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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) JAMES CASSELL et. al., ) ) Target Licensee: Johnson Communications) 94F124 et al. and other Requests for Finder's Preference) MEMORANDUM OPINION AND ORDER Adopted: May 21, 1999 Released: May 28, 1999 By the Commission: 1. We have before us 26 applications for review of decisions made by the Wireless Telecommunications Bureau (Bureau). These decisions rejected petitions for reconsideration of the denial of finder's preference requests filed by the petitioners. For the reasons stated below, we deny these applications for review. I. BACKGROUND 2. 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 leading to the cancellation of a license due to the licensee's noncompliance with certain regulations. The Commission, upon recovery of the channels from the target licensee, awards the finder a dispositive preference for the recovered frequencies. 3. The finders listed in Attachment A of this order all filed their individual requests between 1993 and 1995, and they targeted SMR Licensees in the 800 MHz band. In each of these requests, the finders alleged that the target licensee did not build in substantial accordance with the coordinates of its authorization. Each SMR licensee opposed the request targeting its station by arguing that any siting error was minor in part because each station was within 1.6 kilometers (approximately 1 mile) of its authorized coordinates. Each finder's preference request was denied because the Bureau concluded that the finders did not meet their burden of proving that the target licensee had failed to substantially comply with the Commission's rules governing the siting of their towers. 4. Following the release of these decisions, the petitioners filed petitions for reconsideration. These petitions for reconsideration were denied in a series of orders released between January and March 1997. The Bureau concluded that the finders did not demonstrate that the target licensees failed to substantially comply with the Commission's rules governing the siting of their towers. In making these findings, the Bureau followed a benchmark standard adopted by the Private Radio Bureau for determining whether a target licensee's alleged failure to be in "substantial accordance" with its authorized parameters based on a tower siting error should result in the cancellation of a license and the award of a finder's preference. This standard provided that "absent unique circumstances, finder's preferences would not be awarded where the dispute involved a variance from authorized coordinates of less than 1.6 kilometers (one mile)." 5. The Commission affirmed this benchmark in the Vaughn Order, which denied three applications for review by finding that the primary evidence supporting each finder's request only demonstrated a minor tower siting error. The Commission held that "for variations from authorized coordinates of less than 1.6 kilometers, finders have a burden to demonstrate that the variance is not minor based on the specific facts." Thus, the Commission promulgated a rebuttable presumption that a siting error of less than 1.6 kilometers would not be deemed to have established substantial non-compliance. 6. In Cassell v. FCC, the United States Court of Appeals for the District of Columbia Circuit affirmed the Commission's benchmark standard as set forth in the Vaughn Order. In Cassell, the court deferred to the Commission's decision, finding that it reasonably interpreted its rules. The court held that the Commission provided a reasonable explanation for the benchmark it adopted and that it was proper for the Commission to announce its benchmark as part of an adjudicative decision. The court also upheld the Commission's decision to apply the benchmark retroactively because petitioners presented "no evidence of the kind of 'manifest injustice' that would counsel against the retroactive application of the 1.6-kilometer benchmark" was presented by the petitioners. II. DISCUSSION 7. As stated above, if a target licensee made a target siting error of less than 1.6 kilometers, the filer of a finder's preference request has the burden of demonstrating that the error is not minor. There is, therefore, a rebuttable presumption that a licensee who made an error of less than 1.6 kilometers would be deemed to be in substantial compliance with section 90.631(f) of the Commission's rules. In the 26 applications for review the Commission addresses in this order, the filers of the finder's preference requests allege that the target licensees did not build in substantial accordance with the coordinates designated in their authorizations. In each of these cases, however, undisputed evidence demonstrates that the towers in question were timely constructed within 1.6 kilometers of their authorized coordinates. Because these finders have presented insufficient evidence to prove that these errors are not minor, they have failed to rebut the presumption that the target licensees are in substantial compliance with section 90.631(f) of the Commission's rules. We therefore deny these applications for review. III. ORDERING CLAUSE 8. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 5(c)(5) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 155(c)(5), and Section 1.115 of the Commission's rules, 47 C.F.R.  1.115, the applications for review listed in Attachment A of this Order ARE HEREBY DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary