******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of REPEATER COMMUNICATIONS CORP. Finder's Preference Request Regarding Station KNHY561 Houston, Texas ) ) ) ) ) ) ) Case No. 94F372 ORDER Adopted: January 28, 2000 Released: January 31, 2000 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I.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. For the reasons discussed herein, we affirm the November 1, 1996, action and dismiss Repeater's Petition. II.BACKGROUND 3. 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. 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. 4. On August 24, 1994, Repeater filed a finder's preference request targeting Station KNHY561. 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. 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). 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. 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. Subsequently, on November 14, 1994, Repeater amended its request and stated that Hot Shot had violated Section 90.631(f) of the Commission's Rules by failing to construct in substantial accordance with its authorization. 5. On December 23, 1994, Hot Shot filed a motion to dismiss Repeater's finder's preference request. 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. 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." On January 6, 1995, Repeater filed a reply 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). 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. 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. 6. 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." On November 27, 1996, Repeater filed a petition seeking reconsideration of the Office of Operations denial of its finder's request. In response, Hotshot filed an opposition on December 12, 1996. Repeater filed a reply on December 19, 1996. VII.DISCUSSION 8. 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. 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. Repeater also argues that "if a licensee operates a facility three miles from its authorized site, it has "deconstructed" its authorized facilities. Deconstruction for greater than one year, as is the case here, is itself the basis for a Finder's Preference Award." 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. 9. In its petition for reconsideration, Repeater now alleges a violation of Section 90.157 of the Commission's Rules. 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, 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. 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. 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. 10. 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 11. For the reasons discussed above, the denial of Repeater Communications Corp., finder's preference request against Station KNHY561 is AFFIRMED. 12. 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. 13. 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