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H {O 'ԍ Id. at page 9.>  Sl' xt 5. On October 6, 1994, Cellular Design filed a Reply to the Opposition.o l H yO#'ԍ Reply to Opposition to Finder's Preference Request (October 6, 1994).o In its Reply, Cellular  xDesign alleged that it had monitored Station WNIU652 as early in the day as 7:30 a.m. and as late in the  xDday as 10:30 p.m., but failed to detect any transmissions until August 16, 1994. Monitoring logs detailing  xthe dates and times of monitoring were provided which demonstrated monitoring during June, August, and  xSeptember of 1994. Cellular Design acknowledged that Chelsea may have operated Station WNIU652, but"P ,l(l(,,h"  xxpresented the new argument that if Chelsea was operating below its authorized ERP of 170 watts, Chelsea  x@had failed to operate Station WNIU652 in "substantial accordance" with the parameters specified in its  S'authorization.= H {O'ԍ  Id. at 13. =  S4' x 6. By letter decision dated August 2, 1995, Cellular Design's Request was dismissed for failure to  S' xprovide prima facie evidence that a violation of the Commission's rules had occurred. ZH yO' x ԍ Letter to Kathleen A. Kaercher, Esquire, Law Offices of Brown & Schwaninger (counsel of record for Cellular Design), from Anne Marie Wypijewski, Federal Communications Commission (dated August 2, 1995).  The August 2, 1995, decision explained:  Si' e  ` ` Evidence of sporadic monitoring  by itself is insufficient and does not  e aconclusively demonstrate that Station WNIU652 permanently discontinued  e 6operation. Under the Commission's rules, the finder has the burden of  S' e nproviding the Commission with prima facie evidence that a violation of the  e Commission's rules has occurred. Cellular's request contains general and  Sk ' e conclusory statements and does not state a prima facie violation (emphasis  S9 ' 8e  added).:9 $ {O'ԍ  Id. :  ` `    S ' x 7. On September 1, 1995, Cellular Design timely filed a petition for reconsideration of the August  S ' x2, 1995, dismissal action.c DH {O'ԍ  Petition for Reconsideration (September 1, 1995). c Cellular Design argued that a oneyear monitoring period of a station constitutes  Sm' xsufficient evidence of a prima facie violation of the Commission's rules, if transmissions were not detected  xduring the entire monitoring period. Cellular Design argued that it had submitted a declaration regarding  xgits monitoring of Station WNIU652, sworn to under penalty of perjury, but the Bureau had ignored the  S' x3declaration.9H {OK'ԍ  Id. at 6.9 Cellular Design reiterated that Chelsea was not operating at its authorized ERP. Cellular  xDesign further argued that the invoices and canceled checks which had been provided by Chelsea as  So'evidence of operation did not specify a particular station or frequency.;oh H {Ow'ԍ  Id. at 3. ;  S ' x 8. On September 21, 1995, Chelsea filed an Opposition to Petition for Reconsideration.  H yO ' x ԍ Opposition to Petition for Reconsideration (September 21, 1995). Please note that the Opposition was timely filed in response to the grant of Chelsea's Motion for Extension of Time filed on September 14, 1995.  In  x"opposition, Chelsea argued that the Commission had recently clarified the definition of "substantial  S' xDaccordance" as it relates to finder's preference cases, in the Vaughn decision, when it determined that the  xfinder's preference program was not intended, nor would it be utilized, to target operating stations which  S>' xhad committed minor violations of operating requirements.k>R H {O0&'ԍ See Lawrence E. Vaughn, Jr., 10 FCC Rcd 10885 (1995).k The statement of the president of Chelsea,  xsworn to under penalty of perjury, was also provided to confirm that the invoices and canceled checks which" ,l(l(,,"  S' xhad previously been provided to the Bureau related to Station WNIU652.KH {Oh'ԍ Id. at footnote 22, page 6.K On September 29, 1995,  xCellular Design filed a Reply to Chelsea's Opposition to the Petition for Reconsideration, arguing that  x^Chelsea's failure to operate Station WNIU652 at its authorized ERP was not a minor licensing error which  Sg'should be condoned by the Commission.zXgZH yOa' x ԍ Consolidated Reply to Opposition to Petition for Reconsideration (September 29, 1995). Please note that the  xQ Consolidated Reply to the Opposition to Petition for Reconsideration was timely filed in response to the grant of Cellular Design's Motion for Extension of Time filed on September 29, 1995. z  S' x 9. By letter decision dated February 28, 1996, the Bureau, pursuant to delegated authority, denied  S' xCellular Design's petition for reconsideration.DzH yO ' x ԍ Letter to Kathleen A. Kaercher, Esquire, Law Offices of Brown & Schwaninger, from W. Riley  {O ' x Hollingsworth, Federal Communications Commission (dated February 28, 1996).  