**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | FCC File No. 9809R331904     |
|                                  | *) |                              |
| BAY VENTURES                     | ** |                              |
|                                  |    |                              |
| Application for Renewal of 220   | *  |                              |
| MHz                              | *) |                              |
|                                  | ** |                              |
| Radio Station WPCX637            |    |                              |
|                                  | *  |                              |
| Key Largo, Florida               | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**Order**

**Adopted: May 14, 2002 Released: May 15, 2002**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

# introduction

1.  On March 6, 2000, the Commercial Wireless Division's Licensing and
    Technical Analysis Branch (Branch) denied Repeater Network Spectrum
    Aq., Inc.'s (Repeater) petition to deny[^1] and granted Bay
    Ventures' (Bay) above-captioned application for license renewal. On
    April 5, 2000, Repeater sought reconsideration of the grant (April
    2000 Petition)[^2] and the Branch denied the petition on April
    30, 2001. Repeater filed a second petition on May 24, 2001, seeking
    reconsideration of the Branch's dismissal of its April 2000 Petition
    (May 2001 Petition).[^3] For the reasons discussed below, we affirm
    our decision to renew Bay's license for station WPCX637.

# Background

2.  On September 8, 1998, Bay filed the above-captioned renewal
    application for Station WPCX637 in Key Largo, Florida.[^4] The
    Branch placed the application on public notice on December 11,
    1998,[^5] and on January 11, 1999, Repeater, the geographic area
    licensee for the Miami-Fort Lauderdale market (BEA031, channel block
    D), filed a petition to deny Bay's renewal application. In its
    petition to deny, Repeater alleged that Station WPCX637 had not been
    constructed and, therefore, had not provided substantial service
    during its past license period -- a showing required by Section
    90.743(a) of the Commission's rules for 220 MHz Phase I license
    renewal applications.

3.  On February 4, 1999, Repeater submitted a declaration by Robert
    Fejes in a supplement to its petition to deny based on Fejes'
    observations of the station facilities for WPCX637 on two separate
    days in January 1999. Fejes stated that he detected no transmissions
    on any of the channels licensed under WPCX637 on either day.[^6] By
    letter dated February 22, 2000, the Branch requested additional
    information from Bay pursuant to Section 308(b) of the
    Communications Act of 1934, as amended,[^7] about the construction
    and operation of Station WPCX637 (Section 308(b) Inquiry).[^8] On
    March 2, 2000, the station manager, Securicor Wireless Inc.
    (Securicor), responded to the Branch's inquiry on behalf of Bay,
    submitting evidence that Station WPCX637 has and continues to
    provide substantial service, as defined in the Commission's rules
    (Section 308(b) Response).[^9]

4.  On March 6, 2000, the Branch granted Bay's renewal application and
    denied Repeater's petition to deny.[^10] In denying the petition,
    the Branch found that the station had been constructed and
    operational since November 15, 1995. In addition, the Branch was
    satisfied from Bay's Section 308(b) Response that Station WPCX637
    had provided substantial service during its past license term. The
    Branch further explained Repeater failed to demonstrate that Station
    WPCX637 had permanently discontinued operations for one year or more
    and, therefore, failed to provide a basis for automatic termination
    of the license.[^11]

5.  On April 5, 2000, Repeater filed its April 2000 Petition seeking
    reconsideration of the Branch's grant of Bay's renewal application
    for station WPCX637.[^12] In that petition, Repeater argued that
    Bay's license should not be renewed because (1) Bay's Section 308(b)
    Response was untimely and improperly filed, and non-responsive; (2)
    the license has undergone an unauthorized transfer of control; (3)
    the station has not provided substantial service because it has not
    been operational for possibly several years; and (4) the facilities
    are not operating in substantial compliance with the specifications
    of its station authorization. The April 2000 Petition also included
    a second declaration by Robert Fejes. Mr. Fejes visited the site
    again on March 23, 2000, and stated in his declaration that he
    detected no transmissions from the station. On June 29, 2000, Bay
    and Securicor filed a Joint Opposition to Repeater's April 2000
    Petition.[^13]

