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 Federal  Communications  Commission  DA  00-  659 
 Before  the  Federal  Communications  Commission 


 Washington,  D.  C.  20554 


 In  the  Matter  of 
 KEN  CLARK  DBA  PEAK  COMMUNICATIONS,  INC. 


 Finder’s  Preference  Request  For  Station  WNQL565 
 San  Diego,  California 


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 Case  No.  98F006 


 ORDER 
 Adopted:  March  22,  2000  Released:  March  23,  2000 
 By  the  Chief,  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau: 
 1.  We  have  before  us  a  petition  for  reconsideration  (Petition)  1  submitted  on  September  28,  1999,  by  Ken  Clark  dba  Peak  Communications,  Inc.  (Peak),  seeking  reconsideration  of  the  denial  of  its 
 finder’s  preference  request  (Request)  by  the  Chief,  Policy  and  Rules  Branch  (Branch),  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau.  2  On  August  23,  1999,  the  Branch 
 denied  Peak’s  finder’s  preference  request  targeting  San  Diego,  California  Station  WNQL565,  licensed  to  Cox  Communications,  Inc.  (Cox).  For  the  reasons  stated  below,  Peak’s  Petition  is  dismissed. 


 2.  On  February  11,  1998,  Peak  filed  the  Request  targeting  Cox’s  authorization  to  operate  Station  WNQL565.  3  Peak  alleged  that  Cox  had  failed  to  timely  place  Station  WNQL565  in  operation,  in 
 violation  of  Section  90.155  of  the  Commission’s  Rules,  and  failed  to  continuously  operate  Station  WNQL565,  in  violation  of  Section  90.157  of  the  Commission’s  Rules.  4  The  Branch  denied  Peak’s 
 Request  on  August  23,  1999.  5  On  September  28,  1999,  six  days  after  the  filing  deadline  in  which  to  file  a  petition  for  reconsideration,  Peak  submitted  its  Petition. 


 1  Petition  for  Reconsideration  (received  Sept.  28,  1999). 
 2  Letter  from  John  J.  Borkowski,  FCC,  to  Ken  Clark  dba  Peak  Communications,  Inc.  (dated  Aug.  23,  1999). 
 3  Finder’s  Preference  Request  (filed  Feb.  11,  1998). 
 4  Id.  (citing  47  C.  F.  R.  §§  90.155,  90.157). 
 5  Supra  note  2. 
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 Federal  Communications  Commission  DA  00-  659 
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 3.  Section  405  of  the  Communications  Act  of  1934,  as  amended,  sets  forth  the  requirements  that  a  petitioner  must  satisfy  before  we  may  consider  a  petition  for  reconsideration.  6  Section  405,  as 
 implemented  by  Section  1.106(  f)  of  the  Commission’s  Rules,  requires  a  petition  for  reconsideration  to  be  filed  within  thirty  days  from  the  release  date  of  the  Commission’s  action.  7  The  thirty-  day  period  for 
 filing  a  petition  for  reconsideration  as  determined  under  Section  1.4(  b)(  5)  of  the  Commission’s  Rules,  8  ended  on  September  22,  1999.  Because  the  Petition  was  not  received  within  this  period,  we  conclude  that 
 the  petition  must  be  dismissed. 
 4.  Accordingly,  IT  IS  ORDERED  THAT  pursuant  to  Sections  4(  i),  5(  c)  and  405  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.  §§  154(  i),  155(  c),  405,  and  Section  1.106  of  the 
 Commission’s  Rules,  47  C.  F.  R.  §  1.106,  the  petition  for  reconsideration  submitted  by  Ken  Clark  dba  Peak  Communications,  Inc.,  on  September  28,  1999,  IS  DISMISSED. 


 5.  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 


 6  47  U.  S.  C.  §  405  provides  that  a  petition  for  reconsideration  must  be  filed  within  thirty  days  from  the  date  upon 
 which  public  notice  is  given  of  the  order,  decision,  report,  or  action  complained  of. 
 7  47  C.  F.  R.  §  1.106(  f).  See  Metromedia,  Inc.,  Memorandum  Opinion  and  Order,  56  FCC  2d  909,  909-  910  (1975) 
 (dismissing  as  untimely  petition  for  reconsideration  filed  one  day  late);  Spectrum  Communications,  L.  C.,  Order,  14  FCC  Rcd  13,182  (1999)  (affirming  the  dismissal  of  a  petition  for  reconsideration  filed  one  day  late). 


 8  47  C.  F.  R.  §  1.4(  b)(  5)  provides  that  the  date  appearing  on  a  document  mailed  to  persons  affected  by  an  action  is 
 the  controlling  date  when  computing  time  for  seeking  reconsideration,  if  the  document  was  neither  published  in  the  Federal  Register  nor  released,  and  if  a  descriptive  document  entitled  “Public  Notice”  was  not  released.  In  the 


 instant  case,  the  date  to  be  used  for  computing  the  time  in  which  to  file  a  reconsideration  was  August  23,  1999,  the  date  of  the  denial  action  mailed  to  Peak. 
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