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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 ) ) OKLAHOMA WESTERN TELEPHONE ) File No. 1637-CM-P-92 COMPANY ) ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the F Channels at Clayton, Oklahoma) 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, pursuant to 47 C.F.R.  1.106(a), a petition for reconsideration of the return of an application for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the F group channels at Clayton, Oklahoma. As discussed in detail below, we conclude that the application was properly returned. Accordingly, the petition for reconsideration is denied. II. BACKGROUND 2. Oklahoma Western Telephone Company ("OWTC") filed an application with the Commission on February 10, 1992, proposing a transmitter site at Clayton, Oklahoma for the F group channels. After review of OWTC's application, Commission staff returned the application as defective and unacceptable for filing by return notification letter dated March 3, 1993. The letter indicated that the application was returned because OWTC: (1) proposed an area not open for filing pursuant to 47 C.F.R.  21.901(d)(4) as it did not meet the criteria established in Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988) ("1988 Public Notice") which specifically states that an applicant may not file in a geographic area of an authorized MMDS station or pending MMDS application; (2) submitted deficient interference showings pursuant to 47 C.F.R.  21.902 due to the failure to serve all affected parties pursuant to 47 C.F.R.  21.902(g) and failure to consider all previously proposed or authorized Instructional Television Fixed Service ("ITFS") or MMDS stations pursuant to 47 C.F.R.  21.902(c) and/or 21.902(i); and (3) listed two different applicant names in response to items 1 and 31 of FCC Form 494. OWTC, in its April 1, 1993 petition for reconsideration, makes various arguments to support a waiver of the 1988 Public Notice location restrictions as well as its contention that it complied with the rules addressing interference protection showings and service of interference analyses. III. DISCUSSION 3. Because we find dispositive OWTC's failure to submit adequate, required interference studies with its application and to give notice, by service of these analyses, to the parties required to be studied, it is unnecessary to address petitioner's assertions concerning its violation of the Commission's 1988 Public Notice location restrictions and its corresponding waiver request. See infra. As discussed below, interference analyses are necessary at the time of application filing due to the extensive planning and engineering involved in the MMDS licensing process. In addition, service upon affected parties, as defined by Section 21.902(g), is required so that interested parties have actual notice of the proposed station and sufficient time to respond if desired. Therefore, even if we were to accept petitioner's argument concerning the 1988 Public Notice location restriction deficiency cited in the return letter, this Clayton application would still be deficient due to OWTC's failure to comply with the requirements of Section 21.902. 4. Interference Protection. Section 21.902(b) requires an MMDS 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 and at least 0 dB of interference protection within the protected service area of all other previously proposed or authorized adjacent channel stations. 47 C.F.R.  21.902(b)(3)-(4). MMDS applicants are required to demonstrate these protections in interference studies submitted with their applications. 5. At the time the Clayton application was filed, in order to demonstrate compliance with Section 21.902(b), applicants were 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). In addition, Section 21.902(c)(2) required that an MMDS applicant include with the application an analysis of the potential for harmful adjacent channel 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 were taken to comply with Section 21.902(a), which required MMDS 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 which the Commission has repeatedly emphasized. The Commission, in reallocating the E and F channels from ITFS to MMDS, did so with the understanding 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) ("MMDS Allocation Order"). 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." MMDS Allocation Order, 94 FCC 2d at 1264; see also 47 C.F.R.  21.902(b)-(c). There has been a series of cases emphasizing the importance of interference protection showings in MMDS applications for the E or F channels. "[T]he filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application." Family Entertainment, 9 FCC Rcd at 567. 7. In a de novo review, on reconsideration, we have determined that the Clayton application was properly returned for failure to comply with our interference protection requirements, set forth at Section 21.902(c), by failing to demonstrate the lack of harmful interference to authorized and previously proposed stations required to be studied. Specifically, OWTC failed to file interference studies for: (1) two 1983 subsequently authorized MMDS stations; (2) seven 1983 previously proposed MMDS stations which had applications pending on February 10, 1992, the filing date of the Clayton application; and (3) 48 post-1983 previously proposed MMDS stations which had applications pending on the filing date of the Clayton application. In addition, our independent engineering review has revealed that the interference study submitted by OWTC for WMH684, Application File No. 2528-CM-P-83, for Canadian Valley, Oklahoma, was inadequate because it did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service area of the subsequently authorized station as required by 47 C.F.R.  21.902(f). 8. On reconsideration, petitioner contends that aside from the cochannel station, WMH684, and a Hugo, Oklahoma adjacent channel application, there were no previously proposed or authorized stations requiring interference analyses. Regarding WMH684, petitioner primarily asserts that WMH684 had consented to any potential interference received from petitioner. In addition, petitioner states that the interference study performed for WMH684 demonstrated that interference would be at most de minimis. As for the adjacent channel Hugo applicant, petitioner's engineer states that it did not need to be studied since it was not within OWTC's line-of-sight. 