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Amendment of Parts  x21, 43, 74, 78, 94 of the Commission's Rules Governing Use of the Frequencies in the 2.1 and 2.5 GHz Bands"T(,))("  xAffecting: Private OperationalFixed Microwave Service, Multipoint Distribution Service, Multichannel Multipoint  xDistribution Service, Instructional Television Fixed Service, and Cable Television Relay Service, Further Notice of  {O -Proposed Rule Making, Gen. Docket No. 5094, 5 FCC Rcd 6472 (1990).  Amendment of"a ,))ZZw"  xParts 21, 48, 74, 78, and 94 of the Commission's Rules Governing Use of the Frequencies in the  x=2.1 and 2.5 GHz Bands Affecting: Private OperationalFixed Microwave Service, Multipoint  xYDistribution Service, Multichannel Multipoint Distribution Service, Instructional Television Fixed  X- xService, and Cable Television Relay Service, Second Report and Order, 6 FCC Rcd 6792, 6794,  X- xn.9 (1991) (hereinafter Second Report and Order). Effective January 2, 1992, Part 21 of the  X- x[Commission's rules applied to H channel applications and authorizations." yO, - x,ԍ Any H channel applicant or licensee who wanted Part 94 rules (OFS rules) to apply in lieu of the Part 21 rules  {O - xwas required to submit a waiver request on or before January 2, 1992. Second Report and Order, 6 FCC Rcd at  x;6818. The Alliance application did not mention such a waiver request; hence, it was evaluated by Commission staff under Part 21 rules.  See Second Report  X|- x[and Order, 6 FCC Rcd at 6818. Hence, for the above captioned application, which was filed on January 9, 1992, Part 21 of the Commission's rules apply.  XP- III. PETITION FOR RECONSIDERATION   ^x3. The Commission staff returned the above referenced H3 channel application for a  xtransmitter site at Natchez, Mississippi as defective and unacceptable for filing by an individual  X - xreturn notification letter.B  yOb-ԍ Section 21.20(a) of the rules sets forth the standards for returning MDS applications as unacceptable for filing: Xx(#   XxUnless the Commission shall otherwise permit, an application will be unacceptable for filing and will be returned to the applicant with a brief statement as to the omissions or discrepancies if:(#   Xx(1) The application is defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character; or (#   .Xx(2) The application does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements.(# 47 C.F.R.  21.20(a).B The letter indicated that the application was returned because the  xapplicant filed in an area not open for filing, pursuant to 47 C.F.R.  21.901(d)(4), as the  X - xxapplication did not meet the criteria established in Public Notice, Common Carrier Bureau Opens  X- xFiling Period for Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661  X- x(Comm. Car. 1988) (hereinafter 1988 Public Notice).4 {Oj"- xԍ The 1988 Public Notice reopened the filing window for E and F channel MDS applications, subject to certain  {O4#- x<location restrictions. The location restrictions announced in the 1988 Public Notice do not apply to H channel  {O#- x;applications. Thus, the Commission staff was incorrect in citing the 1988 Public Notice as a basis for return of this  xapplication. It was harmless error nonetheless, as the Alliance application was deficient and unacceptable for other  {O%- xreasons discussed herein. See Greater Boston Television Corporation v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970),  {OZ&- xhcert. denied, 403 U.S. 923 (1971) (The court will not upset a decision because of errors that are not material, "there being room for the doctrine of harmless error."). Based on de novo review on"~,-(-(ZZ-"  X- xxreconsideration, we conclude that petitioner's application was properly returned for failure to meet  x.the requirements for performance of interference studies, as required by section 21.902, due to  xfailure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MDS stations.  X-  lx4. In its petition for reconsideration, petitioner argues that the 1988 Public Notice does  xnot apply to its H channel application and that, at the time of its filing, there were no cochannel  x[MDS stations or applications within 50 miles of its proposed site. Petitioner also argues that it  xcomplied with 47 C.F.R.  21.902 in that its interference study demonstrated noninterference to  X3- xproposed Instructional Television Fixed Service ("ITFS") stations./f 3 yO - x<ԍ It was unnecessary to evaluate the ITFS interference analyses submitted by Alliance as the studies were not  x[due yet because the Alliance application had not appeared on public notice. For MDS applications filed after  xDecember 29, 1991, as Alliance was, 21.902(i) of the Commission's rules required an H channel applicant to  xhsubmit an analysis demonstrating that operation of the applicant's transmitter will not cause