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

In re Applications of                )
                                     )
RURALVISION SOUTH, INC.              )
                                     )
For Authority to Construct and Operate a)         File No. 187-CM-P-92
Multipoint Distribution Service Station on)
Channel H-1 in Olton, Texas          )
                                     )
RURALVISION CENTRAL, INC.            ) 
                                     )
For Authority to Construct and Operate)File Nos. 30-CM-P-92, 41-CM-P-
 92  Multipoint Distribution Service Stations on) 44-CM-P-92, 63-CM-P-92, 64-CM-
the H Channels in Farmington, Iowa;  ) P-92, 90-CM-P-92, 329-CM-P-92
Nickerson, Kansas; Randolph, Kansas; ) 339-CM-P-92, 391-CM-P-92,
Zenda, Kansas; Sikeston, Missouri; and )          and 435-CM-P-92
Elk Point, South Dakota              ) 


ORDER ON RECONSIDERATION
      
   Adopted:  December 11, 1997                Released:  December 16, 1997

By the Assistant Chief, Video Services Division:

                             I.  INTRODUCTION
 
 1.  The Video Services Division has before it petitions for reconsideration of the return,
pursuant to 47 C.F.R.  1.106(a) on delegated authority, of 11 applications filed on January 2,
1992, by RuralVision Central, Inc. ("RuralVision Central") and RuralVision South, Inc.
("RuralVision South") for the authority to construct and operate Multipoint Distribution Service
("MDS") stations on the H channels at various transmitter sites.  We will collectively consider
these petitions in this order as petitioners raise common issues.  

                              II. BACKGROUND
 
 2.  In implementing the reallocation of the three H channels from the Private Operational-
Fixed Microwave Service ("OFS") to MDS, the Commission froze the filing of the H channel
group applications, under Part 94 rules, from September 27, 1991 until January 2, 1992. 
Amendment of Parts 21, 43, 74, 78, and 94 of the Commission's Rules Governing Use of the
Frequencies in the 2.1 and 2.5 GHz Bands Affecting: Private Operational-Fixed Microwave
Service, Multipoint Distribution Service, Multichannel Multipoint Distribution Service,
Instructional Television Fixed Service, and Cable Television Relay Service, Second Report and
Order, 6 FCC Rcd 6792, 6794 n.9 (1991) (Second Report and Order).  As of January 2, 1992,
Part 21 rules applied to H channel applications and authorizations. 
 
 3.  MDS Interference Studies.  At the time the above-referenced applications were filed,
section 21.902(b)(3) required each MDS applicant to engineer its proposed station to provide at
least 45 dB of interference protection within the protected service areas of all other authorized
or previously proposed cochannel stations.  47 C.F.R.  21.902(b)(3).  In order to demonstrate
compliance with section 21.902(b), and so that mutual exclusivity determinations could be made,
section 21.902(c)(1) of the Commission's rules required that an MDS applicant include with the
application an analysis of the potential for harmful cochannel interference with any authorized
or previously proposed station if the applicant's proposed transmitting antenna had an
unobstructed electrical path to any part of the protected service area of any other authorized or
previously proposed cochannel station, or if the applicant's proposed transmitter was within 50
miles of the transmitter coordinates of any other authorized or previously proposed cochannel
station.  47 C.F.R.  21.902(c)(1) (1991).

 4.  Service Requirement.  Section 21.902(g) of the Commission's rules provides that in
addition to filing its interference studies with the Commission, an applicant must serve an
interference study upon every applicant, licensee, or conditional licensee of a previously
proposed or authorized MDS station considered in the applicant's interference study.  47 C.F.R.
 21.902(g).  Furthermore, this rule requires that the applicant submit, upon application, a list
identifying each applicant, licensee and conditional licensee served.  
 