Please note that separate denials  x were sent to Cellular Design relating to Stations WNML436 and WNQQ813. These two stations were also the  x subject of the instant consolidated Petition for Reconsideration. Appeals were never filed relating to Stations WNML436 and WNQQ813. D The Bureau found that although the invoices and canceled  x*checks submitted by Chelsea were not station or frequency specific, the burden of proof was on Cellular  x7Design, as the finder, to prove that Chelsea had discontinued operations, and Cellular Design had failed to  S5' xmeet its burden.;5, H {O'ԍ Id. at 2. ; The Bureau also determined that Cellular Design had not presented evidence that Station  xWNIU652 was not operating at its prescribed ERP when it filed its Request initially. Specifically, the Bureau stated:  e P ` ` Moreover, Cellular asserts that Chelsea is operating its station at a level  e jbelow the authorized effective radiated power prescribed by its license.  e Cellular attempts to rely on additional evidence not previously presented  e to this Commission with its initial request. Accordingly, because the  e Commission's rules do not permit a finder to supplement its initial request  Sj' e with  substantive evidence once the request has been reviewed and  e dismissed, this petition for reconsideration is improper and must be denied.  S'(emphasis added)7 $ {Ob'ԍ Id.  7  S' x* ` `    10. On March 29, 1996, Cellular Design filed an Application for Review of the Bureau's February  Sk' x28, 1996, action.ZkP H {O[!'ԍ  Application for Review (March 29, 1996). Z Cellular Design argues that the evidence that it had submitted to the Bureau concerning  S8' xits monitoring of Station WNIU652 was sufficient to demonstrate a prima facie case to meet its burden for  S' xprosecution of the Request.;H {O$'ԍ Id. at 89.; Cellular Design argued that the Bureau had mischaracterized the quality of  S' xgits evidence, resulting in an improper decision.;tH {O&'ԍ Id. at 9. ; On April 15, 1996, Chelsea timely filed an Opposition",l(l(,,{"  S' xto the Application for Review.aH yOh'ԍ Opposition to Application for Review (April 15, 1996). a Chelsea argued that the Bureau's February 28, 1996, action did not conflict  S' xwith existing case precedent and Commission policy.;XH {O'ԍ  Id. at 56.; Chelsea argued that the Bureau had not rejected  xmonitoring as a method of gathering evidence, but rather, the Bureau had determined that Cellular Design's  xmonitoring was inconclusive and insufficient to demonstrate that Station WNIU652 had not operated in  S4'conformance with the Commission's Rules.:4H {O'ԍ Id. at 5. :     S' III. DISCUSSION  S'  Sh' x*  11. When it established the finder's preference program, the Commission indicated that the scope  x"of rule violations qualifying for a finder's preference was limited to violations of the Commission's  S' xconstruction and placedinoperation rules.e|H {O'ԍ  See Report and Order, 6 FCC Rcd 7297, at 7305 (1991).e The Commission determined that these type of violations lend  S' xthemselves to conclusive and expeditious action.3 H {O}'ԍ Id.3 It indicated that if a base station was not constructed in  x*"substantial accordance" with the parameters specified in the station authorization, the channel associated  Si ' xwith such base station would be recovered from the license.!i H {O'ԍ#X\  P6G;vP# Id. #X\  P6G;vP#at 7299. In the instant case, we find that Cellular  x!Design has not successfully demonstrated that any deviation between the authorized and actual ERP resulted  xDin the automatic cancellation of Chelsea's license. The Commission has previously stated its concern that  xkthe finder's preference program not be used as a means to disrupt service being provided to the public, by  S ' xalleging license cancellation based on minor variations from authorized parameters.d" 2 H {Oo'ԍ See In re James A. Cassell, 11 FCC Rcd 16720 (1996).d In this connection,  xDit has indicated that a finder's preference for a station is unwarranted unless a station is not in "substantial  x&accordance" with its licensed parameters, and that the "substantial accordance" enforcement standard  S'describes a larger margin of error than the exact "accordance" required by the underlying rule.a# H {Oh'ԍ See Cassell v. FCC, No. 971005 (D.C. Cir. 1998).a  S' x7  12. We reiterate that the burden of proof in a finder's preference proceeding is on the finder.u$V H {O 'ԍ  See Report and Order, 6 FCC Rcd 7297, at page 7308, para. 68 (1991). u In  xkthe instant case, when Cellular Design filed its Request on August 5, 1994, it relied solely on the argument  xthat it had monitored Station WNIU652 from March 15, 1993 through May 31, 1994, "primarily during the  xbusiness day," and had not detected any transmissions. We note that monitoring logs were not provided  xwith Cellular Design's initial submission. Under these circumstances, we agree with the Bureau's  xconclusion