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See  3336. Thus, RuralVision Central failed to demonstrate that the station proposed in  X4- x=the returned application would not cause harmful interference to an authorized station. See 47  xC.F.R. 21.902. In addition, RuralVision Central failed to satisfy the requirements for service  X-of interference studies stipulated by 47 C.F.R. 21.902(g).     X-  x9. Nickerson, Kansas. RuralVision Central filed an MDS H2 channel application  X- xproposing a transmitter site at Nickerson, Kansas.K  yOH -ԍ Application File No. 329CMP92.K On January 26, 1994, the application was  X-returned and a reconsideration petition was filed on February 25, 1994.   |x10. The Nickerson application proposed a transmitter site that was within 50 miles of,  Xg- x-or had an unobstructed electrical path to the protected service area of, one previously authorized  xycochannel station, MDS station WNTE213 at Great Bend, Kansas, Application File No. 760265.  xThe application lacked an interference study, required by 47 C.F.R. 21.902(b)(c), for"9d ,-(-(ZZ"  X- xWNTE213. z yOy- xJԍ On reconsideration, RuralVision Central seeks to submit an interference showing, consisting of a shadow map  xYand various calculations, for WNTE213. However, while we decline to accept petitioner's postreturn study, for the  {O - xreasons discussed infra, a cursory review reveals that this interference study was inadequate in that RuralVision  xiCentral did not include free space calculations of the desired to undesired signal ratio for each reference receiving  yO- xhantenna within the protected service area of the authorized station, as required by 21.902(c), (d) and (f), and failed  xto engineer the proposed station to provide at least 45 dB of cochannel interference protection pursuant to 21.902(b)(3). Thus, RuralVision Central failed to demonstrate that the station proposed in the  X- xreturned application would not cause harmful interference to an authorized station.  See 47  X- xC.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).  X-  _x11. Randolph, Kansas. RuralVision Central filed an MDS H3 channel application  Xx- xproposing a transmitter site at Randolph, Kansas.K x  yO3-ԍ Application File No. 391CMP92.K On January 26, 1994, the application was  Xa-returned and a reconsideration petition was filed on February 25, 1994.   0x12. The Randolph application proposed a transmitter site that was within 50 miles of, or  X - xhad an unobstructed electrical path to the protected service area of, one previously proposed  xcochannel station at Manhattan, Kansas, which had an application pending on January 2, 1992,  X - x  the filing date of the Randolph application.M  yO9-ԍ Application File No. 52864CMP92.M The application lacked an interference study,  X - x[required by 47 C.F.R.  21.902(b)(c), for the previously proposed MDS station at Manhattan.z *  yO- xԍ On reconsideration, RuralVision Central seeks to submit an interference showing, consisting of a shadow map  xand various calculations, for the Manhattan application. However, while we decline to accept petitioner's postreturn  {OB- x-study, for the reasons discussed infra, a cursory review reveals that this interference study was inadequate in that  xRuralVision Central did not include free space calculations of the desired to undesired signal ratio for each reference  xJreceiving antenna within the protected service area of the authorized station, as required by 21.902(c), (d) and (f),  xand failed to engineer the proposed station to provide at least 45 dB of cochannel interference protection pursuant to 21.902(b)(3).  X - x Thus, RuralVision Central failed to demonstrate that the station proposed in the returned  X - xapplication would not cause harmful interference to any authorized or previously proposed station.   X- xzSee 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).  XO-  x13. Zenda, Kansas. RuralVision Central filed an MDS H2 channel application proposing  X8- xa transmitter site at Zenda, Kansas.K8l yOU$-ԍ Application File No. 339CMP92.K On June 22, 1994, the application was returned and a  X!-reconsideration petition was filed on July 22, 1994.   x14. The Zenda application proposed a transmitter site that had an unobstructed electrical",-(-(ZZ"  X- xpath to the protected service area of one previously authorized cochannel station, MDS station  xWNTI252 at Enid, Oklahoma, Application File No. 768649; and one subsequently authorized  xcochannel station, MDS station WNTM611 at Wichita, Kansas, Application File No. 774711.  xThe application lacked interference studies, required by 47 C.F.R.  21.902(b) and (c), for both  X- xWNTI252 and WNTM611. yO- xԍ WNTI252 was placed on public notice on November 23, 1990, and WNTM611 was placed on public notice  yO-on June 28, 1991.  Thus, RuralVision Central failed to demonstrate that the station  xproposed in the returned application would not cause harmful interference to any authorized or  Xv- xpreviously proposed station.|v  yOG - x<ԍ On reconsideration, RuralVision Central seeks to submit a shadow map and supportive declaration in order  xto demonstrate noninterference with the stations within the radio horizon with an unobstructed electrical path.  {O - xHowever, while we decline to accept petitioner's postreturn study, for the reasons discussed infra, a cursory review  xreveals that this interference study was inadequate in that the 45 dB area boundary contours delineated on this map  {Oi - xZare based on an intended change in RuralVision Central's engineering proposal and, hence, invalid, see infra note  yO3- xK33, and that it failed to engineer the proposed Zenda station to provide at least 45 dB of cochannel interference protection.  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).  X3-  x15. Sikeston, Missouri. RuralVision Central filed MDS applications for the three H  X - xchannels proposing a transmitter site at Sikeston, Missouri.g d  yO1-ԍ Application File Nos. 41CMP92, 44CMP92, and 90CMP92.g On February 2, 1994, the  X -applications were returned and a joint reconsideration petition was filed on March 4, 1994.   x16. The Sikeston applications proposed a transmitter site that had unobstructed electrical  X - xpaths to the protected service areas of two previously authorized cochannel stations.  