Technical Questions

The Vaugh Order and Decision

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.