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

In the Matter of                     )
                                     )
Susan Jane Palmer                   )        File No. 95F597
                                     )
Finder's Preference Request                                       )
for Station WPBD403                 )
Licensed to Rotary Wireline, Inc. at         )
Santa Fe, NM                         )
                                     


                  MEMORANDUM OPINION AND ORDER


   Adopted: November 23, 1999                Released: November 23, 1999

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

                          Introduction

  1. On February 20, 1997, Susan Jane Palmer (Palmer) filed a petition for reconsideration (Petition) of a
  decision by the Wireless Telecommunications Bureau's Office of Operations denying her request for a
  finder's preference against Rotary Wireline, Inc. (Rotary) Specialized Mobile Radio (SMR) Station
  WPBD403.   For the reasons discussed below, Palmer's petition for reconsideration is granted.

                           Background

  2. Palmer filed a finder's preference request for Station WPBD403 on January 13, 1995.  The Bureau's
  Office of Operations denied the finder's preference request on January 24, 1997.  The decision stated that even
  though the finder presented evidence that the station was not constructed, the target licensee demonstrated a
  good faith attempt to satisfy the Commission's rules.


  3. In her Petition, Palmer argues that the evidence showing that the station was constructed on November
  12, 1993 and deconstructed around November 22, 1993 demonstrates that Station WPBD403 was not
  permanently constructed or placed into operation at the initial licensed location.  Furthermore, Palmer
  argues that Rotary has failed to provide evidence showing that the station was authorized to operate at
  a site 13 miles away from the site listed in its license.  Rotary filed an Opposition to the Petition for
  Reconsideration (Opposition).  Rotary asserts that the Bureau's initial decision correctly found that it
  demonstrated a good faith attempt to satisfy the requirements of the Commission's rules.

                           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 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. As noted in the decisions
  referenced below, 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.

  5.  Based on the evidence before us, we find that Rotary has failed to demonstrate that Station WPBD403 was
  constructed and fully operational at the authorized location in accordance with the Commission's rules. 
  Palmer alleged that the station was not timely constructed at the authorized site and the allegation was
  corroborated by the owner of the tower site where the station was authorized to operate from.  

  6. In rebuttal, Rotary stated only that the station was timely constructed and then deconstructed and
  moved to a new location approximately 13 miles away.  Rotary filed an application to modify its
  license to this second location, but it did not request Special Temporary Authority (STA) to continue
  operating nor wait for the modification to be approved.  Rotary could not demonstrate that it ever
  constructed at the original location but gave only a vague description of when and where the alleged
  construction occurred. Rotary stated that the equipment was housed in a building other than the
  building belonging to the tower owner at the authorized site but did not present any corroborating
  evidence that it had constructed and operated Station WPBD403 its authorized location.  Rotary was
  never authorized to operate at a site other than the site listed in the initial authorization.  Thus, Rotary
  has not demonstrated that Station WPBD403 was constructed at its authorized location.  Under the
  Commission's rules, a license for a station cancels automatically if it is not timely constructed in
  substantial accordance with its authorization.  We therefore reverse the January 24, 1997 dismissal of
  Palmer's finder's preference request, grant Palmer's Petition, and award a dispositive preference under
  the Finder's Preference Program to Palmer for Station WPBD403.


                Conclusion and 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 dismissal of the finder's preference request filed by Susan J. Palmer against
  Station WPBD403 IS REVERSED and the license for Station WPBD403 IS CANCELLED.

  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 Petition for Reconsideration in the above-captioned Finder's Preference Case
  No. 95F597 IS GRANTED.

  9. IT IS FURTHER ORDERED, that Susan Jane Palmer IS AWARDED A DISPOSITIVE PREFERENCE
  for Station WPBD403.  Susan Jane Palmer has ninety (90) days from the date of this letter to file an
  acceptable application with the Commission.  Susan Jane Palmer should follow the regular application and
  include a copy of this Order.  This award is subject to the appeal rights of the former licensee.  If the former
  licensee appeals, the 90 day filing period will be tolled during the review of such appeal.

                                                       Federal Communications Commission




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