that an allegation of sporadic monitoring, by itself, is insufficient to conclusively demonstrate  xthat a station has permanently discontinued operation. We further note that when Cellular Design finally  x*provided monitoring logs, they were not for the period during which it alleged a year of nonoperation by  xthe target, but instead were for later. As a result, we find that the stated evidence submitted in Cellular"$,l(l(,,"  xDesign's Request initially was not specific and was instead conclusory. Thus, we conclude that Cellular  S' xxDesign's initial submission did not establish a prima facie case. Moreover, had Cellular Design established  xa prima facie case, Chelsea would have overcome any presumption of nonoperation by the evidence it  x&provided in opposition to the Request, which included: (1) an explanation of its operational hours and  x<signal strength; and (2) documented proof that it had received invoices and had paid for use of the  xtransmitting site during the period in question. Indeed, Cellular Design's later log entries included evidence of operation of Station WNIU652 in midAugust, 1994.  Si' x  13. Cellular Design contends that an adverse inference should be drawn from Chelsea's operation  xkof Station WNIU652 at less than authorized power. We disagree with this contention. First, we note that  x7the power level specified by an FCCissued license for operation of a station under Part 90 of our rules is  xIthe maximum power level. Second, we note that Private Land Mobile Radio (PLMR) licensees are  xbencouraged to use less than the authorized power levels to maximize spectrum efficiency, reduce congestion,  x*minimize interference, promote joint use of shared channels, and reduce cochannel and adjacent channel  S7 ' xinterference on exclusive channels.Y%7 H {O 'ԍ See 47 C.F.R. 90.205 and 90.635.Y Indeed, Section 90.205 of the Commission's Rules provides, in  x"pertinent part, that licensees "use no more power than the actual power necessary for satisfactory  S ' xoperation."@& ZH yO'ԍ 47 C.F.R. 90.205.@ Consequently, we conclude that no adverse inference should be drawn from a PLMR licensee  xusing less than the maximum authorized power specified on its license, either in this or in any other context.  S8' x  14. We further find that Cellular Design's interpretation of the Bureau's February 28, 1996, denial  xaction is incorrect. The Bureau did not hold that a finder was prohibited from providing evidence of  x*monitoring a station to assist it in establishing evidence of a violation of the Commission's Rules. Rather,  xthe Bureau determined that Cellular Design's monitoring evidence in the instant case was insufficient and  Sl' xinconclusive.'lH yO' x ԍ Letter to Kathleen A. Kaercher, Esquire, Law Offices of Brown & Schwaninger, from W. Riley Hollingsworth, Federal Communications Commission (dated February 28, 1996). In fact, Section 90.173(k)(4) of the Commission's Rules stated that "[r]equests containing  S9' xDgeneral and conclusory statements shall be dismissed summarily; requests that do not state a prima facie  S' xviolation shall also be dismissed."W(BH {O'ԍ  See 47 C.F.R. 90.173(k)(4) (1994).W Based on the record in this proceeding, we concur with, and affirm, the Bureau's determination in this instance.  Sn' "R15. The license for Station WNIU652 is now held by Jupiter Travelers, Inc., after having been  S;' x*assigned from Chelsea Car & Limo Service, Inc., conditioned on the outcome of this proceeding.B);H {O 'ԍ See note 3, supra.B With  xthis affirmance of the Bureau's action denying the finder's preference claim of Cellular Design Corporation,  xChelsea Car & Limo Service, Inc., had authority to assign this station to Jupiter Travelers, Inc. As a result,  xthe station will remain authorized to Jupiter Travelers, Inc., and the condition upon Jupiter's license will  xnow be removed. Additionally, a petition for reconsideration filed by Jupiter Travelers, Inc., regarding this  S<'matter is rendered moot by this action.s*<f H yOB&'ԍ Petition for Reconsideration of Jupiter Travelers, Inc. (April 29, 1998).s "  *,l(l(,,"Ԍ S'ԙ IV. CONCLUSION  S' "16.ؠBy this Order, we affirm the Bureau's denial of Cellular Design's petition for reconsideration.  xxAfter considering the entirety of Cellular Design's contentions, we conclude that Cellular Design presented  xinconclusive evidence which the Bureau correctly identified as insufficient to satisfy Cellular Design's  xburden of proof under the finder's preference program. Chelsea demonstrated that it had not ceased  xoperation of Station WNIU652 for a period of one year or more. We believe it is in the public interest to  S' xallow the continued operation of Station WNIU652, particularly in the absence of a prima facie showing that the Commission's Rules had been violated.  S' V. ORDERING CLAUSES  Sk ' "+pX` hp x (#%'0*,.8135@8: