**Before the**

##  Federal Communications Commission

**Washington, D.C. 20554**

In the Matter of )

)

)

Daniel T. Meek ) File No. 94F307

)

Finder\'s Preference Request )

For Specialized Mobile Radio )

Station WNRQ903, Licensed to )

Sara Matthews-McCasky at Ottawa, Illinois )

**MEMORANDUM OPINION AND ORDER**

**Adopted: October 15, 1999 Released: October 15, 1999**

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

# I. Introduction

1.  On January 6, 1996, Sara Matthews-McCasky (McCasky), the target
    licensee, filed a petition for reconsideration (Petition)[^1] of a
    decision by the Wireless Telecommunications Bureau's Office of
    Operations awarding a finder's preference to Daniel T. Meek (Meek).
    The Decision awarded a preference after Meek alleged that Station
    WNRQ903 was not constructed at the authorized location.[^2] For the
    reasons discussed below, we find that the error in location was
    minor and that Station WNRQ903 was constructed in substantial
    accordance with its authorization. Accordingly, the Petition is
    granted, the finder's preference award to Meek is set aside and the
    license for Station WNRQ903 is reinstated.

# 

# II. Background

2.  Meek filed a finder's preference request for Station WNRQ903 on July
    19, 1994. Meek alleged that no tower was at the authorized
    coordinates, but the station's tower was located approximately 400
    feet away. The finder thus alleged a violation of section 90.631 of
    the Commission's rules, 47 C.F.R. § 90.631. In her response, McCasky
    stated that the system was operational but located 400 feet from its
    authorized coordinates.

### III. Discussion

3.  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\....\"[^3] 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.[^4]

4.  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."[^5] 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."[^6] In 1995, the Wireless Telecommunications Bureau
    affirmed the benchmark standard.[^7]

5.  Later, the Commission affirmed the earlier decisions and upheld the
    benchmark standard. 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." 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.[^8]

6.  In this case, the allegation is that the station is constructed less
    than one mile from the authorized coordinates. Meek has not
    presented sufficient evidence to prove that the error was not minor.
    Therefore, Meek has failed to rebut the presumption that the target
    licensee is in substantial accordance with Section 90.631(f) of the
    Commission's rules. Therefore we grant McCasky's petition, set aside
    the finder's preference award to Meek, and reinstate the license for
    Station WNRQ903.

# 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 Petition for Reconsideration in the
    above-captioned Finder\'s Preference Case, No. 94F307 IS GRANTED.

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 award of a finder's preference request for Meek
    and the notice of cancellation dated December 6, 1996 are SET ASIDE.

9.  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 WNRQ903 targeted in this
    proceeding is REINSTATED.

Federal Communications Commission

William W. Kunze

Deputy Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: ^1^ Petition for Reconsideration filed January 6, 1997.

    ^2^ *See* Letter from William H. Kellett, Esq., Office of
    Operations, to Allan S. Tilles, Esq., dated December 6, 1996 (Office
    of Operations Decision).

[^2]: ^2^

[^3]: ^3^ *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).

[^4]: ^4^ 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).

    ^5^ In the matter of Lawrence E. Vaughn, Jr*., Order*, 9 FCC Rcd.
    4438, 4438-39, ¶ 8 (1994).

[^5]: ^5^

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

[^7]: ^7^

    ^7^ In the matter of Lawrence E. Vaughn, Jr., *Order*, 10 FCC Rcd.
    10885, 10887, ¶¶ 14-15 (WTB 1995).

[^8]: ^8^ In the matter of James A. Cassell, *Memorandum Opinion and
    Order,* 11 FCC Rcd. 16720,16724, ¶¶ 11 (1996);

    *Aff'd Cassell* v. FCC, 154 F.3d 478 (D.C. Cir.1998).