yOe- xԍ MDS station WNTJ367 at Malden, Missouri, Application File No. 771235; and MDS station WNTK889 at Union City, Tennessee, Application File No. 775814. The  xinterference studies submitted for WNTJ367 and WNTK889 were inadequate in that RuralVision  x=Central did not include free space calculations of the desired to undesired signal ratio for each  xzreference receiving antenna within the protected service areas of the authorized stations, as  Xd- xzrequired by 47 C.F.R. 21.902(c), (d) and (f); and failed to engineer the proposed stations to  xprovide at least 45 dB of cochannel interference protection pursuant to 47  X6- xNC.F.R.21.902(b)(3).B6L  yO3!- x<ԍ On reconsideration, RuralVision Central seeks to submit a shadow map and supportive declaration in order  xto demonstrate noninterference with the stations within the radio horizon with an unobstructed electrical path.  {O"- xHowever, while we decline to accept petitioner's postreturn study, for the reasons discussed infra, a cursory review  x;reveals that this interference study was inadequate in that RuralVision Central did not include free space calculations  xof the desired to undesired signal ratio for each reference receiving antenna within the protected service area of the  yO%- xauthorized station, as required by 21.902(c), (d) and (f), and failed to engineer the proposed station to provide at least 45 dB of cochannel interference protection pursuant to 21.902(b)(3).  yO&-  Thus, RuralVision Central failed to demonstrate that the stations"6V,-(-(ZZ "  xproposed in the returned applications would not cause harmful interference to any authorized or  X-previously proposed station.  See 47 C.F.R. 21.902.  X-  |x17. Elk Point, South Dakota. RuralVision Central filed MDS applications for the three  X- x=H channels proposing a transmitter site at Elk Point, South Dakota.g yO-ԍ Application File Nos. 30CMP92, 63CMP92, and 64CMP92.g On February 9, 1994, the applications were returned and a joint reconsideration petition was filed on March 11, 1994. x   x18. Each of the three Elk Point Hchannel applications proposed a transmitter site that  XJ- xwas within 50 miles of, or had unobstructed electrical paths to the protected service areas of, two  X3- xpreviously authorized cochannel stations,3X yO< - xԍ MDS station WNTI920 at Salix, Iowa, Application File No. 770665; and MDS station WNTK311 at Yankton, South Dakota, Application File No. 773984. and one thenpending previously proposed cochannel  X - xstation .CX  yO}- xԍ These include Application File Nos. 52876CMP92 for MDS channel H1; 52841CMP92 for MDS  xchannel H2; and 52877CMP92 for MDS channel H3. All three of these applications were filed for the same transmitter site at Sioux Falls, South Dakota.C All of the applications lacked an interference study, required by 47 C.F.R.  21.902(b) x(c), for the previously proposed cochannel MDS station at Sioux Falls, while the H2 and H3  X - xchannel applications also lacked a required interference study for WNTK311 at Yankton.  X - x Furthermore, the interference studies that were included for WNTI920 at Salix, and in the H1  x=channel application for WNTK311 at Yankton, were inadequate in that RuralVision Central did  xnot include free space calculations of the desired to undesired signal ratio for each reference  x.receiving antenna within the protected service areas of the authorized stations, as required by  X{- x47C.F.R. 21.902(c), (d) and (f); and failed to engineer the proposed stations to provide at least  Xd- x45 dB of cochannel interference protection pursuant to 47 C.F.R. 21.902(b)(3). Thus,  xRuralVision Central failed to demonstrate that the stations proposed in the returned applications  X6- x.would not cause harmful interference to any authorized or previously proposed station.eB6 yO- x=ԍ On reconsideration, RuralVision Central seeks to submit a shadow map, free space calculations, terrain  x: profiles, antenna radiation pattern diagrams, and a supportive declaration in order to demonstrate noninterference with  {OG- xithe Salix and Yankton stations and the Sioux Falls applications. Due to the reasons discussed infra, we decline to  yO- xaccept petitioner's postreturn interference showings. However, regarding WNTI920 at Salix, the attempted curative  x,interference protection showings are inadequate in that RuralVision Central failed to engineer the proposed stations  xto provide at least 45 dB of cochannel interference protection. Thus, even were we to accept the attempted curative  x<interference protection showings for the Yankton station and the Sioux Falls applications, RuralVision Central's failure to protect WNTI920 from harmful interference renders the Elk Point applications unacceptable for filing.e  See  X!- x47C.F.R. 21.902. In addition, RuralVision Central failed to satisfy the requirements for service  X -of interference studies stipulated by 47 C.F.R. 21.902(g).  yO$-ԍ The Elk Point applicants failed to serve the applicant for Sioux Falls and the licensee at Yankton.  X-  x19. Olton, Texas. RuralVision South filed an MDS H channel application proposing a"j,-(-(ZZ"  X- xtransmitter site at Olton, Texas.K yOy-ԍ Application File No. 187CMP92.K On January 26, 1994, the application was returned and a reconsideration was filed on February 25, 1994.   ?x20. The Olton application proposed a transmitter site that was within 50 miles of, or had  X- xan unobstructed electrical path to the protected service area of, one previously authorized  xcochannel station, MDS station WNTB986 at Plainview, Texas, Application File No. 755433.  xThe application lacked an interference study, required by 47 C.F.R. 21.902(b)(c), for  X_- xMWNTB986. Thus, RuralVision South failed to demonstrate that the station proposed in the  xreturned application would not cause harmful interference to any authorized or previously  X1- xproposed 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). x x%IV. DISCUSSION  X -  Nx21. Interference Protection. At the very inception of MDS, the Commission established  xthe principle that subsequently filed applications must not cause harmful interference to any  X- xpreviously proposed or authorized MDS station. Amendment of Parts 1, 2, 21, and 43 of the  xCommission's Rules and Regulations to Provide for Licensing and Regulation of Common Carrier  Xf- x0Radio Stations in the Multipoint Distribution Service, 45 FCC 2d 616, 621 (1974) (MDS  XQ- xAllocation Order). Over ten years before the abovecaptioned applications were filed, the Commission explained its emphasis on this requirement for MDS applications:   #XxIt is possible for cochannel interference generated by one MDS station to cause   Nunacceptable 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.