harmful interference to  xwany licensed or authorized adjacent G channel ITFS station with a transmitter site within 50 miles of the coordinates  xof the H channel station's proposed transmitter site. Section 21.902(i)(2) required that ITFS analyses be filed with  {O\- x,the Commission and served on each affected ITFS licensee and/or construction permittee on or before the 60th day  {O&- xafter the H channel application was placed on public notice. In the Matter of Amendment of Parts 21, 43, 74, 78,  xand 94 of the Commission's Rules Governing Use of the Frequencies in the 2.1 and 2.5 GHz Bands Affecting: Private  xkOperationalFixed Service, Multipoint Distribution Service, Multichannel Multipoint Distribution Service,  {O- xInstructional Television Fixed Service, & Cable Television Relay Service, 6 FCC Rcd 6764, 6782 (1991); 47 C.F.R.  21.902(i)(2)(4) (1992)./ Although Commission staff  X - xwas incorrect in finding that Alliance failed to comply with the 1988 Public Notice, see supra  X - x>n.5, we find dispositive Alliance's failure to submit adequate interference showings with its application. %IV. DISCUSSION  X-  x5. Interference Protection. At the very inception of MDS, the Commission established  xthe principle that subsequently filed applications must not cause harmful interference to any  xpreviously proposed or authorized MDS station. "Of course, the applicant for the second channel  xsought will be expected to demonstrate that his system is designed so that significant interference  X8- xwill not occur with respect to the first MDS channel . . . ." Amendments of Parts 1, 2, 21 and  xk43 of the Commission's Rules and Regulations to Provide for Licensing and Regulation of  X - xCommon Carrier Radio Stations in the Multipoint Distribution Service, 45 FCC 2d 616, 621  X- x(1974). Over ten years before the abovereferenced application was 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.(#  V?-"? ,-(-(ZZ]"Ԍ X- xR.L. Mohr, 85 FCC 2d 596, 606 (1981).5 yOy- x,ԍ The distance was extended in 1984 to the radio horizon with an unobstructed electrical path of the applicant's  {OA- xMDS station. Amendments of Parts 21, 74 and 94 of the Commission's Rules and Regulations with regard to the  xtechnical requirements applicable to the Multipoint Distribution Service, the Instructional Fixed Television Service  {O- xhand the Private OperationalFixed Microwave Service (OFS), 98 FCC 2d 68, 8991 (1984). Subsequent to the filing  {O- x[of this returned application, the distance was extended to 100 miles. Amendment of Parts 1, 2 and 21 of the  {Og-Commission's Rules, 8 FCC Rcd 1444, 1448 (1993).5 It also has been recognized that "the demonstration of  xinterference protection, at the time of filing, aids the Commission in the public interest  X- xdetermination that an applicant is technically qualified to be an MDS/MMDS licensee." Family  X- xLEntertainment Network, Inc., 9 FCC Rcd 566, 56768 n.10 (Dom. Fac. Div. 1994). Thus, section  xj21.902(b) requires all MDS applicants and licensees to provide 45 dB of cochannel interference  X- xxprotection,H {O - xZԍ MDS applicants consistently have been required to comply with  21.902(b). In the Family Entertainment  yOV - xcase, the Domestic Facilities Division upheld the return, as unacceptable for filing, of an application which  xdemonstrated that the level of interference was within 0.16 dB of meeting the 45 dB cochannel standard. In so doing, it was stated that:  {Ov-  >Xx[W]e reject FEN's claim that its applications should be granted because the level of interference . . . is de  {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.  within the protected service areas,r  yO-ԍ Section 21.902(d) defines the protected service area for MDS stations. r and to demonstrate that protection in interference studies submitted with the applications.   x6. At the time the Alliance application was filed, in order to demonstrate compliance with  x47 C.F.R.  21.902(b) and so that mutually exclusive determinations could be made, section  x21.902(c)(1) of the Commission's rules required that an MDS applicant include with the  X - xapplication an analysis of the potential for harmful cochannel interference  > yO- xԍ Section 21.902(f) defines harmful interference as the ratio of desired signal to undesired signal present in the  xcochannel channel at the output of a reference receiving antenna oriented to receive the maximum desired signal.  xxCochannel harmful interference exists if a free space calculation determines that this ratio is less than 45 dB. 47 C.F.R.  21.902(f).  with any authorized  xor previously proposed station if the applicant's proposed transmitting antenna had an  xunobstructed electrical path to any part of the protected service area of any other authorized or  xjpreviously proposed cochannel station or if the applicant's proposed transmitter was within 50  xLmiles of the transmitter coordinates of any other authorized or previously proposed cochannel  xstation. 47 C.F.R.  21.902(c)(1) (1991). In addition, the applicant was required to show what  X- xysteps it has taken to comply with section 21.902(a), which requires, inter alia, MDS applicants,  xlicensees, and conditional licensees, to make exceptional efforts to avoid harmful interference  x=with other users and to avoid blocking potential cochannel stations in nearby areas. 47 C.F.R."S& ,-(-(ZZ "  21.902(a) (1991).   2x7. Petitioner's application failed to demonstrate a lack of harmful interference to a  X- xpreviously authorized cochannel MDS station.  In its original application and again, in its  xreconsideration petition, Alliance stated that "there are no cochannel or adjacent channel MDS  xstations or applications within 50 miles of the proposed transmitter site." However, petitioner's  x>application proposed a transmitter antenna site that was within 4.92 miles of the previously  X_- xyauthorized cochannel station, WNTI328, Application File No. 768743, at Natchez, Mississippi.- _ yO- xhԍ While station WNTI328 was subsequently forfeited on June 14, 1992, at the time petitioner's application was  yO -filed, petitioner was required to include an interference analysis this station pursuant to  21.902(b)(c). -  XH- xWNTI328 appeared on public notice as accepted for filing on November 30, 1990, over a year  X1- xprior to petitioner's application's filing date, and was granted its station license on June 14, 1991,  xmore than six months prior to petitioner's January 9, 1992, filing date. Thus, petitioner had adequate notice of the previously authorized cochannel station.  X -  x8. As discussed in  6, supra, applicants for new MDS stations on the H channels are  xrequired to file specific technical interference protection showings for cochannel stations at the  xtime of filing. The interference analysis requirement is an imperative one which demands  xcomplete compliance at the time an application is filed for a proposed MDS site. Thus, the  xCommission stressed that "we expect applicants to address this problem in their applications.  xThose applications that do not contain an analysis of how the applicant intends to avoid cochannel  XM- xinterference in adjacent areas will not be considered acceptable for filing." Amendments of Parts  x2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency allocation  xto the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private  X - xOperational Fixed Microwave Service, 94 FCC 2d 1203, 1264 (1983); see also 47 C.F.R.  x21.902(b)(c). Complete and adequate interference studies are necessary at the time of filing  X- xin order for determinations of mutual exclusivity to be made. See Sioux Valley, 3 FCC Rcd 7375,  x.7376 (Dom. Fac. Div. 1988) ("Traditionally, the classification of MDS applications as mutually xexclusive was determined by a review of each of the applicants' interference analyses . . . . ").  X- xzSee also Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992) ("In the processing  xof MDS station applications, the interference analyses required by [47 C.F.R.  21.902] are  xcrucial."). Thus, due to petitioner's failure to file interference analyses for the previously  xMauthorized MDS stations, we find that it failed to comply with section 21.902. Accordingly, petitioner's application was unacceptable for filing and properly returned.  X-  x9. Notice to Affected Parties. In addition, the applicant failed to serve, as required by  xLsection 21.902(g), all applicants, conditional licensees and licensees for stations required to be  xstudied by 47 C.F.R.  21.902(c), thus depriving affected parties of notice and an opportunity to  xjbe heard. Alliance did not serve the licensee of WNTI328 with a copy of an interference study  X!- xfor its station. 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): "#  ,-(-(ZZe""Ԍ  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 opposition are filed, was negated.(#  xiHence, the above referenced application was also properly returned as unacceptable for filing due to failure to comply with the service requirements of 47 C.F.R.  21.902(g). $V. CONCLUSION   x10. In view of all the foregoing considerations, we affirm the staff's return of the  xapplication under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted.   }x11. Accordingly, IT IS ORDERED, that the reconsideration petition filed by Grand Alliance Natchez (F) Partnership, IS HEREBY DENIED.   x12. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies of the decision to the authorized representative by certified mail, return receipt requested. x x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  Charles E. Dziedzic x` `  Assistant Chief, Video Services Division x` `  Mass Media Bureau