**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Daniel T. Meek ) File No. 94F356

)

Finder\'s Preference Request )

for Station KNHK823 )

Licensed to Motorola, Inc. at )

Blanket, Texas )

## MEMORANDUM OPINION AND ORDER

**Adopted: October 1, 1999 Released: October 1, 1999**

By the Deputy Chief, Wireless Telecommunications Bureau:

# I. Introduction

1.  On February 7, 1997, Daniel T. Meek (Meek) filed a petition for
    reconsideration (Petition)[^1] of a decision by the Wireless
    Telecommunications Bureau's (Bureau) Office of Operations denying
    his request for a finder\'s preference against Specialized Mobile
    Radio (SMR) Station KNHK823. [^2] For the reasons discussed below,
    Meek\'s petition for reconsideration is denied.[^3]

# II. Background

2.  Meek filed a finder's preference request, against frequencies
    856-860.0625 MHz, for Station KNHK823 on August 11, 1994.[^4] Meek
    alleged that no tower was located at the authorized coordinates. As
    noted above, the Bureau's Office of Operations denied the finder's
    preference request on January 10, 1997. The decision stated that
    while the finder had provided evidence that the target station was
    not constructed at the authorized coordinates, the licensee provided
    rebuttal evidence showing that the station was constructed at the
    licensee\'s address as shown on the license and that the station was
    operational.

3.  In his Petition, Meek argues that the Commission should reconsider
    its decision because the licensee failed to construct the station at
    its licensed coordinates. The target licensee, Motorola, Inc.
    (Motorola), filed an Opposition to the Petitions for Reconsideration
    (Opposition), reiterating that Station KNHK823 is constructed at the
    transmitter street address listed in the station license and the
    station is operational.[^5] Motorola does not contest the 2.9
    kilometer difference between its geographic coordinates and those on
    the license, stating that the coordinates on the license were wrong
    due to a miscalculation of the coordinates reflected in the tower
    owner's records and in the Federal Aviation Administration's (FAA)
    files.

# III. 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\....\"[^6] 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.[^7]

5.  In 1994, the Bureau\'s Licensing Division adopted an objective
    guideline "for determining where \[it would\] allow recovery of
    channels through the finder's preference program due to construction
    of stations at parameters \[coordinates\] other than those
    authorized."[^8] The Division held that 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."[^9] In 1995, the Wireless Telecommunications Bureau
    affirmed the benchmark standard.[^10]

6.  Later, the Commission affirmed the earlier decisions and upheld the
    benchmark standard.[^11] It adopted 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 where 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."[^12] The
    1.6 kilometer benchmark, the Commission said, would "provide
    potential filers of finder\'s preference requests guidance regarding
    their burden of proof."[^13] 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.[^14]

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.[^15] 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.  Motorola\'s petition explains that the station was constructed in
    good faith at the transmitter street address listed in its
    authorization and that the incorrect coordinates on the license were
    due to an error in tower site calculations performed by the tower
    owner as well as an error in the tower files maintained by the FAA.
    Finally, all parameters submitted to the FCC on the application
    match that of the installed site with the exception of the incorrect
    coordinates.

    **IV. Conclusion**

9.  We find that Motorola has provided suficient evidence to rebut the
    presumption that the siting variance was not minor. Consequently,
    Motorola has met its burden by demonstrating that Station KNHK823
    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. Thus, we affirm our previous decision and
    deny Meek's Petition for the reasons stated above.

    **V. Ordering Clauses**

10. 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 in the
    above‑captioned Finder\'s Preference Case No. 94F356 IS DENIED.

Federal Communications Commission

Gerald P. Vaughan, Deputy Chief

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration filed February 7, 1997.

[^2]: *See* Letter from W. Riley Hollingsworth, Deputy Associate Bureau
    Chief, Office of Operations, Wireless Telecommunications Bureau, to
    A.B. Cruz III, Esq., dated January 10, 1997.

[^3]: On the same day we also deny another finder's preference request
    against Station KNHK823. *See* In the Matter of David E. Huffman,
    *Memorandum Opinion and Order*, DA 99-2022 (WTB/CWD: rel. Oct. 1,
    1999).

[^4]: Request for Finder's Preference filed August 11, 1994.

[^5]: *See* Opposition.

[^6]: *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*).

[^7]: 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*).

[^8]: ^?^ In the Matter of Lawrence E. Vaughn, Jr., *Order*, 9 FCC Rcd.
    4438, 4438-39, ¶ 8 (1994).

[^9]: ^?^ *Id.*

[^10]: ^?^ In the Matter of Lawrence E. Vaughn, Jr., *Order*, 10 FCC
    Rcd. 10885, 10887, ¶¶ 14-15 (WTB 1995).

[^11]: In the Matter of James A. Cassell*,* *Memorandum Opinion and
    Order*, 11 FCC Rcd. 16720, 16724, ¶11 (1996).

[^12]: *Id.* at 16724, ¶12.

[^13]: ^?^ *Id.* at 16725, ¶12.

[^14]: ^?^ *Cassell v. FCC*, 154 F.3d 478, 484 (D.C. Cir. 1998).

[^15]: ^?^ In the Matter of Airwave Radio Inc., *Memorandum Opinion and
    Order*, DA 99-1492 (WTB/CWD: rel. July 29, 1999).