                    III.  PETITIONS FOR RECONSIDERATION
 
 5.  On January 2, 1992, the above-captioned applicants filed H channel applications
proposing stations at Farmington, Iowa; Nickerson, Randolph, and Zenda, Kansas; Sikeston,
Missouri; Elk Point, South Dakota; and Olton, Texas.  Commission staff returned each of the
applications as defective and unacceptable for filing by individual return notification letters,
pursuant to 47 C.F.R.  21.20(a).  Each of the letters indicated that the application was returned
because the applicant: (1) 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/or failure to consider all authorized or previously proposed MDS
stations; (2) failed to submit specific maintenance information required by FCC Form 494, item
18, and 47 C.F.R.  21.15(e); (3) failed to provide an updated fully-executed deed, lease, or
option agreement required by 47 C.F.R.  21.15(a); and (4) failed to specify type-accepted
equipment pursuant to 47 C.F.R.  21.120.  In addition., the Nickerson, Randolph, and Sikeston
applications were also cited for failure to include a copy of the FAA Notice of Proposed
Construction or Alteration (FAA Form 7460-1) required by 47 C.F.R.  17.4, 17.7, and
21.15(d); and the Farmington application was also cited for failure to provide beam tilt
information required by FCC Form 494.  

 6.  RuralVision Central and RuralVision South in petitions for reconsideration raise
arguments concerning the adequacy of the submitted interference studies; the acceptability of the
cited transmitters; the adequacy of the site availability documentation; the sufficiency of the
maintenance information; and the adequacy of the FAA notification.  Because we find dispositive
RuralVision Central's and RuralVision South's failure to submit adequate interference showings
with its applications, it is unnecessary to address petitioners' other arguments.  As discussed in
detail below, accurate interference analyses are necessary at the time of application filing due
to the extensive planning and engineering involved in the MDS licensing process.  A description
of the specific applications follows.

 7.  Farmington, Iowa. RuralVision Central filed an MDS H-3 channel application
proposing a transmitter site at Farmington, Iowa.  On February 9, 1994, the application was
returned and a reconsideration petition was filed on March 11, 1994.

 8.  The Farmington application proposed a transmitter site that was within 50 miles of,
or had an unobstructed electrical path to the protected service area of, one previously authorized
cochannel station, MDS station WNTJ368 at Kirksville, Missouri, Application File No. 771035. 
The interference study submitted for WNTJ368 was inadequate in that RuralVision Central did
not include free space calculations of the desired to undesired signal ratio for each reference
receiving antenna within the protected service area of the authorized station, as required by 47
C.F.R.   21.902(c), (d) and (f); and failed to demonstrate that the proposed station was
engineered to provide at least 45 dB of cochannel interference protection pursuant to 47 C.F.R.
 21.902(b)(3).  Thus, RuralVision Central failed to demonstrate that the station proposed in
the returned application would not cause harmful interference to an authorized station.  See 47
C.F.R.  21.902.  In addition, RuralVision Central failed to satisfy the requirements for service
of interference studies stipulated by 47 C.F.R.  21.902(g).   

 9.  Nickerson, Kansas. RuralVision Central filed an MDS H-2 channel application
proposing a transmitter site at Nickerson, Kansas.  On January 26, 1994, the application was
returned and a reconsideration petition was filed on February 25, 1994.

 10.  The Nickerson application proposed a transmitter site that was within 50 miles of,
or had an unobstructed electrical path to the protected service area of, one previously authorized
cochannel station, MDS station WNTE213 at Great Bend, Kansas, Application File No. 760265. 
The application lacked an interference study, required by 47 C.F.R.  21.902(b)-(c), for
WNTE213.  Thus, RuralVision Central failed to demonstrate that the station proposed in the
returned application would not cause harmful interference to an authorized station.  See 47
C.F.R.  21.902. In addition, RuralVision Central failed to satisfy the requirements for service
of interference studies stipulated by 47 C.F.R.  21.902(g).

