NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** Before the FEDERAL COMMUNICATIONS COMMISSION FCC 95-250 Washington, D.C. In the Matter of ) ) PONCE BROADCASTING CORP. ) File Nos. 3790-CM-P-92, ) 3791-CM-P-92 and 3792-CM-P-92 For Authority to Construct ) and Operate Multipoint ) Distribution Service Stations on ) Channels H1, H2 and H3 at ) Ponce, Puerto Rico ) MEMORANDUM OPINION AND ORDER ON RECONSIDERATION Adopted: June 15, 1995 Released: July 7, 1995 By the Commission: I. INTRODUCTION 1. The Commission has before it petitions for reconsideration filed by Ponce Broadcasting Corp. seeking reconsideration of the Domestic Facilities Division decision to return as unacceptable for filing the above-captioned applications for authority to construct and operate Multipoint Distribution Service (MDS) stations on the H1, H2 and H3 channels at Ponce, Puerto Rico. Upon consideration of the arguments raised in the petitions, we find that petitioner's applications were properly returned, and thus, its petitions for reconsideration are denied. 2. On March 31, 1992, petitioner filed its MDS applications, to which Part 21 of the Commission's rules applies. After reviewing the applications, the Commission staff returned each application by return notification letter dated August 17, 1994. The return letters indicated that the applications were being returned because the applicant: (1) failed to submit an analysis of the potential for harmful interference with authorized cochannel stations within 50 miles of the applicant's proposed station, or to which the applicant's proposed transmitting antenna had an unobstructed electrical path, as required by 47 C.F.R.  21.902(c)(1); and (2) failed to engineer its station to provide at least 45 dB of interference protection within the protected service area of the cochannel stations, as required by 47 C.F.R.  21.902(b)(3). 3. Ponce Broadcasting filed a petition for reconsideration for each of the three applications on September 17, 1994. On reconsideration, petitioner argues that the interference studies it submitted with the applications complied with the Commission's rules. According to petitioner, while a 45 dB protection ratio could not be met with respect to the San German station, a 28 dB protection ratio could be met using frequency offset. Petitioner also asserts that the interference studies for the Aguas Buenas stations indicated "almost total terrain shadowing" to those stations' protected service areas, and that "[f]or this reason, it was concluded that the likelihood of interference to the Aguas Buenas protected service area was minimal." Accordingly, petitioner requests that its applications be reinstated. II. DISCUSSION 4. Section 21.902(b)(3) requires 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). Applicants may provide a 28 dB desired to undesired signal ratio, rather than the specified 45 dB, if there is a voluntary agreement between the applicant and the affected MDS station licensee to employ a frequency offset technique. In order to demonstrate compliance with  21.902(b), applicants at the time petitioner's applications were filed were also required to 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). These interference showings are a significant requirement because of the extensive planning and engineering involved in the MDS licensing process. Thus, the Commission has repeatedly emphasized the importance of these interference showings. See In the Matter of 4,330 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at 62 Transmitter Sites, 10 FCC Rcd 1335, 1465-67 (1994), appeal docketed, A/B Financial, Inc., et al. v. FCC, 95-1027 (D.C. Cir. Jan. 9, 1995). 5. While petitioner's applications correctly identified the stations required to be studied, the interference studies submitted were deficient in several material respects. With regard to the San German station, petitioner contends that the interference study demonstrated a desired to undesired ratio of 28 dB, which was adequate given the fact that petitioner proposed frequency offset. The interference study, however, utilized incorrect technical parameters, such as the coordinates and polarization for the San German station. In addition, the applications contained conflicting proposals for frequency offset. Using the correct technical parameters for the San German station, and the frequency offset proposal set forth in Exhibit E to the applications, the Commission staff concluded that petitioner's proposed stations would cause harmful interference to the protected service area of the San German station. More importantly, petitioner failed to submit a statement from the licensee of the San German station agreeing to petitioner's proposal to provide reduced interference protection. Unless there is a voluntary agreement between the affected stations to employ a frequency offset technique, a 45 dB desired to undesired signal demonstration is still required. Wireless Cable Reconsideration Order, 6 FCC Rcd at 6769-6770. Petitioner admits that its applications do not demonstrate 45 dB of cochannel interference protection to the San German station. 6. With regard to the Aguas Buenas stations, petitioner's applications merely stated that: As indicated in Figure 1, virtually the entire region surrounding the [Aguas Buenas] site is terrain shielded from the proposed Ponce transmitting antenna. Therefore, no interference is expected with respect to [the Aguas Buenas stations]. However, in the event that objectionable interference does occur to [the Aguas Buenas stations], Ponce Broadcasting Corp. will cooperate in the elimination of the interference. The Commission staff determined, however, that petitioner's proposed stations had an unobstructed electrical path to the protected service area of the Aguas Buenas stations and failed to provide 45 dB of cochannel interference protection. Petitioner also failed to submit free space calculations of the desired to undesired signal ratios to each reference receiving antenna within the protected service area of the Aguas Buenas stations, as required by 47 C.F.R.  21.902(f). Petitioner's assertion that it will cooperate with the affected stations if interference should occur does not excuse its failure to submit detailed interference studies as required by  21.902. See In re 4,330 Applications, 10 FCC Rcd at 1470. 7. Based upon these considerations, we conclude that petitioner failed to comply with the technical requirements set forth in  21.902 regarding interference protection and failed to demonstrate that it is technically qualified to be an MDS licensee as required by 47 C.F.R.  21.900. Thus, these applications were properly returned as unacceptable for filing. New Channels Communications, Inc., 57 Rad. Reg. 2d 1600, 1602 (1985); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994). In view of the foregoing considerations, we affirm the staff's return of petitioner's applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. 8. Accordingly, IT IS ORDERED, that the above-referenced reconsideration petitions filed by Ponce Broadcasting Corp. ARE HEREBY DENIED. 9. IT IS FURTHER ORDERED, that the staff of the Mass Media Bureau shall send a copy of the decision to petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary