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STANLEY ALLEN ) File No. 55639-CM-P-91 ) For Authority to Construct and Operate a) New Multipoint Distribution Service Station) on the F Channels at Dothan, Alabama) 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 filed by R. Stanley Allen ("Allen") of the return, pursuant to delegated authority, of an application for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the F channels at Dothan, Alabama. For the reasons discussed below, we deny the reconsideration petition. II. BACKGROUND 2. Allen filed the above-referenced application for a new MMDS station at Dothan, Alabama, on November 6, 1990. A Commission staff review of the application revealed that the application was unacceptable for filing. Consequently, the application was returned by letter dated September 10, 1991, which stated that the applicant failed to demonstrate site availability pursuant to 47 C.F.R.  21.15(a) since a site lease was not submitted with the application. On September 24, 1991, Allen filed a petition for reconsideration arguing that he had demonstrated reasonable assurance of site availability in his application. On October 5, 1995, Allen supplemented his reconsideration application by submitting an "Antenna Site Lease Agreement," dated May 1, 1995, for his proposed Dothan site. III. DISCUSSION 3. On our de novo review we find it dispositive that Allen failed to submit adequate, required MMDS interference studies with his application and to give notice, by service of these analyses, to all parties required to be studied. Furthermore, we decline to grant Allen's request for waiver of the Section 21.902 interference requirements, contained in his application, as it does not meet the Commission's standards for grant of a waiver. See, infra,  11-14. Therefore, although we also find that the stated reason for Allen's return was incorrect, it was harmless error nonetheless as the Dothan application was deficient and unacceptable for filing for the reasons stated above. See Greater Boston Television Corporation v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert denied, 403 U.S. 923 (1971) (The court will not upset a decision because of errors that are not material, "there being room for the doctrine of harmless error."). As discussed below, adequate 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. Thus, Allen failed to comply with the requirements of Section 21.902. 4. Interference Protection. At the time Allen's 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 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). For adjacent channels, 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)(1990). 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)(1990). 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 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). Because petitioner failed to make the required showings regarding interference protection, his application cannot be characterized as complete or in substantial compliance with the Commission's rules. See New Channels Communications Inc., 5 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." Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). 6. In a de novo review, on reconsideration, we have determined that the Dothan 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, Allen failed to file interference studies for: (1) one 1983 subsequently authorized MMDS station; and (2) six 1983 previously proposed MMDS stations which had applications pending on November 6, 1990, the filing date of the Dothan application. In addition, the interference analyses which Allen submitted for one 1983 subsequently authorized station and one Instructional Television Fixed Service station ("ITFS") were inadequate. 7. With respect to petitioner's failure to file required interference analyses, we note that Allen failed to file analyses for authorized and previously proposed stations of which he had received adequate notice. For example, petitioner failed to file an interference study for the pending previously proposed MMDS station, Application File No. 07771-CM-P-83, for Dothan, Alabama, which was placed on public notice on November 1, 1988, almost two years prior to Allen's filing date. Petitioner does not identify what resources were utilized in his search of MMDS stations and applications. However, had Allen examined publicly available information, he would have discovered the authorized and proposed stations noted in  6, supra. Moreover, based on petitioner's application, it appears that Allen had actual knowledge of many of the proposed and authorized stations that he failed to study. The engineering exhibit that Allen included with his application acknowledged that there were several then-pending adjacent channel applications proposing sites in Dothan, Alabama. In addition, in the certificate of service included with the application Allen referenced most of the applicants for which interference studies were required, but which petitioner failed to study. 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 Allen failed to comply with Section 21.902(c). 8. We are not persuaded that Allen should not have to submit required interference analyses for then-pending adjacent channel applications proposing sites in Dothan, Alabama since they proposed different sites and technical parameters. Allen asserts that under these circumstances it would be impossible to design an F channel station at Dothan, Alabama. However, he fails to submit any support for this conclusory assertion. As an alternative to providing required interference analyses, Allen proposed to protect whichever applicant secured Commission authorization. The Commission's rules do not provide for such an exception. Nor does Allen allege that such an exception exists. MDS applicants must consider all previously proposed and pending applications, before filing their applications. CNI Wireless, Inc., 9 FCC Rcd at 2040. As described, supra, interference analyses are necessary at the beginning of processing a particular MDS application so that mutual exclusivity determinations may be made. 9. Moreover, our independent engineering review finds that Allen's proposed station would cause harmful interference to all of the then-pending Dothan E-group applications save one. Thus, Allen's proposed station causes harmful interference to WLW709, the subsequently authorized E- group station at Dothan. Furthermore, we find that the required studies that petitioner did submit were inadequate. In particular, our independent engineering review of the interference analyses for WLW903 and WHR800 reveals that petitioner 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 authorized and previously proposed stations as required by Section 21.902(c),(d),(f). See 47 C.F.R.  21.902(e). 10. Therefore, in light of all of the above, we conclude that Allen failed to comply with the Section 21.902 interference protection requirements and failed to demonstrate that he was technically qualified to be an MMDS licensee. 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."). Thus, Allen's application was properly returned as unacceptable for filing. 11. Waiver Request. Section 21.20(c)(1) states that a defective application may still be accepted for filing if the application is accompanied by a waiver request. Allen requested a waiver of Section 21.902 requiring the performance of interference studies. For the reasons discussed below, we do not find that grant of a waiver would serve the public interest, and thus will not grant the requested waiver. 12. 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. "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."). 13. As shown, supra, Allen failed to submit adequate interference studies, as required by Section 21.902, for all authorized or previously proposed MMDS and previously authorized ITFS stations within 50 miles of his proposed transmitter site, and failed to demonstrate that his proposed station would not cause harmful interference to these protected sites. In his waiver request, Allen admitted that he was "unable to demonstrate lack of interference to each and every one of the pending applications for the E Group channels in the Dothan MSA." Exhibit I p.2. According to Allen, the different locations and technical designs used by the E channel applications rendered it impossible to design a corresponding F channel station that would protect the E channel applications. In the alternative, Allen proposed to protect the eventual E channel licensee since there would be only one such licensee. Finally, Allen asserted that to require Allen to await the grant of said adjacent channel licensee would significantly delay the initiation of F channel service to the Dothan area and that grant of a waiver would cause no hardship to any pending applicant. 14. We find that Allen's assertions fail to meet the requirements of Section 21.19 for grant of a waiver. Specifically, one of the underlying purposes of the interference analysis filing requirement is to avoid grant of an MDS application which would cause harmful interference to previously proposed, subsequently authorized stations. That is exactly what would happen here were we to grant Allen's proposed station. Our independent engineering review has determined that Allen's proposed station would cause harmful interference to all but one of the then-pending E group applications. See, supra,  9. One of these then-pending E channel applicants that Allen would interfere with became the subsequently authorized license of station WLW709. Alternatively, Allen did not demonstrate unique facts and circumstances which would justify why his application merits treatment different from that which we applied to thousands of other post-1983 MMDS applications which were dismissed, inter alia, due to their failure to comply with Section 21.902's interference requirements. See 4,330 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at 62 Transmitter Sites, 10 FCC Rcd 1335 (1994), aff'd mem, A/B Financial, Inc., et al. v. FCC, No. 95-1027 (D.C. Cir. Dec. 26, 1995) (per curiam). Allen's unsupported assertions regarding his inability to design an F channel station which would protect the above E group applications fall far short of the stringent showing required by WAIT Radio of the existence of extraordinary or special circumstances justifying a waiver. We therefore decline to grant the requested waiver of Section 21.902. 15. 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). Here, we find that Allen failed to serve the Dothan applicant, Application File No. 06429-CM-P-83, which was required to be studied, thereby depriving this affected party 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 Allen application was also properly returned as unacceptable for filing based on petitioner's failure to comply with the service requirements contained in Section 21.902(g). IV. CONCLUSION 16. In view of all the foregoing considerations, we affirm the staff's return of the R. STANLEY ALLEN application under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 17. Accordingly, IT IS ORDERED, that the reconsideration petition filed by R. STANLEY ALLEN IS HEREBY DENIED. 18. 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