 11.  Randolph, Kansas.  RuralVision Central filed an MDS H-3 channel application
proposing a transmitter site at Randolph, Kansas.  On January 26, 1994, the application was
returned and a reconsideration petition was filed on February 25, 1994.

 12.  The Randolph application proposed a transmitter site that was within 50 miles of,
or had an unobstructed electrical path to the protected service area of, one previously proposed
cochannel station at Manhattan, Kansas, which had an application pending on January 2, 1992,
the filing date of the Randolph application.  The application lacked an interference study,
required by 47 C.F.R.  21.902(b)-(c), for the previously proposed MDS station at Manhattan.
Thus, RuralVision Central failed to demonstrate that the station proposed in the returned
application would not cause harmful interference to any authorized or previously proposed
station.  See 47 C.F.R.  21.902.  In addition, RuralVision Central failed to satisfy the
requirements for service of interference studies stipulated by 47 C.F.R.  21.902(g).

 13.  Zenda, Kansas.  RuralVision Central filed an MDS H-2 channel application
proposing a transmitter site at Zenda, Kansas.  On June 22, 1994, the application was returned
and a reconsideration petition was filed on July 22, 1994.

 14.  The Zenda application proposed a transmitter site that had an unobstructed electrical
path to the protected service area of one previously authorized cochannel station, MDS station
WNTI252 at Enid, Oklahoma, Application File No. 768649; and one subsequently authorized
cochannel station, MDS station WNTM611 at Wichita, Kansas, Application File No. 774711. 
The application lacked interference studies, required by 47 C.F.R.  21.902(b) and (c), for both
WNTI252 and WNTM611.  Thus, RuralVision Central failed to demonstrate that the station
proposed in the returned application would not cause harmful interference to any authorized or
previously proposed station.  See 47 C.F.R.  21.902. In addition, RuralVision Central failed
to satisfy the requirements for service of interference studies stipulated by 47 C.F.R.
 21.902(g). 

 15.  Sikeston, Missouri.  RuralVision Central filed MDS applications for the three H
channels proposing a transmitter site at Sikeston, Missouri.  On February 2, 1994, the
applications were returned and a joint reconsideration petition was filed on March 4, 1994.

 16.  The Sikeston applications proposed a transmitter site that had unobstructed electrical
paths to the protected service areas of two previously authorized cochannel stations.  The
interference studies submitted for WNTJ367 and WNTK889 were inadequate in that RuralVision
Central did not include free space calculations of the desired to undesired signal ratio for each
reference receiving antenna within the protected service areas of the authorized stations, as
required by 47 C.F.R.  21.902(c), (d) and (f); and failed to engineer the proposed stations to
provide at least 45 dB of cochannel interference protection pursuant to 47
C.F.R.  21.902(b)(3).  Thus, RuralVision Central failed to demonstrate that the stations
proposed in the returned applications would not cause harmful interference to any authorized or
previously proposed station.  See 47 C.F.R.  21.902.

 17.  Elk Point, South Dakota.  RuralVision Central filed MDS applications for the three
H channels proposing a transmitter site at Elk Point, South Dakota.  On February 9, 1994, the
applications were returned and a joint reconsideration petition was filed on March 11, 1994.
 
 18.  Each of the three Elk Point H-channel applications proposed a transmitter site that
was within 50 miles of, or had unobstructed electrical paths to the protected service areas of,
two previously authorized cochannel stations, and one then-pending previously proposed
cochannel station.  All of the applications lacked an interference study, required by 47 C.F.R.
 21.902(b)-(c), for the previously proposed cochannel MDS station at Sioux Falls, while the
H-2 and H-3 channel applications also lacked a required interference study for WNTK311 at
Yankton.  Furthermore, the interference studies that were included for WNTI920 at Salix, and
in the H-1 channel application for WNTK311 at Yankton, were inadequate in that RuralVision
Central did not include free space calculations of the desired to undesired signal ratio for each
reference receiving antenna within the protected service areas of the authorized stations, as
required by 47 C.F.R.  21.902(c), (d) and (f); and failed to engineer the proposed stations to
provide at least 45 dB of cochannel interference protection pursuant to 47 C.F.R.
 21.902(b)(3).  Thus, RuralVision Central failed to demonstrate that the stations proposed in
the returned applications would not cause harmful interference to any authorized or previously
proposed station.  See 47 C.F.R.  21.902.  In addition, RuralVision Central failed to satisfy
the requirements for service of interference studies stipulated by 47 C.F.R.  21.902(g).