6.  By letter dated April 30, 2001, the Branch dismissed Repeater's
    April 2000 Petition, finding the petition had not been timely filed
    at the proper location.[^14] On May 24, 2001, Repeater filed a
    petition seeking reconsideration of the dismissal of its April 2000
    Petition.[^15] In response, on June 6, 2001, Securicor refiled a
    copy of its June 29, 2000 Joint Opposition, stating that its
    responses to Repeater's allegations remain unchanged.[^16]

# Discussion

## May 24, 2001 Petition for Reconsideration

7.  In its May 2001 Petition, Repeater states that it complied with the
    Commission's filing requirements by filing its April 2000 Petition
    in a timely manner at the proper location. Under Commission rules,
    petitions for reconsideration must be filed within 30 days from the
    date of public notice of the final Commission action with the Office
    of the Secretary in Washington D.C.[^17] Repeater demonstrated that
    it complied with these requirements by filing a date-stamped copy of
    the April 2000 Petition indicating that it was filed with the
    Secretary's office on April 5, 2000, 30 days after the release of
    the Branch's decision on March 6, 2000. Repeater further explains
    that the copy it sent to the Commission's Gettysburg, Pennsylvania
    office was a courtesy copy only.[^18] Accordingly, we grant
    Repeater's May 2001 Petition and address the issues raised in the
    April 2000 Petition.

## Consideration of Bay's Section 308(b) Response

8.  Repeater presents several arguments in its April 2000 Petition to
    support its assertion that grant of the renewal application should
    be reversed because the Branch should not have considered the
    information submitted in the Section 308(b) Response. Repeater first
    contends that the Section 308(b) Response was untimely filed
    because, under Commission rules, oppositions to petitions to deny
    must be filed within ten days after the petition is filed.[^19]
    Repeater further complains that because it was not served the
    Section 308(b) Response pursuant to Section 1.939(c) of the
    Commission's rules, Repeater was denied the right to reply.[^20]
    While Repeater is correct about the deadline under Section 1.45 of
    the Commission's rules[^21] for filing oppositions to petitions to
    deny, Bay submitted the information in response to the Branch's
    request for additional information pursuant to Section 308(b) of the
    Communications Act, as amended. Section 308(b) is a tool in the
    statute that provides the Commission with the authority to obtain
    written statements of fact at any time in a proceeding from
    applicants and licensees so that the Commission can determine
    whether the application should be granted or denied.[^22]
    Accordingly, the Section 308(b) Response was not an opposition to
    Repeater's petition to deny and therefore was not required to be
    filed within ten days of the date on which Repeater filed its
    petition to deny.

9.  For the same reasons, the service rule for filing oppositions to
    petitions to deny is inapplicable in this case. Under Section
    1.939(c) of the Commission's rules, parties must serve oppositions
    to petitions to deny on the petitioner and all other interested
    parties.[^23] As we have already discussed, the Section 308(b)
    Response is not an opposition to a petition to deny and, therefore,
    Bay was not required under Section 1.939(c) to serve a copy of the
    response on Repeater. We note, however, that even if service were
    required, any error was harmless because Repeater in fact obtained a
    copy of Bay's response. Moreover, we note that Repeater was not
    harmed by any delay. The Branch took immediate action once it
    received the Section 308(b) Response and Repeater filed its April
    2000 Petition in a timely manner. Any reply to the Section 308(b)
    Response would have been filed within the same time period.

10. Repeater further contends that the Branch erred in considering Bay's
    Section 308(b) Response because it was filed by a non-party to the
    proceeding and not verified by a declaration under penalty of
    perjury. Repeater argues that the Section 308(b) Response is invalid
    because Bay's station manager, who is not an attorney, signed the
    document without verification.[^24] Section 1.52 of the Commission's
    rules requires an attorney of record to sign any document filed with
    the Commission in his or her individual name and address. A party
    who files a document, but is not represented by counsel, must sign
    and verify the document and state his or her address.[^25]

11. We find good cause to waive the verification requirement of Section
    1.52 of the Commission's rules.[^26] Under Section 1.52, "\[i\]f the
    original of a document is not signed or is signed with intent to
    defeat the purpose of this section . . . it may be stricken as sham
    and false, and the matter may proceed as though the document had not
    been filed."[^27] Bay's station manager signed the Section 308(b)
    Response. Moreover, we find no reason to believe that Bay intended
    to defeat the purpose of Section 1.52 or that the documents
    submitted are sham or false. We disagree with Repeater's argument
    that "anyone could have submitted a document such as that submitted
    by Securicor."[^28] The information requested in the Section 308(b)
    Inquiry was the type of information that a station manager
    reasonably would have in its possession. Consideration of Bay's
    response is therefore warranted to ensure a thorough review of the
    issues regarding the construction and operation of Station WPCX637.

