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Before the
               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         )
                                     )
Finder's Preference Proceeding       )
Involving SMR Station KNFT737       )
at Pratt, Kansas                     )
                                     
                                     
                       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 finder's preference to James A. Cassell
(Cassell).  The Bureau's 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 tower's 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 MRS's part.  On December 19, 1996, the Bureau granted the finder's
preference request.  The Bureau's 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 station's 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 finder's 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
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 siting
variances of less than 1.6 kilometers.  For cases, like that presently before us, in which the targeted
station's 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 finder's 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, MRS's petition explains that its station's 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 MRS's application match that of the installed site with the exception of the erroneous
coordinates.
                                
                           Conclusion

     10.  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 Commission's 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 Commission's
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 Commission's
rules, 47 C.F.R.  0.331 and 1.106, the award of a finder's 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 Commission's
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