(#  X- xR.L. Mohr, 85 FCC 2d 596, 606 (1981).X yO- xԍ The distance was extended in 1984 to the radio horizon with an unobstructed electrical path from the  xapplicant's proposed station to the protected service area of the authorized or previously proposed station.  {M- xAmendment of Parts 21, 74 and 94 of the Commission Rules and Regulations with regard to the technical  xxrequirements applicable to the Multipoint Distribution Service, the Instructional Television Fixed Service and the  {O -Private OperationalFixed Microwave Service (OFS), 98 FCC 2d 68, 8991 (1984) (MDS Technical Order). Thus, 47 C.F.R.  21.902(b)(3) requires all MDS  Xo- xapplicants and licensees to provide at least 45 dB of cochannel interference protection,3o  {O*#- xZԍ MDS applicants consistently have been required to comply with  21.902(b)(3). In Family Entertainment  {O#- xNetwork, Inc., 9 FCC Rcd 566 (Dom. Fac. Div. 1994), the Domestic Facilities Division upheld the return as  xxunacceptable for filing of an application which demonstrated that the level of interference was within 0.16 dB of meeting the 45 dB cochannel standard. In so doing, it was stated that:  {O'-  XxWe reject FEN's claim that its applications should be granted because the level of interference . . . is de"',-(-(S'"  {O-  minimis. Section 21.902(b)(3) requires that an applicant demonstrate 45 dB of cochannel interference   >protection. In this rule provision, no reference is made to qualifying terms, degrees or levels, other than 45 dB, at which interference would be deemed acceptable. (# 9 FCC Rcd at 568 (footnote omitted).3 and to"oz,-(-(ZZ"  X- xdemonstrate that protection in interference studies submitted with the applications. See  3,  X- x0supra. The importance of interference protection showings in MDS applications is well  X- xestablished. See, e.g., New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985); G.C.  X-Cooper, 8 FCC Rcd 7007, 7008 n.9 (Dom. Fac. Div. 1993). x   |x22. All of petitioners' applications failed to demonstrate a lack of harmful interference  x!to existing and previously proposed H channel stations. As shown above, some of the  xapplications lacked required interference studies. In addition, the rest of the applications included  XP- x.interference studies that were inadequate because they failed, inter alia, to include free space  xcalculations of the desired to undesired signal ratios for each reference receiving antenna within  xthe protected service areas of the authorized or previously proposed stations, as required by  x47C.F.R.  21.902(c), (d) and (f), and to demonstrate at least 45 dB of cochannel interference  X - x[protection, as required by 47 C.F.R.  21.902(b)(3). See  720, supra. Therefore, we conclude  xthat petitioners failed to comply with the technical requirements set forth in 47 C.F.R  21.902  xregarding interference protection and failed to demonstrate that the applicants are technically  xkqualified to be MDS licensees as required by 47 C.F.R.  21.900(a). Thus, these applications  X-were properly returned as unacceptable for filing. MDS Technical Order, 98 FCC 2d at 93.   x23. Petitioners argue that they submitted adequate interference analyses. Specifically,  XY- x.petitioners in the reconsideration petitions for Farmington, Sikeston, Elk Point and Olton state  x?that, through calculations of supposedly maximum distance of the radio horizon with an  xunobstructed electrical path, a lack of harmful interference to any authorized or previously  xproposed station was demonstrated, as no such station's protected service area was within this  xdistance. In addition regarding Farmington, Sikeston, and Olton, petitioners add that they  x=considered all cochannel stations and applications within 50 miles that were known at the time  xof application, and that there were none. Moreover, the petitions for Farmington, Elk Point and  xOlton contain shadow maps and other demonstrations submitted on reconsideration in engineering  X-declarations confirming the interference analyses contained in the original applications."z {O- xԍ See, e.g., Declaration of George B. Grills, P.E. in Support of a Petition for Reconsideration of the Return of  x,the Application of RuralVision South, Inc., 187CMP92 ("Olton Declaration") (all other engineering declarations  xsubmitted in conjunction with the reconsideration petitions will be hereinafter referred to as "[proposed site location] Declaration").  Xs-  1x24. In slight contrast to the above arguments that petitioners submitted interference  xxanalyses demonstrating a lack of harmful interference and that there were no other prior proposals  x/that they were required to study, in the reconsideration petitions for Zenda, Nickerson and  xRandolph, RuralVision Central asserts that at the time the applications were filed, there were no". d ,-(-(ZZ>"  xcochannel stations or applications within 50 miles, hence, no interference studies were required.  xLIn the petitions for reconsideration for Nickerson and Randolph, RuralVision Central adds that  xits engineers reviewed the best commerciallyavailable data base when preparing the engineering  X- xexhibits for the applications. While RuralVision Central, in its Randolph petition, concedes that  xit later learned that a cochannel application was filed for Manhattan, Kansas on December 31,  x1991, two days before its Randolph application was filed, it maintains that the Manhattan  xapplication was filed during the freeze on H channel applications and "should not have been accepted or processed."   x25. We conclude, however, as stated above, that all of the applications were deficient  X - xwith respect to their interference showings. The Nickerson,.   yO - xԍ RuralVision Central in its Nickerson petition states that its engineers studied WNTE213 when they first  x discovered its existence after the return of the Nickerson application. Petitioner's engineers conclude that the existing  x<station can be protected from interference with minor changes to RuralVision Central's technical proposal to its  {O - xYNickerson station, which was petitioner's "intention." See Nickerson Declaration at 4. However, Commission staff  xcannot rely on intended changes, but rather must rely on the proposal as listed in the application when evaluating  xthe proposal. Here, the Nickerson station as originally proposed would cause harmful interference to an authorized  x-station. Moreover, even if we considered petitioner's intended engineering changes, the interference protection  {O - xshowings submitted on reconsideration are deficient. See note 12, supra. Lastly, RuralVision Central in its  xNickerson petition complains that it was unable to amend its polarization specification because of a freeze then in  {O- xeffect on MDS applications which also applied to amendment filings. See Notice of Proposed Rulemaking, 7 FCC  xRcd 3266, 3270 n.35 (1992). We note, however, that this petitioner had over four months from the date its  xJapplication was filed to amend its engineering proposal before the April 9, 1992, freeze was imposed. Thus, we find that the Nickerson application failed to demonstrate adequate interference protection to an authorized station. Olton, x  yO- x.