ࡱ> TaSY * |5bjbjWW ^==%% ]TTT\8''< 4D D D | | | ~,$ \| < < @| |  22D D  | 62D ^8D ~2222| ~  6P~D (* bBefore thePRIVATE  Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Thomas Crissman and Janice I. Crissman ) File No. 94F510 d/b/a MRS Communications, LP ) ) Finders Preference Proceeding ) Involving SMR Station KNFT737 ) at Pratt, Kansas )  AUTOTEXTLIST \* MERGEFORMAT MEMORANDUM OPINION AND ORDER Adopted: September 1, 1999 Released: September 1, 1999 By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: Introduction 1. On January 21, 1997, Thomas Crissman and Janice I. Crissman, d/b/a MRS Communications, LP (MRS), 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 James A. Cassell (Cassell). The Bureaus Office of Operations awarded a preference after Cassell demonstrated that station KNFT737 was not constructed at the authorized location but at a location approximately 1.5 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 KNFT737 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 KNFT737 is reinstated. Background 2. On October 11, 1994, Cassell filed a finder's preference request against MRS, licensee of station KNFT737 at Pratt, Kansas, alleging that no tower was located at the authorized coordinates. In response, MRS 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. MRS did not contest the 1.5 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 MRSs part. On December 19, 1996, the Bureau granted the finder's preference request. The Bureaus Office of Operations determined that due to the discrepancy of 1.5 miles between the location of the site where the tower was constructed and the authorized coordinates, MRS was required to provide evidence that its station was constructed in substantial accordance with its license authorization, and that MRS had failed to demonstrate that the siting error was minor. 3. In its petition for reconsideration, MRS argues that the evidence submitted demonstrates that station KNFT737 was constructed in substantial accordance with its authorized parameters. MRS provided an engineering analysis showing that the site location error did not extend the stations service or interference area. MRS also provided information regarding its FAA compliance status, showing that the tower did not create an air safety hazard. Cassell, 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 MRS shows that the constructed station has substantially the same coverage area as the authorized station would have had. According to the analysis, the 40/22 dBu contour of the constructed station is wholly contained within the protected contour of the authorized station and no co-channel interference has resulted. MRS 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. 9. In addition, MRSs petition explains that its stations address matched the address on its authorization and that the incorrect coordinates on the license were due to inadvertent error. Finally, all station parameters on MRSs application match that of the installed site with the exception of the erroneous coordinates. Conclusion We find that MRS provided sufficient evidence to rebut the presumption that the siting variance was not minor. MRS demonstrated that the service area was not enlarged, no air hazard was created and the station had operated successfully for more than a decade. Consequently, MRS has met its burden by demonstrating that station KNFT737 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 MRS's petition for reconsideration, set aside the finder's preference award to Cassell, and reinstate the license for station KNFT737. Ordering Clauses 11. 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 MRS Communications, LP is GRANTED. 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 award of a finders preference request for Cassell and the notice of cancellation dated December 19, 1999 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 KNFT737 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 KNFT737 (Pratt, Kansas) frequencies: 861.4875, 862.4875, 863.4875, 864.4875, 865.4875 MHz.  Petition for Reconsideration (filed January 21, 1997). Cassell filed an Opposition on January 31, 1997, and MRS filed a Reply on February 10, 1997.  Finders Preference Request (filed October 11, 1994).  See Letter from William H. Kellett, Attorney, Office of Operations, Wireless Telecommunications Bureau (Kellett) to A.B. Cruz, III, Esq., (December 19, 1996) (Notice of Award).  See Letter from Kellett to Marilyn Suchecki Mense, Esq., (December 19, 1996) (Notice of Cancellation).  Petition for Reconsideration, Exhibit 6 at Attachment (engineering statement and graph).  Petition for Reconsideration, Exhibit 6 at Attachment (Aeronautical Study No. 95-ACE-0288-OE attached as Exhibit F14A to Application).  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, Exhibit 6 at Attachment (engineering statement and graph).  Id.  Petition for Reconsideration, Exhibit 6 at Attachment (Aeronautical Study No. 95-ACE-0288-OE attached as Exhibit F14A to Application).  Vaughn Order, 11 FCC Rcd. at 16724-25, 12.  Petition for Reconsideration at 2, 3.  Petition for Reconsideration, Exhibit 6 at Attachment (Application for Modification attached as Exhibit 1 to Request for Rule Waiver).  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