 19.  Olton, Texas.  RuralVision South filed an MDS H channel application proposing a
transmitter site at Olton, Texas. On January 26, 1994, the application was returned and a
reconsideration was filed on February 25, 1994.

 20.  The Olton application proposed a transmitter site that was within 50 miles of, or had
an unobstructed electrical path to the protected service area of, one previously authorized
cochannel station, MDS station WNTB986 at Plainview, Texas, Application File No. 755433. 
The application lacked an interference study, required by 47 C.F.R.  21.902(b)-(c), for
WNTB986.  Thus, RuralVision South failed to demonstrate that the station proposed in the
returned application would not cause harmful interference to any authorized or previously
proposed station.  See 47 C.F.R.  21.902.  In addition, RuralVision South failed to satisfy the
requirements for service of interference studies stipulated by 47 C.F.R.  21.902(g).
 
                              IV.  DISCUSSION

 21.  Interference Protection.  At the very inception of MDS, the Commission established
the principle that subsequently filed applications must not cause harmful interference to any
previously proposed or authorized MDS station.  Amendment of Parts 1, 2, 21, and 43 of the
Commission's Rules and Regulations to Provide for Licensing and Regulation of Common Carrier
Radio Stations in the Multipoint Distribution Service, 45 FCC 2d 616, 621 (1974) (MDS
Allocation Order).  Over ten years before the above-captioned applications were filed, the
Commission explained its emphasis on this requirement for MDS applications:

 It is possible for co-channel interference generated by one MDS station to cause
 unacceptable distortion of another station's signal from as far away as 50 miles.  Section
 21.90[2](c) of our Rules therefore requires an MDS application to include an interference
 study containing an analysis of the potential for harmful interference with other MDS
 stations located within a 50 mile radius of the proposed station.

R.L. Mohr, 85 FCC 2d 596, 606 (1981).  Thus, 47 C.F.R.  21.902(b)(3) requires all MDS
applicants and licensees to provide at least 45 dB of cochannel interference protection, and to
demonstrate that protection in interference studies submitted with the applications.  See  3,
supra.  The importance of interference protection showings in MDS applications is well
established.  See, e.g., New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985); G.C.
Cooper, 8 FCC Rcd 7007, 7008 n.9 (Dom. Fac. Div. 1993).
 
 22.  All of petitioners' applications failed to demonstrate a lack of harmful interference
to existing and previously proposed H channel stations.  As shown above, some of the
applications lacked required interference studies.  In addition, the rest of the applications
included interference studies that were inadequate because they failed, inter alia, to include free
space calculations of the desired to undesired signal ratios for each reference receiving antenna
within the protected service areas of the authorized or previously proposed stations, as required
by 47 C.F.R.  21.902(c), (d) and (f), and to demonstrate at least 45 dB of cochannel
interference protection, as required by 47 C.F.R.  21.902(b)(3).  See  7-20, supra. 
Therefore, we conclude that petitioners failed to comply with the technical requirements set forth
in 47 C.F.R  21.902 regarding interference protection and failed to demonstrate that the
applicants are technically qualified to be MDS licensees as required by 47 C.F.R.  21.900(a).
Thus, these applications were properly returned as unacceptable for filing.  MDS Technical
Order, 98 FCC 2d at 93.