9. With respect to petitioner's failure to file required interference analyses, we note that even apart from any failure of petitioner to file adequate interference studies for WMH684 and the Hugo applicant, OWTC failed to file analyses for authorized or previously proposed stations which had appeared on prior public notice. For example, OWTC failed to file an interference study for the pending previously proposed MMDS station, Application File No. 14526-CM-P-83, for Clayton, Oklahoma, which was placed on public notice on May 1, 1990, well over a year and a half prior to petitioner's filing date. Petitioner does not identify what resources were utilized in its search of MMDS stations and applications. However, had OWTC examined publicly available information, it would have discovered the authorized and proposed stations noted in  7, supra. Thus, given petitioner's failure to file interference studies for authorized and previously proposed stations listed on public notice and FCC internal staff listings, we find that OWTC failed to comply with Section 21.902(c). 10. As for the Canadian Valley station, WMH684, we conclude that petitioner's assertions do not comport with the evidence. Our de novo engineering review has revealed that OWTC's proposed station would cause harmful interference to cochannel station WMH684. See 47 C.F.R.  21.902(f)(1). In addition, the interference analysis submitted for WMH684 was inadequate due to OWTC's failure to include free space calculations of the desired to undesired signal ratios to each reference receiving antenna within the protected service area of the previously proposed station as required by Section 21.902(f). See Revision of Part 21 of The Commission's Rules, 2 FCC Rcd 5713, 5716 (1987) ("Coordination of MDS . . . systems . . . relies on accurate data about the interference environment."). Petitioner seeks on reconsideration to file a written "statement of consent" from Canadian Valley Telephone Company, licensee of WMH684. While OWTC's application alludes to an exchange of letters regarding interference acceptance with WMH684, petitioner did not include the letters with its application when it was necessary. Moreover, we note, according to WMH684, written consent was not given until after petitioner's application was returned. Specifically, WMH684 in its post-return consent letter dated March 29, 1993, states that it orally consented in January 1992. In order to avoid a Commission logjam, it is imperative that interference information be included with the application filing. Supra  3, 6. Therefore, in light of the foregoing, we decline to accept on reconsideration WMH684's post-return consent letter. 11. Regarding the pending previously proposed Hugo applicant, we reject, as factually incorrect, petitioner's claim that an interference study was not required for the adjacent channel applicant because of an obstructed electrical pathway. Section 21.902(c) requires interference analyses for all pending previously proposed or authorized stations within the later proposed station's line-of-sight. Our independent engineering review, conducted on reconsideration, confirms that OWTC's transmitter site has an unobstructed electrical pathway to the proposed adjacent channel Hugo station. Hence, pursuant to 47 C.F.R.  21.902(c)(2), OWTC was required to submit an interference analysis for this previously proposed adjacent channel station. 12. In addition, OWTC's pledge to cooperate to protect proposed and authorized stations from interference, does not excuse petitioner's failure to submit required interference studies. A pledge to comply with the requirements of Section 21.902(a) does not exempt an MMDS applicant from compliance with the requirements of Sections 21.901(d)(7) and 21.902(c). The mandate that applicants submit interference analyses with their applications is a separate requirement from the good faith commandment of Section 21.902(a), which mandates that "[a]ll [MMDS] applicants, permittees, and licensees shall make exceptional efforts to avoid harmful interference . . . and . . . are expected to cooperate fully in attempting to resolve problems of potential interference . . . ." As noted earlier, interference analyses are necessary at the beginning of processing MMDS applications and are a prerequisite to the grant of a license. 13. Therefore, since petitioner both submitted an inadequate MMDS interference study and failed to file other required interference studies, we conclude that OWTC failed to comply with the Section 21.902 interference protection requirements and failed to demonstrate that it was technically qualified to be an MMDS licensee, as required by Section 21.900(a). 47 C.F.R.  21.900(a). See New Channels Communications, Inc., 57 RR 2d at 1602; see also Amendments of Parts 21, 74 and 94 of The Commission's Rules and Regulations with regard to Technical Requirements Applicable to the Multipoint Distribution Service, the Instructional Television Fixed Service and the Private Operational-Fixed Microwave Service, 98 FCC 2d 68, 93 (1984) ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference as described herein will not be accepted for filing."); 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 [ 21.902] are crucial."). Thus, OWTC's application was properly returned as unacceptable for filing. 14. Notice to Affected Parties. In addition to submitting the required interference analyses to the Commission, an MMDS applicant must also serve each required interference study upon all previously proposed or authorized station applicants, conditional licensees or licensees required to be studied, pursuant to 47 C.F.R.  21.902(g) of the Commission's rules. Here, we find that OWTC failed to serve numerous applicants, conditional licensees and licensees for stations required to be studied, thereby depriving affected parties of notice and an opportunity to be heard. In Edna Cornaggia, 8 FCC Rcd at 5444, the return of a modification application was upheld for failure to comply with 47 C.F.R.  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, the Clayton application was also properly returned as unacceptable for filing based on its failure to comply with the service requirements contained in Section 21.902(g). IV. CONCLUSION 15. In view of all the foregoing considerations, we affirm the staff's return of the OKLAHOMA WESTERN TELEPHONE COMPANY application under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 16. Accordingly, IT IS ORDERED, that the reconsideration petition filed by OKLAHOMA WESTERN TELEPHONE COMPANY IS HEREBY DENIED. 17. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies 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