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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) RALPH DeSTEFANO AND ) JAMES FEASEL ) File No. 50111-CM-P-87 ) For Authority to Construct and Operate) a Multipoint Distribution Service Station) on Channel 1 at Baltimore, Maryland ) ORDER ON RECONSIDERATION Adopted: January 21, 1998 Released: January 21, 1998 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it a petition for reconsideration filed by Ralph DeStefano and James Feasel (petitioners) of the dismissal, pursuant to delegated authority, of an application for authority to construct and operate a Multipoint Distribution Service (MDS) station on channel 1 at Baltimore, Maryland. This petition for reconsideration is before the Video Services Division pursuant to Section 1.106(a) of the Commission's rules, 47 C.F.R.  1.106(a). II. BACKGROUND 2. This application for channel 1 at Baltimore, Maryland, was filed with the Commission on July 30, 1987. A preliminary review of the application, conducted by Commission staff, revealed that the application was unacceptable for filing. Specifically, the dismissal letter stated that the applicant failed to meet the requirements for performance of interference analysis under 47 C.F.R.  21.902 and failed to consider all previously proposed or authorized MDS stations pursuant to 47 C.F.R.  21.902(c). Consequently, the Commission staff dismissed the Baltimore application by letter dated August 31, 1995, pursuant to 47 C.F.R.  21.20. 3. Petitioners' Arguments on Reconsideration. On September 27, 1995, Ralph DeStefano and James Feasel filed a petition for reconsideration of their dismissed application. On reconsideration, petitioners contend that their application satisfied all interference study requirements. They note that although the staff dismissal letter claims that the interference analysis was inadequate due to failure to consider all cochannel and adjacent channel stations within 50 miles, the letter did not identify those stations "even though there are blank spaces in the form letter in which this information is to be provided." Petitioners claim that it is, therefore, not possible to respond to this claimed defect without specifications as to errors in the interference analysis provided in the application. Petitioners also argue that the current Commission MDS inventory and a Data World search disclose no other previously proposed or authorized stations within 50 miles of Baltimore for which the captioned application should have contained an interference study. 4. In addition, petitioners argue that even if the application did contain one or more defects in its engineering analysis or other application exhibits, other than those of the most critical nature, the Commission should have given the applicants a reasonable opportunity to correct the problem before dismissing the application. Therefore, petitioners argue that their application was improperly dismissed under "an apparent fault-free policy" which is not supported by the Commission's rules. III. DISCUSSION 5. 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. "Of course, the applicant for the second channel sought will be expected to demonstrate that his system is designed so that significant interference will not occur with respect to the first MDS channel. . . ." Report and Order, 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), recon. denied, 57 FCC 2d 301 (1975). A few years before the Baltimore application was 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 21.902(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). It has also been recognized that "the demonstration of interference protection, at the time of filing, aids the Commission in the public interest determination that an applicant is technically qualified to be an MDS/MMDS licensee." Family Entertainment Network, Inc., 9 FCC Rcd 566, 567-68 n.10 (Dom. Fac. Div. 1994). Thus, Section 21.902(b) sets certain threshold interference protection levels, and requires all MDS applicants to demonstrate that protection in interference studies submitted with the applications. 6. At the time the Baltimore application was filed, in order to demonstrate compliance with Section 21.902(b), and so that mutually exclusive 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 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). In addition, Section 21.902(c)(2) required that an MDS applicant include with the application an analysis of the potential for harmful interference 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 adjacent channel station. 47 C.F.R.  21.902(c)(2) (1991); see 47 C.F.R.  21.902(a), (b), (d) and (f). The applicant was also required to show what steps it has taken to comply with the requirements of Section 21.902(a), which required MDS applicants, licensees, and conditional licensees to make exceptional efforts to avoid harmful interference to other users and to avoid blocking potential adjacent channel stations in the same area and cochannel stations in nearby areas. 47 C.F.R.  21.901(d)(7). 