of any licensee).
**See 47 C.F.R. § 90.313(aX3), which states that the maximum channel loading on frequencies in the 470- 
512 MHz band in the Business Radio Service is 90 units. Our licensing records reflect that Station WIK362 was 
renewed in the name of Allan D. Fillebrown on March 24, 1995, for 50 mobiles. Also licensed on the same 
channel was David F. Unkles dba Metro Repeater Service for 40 mobile units. Our licensing records also 
reflect that Station WIM357 was issued on April 26, 1995, in the name of ADF Communications Co., Inc., for 
89 mobile units. Also licensed on the same channel was Senior Home Care for one mobile unit. The channels 
associated with Stations WIK362 and WIM357 were therefore fully loaded with ninety units in operation at the 
time the Request was filed.
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period.49 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.50 We therefore affirm the October 23, 
1996, action awarding a dispositive preference to ADF for Station KBI821.51
IV. CONCLUSION AND ORDERING CLAUSES
21. For the reasons stated above, 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), 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), the Petition for 
Reconsideration filed by SmartRoute Systems Ltd. Partnership IS DENIED.
22. Accordingly, grant of the finder's preference request filed by A.D. Fillebrown, Inc. on 
September 11, 1995, IS AFFIRMED. A.D. Fillebrown, Inc.'s Application No. D065224 requesting 
authorization to operate on the frequencies associated with Station KBI821 will be reinstated and 
processed in the regular course of business. The Motion to Stay the processing of Application No. 
D065224, pending a decision in this matter, IS DISMISSED AS MOOT. The Motion to Strike certain 
statements contained in ADF's Reply IS DENIED.
23. 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
*9See generally In the Matter of Dale Kane d/b/a Kane Communications, Order, 1999 WL 680443 (F.C.C.), 
__ FCC Red __ (WTB PSPWD rel. Sept. 1, 1999); In the Matter of Veracon, Inc., Order, 1999 WL 777529 
(F.C.C.), __ FCC Red __ (WTB PSPWD rel. Oct. 1, 1999) (target licensees of finder's preference 
proceedings did not prevail after failing to provide any objective and documentary evidence of compliance with 
the Commission's construction and operation rules).
s°See 47 C.F.R. § 90.157 (1995).
5lSee Report and Order, 6 FCC Red. 7297 (1991).
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