ࡱ> R_QY ) 3bjbjWW \===% ]|Xlll8&0&<:4& & & ^ ^ ^ ,$\l^   @^ ^ " & & " " " ^ & 8& ^ " " T& l&ZX Before thePRIVATE  Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) File No. 94F359 Motorola, Inc. ) ) Finders Preference Proceeding ) Involving Specialized Mobile ) Radio Station WNHJ736 ) at Waco, Texas )  AUTOTEXTLIST \* MERGEFORMAT MEMORANDUM OPINION AND ORDER Adopted: September 1, 1999 FILLIN "Type the Adopted Date and click OK" \* MERGEFORMAT  Released: September 1, 1999 FILLIN "Type the Release Date and click OK" \* MERGEFORMAT  By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: Introduction 1. On February 18, 1997, Motorola, Inc. (Motorola), the target licensee, filed a petition for reconsideration (petition) of a decision by the Wireless Telecommunications Bureau (Bureau) awarding a request for a finders preference to Cathy Fougnies (Fougnies). The Bureaus Office of Operations awarded a preference after Fougnies demonstrated that station WNHJ736 was not constructed at the authorized location but at a location approximately 2.8 miles away from the site described by the coordinates on its license. For the reasons that follow, we find that the error in location was minor and that station WNHJ736 was constructed in substantial accordance with its authorization. Accordingly, the petition for reconsideration is granted, the finder's preference award to Fougnies is set aside, and the license for station WNHJ736 is reinstated. Background 2. On August 12, 1994, Fougnies filed a finder's preference request against Motorola, licensee of Station WNHJ736 at Waco, Texas, alleging that no tower was located at the authorized coordinates. In response, Motorola demonstrated that its station was constructed in a timely fashion and had been operational for many years at the towers street address listed on its license. Motorola did not contest the 2.8 mile difference between its geographic coordinates and those on the license, stating that the coordinates on the license were wrong due to an inadvertent error. On January 8, 1997, the Bureau granted the finder's preference request. The Bureaus Office of Operations determined that because of a discrepancy of 2.8 miles between the location of the site where the tower was constructed and the authorized coordinates, Motorola was required to provide evidence that its station was constructed in substantial accordance with its license authorization, and that Motorola had failed to demonstrate that the siting error was minor. 3. In its petition for reconsideration, Motorola argues that the evidence submitted demonstrates that station WNHJ736 was constructed in substantial accordance with its authorized parameters. Motorola provided two engineering studies showing that the site location error did not substantially alter the stations service or interference area. Motorola also provided information regarding its FAA compliance status, showing that the tower did not create an air safety hazard. Fougnies, the finder, provided no evidence that would raise compliance questions except for the distance measurement. 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. Upon recovering channels from a target licensee deemed to be in violation of those regulations, the Commission would then award a dispositive preference for those frequencies to the finder. 5. In 1994, the Bureau's Office of Operations adopted an objective guideline for determining when [it would] allow recovery of channels through the finders preference program due to construction of stations at parameters [coordinates] other than those authorized. Under this guideline, 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. 6. Later, the Commission affirmed the earlier decisions and upheld the benchmark standard, adopting 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 in which 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 Commissions ruling. 7. As noted in the above-referenced decisions, the standard for whether a finders 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 siting variances of less than 1.6 kilometers. For cases, like that presently before us, in which the targeted stations actual site is more than 1.6 kilometers from its assigned coordinates, we apply a rebuttable presumption 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. In these cases, the target licensees have the burden of demonstrating that siting variances above the benchmark distance are minor as to their effects. Where the licensee provides sufficient evidence to rebut the presumption that a siting variance greater than the benchmark distance is not minor, a finders preference will not be awarded. 8. The engineering analysis submitted by Motorola shows that the constructed station has substantially the same coverage area as the authorized station would have had. According to this analysis, the 40/22 dBu contour of the constructed station matches the 40/22 dBu contour of the authorized station except for a de minimis change and no co-channel interference has resulted. Motorola also presents evidence that the antenna did not require FAA approval and therefore did not create an air safety hazard. These are among the types of factors that the Commission indicated in the Vaughn Order it would consider when determining whether a siting error is minor. In addition, Motorolas petition explains that the stations address matched the downtown Waco address on its authorization and that the incorrect coordinates on the license were due to inadvertent error. Conclusion 9. We find that Motorola has provided sufficient evidence to rebut the presumption that the siting variance was not minor. Motorola demonstrated that the service area was not enlarged, no air hazard was created and the station had operated successfully for nearly ten years. Consequently, Motorola has met its burden by demonstrating that Station WNHJ736 was constructed in substantial accordance with its authorized parameters and that it has made a good faith effort to comply with the Commissions rules. Therefore, we grant Motorola's petition for reconsideration, set aside the finder's preference award to Fougnies, and reinstate the license for station WNHJ736. Ordering Clauses 10. Accordingly, 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) and 405, and sections 0.331 and 1.106 of the Commissions rules, 47 C.F.R. 0.331 and 1.106, the petition for reconsideration filed by Motorola, Inc. is GRANTED. 11. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and 405, and sections 0.331 and 1.106 of the Commissions rules, 47 C.F.R. 0.331 and 1.106, the award of a finders preference request to Fougnies and the notice of cancellation dated January 8, 1997 are SET ASIDE. 12. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and 405, and sections 0.331 and 1.106 of the Commissions rules, 47 C.F.R. 0.331 and 1.106, the license for station WNHJ736 targeted in this proceeding is REINSTATED. Federal Communications Commission William W. Kunze Deputy Chief, Commercial Wireless Division Wireless Telecommunications Bureau  A finders preference was filed against Station WNHJ736 (Waco, Texas) frequencies: 861.7375, 862.7375, 863.7375, 864.7375, 865.7375 MHz.  Petition for Reconsideration (filed February 18, 1997). Fougnies filed an Opposition on February 20, 1997, and Motorola filed a Reply on March 11, 1997.  Finders Preference Request (filed August 12, 1994).  See Letter from Anne Marie Wypijewski, Counsel, Office of Operations, Wireless Telecommunications Bureau (Wypijewski) to A.B. Cruz, III, Esq., (January 8, 1997) (Notice of Award).  See Letter from Wypijewski to Karen Kincaid, Esq., (January 8, 1997) (Notice of Cancellation).  Petition for Reconsideration, Attachments 2 and 3 (engineering graphs).  Petition for Reconsideration at 9-10.  Finders could assert violations of certain Part 90 rules and present evidence thereof and request a finder's preference. See Amendment 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, 7309, 77 (1991).  The Commission discontinued the Finders Preference Program for the 800 MHz Service on December 15, 1995. See Amendment of Part 90 of the Commissions Rules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, First Report and Order, Eighth Report and Order, and Second Further Notice of Proposed Rulemaking, PR Docket No. 93-144, 11 FCC Rcd. 1463, 1634, 416 (1995).  In the Matter of Lawrence E. Vaughn, Jr., Order, 9 FCC Rcd. 4438, 4438, 8 (1994) (Vaughn Division Order), affd, In the Matter of Lawrence E. Vaughn, Jr., Finders Preference Request, Order, 10 FCC Rcd. 10885 (WTB 1995) (Vaughn Bureau Order), affd, In re James A. Cassell and Kelley Communications, Inc., Lawrence Vaughn, Jr., Finders Preference Requests, Memorandum Opinion and Order, 11 FCC Rcd. 16720 (1996) (Vaughn Order).  Vaughn Division Order, 9 FCC Rcd. at 4438-39, 8.  Vaughn Bureau Order, 10 FCC Rcd. at 10887, 14-15; Vaughn Order, 11 FCC Rcd. at 16724, 11.  Vaughn Order, 11 FCC Rcd. at 16724, 12.  Id. at 16724-25, 12.  Cassell v. FCC, 154 F.3d 478, 484 (D.C. Cir. 1998).  In the Matter of Airwave Radio Inc., Memorandum Opinion and Order, DA 99-1492 (WTB/CWD: rel. July 29, 1999).  Petition for Reconsideration, Attachments 2 and 3 (engineering graphs).  Id. at 9-10.  Vaughn Order, 11 FCC Rcd. at 16724-25, 12.  Petition for Reconsideration at 3.  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