 23.  Petitioners argue that they submitted adequate interference analyses.  Specifically,
petitioners in the reconsideration petitions for Farmington, Sikeston, Elk Point and Olton state
that, through calculations of supposedly maximum distance of the radio horizon with an
unobstructed electrical path, a lack of harmful interference to any authorized or previously
proposed station was demonstrated, as no such station's protected service area was within this
distance.  In addition regarding Farmington, Sikeston, and Olton, petitioners add that they
considered all cochannel stations and applications within 50 miles that were known at the time
of application, and that there were none.  Moreover, the petitions for Farmington, Elk Point and
Olton contain shadow maps and other demonstrations submitted on reconsideration in
engineering declarations confirming the interference analyses contained in the original
applications.

 24.  In slight contrast to the above arguments that petitioners submitted interference
analyses demonstrating a lack of harmful interference and that there were no other prior
proposals that they were required to study, in the reconsideration petitions for Zenda, Nickerson
and Randolph, RuralVision Central asserts that at the time the applications were filed, there were
no cochannel stations or applications within 50 miles, hence, no interference studies were
required.  In the petitions for reconsideration for Nickerson and Randolph, RuralVision Central
adds that its engineers reviewed the best commercially-available data base when preparing the
engineering exhibits for the applications.  While RuralVision Central, in its Randolph petition,
concedes that it later learned that a cochannel application was filed for Manhattan, Kansas on
December 31, 1991, two days before its Randolph application was filed, it maintains that the
Manhattan application was filed during the freeze on H channel applications and "should not
have been accepted or processed."
 
 25.  We conclude, however, as stated above, that all of the applications were deficient
with respect to their interference showings.  The Nickerson, Olton, and Zenda applications,
inter alia, lacked a required interference study for a previously authorized station within 50
miles or for which there was an unobstructed electrical path to the protected service area.  See
 9-10, 13-14, 19-20, supra.  Additionally, the Randolph application failed to include a
required interference study for a pending previously proposed cochannel station.  Moreover,
while the Farmington and Sikeston applications did include the required interference studies,
these studies were deficient for the reasons discussed in  8 and 16, supra.  The Elk Point
applications also lacked required interference studies and contained deficient studies.  See  18,
supra.  Thus, we reject petitioners' assertions that they demonstrated a lack of harmful
interference. 

 26.  Alleged Data Base Omissions.  Petitioners raise various arguments concerning the
availability of proposed and authorized station information.  With respect to Elk Point and Olton,
petitioners maintain that at the time the applications were prepared, their engineers reviewed the
Commission's data base and the best commercial data base available, and that the only prior
proposals within 50 miles were studied and served.  However, petitioner in the Elk Point petition
concedes that the current data bases reveal the existence of other cochannel stations.  Similarly,
petitioners in the Nickerson and Randolph petitions contend that their engineers reviewed the
best commercially-available data base at the time those applications were prepared, and that no
cochannel stations or applications which required study were discovered.  Lastly, petitioner in
the Randolph petition asserts that as the cochannel Manhattan application was filed only two days
before the Randolph application, it could not have known of the existence of the Manhattan
proposal as it did not appear on any data base before the Randolph filing date. Thus, regarding
the Elk Point, Nickerson and Randolph applications, petitioners contend that the only omissions
in their interference analyses were due to omissions in the available data bases at the time those
applications were prepared. Finally, referring to Central Mobile Radio Phone Service, 41 RR
2d 431 (1977), as support, petitioners in the Elk Point and Nickerson petitions contend that it
cannot be held accountable for compliance with information "that was simply beyond its ken."

