Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | Case No. 94F372              |
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| REPEATER COMMUNICATIONS CORP.    | ) |                              |
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| Finder's Preference Request      | * |                              |
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| Regarding Station KNHY561        | * |                              |
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| Houston, Texas                   | ) |                              |
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ORDER

**Adopted:** January 28, 2000 **Released:** January 31, 2000

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

# INTRODUCTION

1.  On November 27, 1996, Repeater Communications Corp. (Repeater) filed
    a petition for reconsideration (Repeater Petition) of the November
    1, 1996, dismissal of its finder's preference request targeting
    Station KNHY561, Houston Texas.[^1] For the reasons discussed
    herein, we affirm the November 1, 1996, action and dismiss
    Repeater's Petition.

## BACKGROUND

2.  In 1991, the Commission established the finder's preference program
    to augment its compliance review efforts in the private land mobile
    radio service. The program was fashioned to provide incentives for
    individuals to survey licenses assigned in the 220-222 MHz, 470-572
    MHz and 800-900 MHz bands in order to identify licensees who had
    failed to construct, place in operation or continue to operate their
    stations.[^2] Pursuant to this program, an entity who submitted
    evidence that an existing license in the above-referenced bands had
    cancelled automatically for failure to construct,
    place-in-operation, or continue to operate its station in compliance
    with the Commission's Rules was entitled to obtain a preference for
    use of the licensed frequencies in the assigned area.[^3]

3.  On August 24, 1994, Repeater filed a finder's preference request
    targeting Station KNHY561.[^4] In its request, Repeater alleged that
    the target licensee, Hot Shot, failed to construct Station KNHY561
    in substantial conformance with the parameters specified in Hot
    Shot's license authorization.[^5] Repeater maintained that Hot Shot,
    "originally licensed . . . on November 14, 1990", constructed
    Station KNHY561 at 29-45-36N/95-21-50W three miles from the
    coordinates specified on its license authorization (i.e.,
    29-45-36W/95-24-50W).[^6] In support of this assertion, Repeater
    submitted a sworn statement by Jeffrey Scott, Repeater's principal,
    verifying this information, and an azimuth calculation indicating
    that the distance between Hot Shot's actual and authorized site was
    three miles.[^7] On November 11, 1994, the former Office of
    Operations returned Repeater's request for failure to state which of
    the Commission's Rules was violated. Repeater was given 60 days to
    amend and re-submit its request.[^8] Subsequently, on November 14,
    1994, Repeater amended its request and stated that Hot Shot had
    violated Section 90.631(f)[^9] of the Commission's Rules by failing
    to construct in substantial accordance with its authorization.[^10]

4.  On December 23, 1994, Hot Shot filed a motion to dismiss Repeater's
    finder's preference request.[^11] Hot Shot maintained that Station
    KNHY561 was licensed on February 24, 1984, rather than 1990, and
    that it did, in fact, construct and place its station in operation
    in accordance with its original coordinates at First International
    Plaza (29-45-30N/95-22-05W) prior to the end of its initial
    construction period on October 24, 1984.[^12] In support of this
    statement, Hot Shot provided a copy its license, its 1984
    coordinates -- taken from the Commission's microfiche archives, and
    the statement of Darrell C. Donaldson, president of Hot Shot,
    attesting that "KNHY561 was constructed at the authorized

    site at First International Plaza prior to October 24, 1984."[^13]
    On January 6, 1995, Repeater filed a reply[^14] stating that its
    Station is authorized to operate at 601 Milam Street in Houston
    Texas at the coordinates (29-45-36N/95-21-50W) and that Station
    KNHY561 is also operating at this site, but its authorized
    coordinates are for the Texas Commerce Tower
    (29-45-36N/95-24-50W).[^15] On January 12, 1995, Hot Shot filed a
    response to Repeater's statement maintaining that both the Milam and
    the Travis street addresses were for the Texas Commerce Tower.[^16]
    A search of the Commission's database indicates that as of January,
    1986, Hot Shot's coordinates and address had changed from the First
    International Plaza site (29-45-30N/95-22-05W) to the Texas Commerce
    Tower site (29-24-36N/95-24-50W). The Commission database continued
    to reflect these same coordinates for the Texas Commerce Tower until
    the third quarter of 1996, whereupon Hot Shot amended its
    coordinates to 29-45-36N/95-21-50W.

