Subject: [NEXTEL-1] Mr. Finders Preference- James A. Kay, Jr. Loses Again!

From: Marcelrf <[email-masked]>
Date: Mon, 23 Feb 2004 16:12:44 -0500

Mr. Finders Preference-  James A. Kay, Jr. Loses Again!
==================================================================================

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

JAMES A. KAY, JR.

Application for Consent to Assign the License For Conventional SMR
Station WNXR890, Newbury Park, California )

File No. 666672

ORDER ON RECONSIDERATION

Adopted:  February 20, 2004 Released:  February 20, 2004

By the Deputy Chief, Mobility Division, Wireless Telecommunications
Bureau:

I. INTRODUCTION

1. On May 19, 2003, James A. Kay, Jr. (Kay) filed a petition seeking
reconsideration (Second Petition)  of the Commission’s Memorandum
Opinion and Order (Commission Order) affirming the dismissal of the
above-captioned assignment application.   The Commission Order denied
Kay’s Application for Review  of the former Commercial Wireless
Division’s (Division)  order released on December 14, 2001, denying
Kay’s first petition seeking reconsideration of the dismissal of his
assignment application (First Petition).   For the reasons discussed
below, we dismiss Kay’s Second Petition as repetitious.
II. BACKGROUND

2. On May 6, 1994, Kay filed an application seeking approval of the
assignment of the license for conventional Specialized Mobile Radio
(SMR) Station WNXR890 from Vince Cordaro (Cordaro) to Kay.  On November
4, 1996, Cordaro’s license expired because Cordaro failed to submit a
license renewal application.   On September 24, 2000, the Division’s
Licensing and Technical Analysis Branch (Branch) dismissed Kay’s
assignment application because the license for Station WNXR890 had
expired.

3. Kay filed his First Petition on November 3, 2000, seeking
reconsideration of the Branch dismissal.   On November 14, 2001, the
Division denied Kay’s First Petition and affirmed the Branch’s dismissal
of the assignment application.   On December 14, 2001, Kay filed an
Application for Review, incorporating by reference the arguments from
his First Petition.   The Commission denied the Application for Review
because an expired license cannot be assigned, and Cordaro had failed to
renew his license for Station WNXR890 while the assignment application
was pending.  The Commission further dismissed Kay’s arguments that
Section 9(b) of the APA protected his application from dismissal and
found that his claims of misrepresentation and bias were without merit.
Specifically, the Commission found no merit in Kay’s allegations that
staff bias motivated the delay in processing his application.  Kay filed
his Second Petition on May 19, 2003, seeking reconsideration only on the
issue of delay.

III. DISCUSSION

4. We dismiss Kay’s Second Petition as repetitious under Section
1.106(b) of the Commission’s rules because he fails to support his
arguments with any new facts or circumstances that changed after he
filed his Application for Review.   Kay contends that the Commission’s
explanation that the uncharacteristic delay in acting on his assignment
application was the result of his being the subject of a pending hearing
proceeding regarding his fitness to be a Commission licensee fails both
“factually and legally.”   Kay argues that his assignment application
was not dismissed because of any decision regarding his qualifications
to be a Commission licensee, and the delay in processing his application
for six years “was tantamount to a denial without a hearing” in
violation of the Communications Act, as amended.   Kay further argues
that only his licenses, not this application, were designated for
hearing for revocation, and that not dismissing his application shortly
after the underlying license expired precluded him from applying for a
new license for the same facilities.   Kay’s reiteration of his argument
that because of the delay in processing, the Commission must reinstate
his assignment application does not rely on any new facts or changed
circumstances as required under Commission rules.  We therefore dismiss
Kay’s Second Petition as repetitious.

5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r)
and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 303(r), 405, and Sections 0.331 and 1.106(b) of the Commission’s
Rules, 47 C.F.R. §§ 0.331, 1.106(b), the Petition for Reconsideration
filed by James A. Kay, Jr. on May 19, 2003, IS DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION

Katherine M. Harris
Deputy Chief, Mobility Division
Wireless Telecommunications Bureau

 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-443A1.doc
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