**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Susan Jane Palmer ) File No. 95F597

)

Finder\'s Preference Request )

for Station WPBD403 )

Licensed to Rotary Wireline, Inc. at )

Santa Fe, NM )

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 23, 1999 Released: November 23, 1999**

By the Deputy Chief, Commercial Wireless Division, Wireless
Telecommunications Bureau:

# Introduction

1.  On February 20, 1997, Susan Jane Palmer (Palmer) filed a petition
    for reconsideration (Petition)[^1] of a decision by the Wireless
    Telecommunications Bureau's Office of Operations denying her request
    for a finder\'s preference against Rotary Wireline, Inc. (Rotary)
    Specialized Mobile Radio (SMR) Station WPBD403.[^2] For the reasons
    discussed below, Palmer's petition for reconsideration is granted.

# Background

2.  Palmer filed a finder's preference request for Station WPBD403 on
    January 13, 1995.[^3] The Bureau's Office of Operations denied the
    finder's preference request on January 24, 1997. The decision stated
    that even though the finder presented evidence that the station was
    not constructed, the target licensee demonstrated a good faith
    attempt to satisfy the Commission's rules.

3.  In her Petition, Palmer argues that the evidence showing that the
    station was constructed on November 12, 1993 and deconstructed
    around November 22, 1993 demonstrates that Station WPBD403 was not
    permanently constructed or placed into operation at the initial
    licensed location. Furthermore, Palmer argues that Rotary has failed
    to provide evidence showing that the station was authorized to
    operate at a site 13 miles away from the site listed in its license.
    Rotary filed an Opposition to the Petition for Reconsideration
    (Opposition). Rotary asserts that the Bureau's initial decision
    correctly found that it demonstrated a good faith attempt to satisfy
    the requirements of the Commission's rules.[^4]

# 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\....\"[^5] 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.[^6] As noted
    in the decisions referenced below, 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.

5.  Based on the evidence before us, we find that Rotary has failed to
    demonstrate that Station WPBD403 was constructed and fully
    operational at the authorized location in accordance with the
    Commission's rules. Palmer alleged that the station was not timely
    constructed at the authorized site and the allegation was
    corroborated by the owner of the tower site where the station was
    authorized to operate from.

6.  In rebuttal, Rotary stated only that the station was timely
    constructed and then deconstructed and moved to a new location
    approximately 13 miles away. Rotary filed an application to modify
    its license to this second location, but it did not request Special
    Temporary Authority (STA) to continue operating nor wait for the
    modification to be approved. Rotary could not demonstrate that it
    ever constructed at the original location but gave only a vague
    description of when and where the alleged construction occurred.
    Rotary stated that the equipment was housed in a building other than
    the building belonging to the tower owner at the authorized site but
    did not present any corroborating evidence that it had constructed
    and operated Station WPBD403 its authorized location. Rotary was
    never authorized to operate at a site other than the site listed in
    the initial authorization. Thus, Rotary has not demonstrated that
    Station WPBD403 was constructed at its authorized location. Under
    the Commission's rules, a license for a station cancels
    automatically if it is not timely constructed in substantial
    accordance with its authorization.[^7] We therefore reverse the
    January 24, 1997 dismissal of Palmer's finder's preference request,
    grant Palmer's Petition, and award a dispositive preference under
    the Finder's Preference Program to Palmer for Station WPBD403.

## Conclusion and Ordering Clauses

7.  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 dismissal of the finder's preference
    request filed by Susan J. Palmer against Station WPBD403 IS REVERSED
    and the license for Station WPBD403 IS CANCELLED.

8.  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 Petition for Reconsideration in the
    above‑captioned Finder\'s Preference Case No. 95F597 IS GRANTED.

9.  IT IS FURTHER ORDERED, that Susan Jane Palmer IS AWARDED A
    DISPOSITIVE PREFERENCE for Station WPBD403. Susan Jane Palmer has
    ninety (90) days from the date of this letter to file an acceptable
    application with the Commission. Susan Jane Palmer should follow the
    regular application and include a copy of this Order. This award is
    subject to the appeal rights of the former licensee. If the former
    licensee appeals, the 90 day filing period will be tolled during the
    review of such appeal.

Federal Communications Commission

William W. Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration filed February 20, 1997.

[^2]: *See* Letter from William J. Kellett, Esq., Office of Operations,
    to Susan Jane Palmer, dated January 24, 1997 (Office of Operations
    Decision).

[^3]: Request for Finder's Preference filed January 13, 1995.

[^4]: Opposition to Petition for Reconsideration filed March 4, 1997.

[^5]: *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) (*Finder's Preference
    Report & Order*).

[^6]: The Commission discontinued the Finder\'s Preference Program for
    the 800 MHz Service on December 15, 1995. *See* Amendment of Part 90
    of the Commission's 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*, 11 FCC Rcd. 1463, 1634, ¶ 416 (1995) (*800 MHz Report &
    Order*).

[^7]: 47 C.F.R. § 90.631.