NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of the Applications of ) ) JAMES J. MURTAUGH ) ) For Authority to Construct and Operate a) File No. 55805-CM-P-90 Multipoint Distribution Service Station on) the E Group Channels Naples, Florida ) ORDER ON RECONSIDERATION Adopted: June 6, 1996 Released: June 6, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it one petition for reconsideration of the return, pursuant to 47 C.F.R.  1.106(a) on delegated authority, an application for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the E channels at Naples, Florida. On September 26, 1990, James J. Murtaugh filed an MMDS application proposing a transmitter site at Naples, Florida. The application contained a request for waiver of the Metropolitan Statistical Area ("MSA") and fifty mile location restrictions contained in the Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988) (hereinafter 1988 Public Notice). 2. After reviewing the Naples application, the Commission staff returned it as defective and unacceptable for filing by return notification letter dated March 10, 1993, which stated that the application was returned because the applicant: (1) filed past the cut-off period established in 47 C.F.R.  21.31 or  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications; (3) failed to meet the requirements for performance of interference analysis as required by 47 C.F.R.  21.902 due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MMDS or Instructional Television Fixed Service ("ITFS") stations; (4) failed to comply with Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1263 (1983)(hereinafter MMDS Allocation Order); and (5) failed to comply with the Commission's requirements under 47 C.F.R.  21.19 for grant of a waiver, and without a waiver, the application was unacceptable for filing. The applicant selected a transmitter site within the Fort Myers, Florida MSA, and thus, was mutually exclusive with and cut-off by authorized stations within that MSA, pursuant to 47 C.F.R.  21.901(d)(5). A reconsideration petition for the returned application was timely filed on April 9, 1993. 3. The application proposed a transmitter site that was within 50 miles or the radio horizon of: (1) two 1983 previously authorized MMDS stations; (2) one 1983 subsequently authorized MMDS station; (3) 49 1983 previously proposed MMDS stations, which had applications pending on September 26, 1990, the filing date of the Naples application; and (4) 11 post-1983 previously proposed MMDS stations. 4. The application lacked interference studies, required by  21.902(b) and (c), of the above referenced proposed and authorized stations, for one subsequently authorized and 60 previously proposed MMDS stations. The interference studies that were submitted were inadequate in that the applicant: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service area of the authorized or previously proposed stations, as required by  21.902(c), (d) and (f) (see  21.902(e)); (2) used incorrect methodology in calculating the protected service area of authorized or previously proposed stations; (3) failed to engineer the station to provide at least 45 dB of cochannel interference protection pursuant to  21.902(b)(3), and/or 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4); and (4) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. Thus, the Naples applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or previously proposed stations. See  21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). 5. In his petition for reconsideration, petitioner maintains the Commission had announced by public notice on April 12, 1989, that the Naples area was open for filing for the E group channels. Although petitioner concedes that the 1988 Public Notice location restrictions applied to his application, petitioner claims there was an exception to the 1988 Public Notice "in cases involving MMDS channels associated with forfeited MMDS authorizations." Petitioner cites two instances, and refers to "numerous others," in which he claims licenses were granted under such an exception. Petitioner contends that there is "no difference" between his application and the granted applications in Rapid City, South Dakota and Dallas, Texas, where markets were re- lotteried after the forfeiture of authorizations of 1983 applications. Petitioner contends that his application contained all required interference studies and otherwise "complied with all relevant written and implied FCC policies in effect at the time of filing." II. DISCUSSION 6. Mutual Exclusivity and Cut-off. Based upon our review of the returned application and publicly available information regarding authorized MMDS stations and pending applications, we conclude that the petitioned application was untimely filed with respect to authorized stations or previously filed applications with which the returned application was mutually exclusive. The determining factors we used to ascertain if the above-referenced MMDS application was mutually exclusive pursuant to  21.31(a) were whether the application was filed: (1) within 50 miles of an authorized or previously proposed MMDS station; (2) within the radio horizon (with an unobstructed electrical path) of the protected service area of an authorized or previously proposed MMDS station; or (3) within an MSA, or its 15-mile buffer zone, for which there is an authorized or previously proposed MMDS station. The returned application proposed a transmitter site which made the proposed station mutually exclusive, pursuant to  21.31 or  21.901(d)(5), with authorized or previously proposed MMDS stations. Thus, the application was properly returned as unacceptable for filing pursuant to  21.31(d), which states: An application otherwise mutually exclusive with one [or] more previously filed applications, but filed after the appropriate date prescribed in paragraph (b)(2) of this section, will be returned without prejudice and will be eligible for refiling only after final action is taken by the Commission with respect to the previously filed application (or applications). 47 C.F.R.  21.31(d). 7. Interference Protection. Section 21.902(b) requires all MDS applicants and licensees to provide at least 45 dB of cochannel interference protection and, whenever possible, at least 0 dB of adjacent channel interference protection, and to demonstrate that protection in interference studies submitted with the applications. Applicants must also demonstrate in their applications their efforts to provide adjacent channel interference protection. See  21.901(d)(7) and 21.902(a). 8. Petitioner's application failed to demonstrate a lack of harmful interference to authorized MMDS licensees and to previously proposed MMDS applicants. Applicants for new MMDS stations on the E or F channels are required to file specific technical interference protection showings for cochannel and adjacent channel stations. These interference showings are a significant requirement because the Commission, in reallocating the E and F channels from ITFS to MDS, did so with the understanding that certain adjacent channel interference problems might arise. The Commission also anticipated that some authorized cochannel stations would be spaced more closely than ordinarily allowed and require careful planning and engineering. MMDS Allocation Order, 94 FCC 2d at 1264. Thus, the Commission stressed that "we expect applicants to address this problem in their applications. Those applications that do not contain an analysis of how the applicant intends to avoid cochannel interference in adjacent areas will not be considered acceptable for filing." Id. at 1264. See also  21.902(b) and (c). Consequently, there has been a series of cases emphasizing the importance of interference protection showings in MMDS applications for the E and F channels. 9. Our evaluation of the interference statements actually submitted shows that petitioner's application failed to demonstrate a lack of harmful interference as required by  21.902. See supra  4. See also Revision of Part 21 of The Commission's Rules, 2 FCC Rcd 5713, 5716-17 (1987) ("Coordination of MDS . . . systems . . . relies on accurate data about the interference environment.") Thus, the application was properly returned as unacceptable for filing. See MMDS Technical Order, 98 FCC 2d at 93 ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference as described herein will not be accepted for filing."); see also Family Entertainment, 9 FCC Rcd at 567 ("[T]he filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application."); Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992) ("In the processing of MDS station applications, the interference analyses required by [ 21.902] are crucial."). 10. In addition, petitioner's commitments to avoid harmful interference to others and to cooperate in good faith should any interference occur in the future does not excuse its failure to submit detailed interference studies as required by  21.902. See, e.g., G.C. Cooper, 8 FCC Rcd at 7008 ("An applicant's general statement that he would use all legitimate engineering techniques does not constitute the kind of showing discussed in the MMDS Allocation Order and required under 47 C.F.R.  21.901(d)(7).") The requirement of  21.902(c) that an applicant submit interference analyses at the time its application is filed is separate from the requirement in  21.902(a) that "[a]ll [MDS] applicants, permittees, and licensees shall make exceptional efforts to avoid harmful interference to other users and . . . are expected to cooperate fully in attempting to resolve problems of potential interference . . . ," and is separate from the requirement in  21.901(d)(7) that applicants submit a showing of how interference will be avoided and statements as to what steps they have taken to comply with  21.902(a). See also  21.31. Based upon these considerations, we conclude that petitioner failed to comply with the technical requirements set forth in  21.902 regarding interference protection and failed to demonstrate that the applicant is technically qualified to be an MDS licensee as required by 47 C.F.R.  21.900. Thus, this application was properly returned as unacceptable for filing. See New Channels Communications, Inc., 57 RR 2d at 1602; CNI Wireless, Inc., 9 FCC Rcd at 2040. 