Before the Federal Communications Commission Washington, D.C. 20554 In the matter of ) ) Airwave Radio, Inc. ) File No. 94F508 ) San Antonio, Texas ) Target Station WDNX350 ) MEMORANDUM OPINION AND ORDER Adopted: July 29, 1999 Released: July 29, 1999 By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: Introduction 1. On January 17, 1997, Airwave Radio, Inc. (Airwave), the target licensee, filed a Petition for Reconsideration of a decision by the Wireless Telecommunications Bureau (Bureau) awarding a request for a finder's preference to James A. Cassell (Cassell). The Licensing Division awarded a preference after Cassell demonstrated that station WNDX350 was not constructed at the authorized location but at a location approximately 2.5 miles away. For the reasons that follow, we find that the error in location was minor and that station WNDX350 was constructed in substantial accordance with its authorization. Accordingly, the Petition for Reconsideration is granted, the finder's preference award to Cassell is set aside, and the license for Station WNDX350 is reinstated. Background 2. On October 31, 1994, Cassell filed a finder's preference request against Airwave Radio, Inc., San Antonio, Texas. The basis for the preference request was that no tower was located at the authorized coordinates. In response, Airwave demonstrated that its station was constructed in a timely fashion and was operational at the tower's street address listed on its license. Airwave did not contest the 2.5 mile difference between its geographic coordinates and those on the license, stating that the coordinates on the license were in error. On December 18, 1996, the Bureau granted the finder's preference request. The Bureau determined that a discrepancy of 2.5 miles between the location of the site where the tower was constructed and the authorized coordinates was prima facie evidence of a violation of 47 C.F.R. 90.631. 3. Airwave submitted evidence in support of its Petition for Reconsideration that Station WNDX350 was constructed in substantial accordance with its authorized parameters. Specifically, Airwave provided a copy of its authorization, engineering analysis, and the sworn declarations of Federico Hurst (Hurst), Vice President of Airwave, and Raymond C. Trott, P.E. (Trott), a registered professional engineer. Hurst declared that the station was timely constructed and has continually operated since 1987. Hurst also declared that the license modification application was granted in 1991. Only the tower's location raised any question as to whether WNDX350 had been constructed and operated in compliance with the Commission's regulations. Discussion 4. The Commission created the finder's preference program in order to relieve the scarcity of spectrum in several 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...." Under the finder's preference program, a person could file a finder's preference request by presenting the Commission with evidence of a licensee's noncompliance with certain regulations. The Commission, upon recovering the channels from a target licensee deemed to be in violation of those regulations, would then award a dispositive preference for those frequencies to the finder. 5. In 1994, the Bureau's Licensing Division adopted an objective guideline "for determining where [it would] allow recovery of channels through the finder's preference program due to construction of stations at parameters [coordinates] other than those authorized." The Division held that it would no longer decide whether a tower site was built in "substantial accordance" with its authorized parameters on a purely case-by-case basis. Rather, it would use the following benchmark: "With respect to a variance from authorized coordinates, absent unique circumstances, we will only award a finder's preference for a constructed and operating station when a finder demonstrates that the authorized coordinates are more than 1.6 kilometers (one mile) from the actual location of the station." In 1995, the Wireless Telecommunications Bureau affirmed the benchmark standard. 6. Later, the Commission affirmed the earlier decisions and upheld the benchmark standard. It adopted the presumption used by the Bureau in the Vaughn case that siting variances of less than 1.6 km are minor. The Commission noted that it would regard the 1.6 kilometer measure as a benchmark and not an absolute bar, recognizing that there may be situations where variances below 1.6 kilometers are not "minor," for example when they jeopardize air safety or when a licensee "knowingly constructed at another site for purposes of changing its station's coverage footprint." The 1.6 kilometer benchmark, the Commission said, would "provide potential filers of finder's preference requests guidance regarding their burden of proof." For variations of less than 1.6 kilometers, finder's preferences still would be possible, but finders would have the burden of demonstrating why a particular siting variance was not minor. The United States Court of Appeals for the District of Columbia Circuit later held that the benchmark adopted by the Commission represented a reasonable interpretation of its regulations and affirmed the Commission's ruling. 7. As noted in the above-referenced decisions, the standard for whether a finder's preference will be granted for specified frequencies is whether the target licensee constructed and operated its station in "substantial accordance" with its authorized parameters. The decisions discussed above pertain to cases, like that presently before us, in which the targeted station was less than 1.6 kilometers from its assigned coordinates. In these situations, the rebuttable presumption will be that the station in question is not transmitting a signal substantially in accordance with its originally designated coverage area and that interference to nearby stations may result. The target licensees therefore have the burden of demonstrating that the siting variance at issue is minor as to its effects. Where the licensee provides sufficient evidence to rebut the presumption that a siting variance greater than the benchmark distance is not minor, a finder's preference will not be awarded. 8. In this case, Airwave presented evidence documenting the inconsequential nature of the siting variance. Raymond Trott's engineering analysis and declaration showed that the constructed station has substantially the same coverage area as the authorized station would have had. The actual station's contour map follows the authorized contour except for a de minimis change. Both the actual station contour and authorized contour cover the main populated area of San Antonio, Texas. Trott further stated that there is no interference with any co-channel stations. Trott summarized his analysis by stating that "the difference in reliable service area between the licensed parameters/location and the reliable service area from the coordinates specified in the finder's preference [request] is minimal. Further, the actual antenna location meets the air safety requirements of the FAA and FCC." Frederico Hurst's declaration showed that Airwave intended to use the installed site coordinates by pointing out that its downtown building address matched the address on a modification application, which was granted authorizing the station's relocation to that building, but the coordinates were simply transcribed incorrectly on the application. Finally, all station parameters submitted to the FCC on the application match that of the installed site with the exception of the incorrectly transcribed coordinates. Thus, the target licensee had made no attempt to circumvent FCC rules. 9. We find that Airwave's siting error was minor. Consequently, Airwave has rebutted the presumption set forth in Vaughn and later cases and has met its burden by demonstrating that Station WNDX350 was constructed in substantial accordance with its authorized parameters. Therefore, we grant Airwave's petition, rescind the finder's preference award to Cassell, and reinstate the license for station WNDX350. Ordering Clause 10. IT IS ORDERED THAT, for the foregoing reasons, the Petition for Reconsideration filed by Airwave is GRANTED and the award of a finder's preference request for Cassell is SET ASIDE. Additionally, the license for the frequencies targeted in this proceeding at Station WDNX350 are REINSTATED. Federal Communications Commission William W. Kunze Deputy Chief, Commercial Wireless Division Wireless Telecommunications Bureau