Federal Communications Commission FCC 07-46 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
REGENTS OF THE UNIVERSITY OF 
CALIFORNIA
Finder’s Preference Requests filed by James A.
Kay, Jr. For Conventional Business Station 
WNXC946, Irvine, California
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Case Nos. 93F730 and 94F060
MEMORANDUM OPINION AND ORDER
Adopted:  March 28, 2007  Released:  March 30, 2007
By the Commission:
I.  INTRODUCTION
1. We have before us an application for review (AFR) filed by James A. Kay, Jr. (Kay) on 
July 30, 2002.1 The AFR seeks review of a July 2, 2002 Order by the former Public Safety and Private 
Wireless Division2 (Division) of the Wireless Telecommunications Bureau.3 The Division’s Order
dismissed as repetitious a petition for reconsideration filed by Kay on February 14, 2002 that sought 
reconsideration of a January 15, 2002 Memorandum Opinion and Order by the Commission.4 We 
conclude that the Division’s Order was correct, and accordingly deny the instant AFR.
II.  BACKGROUND
2. In 1991, the Commission adopted a Finder’s Preference Program designed to assist the 
Commission in the recovery of unused private land mobile channels in certain bands.5 Finders who 
offered the Commission assistance in the recovery of channels by informing the Commission about 
licensees who were not in compliance with the Commission’s construction, placed-in-operation, and 
discontinuance-of-operation rules would be given a “dispositive” preference to become licensed for the 
  
1 James A. Kay, Jr. Application for Review (filed July 30, 2002) (AFR).
2 The Commission reorganized the Wireless Telecommunications Bureau effective November 13, 2003, and the 
relevant duties of the Public Safety and Private Wireless Division were assumed by the Public Safety and Critical 
Infrastructure Division.  See Reorganization of the Wireless Telecommunications Bureau, Order, 18 FCC Rcd 
25414, 25414 ¶ 2 (2003).
3 Regents of the University of California, Order, 17 FCC Rcd 12891 (WTB PSPWD 2002) (Order).
4 Regents of the University of California, Memorandum Opinion and Order, 17 FCC Rcd 1393 (2002) (MO&O).
5 See Amendments 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 
(1991) (Finder’s Preference Report and Order).  In 1998, the Commission eliminated the Finder’s Preference 
Program.  See Amendment of Part 90 Concerning the Commission’s Finder’s Preference Rules, Report and Order, 
WT Docket No. 96-199, 13 FCC Rcd 23816 (1998).
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recovered channels.6 In 1993, the Commission clarified that the Finder’s Preference program would 
apply to authorizations that granted an extended implementation or “slow growth” schedule.7
3. On August 29, 1991, the Regents of the University of California (Regents) was granted a 
three-year extended implementation schedule to construct Station WNXC946, Irvine, California.  The 
slow growth period was scheduled to end on August 29, 1994.  On December 17, 1993, Kay filed finder’s 
preference request 93F730.8 The Licensing Division of the Private Radio Bureau (now the Wireless 
Telecommunications Bureau) dismissed finder’s preference request 93F730 as prematurely filed.9 On 
March 21, 1994, Kay filed a petition for reconsideration and, for the first time, alleged that Regents did 
not notify the Commission that it failed to meet certain interim construction requirements.10 On March 
24, 1994, Kay submitted a second finder’s preference request, 94F060, which repeated allegations 
submitted in the previously filed reconsideration petition.11  
4. Regents requested an extension of the slow growth period on July 28, 1994.12  On September 
27, 1994, the Land Mobile Branch of the Licensing Division extended the Regents’ slow growth period 
until April 1996, after finding Regents had made substantial progress toward implementation of Station 
WNXC946.13  
5. On January 24, 1996, the Wireless Telecommunications Bureau, by letter decision, 
denied Kay’s reconsideration petition because finder’s preference request 93F730 was premature.14 At 
that time, the Bureau also dismissed finder’s preference request 94F060 because that request was 
prematurely filed.15 The Bureau explained that, at most, finder’s preference request 94F060 demonstrated 
that Regents did not meet its interim deadlines.16 The Bureau further explained that Section 90.629 of the 
Commission’s Rules provides for an automatic six-month extension in the event that the Commission 
makes a finding that a licensee has failed to meet its interim requirements.17 Under this mechanism, the 
Bureau said, the target licensee still holds a valid authorization and is not subject to a finder’s preference 
request until the final construction deadline and an additional 180 days have passed.18  
  