11. Notice to Affected Parties. The applicant failed to serve, as required by  21.902(g), all applicants, conditional licensees, and licensees for stations required to be studied by  21.902(c), thus depriving affected parties of notice and an opportunity to be heard. In Edna Cornaggia, 8 FCC Rcd 5442, 5444 (Dom. Fac. Div. 1993), the return of a modification application was upheld for failure to comply with  21.902(g): The Commission makes provision for actual notice and an opportunity to be heard by parties in interest by requiring at Section 21.902(g) that microwave stations that might be affected by operation of an MDS station be served a copy of the required interference analysis for their station. Cornaggia admittedly failed to properly serve VisionAire with a copy of the interference analysis . . . . Due to this lack of service, the orderly process contemplated in the Commission's rulemaking order, in which Commission staff resolves interference problems after oppositions are filed, was negated. Thus, this application was also properly returned as unacceptable for filing based on applicant's failure to comply with the service requirements contained in  21.902(g). 12. Location Restrictions. The 1988 Public Notice allowed the filing of MMDS applications on the E or F channels commencing April 20, 1988, but only for locations that were: (1) farther than 50 miles from the proposed location of an MMDS application pending on April 19, 1988, or an authorized station; and (2) farther than 15 miles from the boundary of a statistical area for which there were applications pending on April 19, 1988. The first paragraph of the Notice explicitly stated that "[a]pplications filed must comply with the location restrictions contained in this Notice. We do not anticipate granting any waivers of this location requirement." 1988 Public Notice, 3 FCC Rcd at 2661. It also emphasized twice that applications filed in violation of the location requirements would be returned as unacceptable for filing. Id. Despite these directives, this application proposed a transmitter site in violation of the location restrictions of the 1988 Public Notice. Therefore, the applicant submitted an application on a date not designated by the Commission for the filing of MDS applications. See  21.901(d)(4). Petitioner filed within 15 miles of the Ft. Myers MSA, in which there was an authorized cochannel station. Petitioner argues that he did not violate the 1988 Public Notice, as stated in the return letter, because there were no pending applications in the Fort Myers MSA. Although the applicant did not violate the second location restriction he did violate the first part of the 1988 Public Notice by filing within 50 miles of authorized MMDS station within the Ft. Myers MSA. 13. Petitioner can claim no surprise concerning the important burden placed on applicants to carefully select the proposed location of an MMDS station. In addition to the clear language in the 1988 Public Notice, the Commission stressed, as early as 1980, the importance of compliance with site selection requirements for MDS stations. In R.L. Mohr, 77 FCC 2d 30 (1980), the Commission explained that "given the rather severe shortage of frequencies in these lower more desirable bands . . . [t]o be able to use these frequencies [for MDS] imposes a cost, a cost in terms of more careful engineering and site location, and perhaps in use of more sophisticated equipment than would be otherwise required." Id. at 37 (emphasis added). Thus, petitioner had full notice of the necessity to comply with the location restrictions. Because petitioner chose to disregard the Commission's directive, his application was properly returned as unacceptable for filing. See Ranger v. FCC, 294 F.2d 240 (1961). 14. Waiver Requests. Petitioner also in his application requested a waiver of the location restrictions of the 1988 Public Notice, noting that the proposed transmitter site would not cause harmful interference to other existing or proposed stations. We do not find that grant of waiver for the location restrictions of the 1988 Public Notice would serve the public interest, and thus will not grant the requested waiver. 15. Section 21.19 provides that applications seeking waiver of the Commission's rules must contain a statement of reasons sufficient to justify a waiver. A waiver will only be granted, pursuant to 47 C.F.R.  21.19, upon an affirmative showing that: (a) The underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. "An applicant for waiver faces a high hurdle even at the starting gate. When an applicant seeks a waiver . . . it must plead with particularity the facts and circumstances which warrant such action. " Wait Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam)); see also David Laustsen, 3 FCC Rcd 2053, 2054 (Comm. Car. Bur. 1988) ("[A] request for waiver . . . must affirmatively demonstrate that application of the rules would frustrate the underlying purposes of the rule.") 16. Petitioner's assertion that the proposed stations would not cause harmful interference to other existing or proposed stations is unsupported. As already