5.  On November 1, 1996, the former Office of Operations denied
    Repeater's finder's preference request finding "the finder failed to
    demonstrate that the target station was not constructed and placed
    in operation in substantial accordance with its authorized
    parameters within eight months of its original grant."[^17] On
    November 27, 1996, Repeater filed a petition seeking reconsideration
    of the Office of Operations denial of its finder's request.[^18] In
    response, Hotshot filed an opposition on December 12, 1996.[^19]
    Repeater filed a reply on December 19, 1996.[^20]

# DISCUSSION

6.  Repeater argues that the decision by the former Office of Operations
    is contrary to the Commission's stated policy regarding proper
    construction and operation of an 800 MHz Business Radio.[^21]
    Repeater maintains that "Hotshot's operational violation . . .
    constitutes a failure to operate in substantial accordance with its
    authorization" and that this is indeed a proper basis for a finder's
    request.[^22] Repeater also argues that "if a licensee operates a
    facility three miles from its authorized site, it has
    "deconstructed" its [authorized]{.underline} facilities.
    Deconstruction for greater than one year, as is the case here, is
    itself the basis for a Finder's Preference Award."[^23] We concur
    that a licensee's failure to construct and operate in substantial
    accordance with its station authorization is a valid basis for a
    finder's request. However, because Repeater failed to cite to the
    correct rule section in its initial finder's request, as amended, we
    must agree with the conclusion reached by the former Office of
    Operations. Repeater, in its amended finder's request, alleged that
    Hotshot had violated Section 90.631(f) of the Commission's Rules. As
    stated above, Station KNHY561 was a conventional station, and
    therefore, Section 90.633 was the appropriate rule. However, even if
    we disregard this rule misstatement as *de minimis*, since both rule
    sections pertain to initial station construction and operation, Hot
    Shot showed adequate evidence that it was indeed licensed in 1984
    and that it constructed its Station at its then authorized location
    at the First International Plaza.[^24]

7.  In its petition for reconsideration, Repeater now alleges a
    violation of Section 90.157 of the Commission's Rules.[^25] Section
    90.157 provides for license cancellation upon permanent
    discontinuance of operations for one year or more, including failure
    to operate in accordance with established license parameters. During
    the existence of the finder's preference program,[^26] the
    Commission has required a finder's request to contain certain
    specific information, including the rule section that the target
    allegedly violated and a detailed statement of the nature of that
    violation.[^27] It is the duty of the finder to fully investigate
    the circumstances surrounding the target's non-compliance with
    Commission's Rules and to then determine the appropriate rule
    section upon which to base its claim. The finder's delineation of
    the nature of the target's violation provides the framework of each
    discrete finder's preference proceeding. The finder's specific
    allegation with respect to the target is what the target must
    address. To allow a finder to choose a different allegation on
    reconsideration after failing to prove its initial contention would
    be manifestly unfair procedurally to any target licensee.[^28] Here,
    the allegation was failure to construct and/or place in operation.
    In response to this allegation, Hot Shot has demonstrated, to the
    contrary, that it in fact constructed and operated at its original
    authorized coordinates.

8.  As a result, we conclude that the Office of Operations properly
    concluded that Hot Shot was not a suitable subject for a finder's
    preference request.

# IV. CONCLUSION AND ORDERING CLAUSES {#iv.-conclusion-and-ordering-clauses .unnumbered}

9.  For the reasons discussed above, the denial of Repeater
    Communications Corp., finder's preference request against Station
    KNHY561 is AFFIRMED.

10. IT IS ORDERED, pursuant to Section 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154 (i), 405
    and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, that
    the petition for reconsideration filed by Repeater Communications
    Corp., is DENIED.

11. This action is taken under delegated authority pursuant to Section
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
    0.331.

> FEDERAL COMMUNICATIONS COMMISSION
>
> D'wana R. Terry
>
> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]:
    > Repeater Communications Corp. Petition for Reconsideration (filed
    > November 27, 1996).