7. These interference showings are a significant requirement because the Commission understands that certain adjacent channel interference problems might arise. The Commission also anticipated that some authorized cochannel stations would be spaced more closely than ordinarily allowed and require careful planning and engineering. Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1264 (1983) (hereinafter MMDS Allocation Order). Thus, the Commission stressed that "we expect applicants to address this problem in their applications. Those applications that do not contain an analysis of how the applicant intends to avoid cochannel interference in adjacent areas will not be considered acceptable for filing." Id. (emphasis in original). See also 47 C.F.R.  21.902(b) and (c). Because petitioners here failed to make the required showings regarding interference protection, its application cannot be characterized as complete or in substantial compliance with the Commission's rules. See New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985). "In the processing of MDS station applications, the interference analyses required by 47 C.F.R.  21.902 are crucial." See also Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). 8. We find that the Baltimore application was properly dismissed for failure to comply with our interference protection requirements. Petitioners' application failed to include two of the required analyses of the potential for harmful interference to authorized or previously proposed MDS cochannel stations within 50 miles. Specifically, in de novo review on reconsideration, we have determined that the Baltimore applicant failed to file required interference studies for two post-1983 authorized or pending MDS applications. Petitioners failed to file interference studies for one pending, previously proposed post-1983 application, and one previously authorized post-1983 MDS station. 9. We note that the Baltimore applicant failed to submit required interference analyses for authorized or previously proposed stations which had appeared on public notice. In addition, the interference analysis that was submitted for WHT571 at Baltimore, Maryland, Application File No. 50243-CM-P-84, failed to comply with the requirements of Section 21.902 in that they failed to demonstrate at least 45 dB of cochannel interference protection or at least 0 dB of adjacent channel interference protection as required by Section 21.902(b). The interference studies that were submitted for WOI93 and WHT747, at Washington, D.C., Application File Nos. 50014-CM-P-74 and 50099-CM-MP-87, respectively, did not comply with the above requirements of Section 21.902(b). Nor did they include free space calculations for the desired to undesired signal ratio to each referenced receiving antenna within the protected service area of the authorized or previously proposed stations pursuant to Section 21.902(c), (d), and (f). Although the application indicated terrain blockage, the application did not include the required demonstration using shadow maps or terrain profiles. 10. Petitioners offer various explanations for their failure to file interference studies for the previously proposed and authorized post-1983 MDS applications. We note, however, that they failed to submit required interference analyses for these authorized or previously proposed stations even though the stations appeared on FCC staff internal listings prior to the filing date of the petitioners' application. For example, WPF46 was included on the November 24, 1982 FCC staff internal listing, prior to petitioners' application filing date. Given petitioners' failure to file interference studies for subsequently authorized and for pending, previously proposed stations, we find that the petitioners' application was properly dismissed. 11. As for petitioners' use of the independent data base, Data World, which is not affiliated with the Commission, the Commission does not attest to its accuracy. The Commission has, over the years, announced in public notices, third party entities which have contracted with the Commission to provide to the public online access to the MDS data base. See, e.g., Public Notice, New Contractor for Online Public Access to Commission Data Bases, Mimeo. No. 10511 (Nov. 7, 1990). Petitioners did not use the Commission's official online contractor, but rather chose to rely on an unofficial non-Commission affiliated independent data base and did so at the risk that this unofficial data base was not accurate and complete. 12. Notice to Affected Parties. In addition to submitting the required interference analyses to the Commission, an MDS applicant also must serve each required interference study upon the applicant, conditional licensee or licensee at each previously proposed or authorized station required to be studied, pursuant to Section 21.902(g) of the Commission's rules. 