ԍ RuralVision South in its Olton petition adds that it submitted supplemental amendments to its original  xinterference studies with shadow maps demonstrating no unobstructed electrical path to the protected service area  x+ of any other station, and that these shadow maps further demonstrate a lack of harmful interference. While petitioner  xdid submit, within a few months of its application's filing, an amendment with a shadow map, the shadow map did  xnot demonstrate the lack of an unobstructed electrical path to the protected service area of WNTB986 at Plainview,  xTexas, 32.37 miles away from petitioner's Olton site. Thus, this petitioner did not prove the lack of harmful  yO9-interference to all stations required to be studied. ē and Zenda !   yO- xiԍ RuralVision Central in its Zenda petition also refers to an attached engineering declaration and asserts that  yO- x,its showings demonstrate a lack of harmful interference.  However, the declaration reveals that the Zenda proposed  yOY- xstation has an unobstructed electrical path to the protected service areas of two stations. Moreover, the declaration's  xconclusion that no harmful interference will occur relies on petitioner's "intention" to change the proposed  {O- xtransmitting antenna polarization, as well as a map based on this intention. See Zenda Declaration at 4. Commission  xstaff cannot rely on intended changes in an applicant's engineering proposal when evaluating the proposal; but rather  xmust rely on the proposal as listed in the application when evaluating the proposal. Here, the Zenda station as  x.originally proposed would cause harmful interference to other authorized stations. Petitioner argues that no  x;interference studies were required as there were no cochannel stations or applications within 50 miles at the time its  xapplication was filed. However,  21.902(c) also required applicants to study authorized or previously proposed  xstations whose protected service areas were within the radio horizon with an unobstructed electrical path from the  {Oc%- xapplicant's proposed station. See  3, supra. Because the proposed transmitter site in Zenda had an unobstructed  xelectrical path to the protected service areas of one previously authorized station and one subsequently authorized  {O&- xstation, both of which had appeared on public notice prior to the Zenda filing date, see note 17, supra, RuralVision"& ,-(-('"  x,Central in its Zenda petition was required to include interference studies for them at the time it filed its application, and its failure to do so rendered the application unacceptable for filing. applications," !,-(-(ZZ"  X- xinter alia, lacked a required interference study for a previously authorized station within 50 miles  X- xor for which there was an unobstructed electrical path to the protected service area. See  910,  X- x1314, 1920, supra. Additionally, the Randolph application failed to include a required  X- xinterference study for a pending previously proposed cochannel station.k "^  yO- xԍ RuralVision Central in its Randolph petition contends that it should not have been required to study the  {OZ- xManhattan application as it was filed in violation of a Commissionimposed freeze. We disagree. Determinations  yO$ - xYof the acceptability and "valid[ity]" of competing applications are not for an applicant to make. We also note that  {O - xthe "freeze" referred to by petitioner applied only to the acceptance of new OFS applications filed for the H channels  {O - xfrom September 27, 1991, to January 2, 1992. See Second Report and Order, 6 FCC Rcd at 6794 n.9. However,  {O - x<MDS H channel applications could have been filed prior to January 2, 1992, if accompanied by a waiver request.  {OJ - xId. at 6817, Appendix D,  2. The Manhattan application did include such a waiver request. Thus, the Manhattan  xapplication was a legitimatelyfiled "previously proposed" station which the Randolph applicant was required to  yO -study.    >xPetitioner states that its engineers studied the proposed Manhattan station when they first discovered its  xhexistence after the return of the Randolph application, and that they determined that no harmful interference would occur between the two proposals:   {  [With] precision frequency offset, and a very slight adjustment in EIRP [power] of either facility, the   required 28 dB D/U ratio can be met at the worst case hypothetical receive site at Manhattan. Thus, there   is good reason to expect that . . . substantially all potential interference would be eliminated. Any small residual instances of potential interference could be negotiated and/or accepted by the respective applicants.     xRandolph Declaration at 3. However, not only is there no basis for the assumed Manhattan technical proposal and  {Ot- xxhypothetical protected service area, but 28 dB is also the wrong cochannel interference protection standard. See  yO>- x21.902(b)(3). Moreover, the Randolph application cannot be evaluated on the basis of intended adjustments in  {O- xpower. See notes 31 and 33, supra. Finally, claims that "substantially all potential interference" would be eliminated  xwand that any residual interference "could be negotiated and/or accepted by the respective applicants" are insufficient,  xparticularly where the claims are based on questionable assumptions, as described above. Thus, we find that  x-RuralVision Central's Randolph application failed to demonstrate interference protection of the previously filed Manhattan proposal and its postreturn interference study of the Manhattan application is deficient.k Moreover, while the  X- xFarmington and SikestonV #0 F yO- xKԍ As discussed above, RuralVision Central in its Sikeston petitions argues that the interference analysis in its  yOi- xKSikeston applications were adequate. However, petitioner admits that its consulting engineers have restudied the  xysurrounding cochannel proposals and have determined that the proposed Sikeston facilities have unobstructed  xelectrical paths to the protected service areas of two stations. Nonetheless, petitioner urges, the likelihood of  x=interference to these stations is very small, and any that occurs could easily be resolved by upgrading receive  xantennas in the unblocked areas. We are not persuaded by petitioner's attempted assurances of interference  xYprotection. Any likelihood of interference, even where characterized by an applicant as "very small," is beyond the  {O#- xboundaries of acceptability, particularly where unblocked areas are involved. See  21.902(b)(3). Furthermore,  xpetitioners' suggested upgrading of receive antennas in the event of harmful interference does not cure its failure to  {O$- xdemonstrate interference protection. See 4,330 MDS Applications for Authority to Construct and Operate Multipoint  {Ou%- xDistribution Service Stations at 62 Transmitter Sites, 10 FCC Rcd 1335, 1470 (1994) (4,330 MDS Applications), aff'd  {O?&- xmem., A/B Financial, Inc., et al. v. FCC, No. 951027 (D.C. Cir. Dec. 26, 1995) (per curiam) ("[P]etitioners'  x;assertions that they have committed . . . to cooperate in good faith should any interference occur in the future does" '",-(-('"  xnot excuse their failure to submit detailed interference studies as required as by  21.902."). Hence, we conclude  xthat petitioner's Sikeston applications were properly returned as they failed to comply with the technical requirements  x;set forth in  21.902 regarding interference protection and failed to demonstrate that the applicants are technically qualified to be MDS licensees as required by  21.900(a).V applications did include the required interference studies, these studies" #,-(-(ZZ"  X- x=were deficient for the reasons discussed in  8 and 16, supra. The Elk Point applications also  X- xlacked required interference studies and contained deficient studies. See  18, supra. Thus, we reject petitioners' assertions that they demonstrated a lack of harmful interference.  X-  X-  x26. Alleged Data Base Omissions. Petitioners raise various arguments concerning the  xavailability of proposed and authorized station information. With respect to Elk Point and Olton,  xpetitioners maintain that at the time the applications were prepared, their engineers reviewed the  xCommission's data base and the best commercial data base available, and that the only prior  xproposals within 50 miles were studied and served. However, petitioner in the Elk Point petition  xconcedes that the current data bases reveal the existence of other cochannel stations. Similarly,  xpetitioners in the Nickerson and Randolph petitions contend that their engineers reviewed the best  xcommerciallyavailable data base at the time those applications were prepared, and that no  xcochannel stations or applications which required study were discovered. Lastly, petitioner in the  xRandolph petition asserts that as the cochannel Manhattan application was filed only two days  xbefore the Randolph application, it could not have known of the existence of the Manhattan  X - xproposal as it did not appear on any data base before the Randolph filing date.  Thus, regarding  xthe Elk Point, Nickerson and Randolph applications, petitioners contend that the only omissions  xin their interference analyses were due to omissions in the available data bases at the time those  Xf- x[applications were prepared.$f yO- xԍ In its Olton petition, RuralVision South alleges that the best data base currently available does not reveal any other proposals which required study. Finally, referring to Central Mobile Radio Phone Service, 41 RR  x2d 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."   x27. We reject petitioners' arguments that certain authorized or previously proposed  xcochannel stations were or are undiscoverable. We note that several of the applicants lacked  xstudies for authorized stations which had appeared on prior public notice. The Olton application  xOlacked an interference study for an authorized station in Plainview, Texas, WNTB986  x/(Application File No. 755433), which was placed on public notice on October 13, 1989. The  x Nickerson application lacked an interference study for an authorized station in Great Bend,  xKansas, WNTE213 (Application File No. 760265), which was placed on public notice on April  x.6, 1990. In addition, the Elk Point H2 and H3 applications lacked an interference study for an  xauthorized station in Yankton, South Dakota, WNTK311 (Application File No. 773984), which  xwas placed on public notice on June 4, 1991. Each of the referenced public notices contained  x<the application file number, the applicant name, the application type, the frequency, the proposed  x=location, and the proposed coordinates. Hence, these petitioners should have checked public  xnotices listing acceptance for filing of H channel applications filed under Part 94 rules before September 27, 1991. " $,-(-(ZZ"Ԍ  0ԙx28. In addition, with respect to the Randolph and H1 Elk Point applicants which lacked  X- xstudies for previously proposed stations,N% {Ob-ԍ See supra  12 and 18. N the applicants did not monitor the MDS data base or  xinternal staff inventory for application filings to ensure that their applications had considered all  xpreviously proposed stations and amend their applications by filing additional interference studies  X- xfor these proposed stations. See CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div.  x1994). For the same underlying reasons why interference analyses must be as complete as  Xx- xkpossible at the time an application is filed,&xZ yO - x<ԍ "[T]he demonstration of interference protection, at the time of filing, aids the Commission in the public  {OK - xinterest determination that an applicant is technically qualified to be an MDS/MMDS licensee." Family  {O - xEntertainment, 9 FCC Rcd at 56768 n.10. Without the requirement that interference studies be complete at the time  xZof filing, determinations of mutual exclusivity would be hampered, and a logjam would be created making it more  x[difficult to reach final actions. Furthermore, applicants may be tempted to wait as long as possible to submit  {Oo - xKinterference studies so as to minimize the number that must be submitted. See also, e.g. Boyd B. Hopkins, Sr., 9  {O9-FCC Rcd 569, 570 (Dom. Fac. Div. 1994);  Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). interference analyses should be as complete as  xpossible as soon thereafter as possible. While there were periods when newlyfiled MDS  xapplications were not available for public inspection through the Domestic Facilities Division  xPublic Reference Room, copies of such applications have been available since at least 1988 from  xthe Commission's public record copy contractor, irrespective of whether the applications had been  xplaced on public notice. In addition, as early as November 1990, a "readonly" copy of the MDS  xdata base was available to the public through a third party public access contractor ATA Services,  xInc. Finally, the Manhattan and Sioux Falls applications were and are available for inspection  xyand copying in the MDS Reference Room. Despite these resources, petitioners did not seek to  xamend their applications for Randolph and Elk Point until after they were returned over oneandahalf years later. x  Xd-  /x29. Finally, petitioners' reliance on Central Mobile Radio Phone Service is not persuasive  XO- x=here. In Central Mobile Radio Phone Service, the Commission listed Central's application for  xLa construction permit to establish additional station facilities at Toledo, Ohio as acceptable for  xfiling but omitted a line in the public notice which included the frequency for which it had  xapplied. No petitions were filed against Central and the application was granted. Metrotec later  xapplied for the same frequency at Toledo, claiming to have had no notice of Central's application  xprior to the public notice granting Central's application. Upon review, the Commission ruled that  x.the public notice did not satisfy the statutory notice requirements; affirmed the recision of the  xgrant to Central; and allowed the filing of Metrotec's application. Hence, as Metrotec was  xxdeemed to have had no way of knowing that the frequency was already occupied without a listing  X- xof the frequency in the public notice, Central Mobile Radio Phone Service involved the critical  xomission of information from a Commission public notice. In contrast, 47 C.F.R  21.902(c)  x"does not excuse applicants from submitting interference studies unless or until the previously  X?- xproposed applications have been placed on public notice." 4,330 MDS Applications, 10 FCC Rcd  xat 1468. As discussed above, applicants should have continued to monitor application filings to  x;ensure completeness of their interference studies. Because these previously proposed stations later" &,-(-(ZZ="  xappeared on the MDS internal staff inventory, which included information such as the frequencies  xand locations of the proposed stations, petitioners could have updated their interference studies  X- xto consider these stations. Furthermore, the existence of the authorized stations which were  xpurportedly "beyond [RuralVision's] ken" could have been determined by examination of  X-Commission public notices listing H channel applications filed under Part 94 rules.   Xv-  x30. Notice to Affected Parties. In addition, the Farmington,Z'2 v yO- xԍ While the Farmington applicant, on reconsideration, points to the broad statement in the application's  xZCertificate of Service that "[a]ll notifications required have been performed as of [the date of filing]," petitioner  {O - xI concedes that "the Certificate of Service in the Application does not specifically name the only cochannel application  {OI - xwhich required study; neither RuralVision nor its current consulting engineers can state with certainty whether that  {O - xMcochannel applicant, at Kirksville, MO, was in fact served." Farmington Petition at 3. (emphasis added).  xNonetheless, RuralVision Central maintains that "[s]ince there is only one affected party' that might not have been  x,served with RuralVision's interference study, and that party is fully protected by RuralVision's proposal, the possible  xomission of the service requirement here . . . is not so major an omission as to warrant the sanction of" return of  {O5- xthe application, and it is an omission that can be readily cured by minor amendment. Id. at 34 and 5. However,  {O- xas discussed in  8, supra, petitioner failed to demonstrate that its Farmington proposal will not cause interference  yO- xto the cochannel authorized station in Kirksville, Missouri. Moreover,  where a service certification does not indicate  xthat the required service was performed, and where petitioner cannot otherwise prove with certainty that service was in fact performed, petitioner cannot be deemed to have substantially complied with the  21.902(g).Z Nickerson, Randolph,  xZenda, Elk Point and Olton applicants failed to serve, as required by 47 C.F.R.  21.902(g),  x<applicants, conditional licensees and licensees for stations required to be studied under 47 C.F.R.  x 21.902(c), thus depriving affected parties of notice and an opportunity to be heard. The  x^Commission has previously explained the importance of the section 21.902(g) service  xOrequirement: "Coordination of MDS . . . systems . . . relies on accurate data about the  xinterference environment. MDS . . . applicants and licensees are required to serve copies of their  X - xinterference analyses on any existing users and prior filed applicants within 50 miles." Revision  X - xof Part 21 of the Commission's Rules, 2 FCC Rcd at 5716. In Edna Cornaggia, 8 FCC Rcd  xL5442, 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):   XxThe 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   0analysis 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.(#  X-  x31. Notice of Standard for Acceptability of Applications. Petitioners argue that  xCommission staff applied the rules in a way which represented new application policies or  xKstandards and, hence, required full and explicit prior notice, but that applicants were not provided  Xi- xsaid notice, citing Radio Athens, Inc., (WATH) v. FCC, 401 F.2d 398 (D.C. Cir. 1968).  XT- x[Petitioners add, referring to McElroy Electronics Corporation v. FCC, 990 F.2d 1351 (D.C. Cir."T ',-(-(ZZ|"  x1993), that the return actions evidence a lack of clarity in application standards. However, the  xPart 21 standard for acceptability of applications has long been whether an application is  X- x!"acceptable for filing." In referring to the Domestic Public Radio Services Order,( {OK- x,ԍ Amendment of Parts 1 and 21 of the Commission's Rules and Regulations Applicable to the Domestic Public  {O-Radio Services (Other Than Maritime Mobile), 60 FCC 2d 549 (1976). the  xCommission explicitly stated that "all MDS applicants have been on notice since 1976 of the  xprocessing requirements for MDS applications and the requirement that the applications be in a  X- x/condition acceptable for filing' in order to be entitled to comparative consideration." New  Xz- x{Channels, 57 RR 2d at 1601 n.3. Moreover, in finding that inadequate demonstrations of  xyinterference protection constituted defects rendering petitioners' applications unacceptable for  xfiling, "the staff was engaged in the interpretation of an existing rule, and consequently, prior  X7- xnotice of the action was not required." Id. Section 21.20(a) of the Commission's rules sets forth  xtwo different tests under which an application is determined to be unacceptable for filing, and  X -states that an application deemed unacceptable for filing will be returned to the applicant.) $ yO- xZԍ Section 21.20(b) also lists examples of common deficiencies which result in findings of unacceptability for filing, without "in any way limiting the scope of paragraph (a) . . . ." 47 C.F.R.  21.20(b). x  X -  x32. The cited cases are also distinguishable on their facts. In Radio Athens, the  xapplication was reinstated in part because the duopoly ownership rule in question did not indicate  X - x<that an application with a duopoly problem would be dismissed without consideration. Id. at 403.  X- xIn McElroy, the court concluded that a Commission order was vague at best and not reasonably  xunderstandable from the context of the order and from normal English language usage. In  xcontrast, section 21.20(a) clearly indicates the criteria for rendering an application unacceptable  XY- xfor filing. Regarding petitioners reliance on Greater Boston, 444 F.2d at 852, that when an  xagency changes its policy, it must articulate its reasons for doing so; the Part 21 acceptability  xystandard is longestablished and the return of petitioners' applications is not at all indicative of  xa new policy or approach to evaluating applications. Furthermore, we find that the return  xnotification letters sent to petitioners gave sufficient explanation of the reasons for the return of  xthe applications. Section 21.20(a) merely requires "a brief statement as to the omissions or  xdiscrepancies." 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. .  X-  x33. Curative Amendments and Alleged Disparate Treatment In the reconsideration  xpetitions for Farmington, Nickerson, Randolph, Sikeston, and Elk Point, petitioners argue that in  x["every other case to date," the FCC has allowed applicants to file minor, curative amendments,  XG- xyand cite four cases to support this proposition.*^G| {Ot#- xhԍ The four cases cited as examples are:  Stephen Communications, Inc., 8 FCC Rcd 355 (Dom. Fac. Div. 1993);  {O>$- xT/V Communications Associates, 7 FCC Rcd 7647 (Dom. Fac. Div. 1992); Stephen C. Bailey, 7 FCC Rcd 7252  {O%-(Dom. Fac. Div. 1992); and Microwave Video Services, Inc., 7 FCC Rcd 7254 (Dom. Fac. Div. 1992). Similarly, petitioners in the Zenda and Olton  xypetitions contend that the Commission has "repeatedly" granted tentative lottery selectees the"0*,-(-(ZZz"  X- xzopportunity to file minor, curative amendments, including interference studies.+ {Oy-ԍ Petitioners here also cite Stephen Communications and Microwave Video Services as examples. Petitioners  xmaintain that they are entitled to be treated comparably and should be allowed to provide minor  X- xamendments, to cure the "minor defects" in all of their applications,S,Z {O-ԍ See, e.g., Sikeston Petition at 12.S as they were not given the  xopportunity to provide "whatever revised technical information the FCC now requires." Also, in  xthe reconsideration petitions for Randolph, Sikeston, Elk Point and Olton, petitioners refer to  V- xPublic Notice, Commission Statement of Future Policy on Incomplete and Patently Defective AM  Xv- x[and FM Construction Permit Applications, 56 RR 2d 776 (1984) (Broadcast Stations) to argue  xkthat under similar circumstances with broadcast applications, the Commission has accepted  XJ- xipreviously dismissed applications nunc pro tunc when they were accompanied by minor, curative  X5- xamendments.-X5 yO - xԍ We again note that with the Nickerson, Randolph, Sikeston, Elk Point, and Zenda petitions, amendments to  x;cure the applications' deficiencies in interference protection would be major, because they would necessarily involve  yOb-changes in the engineering proposals which would render the amendments major under  21.23(c)(2).ĭ Additionally, the Farmington, Nickerson, and Zenda reconsideration petitions rely  X - xon the statement in Ranger v. FCC, 294 F.2d 240, 24243 (D.C. Cir. 1961), that where an  xapplication "approaches essential completeness but is lacking in minor respects," the Commission  X - xKshould channel it through the statutory procedures that were applicable at the time of the Ranger  xidecision, which included at least a deficiency letter issued by the Commission and an opportunity  xfor the applicant to reply with curative amendments. Furthermore, petitioners state that if the  xyCommission wishes to prohibit minor, curative amendments, it must provide prior notice of this change in MDS application processing policies.  Xj-  1x34. We find, as discussed in detail below, the cases cited above by petitioners to be  xinapplicable to the applicants in this order. With respect to the cases involving tentative  X<- x selecteesA.<  {O-ԍ See supra note 42.A who were notified by Commission staff of deficiencies in their applications and  xKprovided an opportunity to cure such deficiencies by amendment within 30 days; petitioners here  xerroneously equate their return letters with the deficiency letters sent to the tentative selectees.  x[However, returned applicants and tentative selectees are treated differently under Commission  xrules because returned applicants have been found unacceptable for filing by Commission staff,  xwhile tentative selectees have been found acceptable for filing prior to participation in a lottery.  V- xSecond Report and Order, Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and  xRegulations in Regard to Frequency Allocation to the Instructional Television Fixed Service, the  X- xMultipoint Distribution Service, and the Private OperationalFixed Microwave Service, 57 RR  Xo- x2d 943, 949 (1985) (MMDS Lottery Order). Since tentative selectees have already been found  xacceptable for filing, only minor clarifications or additions should remain to be made to the  xapplications. Hence, Commission staff may send deficiency letters to a tentative selectee to cure  xminor problems prior to grant of an application that was otherwise acceptable for filing.  