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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 the Matter of ) ) 18 Applications for Authority ) To Construct and Operate ) Multipoint Distribution Service Stations on) the F Group Channels for La Grange, 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 of the return, pursuant to 47 C.F.R.  1.106(a), of 18 applications, which were filed with the Commission on October 15, 1990, October 22, 1990, October 24, 1990, October 26, 1990, and October 31, 1990, for authority to construct and operate a Multipoint Distribution Service ("MDS") station on the F channels for La Grange, Texas. A preliminary review of the La Grange applications, conducted by Commission staff, revealed that the applications were unacceptable for filing. Because these petitions raise common issues, their collective consideration is the most efficient use of Commission resources. Thus, we will consider these reconsideration petitions in this single order. II. DISCUSSION 2. The La Grange applications were returned, pursuant to 47 C.F.R.  21.20, on March 3, 1993, by return notification letters which stated that the applicants failed to meet the requirements for performance of interference analysis as required by 47 C.F.R.  21.902, due to failure to serve all affected parties pursuant to 47 C.F.R.  21.902(g) and failure to consider all previously proposed or authorized MMDS or Instructional Television Fixed Service ("ITFS") stations pursuant to 47 C.F.R.  21.902(c) and/or 21.902(i). 3. Interference Protection. Section 21.902(b) 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, and at least 0 dB of interference protection within the protected service areas of all other previously proposed or authorized adjacent channel stations. 47 C.F.R. 21.902(b)(3) and (4). MDS applicants are required to demonstrate these protections in interference studies submitted with their applications. 4. At the time the La Grange 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); see 47 C.F.R.  21.902(a), (b), (d), (f). Section 21.901(d)(7) further required that each MDS application for the E or F channels include the applicant's written statement of the techniques that would be employed at the proposed station to avoid interference with operation of adjacent channel stations. 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.  21.901(d)(7). 5. 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 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." 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. 6. In a de novo review, on reconsideration, we have determined that the La Grange applications were properly returned for failure to comply with our interference protection requirements by failing to demonstrate the lack of harmful interference to previously proposed and authorized stations required to be studied pursuant to Section 21.902(c). Specifically, all of the La Grange applicants failed to file interference studies for one 1983 subsequently authorized MMDS station. In addition, the October 15, 1990, La Grange applicants failed to file interference analyses for 32 then-pending post-1983 previously proposed MMDS stations. The remaining La Grange applicants also failed to file interference studies for 31 post-1983 previously proposed MMDS stations, which had applications pending on the filing dates of these La Grange applicants. 7. Petitioners do not attempt to explain their failure to file required interference studies, except with respect to one station. Specifically, petitioners contend, on reconsideration, that a review of the Commission's records indicated, in addition to an E channel group application for La Grange for which petitioners proposed collocation, that only one previously proposed station, Wagon Wheel Enterprises ("Wagon Wheel"), WLW844, Application File No. 15924-CM-P-83, for Deanville, Texas, was located within 50 miles of petitioners' proposed site. Petitioners contend that they failed to perform and serve an interference study on the Wagon Wheel application because the Commission provided no notice, at the time of their application filings, of the 1983 Wagon Wheel application. In preparing the engineering work for the La Grange application, petitioners assert that they relied on the then-current "inventory" of pending MMDS applications printed by the Commission on July 30, 1990, as well as data bases prepared by independent private companies. Petitioners allege that neither source listed the 1983 Wagon Wheel application. In support, petitioners attach a declaration of the engineer who performed the original interference analysis for the La Grange applicants. Petitioners' engineer reports using a Texas Rand McNally road map and noted that "[i]f a previously proposed filed location used a name not shown as a place name on the road map, it could have possibly been missed, however Deanville is clearly shown as a place name and would have been found if it were in the inventory at the time of the study." Therefore, petitioners argue fairness and due process require that petitioners be given an opportunity to amend, on reconsideration, their applications to include an interference analysis for the 1983 Wagon Wheel application. 8. At the time of the La Grange filings, the applicants failed to submit required interference analyses for authorized or previously proposed stations which had appeared on public notice or FCC internal staff listings prior to the filing date of petitioners' applications. For example, petitioners failed to submit an interference study for a pending, previously proposed post-1983 application, Application File No. 50342-CM-P-90, for Brenham, Texas, which was placed on public notice on May 2, 1990, over five months prior to the earliest La Grange filing date. Copies of the Commission's public notices are available to the public at the time of issuance. See 47 C.F.R.  0.443. In addition, previously released notices are available for public inspection at the Commission's Press and News Media Division. Id. Moreover, the above application was also listed on the July 30, 1990, FCC internal staff listing which petitioners purport to have relied on in preparing their original interference analysis. Therefore, given petitioners' failure to file required interference analyses, at the time of their application filings, for pending, previously proposed and authorized stations listed on public notice or FCC internal staff listings, we find that even apart from any failure of petitioners to file an interference study for the Wagon Wheel station, petitioners did not comply with Section 21.902(c). 9. As for petitioners' use of the privately maintained electronic data base Dataworld, we note that this service was not the Commission's official MMDS on-line contractor, at the time of the applicants' filings, which petitioners freely acknowledge. The Commission has, over the years, announced, in public notices, third party entities which have contracted with the Commission to provide to the public on-line access to the MMDS 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 on-line contractor, but rather chose to rely on an unofficial, non- Commission affiliated data base and did so at the risk that this unofficial data base was not accurate and complete. 