12. Repeater also argues that Bay did not answer four of the five
    questions asked in the Section 308(b) Inquiry and, as a result, the
    Branch should not have considered the response in deciding whether
    to renew Bay's license.[^29] We disagree. The Branch found that the
    information provided in the Section 308(b) Response was sufficient
    to determine whether Bay's license should be renewed.[^30] While
    Repeater contends that Bay's answer was inadequate, it fails to
    demonstrate why the information provided was insufficient for the
    purpose of deciding whether WPCX637 is constructed and operating.

## Unauthorized Transfer of Control 

13. Repeater also alleges that the Section 308(b) Response shows that
    Bay has made no investment in it system and that there has been an
    unauthorized transfer of control of Station WPCX637 from Bay to
    Securicor or Roamer One, Inc. (Roamer One), a subsidiary of
    Securicor.[^31] Repeater first urges the Commission to note that Bay
    did not submit a management agreement as part of its Section 308(b)
    Response.[^32] Repeater also offers the following facts in support
    of its allegation: the equipment invoices included in the Section
    308(b) Response show Roamer One as the "customer;" the equipment
    installation agreement is between Roamer One and Simmonds
    Communication LTD; the site lease is sent to Roamer One's offices;
    and Bay has never responded to Commission correspondence.[^33]

14. Based upon the facts before us, we find that Repeater has failed to
    provide sufficient evidence to substantiate its allegation that Bay
    transferred control of its facilities to Securicor or to Roamer
    One.[^34] As an initial matter, Repeater seems to suggest that by
    not offering a copy of the management agreement, Bay may be hiding
    the identity of the actual licensee in this case. The Commission
    permits licensees to enter into management agreements, provided that
    licensees retain *de facto* control over their licensed
    facilities,[^35] and Repeater's concern that Bay did not provide a
    copy of its management agreement does not support an allegation of
    unauthorized transfer of control. In fact, the Section 308(b)
    Inquiry did not request a copy of the management agreement nor was
    Bay otherwise obligated to provide a copy of its management
    agreement to the Branch.

15. Nor does the information that Repeater cites from the Section 308(b)
    Response about the management agreement support a finding of an
    unauthorized transfer of control. With respect to Repeater's
    allegations about equipment invoices and equipment installation, Bay
    explains that under its management agreement, Roamer One "sells the
    equipment to Bay Ventures in an installment sale," and "contracted
    with Simmonds Communications to perform the system
    installation."[^36] Bay also explains that while Bay is a signatory
    to the site lease, Roamer One's address is on the lease because
    Roamer One is Bay's billing agent and is responsible for invoice
    payment services.[^37] Finally, Bay notes that it responded to
    Commission correspondence when it signed the renewal application for
    Station WPCX637 and instructed Securicor to respond to the Section
    308(b) Inquiry.[^38] Based upon the record in this proceeding, we
    find no basis on which to conclude that there has been an
    unauthorized transfer of control of Station WPCX637 to Securicor or
    Roamer One.

## Substantial Service/Operational Status of Station WPCX637

16. Repeater next argues that WPCX637 could not have provided
    substantial service sufficient to meet the Commission's renewal
    standard. Commission rules require Phase I 220 MHz licensees to
    demonstrate in their renewal applications that they have provided
    substantial service during their past license term and that they
    have substantially complied with Commission rules, policies, and the
    Communications Act, as amended.[^39] Repeater argues that Bay has
    failed to meet this standard because WPCX637 has been
    non-operational, stating that "\[t\]he system remains today in the
    same non-operational state found by Repeater one year ago."[^40]
    Further, Repeater states that "at a minimum, from August 16, 1996
    through February 16, 1998 at least one channel was no\[t\]
    operational at the site," and therefore concludes that "at a
    minimum, the Commission must cancel the license for this
    channel."[^41]

17. Repeater reaches its conclusion that the station was not operating
    in the past based on its analysis of entries in the "site log notes"
    provided in Bay's Section 308(b) Response. According to Repeater,
    the site log shows that one of the five authorized channels was not
    in operation on eight days between August 16, 1996, and September 9,
    1997.[^42] Repeater also references a log entry dated February 16,
    1998, which stated that the system was "not operational."[^43] Based
    on these nine entries, Repeater concludes that at least one channel
    on the system was non-operational from August 16, 1996, to February
    16, 1998.[^44] Repeater also argues that Robert Fejes' inspection of
    the facilities in January 1999, and March 2000, demonstrates that
    the system continues to be non-operational.[^45] Repeater concludes
    that "Securicor is perpetrating a fraud on the Commission and its
    processes."[^46]

18. Section 90.157 of the Commission's rules provides that a station
    license must terminate automatically if operations are permanently
    discontinued. The rule section further defines "permanently
    discontinued" as any station that has not operated for one year or
    more.[^47] Repeater has failed to provide adequate information to
    demonstrate that operations at Station WPCX637 have been permanently
    discontinued. Even if the station were not operating on these
    particular dates, individual site-log entries and isolated visits do
    not provide sufficient evidence to demonstrate that the system was
    not operating for a period of one year or more. Repeater has
    therefore failed to provide evidence regarding the station's
    operational status sufficient to make a determination that the
    license for Station WPCX637 has automatically terminated. Repeater
    has also failed to provide evidence on which to support a reversal
    of the Branch's determination that Bay provided substantial service
    during its past license term.

## Substantial Compliance with the Station License

19. Finally, Repeater argues that Bays' license should be revoked
    because the facilities for WPCX637 were not constructed in
    substantial compliance with its license. Specifically, Repeater
    states that the antenna height for WPCX637 is licensed at 200 feet,
    but that a site-log entry in 1998, described the height at 170 feet
    and on the January 1999 inspection, Repeater recorded the height at
    130 feet. Repeater cites to the Commission's decision in *Robert A.
    Berry* to support its argument that the disparity between
    constructed and authorized antenna height warrants revocation of
    Bay's license.[^48] We disagree. In *Robert A. Berry*, the
    Commission stated that factors such as the antenna height and the
    extent of operations are indicia of temporary construction that
    might support a finding that a licensee has not satisfied its
    construction requirements.[^49] In particular, the Commission
    described the determinative factors for terminating Berry's license
    to be the extreme discrepancy between the licensed antenna height
    and the constructed height, where the antenna in question was
    authorized for operation at 654 feet, but was placed at 60 feet; the
    brevity of operations; the decision not to rent space on the tower
    beyond the brief period of operations, and the decision to move the
    equipment to a building without electricity.[^50] Thus, in
    *Robert A. Berry*, the antenna height was only one of several
    factors used to determine construction of the station. In contrast,
    we find that a single allegation of a potential 30 to 70-foot
    discrepancy in antenna height is insufficient to warrant termination
    of Bay's license at this time.[^51]

20. We are concerned, however, that Bay may not be in compliance with
    Commission rules that require licensees to notify the Commission
    that it has modified its station within 30 days after the
    modifications are completed. Specifically, Section 90.745(a) of the
    Commission's rules allows Phase I licensees to add, remove, or
    modify transmitter sites within their existing service area without
    prior notification as long as their predicted 38 dBu service contour
    is not expanded. Under the rule, however, incumbent licensees must
    notify the Commission within 30 days of the completion of any
    changes in technical parameters constructed through a minor
    modification.[^52] We believe that Bay may have failed in this case
    to comply with the 30-day notification requirement with respect to
    any modification to its antenna height. In fact, in its Joint
    Opposition, Bay and Securicor state that they "will assess the
    antenna height at the Station and file any necessary notification
    with the Commission."[^53] Accordingly, Bay must, within 30 days of
    the release date of this Order, submit any necessary notifications
    to the Commission required under Section 90.745(a) of the
    Commission's rules. If any relevant modifications were completed
    more than 30 days prior to any notification, Bay must also submit a
    request for waiver of the notification requirement in Section
    90.745(a) along with an explanation for the delay.

# ORdering clauses

21. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r),
    and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 405, and Sections 0.331 and 1.106 of the
    Commission's Rules, 47 C.F.R. §§ 0.331, 1.106, that the Petition for
    Reconsideration filed by Repeater Network Spectrum Aq., Inc. on May
    24, 2001 IS GRANTED.

22. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 303(r), and
    405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 405, and Sections 0.331 and 1.106 of the
    Commission's Rules, 47 C.F.R. §§ 0.331, 1.106, that the Petition for
    Reconsideration filed by Repeater Network Spectrum Aq., Inc. on
    April 5, 2000 IS DENIED.

23. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 303(r), and
    405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 405, and Sections 0.331, 1.106, and 90.745 of the
    Commission's Rules, 47 C.F.R. §§ 0.331, 1.106, 90.745, Bay Ventures
    must provide within 30 days of the date of this Order any
    notification required under Section 90.745 of the Commission's
    rules.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Paul D'Ari
>
> Chief, Policy and Rules Branch
>
> Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: Petition to Deny filed by Repeater Network Spectrum Aq., Inc.
    (Jan. 11, 1999).

[^2]: Petition for Reconsideration filed by Repeater Network Spectrum
    Aq., Inc. (Apr. 5, 2000).

[^3]: Petition for Reconsideration filed by Repeater Network Spectrum
    Aq., Inc. (May 24, 2001).

[^4]: FCC Renewal Application File No. 9809R331904 (Sept. 8, 1998).

[^5]: *Public Notice*, Report No. 2019 at 158 (Dec. 11, 1998).

[^6]: Supplement to Petition to Deny filed by Repeater Network Spectrum
    Aq., Inc. (Feb. 4, 1999). In his declaration, Mr. Fejes stated that
    he visited the facilities for Station WPCX637 on January 9, 1999,
    and January 16, 1999, and monitored the station's frequencies
    without detecting any transmissions. *Id*. at 3. Mr. Fejes further
    stated that on January 16, 1999, he gained access to the tower and
    found that the repeaters were not in operation, and a number of
    equipment modules were missing. *Id*.

[^7]: 47 U.S.C. § 308(b).

[^8]: Letter to Bay Ventures, from Ronald B. Fuhrman, Deputy Chief,
    Technical Analysis Section, Commercial Wireless Division, Federal
    Communications Commission (Feb. 22, 2001).

[^9]: Letter to Ronald B. Fuhrman, Deputy Chief, Technical Analysis
    Section, Commercial Wireless Division, Federal Communications
    Commission, from Brett D. Kynard, FCC Licensing Manager, Securicor
    Wireless Inc. (Mar. 2, 2000).

[^10]: Letter to Alan S. Tilles, counsel to Repeater Network Spectrum
    Aq., Inc., from Terry L. Fishel, Deputy Chief, Licensing and
    Technical Analysis Branch, Commercial Wireless Branch, Wireless
    Telecommunications Bureau, Federal Communications Commission (Mar.
    6, 2000).

[^11]: *Id.* (citing former 47 C.F.R. § 90.157(b)).

[^12]: April 2000 Petition.

[^13]: Joint Opposition to Petition for Reconsideration (June 29, 2000)
    (Joint Opposition).

[^14]: Letter to Alan Tilles, counsel to Repeater Network Spectrum Aq.,
    Inc., from Terry L. Fishel, Deputy Chief, Licensing and Technical
    Analysis Branch, Commercial Wireless Branch, Wireless
    Telecommunications Bureau, Federal Communications Commission (Apr.
    30, 2001).

[^15]: May 2001 Petition.

[^16]: Letter to Magalie Roman Salas, Secretary, Federal Communications
    Commission, from Angela M. Simpson, counsel to Securicor Wireless,
    Inc. (June 6, 2001).

[^17]: 47 C.F.R. §§ 1.106(f) and (i).

[^18]: May 2001 Petition at 2-3.

[^19]: April 2000 Petition at 4 (citing 47 C.F.R. § 1.45).

[^20]: April 2000 Petition at 4.

[^21]: 47 C.F.R. § 1.45.

[^22]: 47 U.S.C. § 308(b).

[^23]: 47 C.F.R. § 1.939(c).

[^24]: April 2000 Petition at 4.

[^25]: 47 C.F.R. § 1.52.

[^26]: 47 C.F.R. §1.3; In re Applications of Knox Broadcasting, Inc.,
    *Memorandum Opinion and Order*, 12 FCC Rcd 3337, ¶ 2 (1997).

[^27]: 47 C.F.R. §1.52.

[^28]: April 2000 Petition at 4.

[^29]: April 2000 Petition at 6.

[^30]: In the Section 308(b) Response, Securicor included a notice of
    rent increase for the station site dated September 15, 1997;
    invoices dated September 29, 1995, and November 30, 1995, for the
    purchase of equipment; an equipment and charges detail dated January
    17, 1995; an authorization dated September 7, 1995, for equipment
    installation; and the declaration of the operations manager
    certifying that Station WPCX637 had been constructed and was placed
    in operation on November 15, 1995. Section 308(b) Response at Ex. 2
    through 6.

[^31]: April 2000 Petition at 7-8.

[^32]: April 2000 Petition at 7.

[^33]: April 2000 Petition at 7.

[^34]: The Commission developed criteria in *Intermountain Microwave*
    for the purpose of analyzing transfer of control issues in, among
    others, certain wireless services: (1) does the licensee have
    unfettered use of all facilities and equipment? (2) who controls
    daily operations? (3) who determines and carries out policy
    decisions, including preparing and filing applications with the
    Commission? (4) who is in charge of employment, supervision, and
    dismissal of personnel? (5) who is in charge of payment of financial
    obligations, including expenses arising out of operation? and (6)
    who receives monies and profits from the operations of the
    facilities? Intermountain Microwave, *Public Notice*, 12 F.C.C. 2d
    559, 560 (1963). With respect to private radio licenses, the
    Commission historically has considered transfer of control issues in
    light of the factors set forth in its *Motorola* decision, which
    focus on issues pertaining to the licensee's supervision of its
    system and its propriety interest in equipment. Applications of
    Motorola, Inc. for 800 MHz Specialized Mobile Radio Trunked Systems,
    File Nos. 507505 *et al.*, *Order* (PRB rel. July 30, 1985).

[^35]: *See* Marc Sobel, *Decision*, 17 FCC Rcd 1872, ¶ 53 (2002)
    ("licensees may hire entities to manage their SMR systems but they
    may not contract away control of their systems").

[^36]: Joint Opposition at 12.

[^37]: Joint Opposition at 12-13.

[^38]: Joint Opposition at 12-13.

[^39]: 47 C.F.R. § 90.743(a).

[^40]: April 2000 Petition at 8.

[^41]: April 2000 Petition at 5.

[^42]: April 2000 Petition at 5. Repeater states that the site-log notes
    show that one channel was non-operational on August 16, 1996, July
    31, 1997, August 1, 1997, August 14, 1997, August 22, 1997,
    September 8, 1997, and September 9, 1997. *Id*.

[^43]: April 2000 Petition at 5-6.

[^44]: April 2000 Petition at 5-6.

[^45]: April 2000 Petition at 7.

[^46]: April 2000 Petition at 7.

[^47]: 47 C.F.R. § 90.157.

[^48]: April 2000 Petition at 6, n.5.

[^49]: In the Matter of Robert A. Berry, *Memorandum Opinion and Order*,
    11 FCC Rcd 9457, ¶ 2 (1996) (*Robert A. Berry*).

[^50]: *Id*. at 9460, ¶ 6.

[^51]: Repeater also alleges that the antenna was adjusted to a height
    of 400 feet. Repeater bases this allegation of an entry in the "site
    log notes," dated February 16, 1998, where it is noted that the
    antenna should be moved to 400 feet. There is no evidence, however,
    that Bay actually increased the antenna height to 400 feet: the log
    entry for February 16, 1998 specifically includes moving the antenna
    to 400 feet in a list of "\[s\]ystem work yet to be done" and no
    subsequent site log entry indicates that the antenna height was, in
    fact, modified.

[^52]: 47 C.F.R. § 90.745(a).

[^53]: Joint Opposition at 10, n.21.