xxHowever, an application that has been adjudged unacceptable for filing is, by definition, defective".,-(-(ZZy"  X-and properly returned or dismissed by Commission staff./  {Oy- xԍ In Stephen C. Bailey, the deficiencies listed in the deficiency letter appeared to be deficiencies which, under  xZthe rules then applicable, did not render the application unacceptable for filing. In the other cases, however, the  xhapplications were unacceptable for filing but were nevertheless entered in their respective lotteries, in contravention  {O- xYof the procedures established in the MMDS Lottery Order. After these applicants were chosen as tentative selectees,  xJthey were further erroneously given an opportunity to amend their applications to cure the deficiencies which made  xthem unacceptable for filing. None of the tentative selectees in the cited cases received MDS station licenses as they  x;failed to cure the stated deficiencies in a timely manner. More importantly, however, the Commission is not bound  {O- xby such staff errors. See, e.g., North Texas Media, Inc. v. FCC, 778 F.2d 28, 33 (D.C. Cir. 1985). ("The initial  ximprovident grant of a [shortspacing] waiver . . . now described as an error, does not deprive the agency of authority  {O - xJto require future applicants to meet certain standards in order to obtain such a waiver."); Quinnipiac College , 8 FCC  {OQ - xRcd 6285, 6286 (1993); Walter P. Faber, 4 FCC Rcd 5492, 5493 (1989), recon. denied, 6 FCC Rcd 3601 (1991),  {O - xJaff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992). Therefore, the fact that tentative selectees in the cited  x,cases may have been improperly given the opportunity to cure deficiencies in their applications, which should have  xbeen dismissed as unacceptable for filing, does not mandate that petitioners be allowed to amend their applications  xafter they have been properly returned as unacceptable for filing, pursuant to established Commission rules and procedures.   X-  x35. Moreover, petitioners' reliance on Broadcast Stations and Ranger is misplaced. The  X- x/Public Notice involved in Broadcast Stations was intended to apply solely to AM and FM  X- xconstruction permit applications. Cf. RAM Mobile Communications of Colorado, Inc., 61 RR 2d  X- xL1562, 156465 (1987) (Public Land Mobile Service applicant's citation of Broadcast Stations "is  xinapplicable to the PLMS applications involved" and does not advance applicant's arguments).  Xg- xWhile the Court of Appeals in Ranger stipulated that the abovereferenced statutory procedures  xdid not apply where an application was "lacking in material respects, the applicant having failed  x[to supply the Commission with information obviously necessary to a consideration of its merit  X$ - xin the public interest." Id. at 242. Here, because the demonstration of interference protection is  x{vital to the processing of MDS applications, the lack of required interference studies is a  x"material" defect which renders an application unacceptable for filing and deprives it of any  X - xfurther consideration. See  21, supra. See also   4,330 MDS Applications, 10 FCC Rcd at 1470;  X - xG.C. Cooper, 8 FCC Rcd at 7008 n.8; Earl V. Levels, 8 FCC Rcd 5506 (Dom. Fac. Div. 1993).   x36. As discussed above, we decline to accept amendments to cure deficiencies which  x0applicants could have avoided by following clear Commission rules and orders. Section  x=21.23(a)(1) provides that "[a]ny pending application may be amended as a matter of right . . . ."  x47 C.F.R.  21.23(a)(1)(1994). RuralVision Central and RuralVision South had ample  xopportunity to amend their applications prior to their return by Commission staff. However, they  xfailed to do so. Moreover, we note, even if we were to accept postreturn interference showings,  X- x.almost all such showings were inadequate.V0 {O#-ԍ See supra notes 12, 15, 18, 21 and 25.V Thus, we find that petitioners' applications were"0,-(-(ZZt"  X-properly returned as unacceptable for filing. 1 yOy- xKԍ In the Farmington and Nickerson reconsideration petitions, RuralVision Central additionally contends that  xreinstatement of the applications is essential because without it, concurrentlyfiled MDS applications for nearby sites  x[will be granted by default and will deprive RuralVision Central of grants in Farmington and Nickerson. Citing  {O- xAshbacker Radio Co. v. FCC, 326 U.S. 327 (1945), petitioners complain that this would be unfair, and in violation  {O- xof basic procedures for considering equally qualified, mutually exclusive applications. However, in Ashbacker, the  {Oe- xSupreme Court specifically noted that both applications before it were "bona fide," or in compliance with  xCommission rules. Here, the Farmington and Nickerson applications failed to substantially comply with Part 21  {O- xrules. Thus, Ashbacker does not confer any rights upon petitioners here. Nor are petitioner's arguments in the Zenda  xpetition, that the Commission has previously granted MDS applications missing a number of items, convincing.  {O - xTherein, petitioner cites Edna Cornaggia, 9 FCC Rcd 2311 (Dom. Fac. Div. 1994), which involved licenses that  yOS - xwere conditioned upon providing the necessary information within a specified time period. In that case, the Domestic  xFacilities Division granted Cornaggia's application despite its lack of a fullyexecuted deed, lease or option  x,agreement, a fullyexecuted financial certification, a nonaffiliation statement, and the address of the control point  {O - xand/or studio. Id. Inadequate demonstrations of interference protection, however, were not an issue in CornaggiaĄ  xas they are here. Adequate interference protection showings are essential and applications will not be granted without  xthem. Lastly, we reject the assertion in the Farmington petition, that the Commission has processed and granted  xKapplications lacking interference studies entirely, as petitioner provides no support for this contention. ("A bald  {O- xconclusion without any offer of proof or documentary support, has no probative value . . . " 4,330 MDS Applications,  {O-10 FCC Rcd at 1473 n.361, citing Jim Bolton, 2 FCC Rcd 3207 (Comm. Car. Bur. 1987)).    X-. $V. CONCLUSION   x37. In view of all the foregoing considerations, we affirm the staff's return of the  x-applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted.   x38. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by RuralVision Central, Inc. and RuralVision South, Inc. ARE HEREBY DENIED   x39. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send  xcopies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. x` `  FEDERAL COMMUNICATIONS COMMISSION   x` `  Charles E. Dziedzic x` `  Assistant Chief, Video Services Division  X-x` `  Mass Media Bureau