[^2]:
    > *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*, 6 FCC Rcd 7297,
    > 7302-7303 (1991); *see also* Amendment of Parts 1 and 90 of the
    > Commission's Rules, *Memorandum Opinion and Order*, 8 FCC Rcd 6690
    > (1993).

[^3]:
    > Former 47 C.F.R. § 90.173(k). In 1998, Part 90 of the Commission's
    > Rules was amended to eliminate the finder's preference program.
    > *See* Amendment of Part 90 Concerning the Commission's Finder's
    > Preference Rules, *Report and Order*, 13 FCC Rcd 23816 (1998).

[^4]:
    > Repeater Communications Finder's Preference Request (filed on
    > August 24, 1994).

[^5]: ^?^*Id.* at 2-3.

[^6]: ^?^*Id.*

[^7]: ^?^*Id.* at Exhibit A-B.

[^8]:
    > Letter from Anne Marie Wypijewski, Wireless Telecommunications
    > Bureau, Licensing Division, to Susan H.R. Jones, Esq., Gardner,
    > Carton and Douglas, Case No. 94F372 (dated November 7, 1994).

[^9]:
    > Section 90.631(f) requires a trunked station to be placed in
    > permanent operation, in accordance with the technical parameters
    > of the station authorization within one year. 47 C.F.R. §
    > 90.631(f). However, in this case, Station KNHY561 is a
    > conventional system, therefore, the applicable rule section is 47
    > C.F.R. § 90.633(d). Section 90.633(d) requires conventional
    > stations to be placed in operation within eight months. 47 C.F.R.
    > §90.633(d).

[^10]:
    > Letter from Susan H.R. Jones, Esq., Gardner, Carton & Douglas, to
    > Finder's Preference Program, Federal Communications Commission,
    > Case No. KNHY561 (dated November 14, 1994 and filed November 16,
    > 1994).

[^11]:
    > Hot Shot Messenger Service Corp. Motion to Dismiss (filed December
    > 23, 1994) (Hot Shot Opposition). Although Hot Shot chose to label
    > its reply to Repeater's finder's preference request a Motion to
    > Dismiss. We will consider it to be a timely filed opposition.

[^12]:
    > Hot Shot Opposition at 4.

[^13]: ^?^*Id.* at Donaldson Exhibit.

[^14]:
    > Repeater Reply at 1 (filed January 6, 1999). Repeater requested
    > and was granted an extension to file a late Reply to Hot Shot's
    > opposition. *See* Letter from Susan H.R. Jones, Gardner, Carton
    > and Douglas, Case No. 94F372 to Anne Marie Wypijewski,
    > Attorney-Advisor, Wireless Telecommunications Bureau, Federal
    > Communications Commission (dated December 29, 1994).

[^15]:
    > Repeater Reply at 3.

[^16]: ^?^Hot Shot Messenger Service Reply (filed January 12, 1995).

[^17]:
    > Letter from William H. Kellett, Office of Operations --
    > Gettysburg, Federal Communications Commission to Susan H.R. Jones,
    > Esq., Gardner, Carton & Douglas (dated November 1, 1996).

[^18]:
    > Repeater Petition for Reconsideration (filed November 27, 1996).

[^19]: ^?^Hot Shot Opposition to Repeater Petition for Reconsideration
    (filed December 12, 1996).

[^20]: ^?^Repeater Reply (filed December 19, 1996).

[^21]: ^?^Repeater Petition at 2.

[^22]: ^?^*Id.* at 3.

[^23]: ^?^*Id.* fn. 3.

[^24]: ^?^*See supra* ¶ 4 fn. 9.

[^25]: ^?^47 C.F.R. § 90.157.

[^26]:
    > *See Report and Order*, 13 FCC Rcd at 23816-23822.

[^27]: ^?^*See, e.g.,* 6 FCC Rcd at 7306 ¶ 51.

[^28]:
    > *See* In the Matter of Petersen Electric, Inc., *Memorandum
    > Opinion and Order*, FCC 99-411 at ¶ 3 (released December 30, 1999)
    > (Commission held that Bureau properly dismissed finder's petition
    > for reconsideration on grounds that finder "could not allege a new
    > rule violation on reconsideration that had not been alleged in its
    > initial finder's request.").