 27.  We reject petitioners' arguments that certain authorized or previously proposed
cochannel stations were or are undiscoverable.  We note that several of the applicants lacked
studies for authorized stations which had appeared on prior public notice.  The Olton application
lacked an interference study for an authorized station in Plainview, Texas, WNTB986
(Application File No. 755433), which was placed on public notice on October 13, 1989.  The
Nickerson application lacked an interference study for an authorized station in Great Bend,
Kansas, WNTE213 (Application File No. 760265), which was placed on public notice on April
6, 1990.  In addition, the Elk Point H-2 and H-3 applications lacked an interference study for
an authorized station in Yankton, South Dakota, WNTK311 (Application File No. 773984),
which was placed on public notice on June 4, 1991.  Each of the referenced public notices
contained the application file number, the applicant name, the application type, the frequency,
the proposed location, and the proposed coordinates.  Hence, these petitioners should have
checked public notices listing acceptance for filing of H channel applications filed under Part 94
rules before September 27, 1991. 

 28.  In addition, with respect to the Randolph and H-1 Elk Point applicants which lacked
studies for previously proposed stations, the applicants did not monitor the MDS data base or
internal staff inventory for application filings to ensure that their applications had considered all
previously proposed stations and amend their applications by filing additional interference studies
for these proposed stations.  See CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div.
1994).  For the same underlying reasons why interference analyses must be as complete as
possible at the time an application is filed, interference analyses should be as complete as
possible as soon thereafter as possible.  While there were periods when newly-filed MDS
applications were not available for public inspection through the Domestic Facilities Division
Public Reference Room, copies of such applications have been available since at least 1988 from
the Commission's public record copy contractor, irrespective of whether the applications had
been placed on public notice.  In addition, as early as November 1990, a "read-only" copy of
the MDS data base was available to the public through a third party public access contractor
ATA Services, Inc.  Finally, the Manhattan and Sioux Falls applications were and are available
for inspection and copying in the MDS Reference Room.  Despite these resources, petitioners
did not seek to amend their applications for Randolph and Elk Point until after they were
returned over one-and-a-half years later.
 
 29.  Finally, petitioners' reliance on Central Mobile Radio Phone Service is not
persuasive here.  In Central Mobile Radio Phone Service, the Commission listed Central's
application for a construction permit to establish additional station facilities at Toledo, Ohio as
acceptable for filing but omitted a line in the public notice which included the frequency for
which it had applied.  No petitions were filed against Central and the application was granted. 
Metrotec later applied for the same frequency at Toledo, claiming to have had no notice of
Central's application prior to the public notice granting Central's application.  Upon review, the
Commission ruled that the public notice did not satisfy the statutory notice requirements;
affirmed the recision of the grant to Central; and allowed the filing of Metrotec's application. 
Hence, as Metrotec was deemed to have had no way of knowing that the frequency was already
occupied without a listing of the frequency in the public notice, Central Mobile Radio Phone
Service involved the critical omission of information from a Commission public notice.  In
contrast, 47 C.F.R  21.902(c) "does not excuse applicants from submitting interference studies
unless or until the previously proposed applications have been placed on public notice."  4,330
MDS Applications, 10 FCC Rcd at 1468. As discussed above, applicants should have continued
to monitor application filings to ensure completeness of their interference studies.  Because these
previously proposed stations later appeared on the MDS internal staff inventory, which included
information such as the frequencies and locations of the proposed stations, petitioners could have
updated their interference studies to consider these stations.  Furthermore, the existence of the
authorized stations which were purportedly "beyond [RuralVision's] ken" could have been
determined by examination of Commission public notices listing H channel applications filed
under Part 94 rules. 

 30.  Notice to Affected Parties. In addition, the Farmington, Nickerson, Randolph,
Zenda, Elk Point and Olton applicants failed to serve, as required by 47 C.F.R.  21.902(g),
applicants, conditional licensees and licensees for stations required to be studied under 47 C.F.R.
 21.902(c), thus depriving affected parties of notice and an opportunity to be heard.  The
Commission has previously explained the importance of the section 21.902(g) service
requirement: "Coordination of MDS . . . systems . . . relies on accurate data about the
interference environment.  MDS . . . applicants and licensees are required to serve copies of
their interference analyses on any existing users and prior filed applicants within 50 miles." 
Revision of Part 21 of the Commission's Rules, 2 FCC Rcd at 5716.  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 47 C.F.R.  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.

 31.  Notice of Standard for Acceptability of Applications.  Petitioners argue that
Commission staff applied the rules in a way which represented new application policies or
standards and, hence, required full and explicit prior notice, but that applicants were not
provided said notice, citing Radio Athens, Inc., (WATH) v. FCC, 401 F.2d 398 (D.C. Cir.
1968).  Petitioners add, referring to McElroy Electronics Corporation v. FCC, 990 F.2d 1351
(D.C. Cir. 1993), that the return actions evidence a lack of clarity in application standards. 
However, the Part 21 standard for acceptability of applications has long been whether an
application is "acceptable for filing."  In referring to the Domestic Public Radio Services
Order, the Commission explicitly stated that "all MDS applicants have been on notice since
1976 of the processing requirements for MDS applications and the requirement that the
applications be in a  condition acceptable for filing' in order to be entitled to comparative
consideration."  New Channels, 57 RR 2d at 1601 n.3.  Moreover, in finding that inadequate
demonstrations of interference protection constituted defects rendering petitioners' applications
unacceptable for filing, "the staff was engaged in the interpretation of an existing rule, and
consequently, prior notice of the action was not required."  Id.  Section 21.20(a) of the
Commission's rules sets forth two different tests under which an application is determined to be
unacceptable for filing, and states that an application deemed unacceptable for filing will be
returned to the applicant.
 
 32.  The cited cases are also distinguishable on their facts.  In Radio Athens, the
application was reinstated in part because the duopoly ownership rule in question did not indicate
that an application with a duopoly problem would be dismissed without consideration.  Id. at
403.  In McElroy, the court concluded that a Commission order was vague at best and not
reasonably understandable from the context of the order and from normal English language
usage.  In contrast, section 21.20(a) clearly indicates the criteria for rendering an application
unacceptable for filing.  Regarding petitioners reliance on Greater Boston, 444 F.2d at 852, that
when an agency changes its policy, it must articulate its reasons for doing so; the Part 21
acceptability standard is long-established and the return of petitioners' applications is not at all
indicative of a new policy or approach to evaluating applications.  Furthermore, we find that the
return notification letters sent to petitioners gave sufficient explanation of the reasons for the
return of the applications.  Section 21.20(a) merely requires "a brief statement as to the
omissions or discrepancies."  In each case, the return letter indicated at least one reason why
the application was unacceptable for filing, and cited the relevant rule section or Commission
decision.
.  
 33.  Curative Amendments and Alleged Disparate Treatment  In the reconsideration
petitions for Farmington, Nickerson, Randolph, Sikeston, and Elk Point, petitioners argue that
in "every other case to date," the FCC has allowed applicants to file minor, curative
amendments, and cite four cases to support this proposition.  Similarly, petitioners in the 
Zenda and Olton petitions contend that the Commission has "repeatedly" granted tentative lottery
selectees the opportunity to file minor, curative amendments, including interference studies.
Petitioners maintain that they are entitled to be treated comparably and should be allowed to
provide minor amendments, to cure the "minor defects" in all of their applications, as they
were not given the opportunity to provide "whatever revised technical information the FCC now
requires."  Also, in the reconsideration petitions for Randolph, Sikeston, Elk Point and Olton,
petitioners refer to Public Notice, Commission Statement of Future Policy on Incomplete and
Patently Defective AM and FM Construction Permit Applications, 56 RR 2d 776 (1984)
(Broadcast Stations) to argue that under similar circumstances with broadcast applications, the
Commission has accepted previously dismissed applications nunc pro tunc when they were
accompanied by minor, curative amendments.  Additionally, the Farmington, Nickerson, and
Zenda reconsideration petitions rely on the statement in Ranger v. FCC, 294 F.2d 240, 242-43
(D.C. Cir. 1961), that where an application "approaches essential completeness but is lacking
in minor respects," the Commission should channel it through the statutory procedures that were
applicable at the time of the Ranger decision, which included at least a deficiency letter issued
by the Commission and an opportunity for the applicant to reply with curative amendments. 
Furthermore, petitioners state that if the Commission wishes to prohibit minor, curative
amendments, it must provide prior notice of this change in MDS application processing policies. 