discussed, the returned application did not contain interference studies, as required by  21.902, for all authorized or previously proposed MMDS stations within 50 miles of the proposed transmitter site, and did not demonstrate that the proposed station would not cause harmful interference. The wholly unsupported assertion falls far short of the stringent showing required by WAIT Radio of the existence of extraordinary or special circumstances justifying a waiver. Moreover, the 1988 Public Notice location restrictions and  21.901(d)(5) serve important administrative purposes which do not concern interference avoidance. The location restrictions were imposed to minimize the possibility for application gridlock, to facilitate the expeditious processing of applications and to efficiently allocate scarce engineering resources. See Boyd B. Hopkins, Sr., 9 FCC Rcd 569, 570 (Dom. Fac. Div. 1994); R.L. Mohr, 85 FCC 2d 596, 604 (1981). Thus, we conclude that granting petitioner's requested waiver would frustrate the underlying purposes of the rules. 17. Petitioner failed to present justification as to why his application merits treatment different from that which we applied to thousands of other post-1983 MMDS applications. In view of these considerations, we do not find it would be in the public interest to grant a waiver of the location restrictions in the 1988 Public Notice. Therefore, we conclude that petitioner's request for waiver of the location requirements was properly denied. 18. In addition, even if the 1988 Public Notice location restrictions had not prohibited the filing of the above-referenced application, the application still would have been returned as unacceptable for filing. The applicant violated other Commission rules in effect at the time the returned application was filed such as failing to submit adequate interference analyses for authorized stations or applications. See supra  4. 19. De Facto Policy. Petitioner claims that the Commission had a policy under which applications for new MMDS stations within 50 miles of pending or authorized stations were accepted for 1983 lottery service areas if they proposed the transmitter site of a previously authorized station whose license was cancelled or forfeited. Petitioner cites two examples of stations which it claims were granted pursuant to such a policy. However, Commission staff previously has upheld the return of an application which filed for a previously licensed 1983 transmitter site which included a request for a waiver of the 1988 Public Notice location restrictions. Fortuna Systems Corp., 9 FCC Rcd 5280 (Video Serv. Div. 1994). The Division upheld the staff's return of the application for violation of the 1988 Public Notice, failure to file adequate interference studies, and failure to show the lack of a reasonable alternative as required for grant of a waiver under  21.19(b). Given that the staff has not previously accepted the rationale that applicants filing for previously licensed 1983 transmitter sites should be allowed to file for those transmitter sites without submitting the necessary interference protection studies, we will not do so here. We find that, at a minimum, an applicant filing for a forfeited or cancelled 1983 transmitter site must be required to show that their proposed transmitter site would not cause harmful interference to other previously authorized or proposed stations and otherwise meet the requirements for a waiver. See Fortuna, 9 FCC Rcd at 5281. Petitioner failed to file adequate interference studies for other authorized and previously proposed stations, giving the staff no way in which to evaluate whether his proposal would cause harmful interference to the authorized and previously proposed stations. Where waivers of the 1988 Public Notice were granted in the examples cited by petitioner, the applicants requested a waiver of the restrictions and were required to show that no harmful interference would be caused by grant of their applications. To the extent that any applicants filing for 1983 transmitter sites did not meet these requirements, grants of those applications were erroneous and are not precedent to be followed here. The Commission is not bound by such staff errors. See, e.g., North Texas Media, Inc. v. FCC, 778 F.2d 28, 33 (D.C. Cir. 1985) ("The initial improvident grant of a [short- spacing] waiver . . . now described as an error, does not deprive the agency of authority to require future applicants to meet certain standards in order to obtain such a waiver); Quinnipiac College, 8 FCC Rcd 6285, 6286 (1993); Walter Faber, 4 FCC Rcd 5492, 5493 (1989), recon. denied, 6 FCC Rcd 3601 (1991), aff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992). III. CONCLUSION 20. In view of the foregoing, we affirm the staff's return of the application under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 21. Accordingly, IT IS ORDERED, that the reconsideration petition filed by James J. Murtaugh IS HEREBY DENIED. 22. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send a copy of the decision to the authorized representative for petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau