******************************************************** 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 the Matter of the Applications of) ) RICHARD D. MORGESE TRUST ) File Nos. 61274-CM-P-91; ) 61275-CM-P-91 For Authority To Construct and Operate) Multipoint Distribution Service Stations) on the E and F Group Channels in ) Edgewood, Texas ) 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 petitions for reconsideration, pursuant to 47 C.F.R.  1.106(a), of the return of two applications for authority to construct and operate Multichannel Multipoint Distribution Service ("MMDS") stations on the E and F channels at Edgewood, Texas. As discussed in detail below, we conclude that the applications were properly returned. Accordingly, the petitions for reconsideration are denied. II. BACKGROUND 2. The Richard D. Morgese Trust ("RDMT") filed applications with the Commission on August 16, 1991, proposing the same transmitter site at Edgewood, Texas, for the E group and F group channels. After review of RDMT's applications, Commission staff returned each application as defective and unacceptable for filing by individual return notification letters dated March 3, 1993. The letters indicated that the applications were returned because they contained 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 or MMDS stations pursuant to 47 C.F.R.  21.902(c) and/or 21.902(i), and proposed a transmitter site within a Metropolitan Statistical Area ("MSA") or its buffer zone, in noncompliance with the 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 (1974) and 47 C.F.R.  21.901(d)(5). In its April 2, 1993 petitions for reconsideration, RDMT argues that its applications complied with the above- noted rules addressing interference protection showings, service of interference analyses, and MSA borders. III. DISCUSSION 3. Because we find dispositive RDMT's failure to submit required interference studies with its applications and to give notice, by service of these analyses, to the parties required to be studied, it is unnecessary to address petitioner's argument concerning its violation of the Commission's MSA protections. See infra  7. 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 MSA deficiency cited in the return letters, the Edgewood applications were still deficient due to RDMT's failure to comply with the requirements of Section 21.902. 4. Interference Protection. Section 21.902(b) requires an 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 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). MDS applicants are required to demonstrate these protections in interference studies submitted with their applications. 5. At the time the Edgewood applications were 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)(1990). In addition, Section 21.902(c)(2) required that an MDS 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)(1990). The applicant was also required to show what steps were 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.  21.902(a). 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 MDS, 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 MDS 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 Edgewood applications were 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 previously proposed stations required to be studied. Specifically, both Edgewood applications failed to file interference studies for 146 post-1983 previously proposed MMDS stations which had applications pending on August 16, 1991, the filing date of the Edgewood applications. In addition, RDMT's application for the E group channels at Edgewood failed to file interference studies for 105 post-1983 previously proposed adjacent channel MMDS stations with applications pending on August 16, 1991. Similarly, RDMT's application for the F group channels at Edgewood also failed to file interference studies for 171 post-1983 previously proposed adjacent channel MMDS stations with applications pending on August 16, 1991. Thus, the Edgewood E group and F group applications failed to file required interference analyses for a total of 251 and 317, respectively, pending previously proposed MMDS stations. Moreover, our independent engineering review has revealed that the MMDS interference studies that were submitted by RDMT were inadequate because they 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 previously proposed stations, required pursuant to 47 C.F.R.  21.902 (f). 8. Petitioner contends that there were no pending previously proposed or authorized stations for which petitioner failed to file interference studies. Specifically, petitioner's engineer states that apart from the pending previously proposed MMDS stations for which RDMT filed studies for or explained why studies were unnecessary, his search revealed no other such stations. Petitioner's engineer does not identify what resources were utilized in his search of MMDS stations and applications. However, we note, had petitioner's engineer examined publicly available information, the proposed stations noted in  7, supra, would have been discovered. For example, RDMT failed to file an interference study for the pending previously proposed MMDS station, Application File No. 53268-CM-P-90 for Tyler, Texas, which appeared just prior to petitioner's filing date on the July 9, 1991 FCC internal staff listing. 9. Regarding the MMDS studies that were filed, we have found that these were inadequate due to RDMT's failure to include free space calculations of the desired to undesired signal ratios to each referenced receiving antenna within the protected service area of the previously proposed stations 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."). As for the collocated adjacent channel applications for which RDMT failed to file studies for, petitioner's engineer asserts that these studies were not required because: (1) the proposed adjacent stations were collocated with the cochannel stations petitioner did study; (2) the adjacent channel criteria is lower than the cochannel criteria, which petitioner's engineer alleges, RDMT met through the collocated cochannel studies; and (3) should any interference arise RDMT would cooperate to resolve the interference problem. We are not persuaded by petitioner's engineer as his assertions do not comport with the Commission's rules. 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 de novo engineering review confirms that RDMT's proposed stations had an unobstructed electrical path to these adjacent channel stations. Furthermore, we note, RDMT's pledge to cooperate to protect the proposed stations from interference, does not excuse petitioner's failure to submit an interference study. A pledge to comply with the requirements of Section 21.902(a) does not exempt an MDS 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 [MDS] 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 MDS applications and are a prerequisite to the grant of a license. 10. Therefore, since petitioner both submitted inadequate MMDS interference studies and failed to file other required interference studies, we conclude that RDMT failed to comply with the Section 21.902 interference protection requirements and failed to demonstrate that it is technically qualified to be an MDS licensee as required by 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, RDMT's applications were properly returned as unacceptable for filing. 11. Notice to Affected Parties. In addition to submitting the required interference analyses to the Commission, an MDS 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). Here, we find that RDMT 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 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): 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 Edgewood applications were also properly returned as unacceptable for filing based on their failure to comply with the service requirements contained in Section 21.902(g). IV. CONCLUSION 12. In view of all the foregoing considerations, we affirm the staff's return of the Richard D. Morgese Trust applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. 13. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the Richard D. Morgese Trust ARE HEREBY DENIED. 14. 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