10. Regarding petitioners' pledges, contained in their applications, to take all measures necessary to avoid harmful interference including ceasing operations, this does not excuse petitioners' failure to submit interference studies as required by Section 21.902. A pledge to comply with the requirements of Section 21.902(a) does not exempt any MDS applicant from compliance with the requirements of Sections 21.901(d)(7) or 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, conditional licensees, and licensees shall make exceptional efforts to avoid harmful interference . . . and . . . are expected to cooperate fully in attempting to resolve problems of potential interference . . . ." See also 47 C.F.R.  21.31. As noted earlier, interference analyses are necessary at the beginning of processing MDS applications, cannot be skipped, and are a prerequisite to the grant of a license. See  3-5. 11. Thus, due to petitioners' failure to file required interference analyses for pending, previously proposed and authorized, 1983 and post-1983 stations, we find that the La Grange applicants failed to comply with Section 21.902(c). "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." 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 (OFS), 98 FCC 2d 68, 93 (1984). Accordingly, petitioners' applications were unacceptable for filing and properly returned. 12. Notice to Affected Parties. In addition to submitting the required interference analyses to the Commission, an MDS applicant also had to serve each required interference study upon the previously proposed or authorized station applicant, conditional licensee or licensee required to be studied, and submit a list identifying each applicant, conditional licensee, and licensee served. 47 C.F.R.  21.902(g). Here, the La Grange applicants failed to serve, at the time of filing, any copies of the required interference analyses, as mandated by Section 21.902(g), on any 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 at 5444, 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 returned as unacceptable for filing based on the applicants' failure to comply with the service requirements contained in Section 21.902(g). 13. Failure to Satisfy Waiver Requirements. Petitioners, in their applications, request that the Commission grant "any required waiver necessary" to accept their filings. We have construed this request as a request for waiver of the interference studies required pursuant to Section 21.902(c) and the service requirements of Section 21.902(g). Section 21.19 provides that applications seeking waiver of the Commission's rules must contain a statement of reasons sufficient to justify a waiver. A waiver will only be granted upon an affirmative showing that: (a) The underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome, or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. 47 C.F.R.  21.19. 14. The La Grange applicants failed to provide any justification for grant of a waiver. "An applicant for waiver faces a high hurdle even at the starting gate. 'When an applicant seeks a waiver . . . it must plead with particularity the facts and circumstances which warrant such action.'" WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio Grande Family Radio Fellowship, Inc., v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam)); see also David Laustsen, 3 FCC Rcd 2053, 2054 (Comm. Car. Bur. 1988) ("[A] request for waiver . . . must affirmatively demonstrate that application of the rules would frustrate the underlying purposes of the rule."). Nor, in our de novo review, do we find that grant of waivers would serve the public interest or that the facts and circumstances of the La Grange filings are sufficiently unique so as to warrant waiver of these requirements. Thus, we decline to grant petitioners' request for waivers. 15. Post-Return Interference and Service Showings. On reconsideration, petitioners seek to include a post-return interference study for the 1983 Wagon Wheel application as well as a certificate of service for the Wagon Wheel station. Petitioners claim that their post-return interference analysis of the Wagon Wheel application demonstrates no harmful interference. Thus, petitioners argue, there is no public policy reason to dismiss their applications and, hence, equity demands the reinstatement of petitioners' applications. 16. As discussed previously, the interference analysis requirement is an imperative one which demands compliance at the time of application. See MMDS Allocation Order, 94 FCC 2d at 1264, ("we expect applicants to address this problem [of potential interference] in their applications."); see also Boyd B. Hopkins, Sr., 9 FCC Rcd 569, 570 (Dom. Fac. Div. 1994) ("[S]tation engineering must be demonstrated at the time of filing the application, pursuant to Section 21.902(c) . . . ."). In addition, as noted supra, service upon affected parties is provided for in the Commission's rules so that interested parties have actual notice of the proposed station and sufficient time to respond if desired. Here, we have found that even without regard to the Wagon Wheel application, petitioners had access to information necessary to prepare required interference analyses and to serve these studies upon the required parties, yet, petitioners failed to include, with their applications, required interference studies and certificates of service. See supra  8, 12. Hence, even if we did accept petitioners' post-return showings, petitioners' applications would still be unacceptable for filing. 17. Therefore, we find that acceptance of petitioners' post-return interference and service showings regarding the Wagon Wheel station is not warranted. See Edna Cornaggia, 8 FCC Rcd 5442, 5444 n.7 (Dom. Fac. Div. 1993) ("[I]t is no longer possible to amend an application which has already been dismissed . . . ."); Earl V. Levels, 8 FCC Rcd 5506 (Dom. Fac. Div. 1993) (curative amendments filed with petition for reconsideration, attempting to supply a missing interference showing and other missing information, not allowed); Marylan J. Benson, 7 FCC Rcd at 4699 n.9 ("We reject Benson's contention that she should be permitted to file curative amendments and have her application reinstated nunc pro tunc, for further processing. We believe that the Division's initial return of the above-referenced Benson application as unacceptable for filing was correct . . . ."). III. CONCLUSION 18. In view of all the foregoing considerations, we affirm the staff's return of the La Grange applications under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 19. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the La Grange applicants ARE HEREBY DENIED. 20. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies of the decision to the authorized representatives for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau