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Before the
               Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                     )
                                     )
Mark Mistrot d/b/a Mistrot's Arms      )          File No. 94F188
                                     )
Finder's Preference Proceeding       )
Involving Specialized Mobile         )
Radio Station WNYQ468               )
at New Orleans, Louisiana           )
                                                            

                  MEMORANDUM OPINION AND ORDER

Adopted:  September 1, 1999             Released:  September 1, 1999
 
By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau:

                          Introduction

1.   On January 28, 1997, Mark Mistrot, d/b/a Mistrot's Arms (Mistrot's Arms), the target licensee,
filed a petition for reconsideration (petition) of a decision by the Wireless Telecommunications Bureau
(Bureau) awarding a request for a finder's preference to William R. Kelley (Kelley).  The Bureau's Office
of Operations awarded a preference after Kelley demonstrated that station WNYQ468 was not constructed at
the authorized location but at a location approximately 1.15 miles away.  For the reasons that follow, we find
that the error in location was minor and that station WNYQ468 was constructed in substantial accordance with
its authorization.  Accordingly, the petition for reconsideration is granted, the finder's preference award to Kelley
is set aside, and the license for station WNYQ468 is reinstated.
                                
                           Background

2.   On June 15, 1994, Kelley filed a finder's preference request against Mistrot's Arms, licensee of
station WNYQ468, New Orleans, Louisiana.  The basis for the preference request was that no tower was
located at the authorized coordinates.  In response, Mistrot's Arms demonstrated that its station was
constructed in a timely fashion and was operational at the tower's street address listed on its license. 
Mistrot's Arms did not contest the 1.15 mile difference between its geographic coordinates and those on the
license, stating that the coordinates on the license were in error.  On January 3, 1997, the Bureau granted
the finder's preference request.  The Bureau's Office of Operations determined that due to the discrepancy
of 1.15 miles between the location of the site where the tower was constructed and the authorized
coordinates, Mistrot's Arms was required to provide evidence that its station was constructed in substantial
accordance with its license authorization, and that it had failed to demonstrate that the siting error was
minor.   

3.   In its petition for reconsideration, Mistrot's Arms argues that the evidence submitted shows that
station WNYQ468 was constructed in substantial accordance with its authorized parameters.  Mistrot's Arms
provided an engineering analysis, and the sworn declaration of Raymond C. Trott, P.E. (Trott), a registered
professional engineer, showing that the site location error did not extend the station's service or interference area
and did not result in any hazards to air safety.   Kelley, the finder, provided no evidence that would raise
compliance questions except for the distance measurement.

                           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...."  Under the finder's preference program, a person could file a finder's preference request by
presenting the Commission with evidence of a licensee's noncompliance with certain regulations.  Upon
recovering channels from a target licensee deemed to be in violation of those regulations, the Commission
would then award a dispositive preference for those frequencies to the finder.

5.   In 1994, the Bureau's Office of Operations adopted an objective guideline "for determining when
[it would] allow recovery of channels through the finder's preference program due to construction of
stations at parameters [coordinates] other than those authorized."  Under this guideline, 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.   Later, the Commission affirmed the earlier decisions and upheld the benchmark standard, adopting
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 in which 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.

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.  In these cases, the
target licensees have the burden of demonstrating that the siting variance at issue is minor as to its 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.   The engineering analysis submitted by Mistrot's Arms shows that the constructed station has
substantially the same coverage area as the authorized station would have had.  According to Trott, the
constructed station's contour map follows the authorized contour except for a de minimis change.  Trott
summarizes his analysis by stating that "the 40 dBu contour of the proposed station is wholly contained
within the protected 40 dBu contour of the authorized station."  Trott further explains that the antenna,
which extends less than twenty feet from a downtown building, meets FAA requirements for air safety. 
These are among the types of factors that the Commission indicated in the Vaughn Order it would consider
when determining whether a siting error was minor.  

9.   In addition, Mistrot's Arms' petition explains that its downtown New Orleans building address
matches the address on its authorization and that the incorrect coordinates on the license were due to
inadvertent error on its part.  Finally, all station parameters submitted to the FCC on the application
match that of the installed site with the exception of the incorrectly transcribed coordinates. 
                                
                           Conclusion

10.  We find that Mistrot's Arms has provided sufficient evidence to rebut the presumption that the
siting variance was minor.  Consequently, Mistrot's Arms has met its burden by demonstrating that Station
WNYQ468 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.  Therefore, we grant Mistrot's Arms' petition
for reconsideration, rescind the finder's preference award to Kelley, and reinstate the license for station
WNYQ468.      

                        Ordering Clauses
     
11.  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 filed by Mistrot's Arms is
GRANTED.

12.   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 Kelley and the notice of
cancellation dated January 3, 1997 are SET ASIDE.  

13.  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.  1.106 and 0.331, the license for station WNYQ468 targeted in this proceeding is
REINSTATED.


                              Federal Communications Commission
                              
                              
                              
                              
                              William W. Kunze
                              Deputy Chief, Commercial Wireless Division
                              Wireless Telecommunications Bureau