6 Finder’s Preference Report and Order, 6 FCC Rcd at 7302 ¶ 30, 7305 ¶ 49.
7 Amendment of Part 90 of the Commission’s Rules Governing Extended Implementation Periods, Report and 
Order, PR Docket No. 92-210, 8 FCC Rcd 3975, 3977 ¶ 14 (1993).
8 Finder’s Preference Request (filed Dec. 17, 1993).
9 Letter dated Feb. 17, 1994 from William H. Kellett, Attorney, Licensing Division to Kathleen A. Kaercher, Esq. 
The letter also noted that the finder’s preference request failed to identify any rule violation.  Id.
10 James A. Kay, Jr. Petition for Reconsideration at 1-2 nn.1-2 (filed Mar. 21, 1994) (citing letter dated Jan. 13, 1994 
from Henry L. Richter, on behalf of the University of California to Ralph Haller, Chief, Private Radio Bureau).
11 Finder’s Preference Request (filed Mar. 24, 1994).  
12 Letter dated July 28, 1994 from Jack C. Lockhart, on behalf of the Regents of the University of California to 
Terry L. Fishel, Chief, Land Mobile Branch.
13 Letter dated Sept. 27, 1994 from Terry L. Fishel, Chief, Land Mobile Branch, to Jack C. Lockhart, on behalf of 
the Regents of the University of California.
14 Letter dated Jan. 24, 1996 from W. Riley Hollingsworth, Deputy Associate Bureau Chief, Office of Operations, to 
Robert J. Keller, Esq., and Willi K. Bokenkamp. 
15 Id.
16 Id.
17 Id. (citing 47 C.F.R. § 90.629).
18 Id. (citing former 47 C.F.R. § 90.173(k)(2)).  See 47 C.F.R. § 90.629(c).
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6. On February 23, 1996, Kay submitted a consolidated application for review of the 
Bureau’s decision.19 On January 15, 2002, the Commission denied the application for review.20 The 
Commission agreed with the Bureau that Kay’s finder’s preference requests were premature.21 With 
respect to the reconsideration petition, the Commission found that the Bureau properly denied the petition 
because Commission precedent dictates that Kay could not allege a new rule violation on reconsideration 
that he had not alleged in his initial finder’s preference request.22 The Commission also noted that the 
reconsideration petition was not based on new or previously undiscovered facts or circumstances and 
therefore was procedurally defective under Section 1.106(c)(1) of the Commission's Rules.23 The 
Commission also concluded that there was no public interest reason to consider the petition pursuant to 
Section 1.106(c)(2).24  
7. On February 14, 2002, Kay filed a petition for reconsideration of the Commission’s 
decision.25 On July 2, 2002, the Division dismissed the petition as repetitious.26 The Division concluded 
that the petition was defective under Section 1.106(b)(3) of the Commission's Rules, which provides that 
a petition for reconsideration of an order denying an application for review which fails to rely on new 
facts or changed circumstances may be dismissed by the staff as repetitious because the petition reiterated 
arguments already considered and rejected by the Commission in denying the application for review.27  
On July 30, 2002, Kay filed the present AFR of the Division’s decision.28
III.  DISCUSSION
8. A petition for reconsideration lies only if it establishes new circumstances or contains 
new facts.  Kay’s circumstances have not changed since the day he filed his premature finder’s preference 
request.  Here, Kay argues otherwise.  He says there were new facts in his petition.  First, Kay claims that 
the Commission should not have granted Regents’ unopposed request for extended implementation.  
Second, he claims that Regents’ license automatically expired by operation of rule before Kay filed his 
finder’s preference request.  Kay claims that the Division erred in not addressing these claims in the order 
dismissing his petition as repetitious.  What Kay characterizes as new facts, however, are just allegations.  
The first allegation -- the unsupported claim that the Commission should not have granted Regents an 
extended implementation period -- challenges a previously unchallenged licensing matter.  The second --
that Regents’ license expired -- is unsupported.  Thus, instead of offering new facts, Kay launched a 
collateral attack on licensing issues that go back to 1991.  The Division evaluated Kay’s filing against the 
  
19 James A. Kay, Jr. Application for Review (filed Feb. 23, 1996).   
20 See MO&O, 17 FCC Rcd at 1396 ¶ 11.
21 See id. at 1395 ¶¶ 7-8.
22 Id. at 1395-96 ¶ 9 (citing 47 C.F.R. § 1.106(c); Peterson Electric, Inc., Memorandum Opinion and Order, 15 FCC 
Rcd 314 (1999)).
23 Id. (citing 47 C.F.R. § 1.106(c)(1) (incorporating 47 C.F.R. § 1.106(b)(2)(i)-(ii))).
24 Id. (citing 47 C.F.R. § 1.106(c)(2)).
25 James A. Kay, Jr. Petition for Reconsideration (filed Feb. 14, 2002).
26 See Order, 17 FCC Rcd at 12893 ¶ 7.
27 Id. at 12892-93 ¶ 2 (citing 47 C.F.R. § 1.106(b)(3)).
28 In addition, on January 13, 2003, Kay filed a petition for reconsideration (PFR) of the December 13, 2002 action 
by the Division granting Regents’ application (FCC File No. 500078) for authority to operate a new station at a 
different location in Irvine, California on some of the same frequencies as Station WNXC946.  James A. Kay, Jr. 
Petition for Reconsideration (filed Jan. 13, 2003).  The PFR argues that the application should not have been granted 
while the instant AFR was still pending, or should have been granted conditioned on the resolution of the AFR.  See 
PFR at 2.  Because we are resolving the AFR herein, we dismiss the January 13, 2003 PFR as moot.
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standards for petitions for reconsideration.  It found no change in circumstances.  It found no new facts.  It 
disregarded the allegations.  It found the petition repetitious and dismissed it.  Kay’s application for 
review similarly is also meritless and we deny it.
I. ORDERING CLAUSES
9. IT IS ORDERED that pursuant to Sections 4(i) and 5(c) of the Communications Act of 
1934, as amended, 47 U.S.C. §§ 154(i), 155(c), and Section 1.115(g) of the Commission’s Rules, 47 
C.F.R. § 1.115(g), the Application for Review filed by James A. Kay, Jr. on July 30, 2002 IS DENIED.
10. IT IS FURTHER ORDERED that the Petition for Reconsideration filed by James A. 
Kay, Jr. on January 13, 2003 IS DISMISSED AS MOOT. 
11. IT IS FURTHER ORDERED THAT this proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION 
Marlene H. Dortch
Secretary