 34.  We find, as discussed in detail below, the cases cited above by petitioners to be
inapplicable to the applicants in this order.  With respect to the cases involving tentative
selectees who were notified by Commission staff of deficiencies in their applications and
provided an opportunity to cure such deficiencies by amendment within 30 days; petitioners here
erroneously equate their return letters with the deficiency letters sent to the tentative selectees.
However, returned applicants and tentative selectees are treated differently under Commission
rules because returned applicants have been found unacceptable for filing by Commission staff,
while tentative selectees have been found acceptable for filing prior to participation in a lottery. 
Second Report and Order, 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, 57 RR
2d 943, 949 (1985) (MMDS Lottery Order). Since tentative selectees have already been found
acceptable for filing, only minor clarifications or additions should remain to be made to the
applications.  Hence, Commission staff may send deficiency letters to a tentative selectee to cure
minor problems prior to grant of an application that was otherwise acceptable for filing. 
However, an application that has been adjudged unacceptable for filing is, by definition,
defective and properly returned or dismissed by Commission staff.

 35.  Moreover, petitioners' reliance on Broadcast Stations and Ranger is misplaced.  The
Public Notice involved in Broadcast Stations was intended to apply solely to AM and FM
construction permit applications.  Cf. RAM Mobile Communications of Colorado, Inc., 61 RR
2d 1562, 1564-65 (1987) (Public Land Mobile Service applicant's citation of Broadcast Stations
"is inapplicable to the PLMS applications involved" and does not advance applicant's
arguments).  While the Court of Appeals in Ranger stipulated that the above-referenced statutory
procedures did not apply where an application was "lacking in material respects, the applicant
having failed to supply the Commission with information obviously necessary to a consideration
of its merit in the public interest."  Id. at 242.  Here, because the demonstration of interference
protection is vital to the processing of MDS applications, the lack of required interference
studies is a "material" defect which renders an application unacceptable for filing and deprives
it  of any further consideration.  See   21, supra.  See also 4,330 MDS Applications, 10 FCC
Rcd at 1470; G.C. Cooper, 8 FCC Rcd at 7008 n.8; Earl V. Levels, 8 FCC Rcd 5506 (Dom.
Fac. Div. 1993).  
 36.  As discussed above, we decline to accept amendments to cure deficiencies which
applicants could have avoided by following clear Commission rules and orders. Section
21.23(a)(1) provides that "[a]ny pending application may be amended as a matter of right . . .
." 47 C.F.R.  21.23(a)(1)(1994).  RuralVision Central and RuralVision South had ample
opportunity to amend their applications prior to their return by Commission staff.  However,
they failed to do so.  Moreover, we note, even if we were to accept post-return interference
showings, almost all such showings were inadequate.  Thus, we find that petitioners'
applications were properly returned as unacceptable for filing.  

.                             V.  CONCLUSION

 37.  In view of all the foregoing considerations, we affirm the staff's return of the
applications under consideration in this order.  Reconsideration is not justified and reinstatement
of the applications is not warranted.

 38.  Accordingly, IT IS ORDERED, that the reconsideration petitions filed by
RuralVision Central, Inc. and RuralVision South, Inc. ARE HEREBY DENIED

 39.  IT IS FURTHER ORDERED, that the staff of the Video Services Division shall
send copies of the decision to the authorized representative for the petitioners by certified mail,
return receipt requested.


      FEDERAL COMMUNICATIONS COMMISSION



      Charles E. Dziedzic
      Assistant Chief, Video Services Division
      Mass Media Bureau