******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 Applications of) ) TELCAST, INC. ) File Nos. 04020-CM-P-92; ) 04021-CM-P-92; 04023-CM-P-92 For Authority to Construct and Operate) New Multipoint Distribution Service Stations ) on the H Channels at Greeley, Colorado) ORDER ON RECONSIDERATION Adopted: April 20, 1998 Released: April 21, 1998 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it three petitions for reconsideration, pursuant to 47 C.F.R.  1.106(a) of the dismissal of three applications for authority to construct and operate Multipoint Distribution Service (MDS) stations on the H channels at Greeley, Colorado. As discussed in detail below, we conclude that the three applications were properly dismissed. Accordingly, the petitions for reconsideration are denied. II. BACKGROUND 2. Telcast, Inc. (Telcast) filed these applications for the H channels with the Commission on April 7, 1992, proposing a transmitter site at Greeley, Colorado. A preliminary review of the Greeley applications, conducted by Commission staff, revealed that the applications were unacceptable for filing. The staff dismissed the three Greeley applications on August 31, 1995, pursuant to 47 C.F.R.  21.20. Specifically, the dismissal letters stated that the applicant failed to provide a copy of FAA Form 7460-1 that indicates FAA approval of the proposed structure pursuant to 47 C.F.R.  17.4, 17.7 and 21.15(d); failed to provide an analysis concerning possible impact upon Canadian or Mexican communications pursuant to 47 C.F.R.  21.902(c)(5); and failed to provide a list of program input facilities pursuant to 47 C.F.R.  21.13(a)(3). Based on a de novo review on reconsideration, we conclude that petitioner's applications were unacceptable for filing for failure to meet the requirements of Section 21.902, due to failure to submit adequate interference studies, failure to consider all authorized or previously proposed MDS stations and failure to serve all affected parties with interference studies. Although the August 31, 1995 dismissal letters did not list Section 21.902, these deficiencies are discussed below. 3. On October 12, 1995, Telcast filed three timely petitions for reconsideration. On reconsideration, petitioner contends that it was under no obligation to submit FAA Form 7460-1 because no FAA notification was required. Petitioner also argues that it was not required to submit an analysis concerning the stations' possible impact on Canadian or Mexican communications, citing Section 21.905(c)(5), because its proposed transmitter site is not within 56.3 kilometers (35 miles) of the Mexican or Canadian border. Finally, petitioner states that as a non-common carrier applicant, it is not required to provide a list of the program input facilities. Therefore, petitioner contends that its applications were in compliance with the Commission's rules and should be reinstated. III. DISCUSSION 4. 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. . . ." Amendments 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, 620-21 (1974) (MDS Allocation Order). A decade before the Greeley applications were filed, the Commission explained its emphasis on this requirement for MDS applications: It is possible for co-channel interference generated by one MDS station to cause unacceptable distortion of another station's signal from as far away as 50 miles. Section 21.902(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. 5. At the time the Greeley applications were filed, in order to demonstrate compliance with Section 21.902(b), and so that mutual exclusivity determinations could be made, Section 21.902(c)(1) of the Commission's rules required that an MDS applicant include with the application an analysis of the potential for harmful 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). The applicant was also required to show what steps it took to comply with the requirements of Section 21.902(a), which requires 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.  21.902(a) (1991). 6. These interference showings are a significant requirement because the Commission understood 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. See 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). Thus, the Commission stressed, "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. 47 C.F.R.  21.902(b)-(c); see also Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992) ("In the processing of MDS station applications, the interference analyses required by 47 C.F.R.  21.902 are crucial."). Because petitioner 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. 7. In a de novo review on reconsideration, we have determined that the Greeley applications did not include adequate interference analyses of the potential for harmful interference to authorized or previously proposed MMDS cochannel stations within 50 miles and cochannel and adjacent channel stations to whose protected service areas there was an unobstructed electrical path. Specifically, we have found that the Greeley applicant failed to file required interference studies for six previously proposed MMDS stations. We have also determined that the Greeley applicant failed to comply with the requirements of Section 21.902 in that the applicant did not 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); used incorrect methodology in calculating the protected service area of authorized or previously proposed stations; and indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles. Therefore, since petitioner both submitted inadequate interference studies and failed to file other required interference studies, we conclude that Telcast failed to comply with the Section 21.902 interference protection requirements. 8. 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 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 Greeley applicant failed to serve required interference analyses, as mandated by Section 21.902(g), on six of the required 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, these applications were also properly dismissed as unacceptable for filing based on their failure to comply with the service requirements contained in Section 21.902(g). 9. FAA Notification. Petitioner's applications indicated that FAA notification was not required and left blank the date of FAA notification. Petitioner was required, however, to notify the FAA and to indicate on its application that such notification of the FAA had been made. 47 C.F.R.  17.7(a) and 21.15(d). Petitioner argues that pursuant to Section 21.15(d), no such notification was required because the addition of its transmit antenna would not increase the overall height of the support structure. Nevertheless, Section 21.15(d) states that "complete information as to rules concerning construction . . . of antenna structures is contained in Part 17 . . . ." Section 17.7(a) of the Commission's rules states that "notification to the Federal Aviation Administration is required . . . for . . . any construction or alteration of more than 60.96 meters (200 feet) in height above ground level at its site." 47 C.F.R.  17.7(a). Exhibit C in each of the above-captioned applications illustrates that the addition of Telcast's transmit antenna to the support structure occurs at 282.5 feet, thus requiring FAA notification pursuant to Section 17.7(a). Finally, lack of FAA notification affects processing of MDS applications and itself renders the applications unacceptable for filing pursuant to Section 21.20. Friendly Community Television Services, 7 FCC Rcd 7892, 7893 (Dom. Fac. Div. 1992). IV. CONCLUSION 10. In view of all the foregoing considerations, we affirm the staff's dismissal of the applications filed by Telcast, Inc. under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. 11. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by Telcast, Inc. ARE HEREBY DENIED. 12. 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