47 C.F.R.  21.902(g). The same rule requires that a list identifying each applicant, conditional licensee, and licensee served be submitted with the application. The petitioners failed to serve two of the required interference analyses, as mandated by  21.902(g), on two of the applicants, conditional licensees and licensees for stations stipulated to be studied by Section 21.902(c), thus depriving affected parties of notice and opportunity to be heard. In Edna Cornaggia, 8 FCC Rcd 5442, 5444 (Dom. Fac. Div. 1993), the return of a modification application was upheld for failure to comply with Section 21.902(g): The Commission makes provision for actual notice and an opportunity to be heard by parties in interest by requiring at Section 21.902(g) that microwave stations that might be affected by operation of an MDS station be served a copy of the required interference analysis for their station. Cornaggia admittedly failed to properly serve VisionAire with a copy of the interference analysis. . . . Due to this lack of service, the orderly process contemplated in the Commission's rulemaking order, in which Commission staff resolves interference problems after oppositions are filed, was negated. Thus, this application was also properly dismissed as unacceptable for filing based on its failure to comply with the service requirements contained in Section 21.902(g). 13. Post-Action Curative Showings. Petitioners' attempt to file an amended application with curative interference analyses prior to their petition for reconsideration likewise fails. It is well established that the Commission is under no obligation to accept curative showings after an application has been returned or dismissed, and there has been a series of cases denying attempts to submit such showings at that stage. Applications which lack complete and necessary information are unacceptable for filing pursuant to Section 21.20. See 47 C.F.R.  21.20(a)(1). 14. As discussed above, petitioners' application lacked required interference analyses. It is important that the interference analyses be complete at the time of filing of the application, and where they are not, the application is properly returned or dismissed as unacceptable for filing. The interference analysis requirement demands complete compliance at the time of filing of the application. See  5-11, supra. See also 101 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations, 9 FCC Rcd 7886, 7899 (1994), aff'd mem, A/B Financial, Inc., et al. v. FCC, 95-1027 (D.C. Cir. Dec. 26, 1995) (per curiam) ("[P]etitioners' applications were returned as unacceptable because they . . . failed to submit and serve the required interference studies at the time the application was initially filed, as specified by  21.902."). The acceptance of curative interference showings from applicants on reconsideration is not warranted. 15. Acceptability for Filing Standard. Petitioners argue that because the Commission did not give them a reasonable opportunity to correct any problems before dismissing its application, the Commission apparently has a "fault-free" standard with respect to acceptability of applications. Petitioner cites two cases, James River Broadcasting v. FCC, 399 F.2d 581 (D.C. Cir. 1968) and Radio Athens, Inc. v. FCC, 401 F.2d 398, 401 (D.C. Cir. 1968), for the propositions that the Commission's rules must: (1) indicate where extraordinary strictness will be required; (2) design strict procedures to achieve a result that is reasonably related to an efficient processing procedure; and (3) not have unfairly strict acceptability standards so as to contravene the statutory right to consideration. Petitioners contend that the Commission's Part 21 rules clearly do not establish a fault-free standard for acceptability of applications. Instead, petitioners argue, the Part 21 standard is at most similar to the "substantially complete" standard addressed in James River and Radio Athens. In addition, petitioners maintain that the language of Section 21.20(a) confers upon the Commission staff significant leeway in determining whether to allow an applicant to cure defects by submitting amendments or whether to return applications. 16. James River and Radio Athens do not assist petitioners in this case, and petitioners' reliance on them is misplaced. The decisions in both of those cases primarily rested upon the "substantially complete" criterion for acceptability of applications. See 47 C.F.R.  1.227(b)(1). In contrast to the rules governing the James River applications, the standard specified by Part 21 is "acceptable for filing." See 47 C.F.R.  21.31(b) and 21.914. Section 21.20(a) of the Commission's rules sets forth two tests in which one or the other must be met in order for an application to be deemed "unacceptable for filing," and states that an application deemed unacceptable for filing will be returned to the applicant. See  2, supra. Once the Part 21 rules were changed almost 20 years ago, "James River [was] no longer applicable to applications filed under Part 21 of the Commission's rules. . . . [T]he standard for evaluating applications under Part 21 of the rules is not substantial completeness,' but rather acceptability for filing.'" G.C. Cooper, 8 FCC Rcd at 7008 n.9 (1993) (citations omitted). Indeed, it was in response to James River that the Commission created the Part 21 standard in its present form. The Commission explained the change it adopted for the Part 21 standard: [T]he application must be in a condition acceptable for filing, a revised requirement which we believe is, in light of case interpretation and past policy, less ambiguous than the present requirement of "substantial completeness." The present terminology has caused some processing confusion because it has been construed as establishing different standards for defective applications such that it is possible for a "skeleton" application to be otherwise unacceptable for filing and yet be "substantially complete" enough to be entitled to comparative consideration with a competing application. Amendment of Parts 1 and 21 of the Commission's Rules and Regulations Applicable to the Domestic Public Radio Services (Other Than Maritime Mobile), 60 FCC 2d 549, 552 (1976) (hereinafter Domestic Public Radio Services Order) (referring to James River in footnote). In addition, the acceptable for filing standard is not "fault-free," as petitioner contends. See In Re Applications of North Florida MMDS Partners, 10 FCC Rcd 11593, 11608 (1995). 17. The Part 21 acceptability rules meet the "full and explicit notice" test discussed in Radio Athens. In referring to the Domestic Public Radio Services Order, we 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 Communications, Inc., 57 RR 2d at 1601 n.3 (1985). 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 contrast, Sections 21.20(a), 21.31(b) and 21.914 clearly indicate the criteria for rendering an application unacceptable for filing and depriving it of comparative consideration. See Florida Cellular Mobile Communications Corporation v. FCC, 28 F.3d 191, 198 (D.C. Cir. 1994) ("The Commission need not supply a separate shopping list' specifying that each separate rule violation may lead to dismissal. It is enough that the FCC rules are clearly spelled out and applicants are on notice that their applications are subject to dismissal for failure to comply with these rules."). Thus, petitioners had full notice of the standard under which their applications were evaluated, and we reject their contention that the Part 21 acceptability standard is analogous to the "substantially complete" standard. 18. As discussed above, since petitioners' application lacked interference analyses at the time of filing, the application did not substantially comply with the Commission's rules and was properly dismissed as unacceptable for filing pursuant to Section 21.20(a). See New Channels, 57 RR 2d at 1602 (an MDS application which does not contain all of the required interference analyses "cannot be characterized as . . . in substantial compliance with Commission rules and regulations, as required by the criteria for acceptability outlined in rule  21.20(a)."); 101 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations, 9 FCC Rcd 7886, 7899 (1994) (hereinafter Multipoint Distribution Service Applications), aff'd, A/B Financial, Inc., et al. v. FCC, No. 95-1027 (D.C. Cir. Dec. 26, 1995) (per curiam) ("[P]etitioners' applications were returned as unacceptable because they failed to submit and serve the required interference studies at the time the application was initially filed, as specified by  21.902.") Moreover, because missing interference analyses is such a serious omission, it is unlikely that petitioners would even meet the "substantial completeness" standard that they propose. See Marylan J. Benson, 7 FCC Rcd at 4669 ("Benson's failure to submit the necessary interference protection showing . . . renders its application incomplete . . . ."). 19. Petitioners also argue that because the Commission has discretion under Section 21.20(c)(2) "to not return" an application, Part 21 does not have a fault-free standard with respect to acceptability of applications. As discussed above, the Part 21 rules do not contain a fault-free standard for acceptability of applications; rather, the standard is whether the application is acceptable for filing. See  16, supra. While the Part 21 rules do allow for a certain degree of discretion in reviewing an application, each application is examined under the acceptable for filing standard. Thus, an applicant who violates Part 21 rules assumes the risk that its application will be returned as unacceptable for filing. See Ranger v. FCC, 294 F.2d 240, 242 (D.C. Cir. 1961) (any applicant who "either ignores or fails to understand clear and valid rules of the Commission respecting the requirements for an application assumes the risk that the application will not be acceptable for filing."). See also, e.g., Donald E. Benson, 8 FCC Rcd 1872, 1873 (Dom. Fac. Div. 1993). Petitioners' application was properly dismissed as unacceptable for filing. IV. CONCLUSION 20. In view of all the foregoing considerations, we affirm the staff's dismissal of the application filed by Ralph DeStefano and James Feasel, under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 21. Accordingly, IT IS ORDERED, that the reconsideration petition filed by Ralph DeStefano and James Feasel IS HEREBY DENIED. 22. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send a copy of the decision to the authorized representative for the petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau