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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 ) ) Five Applications ) File Nos. 52145-CM-P-90; 52146-CM-P-90 ) 53033-CM-P-90; 53034-CM-P-90; ) 53035-CM-P-90 For Authority to Construct and Operate) Multipoint Distribution Service Stations on the) F-group Channels at Henryetta, Oklahoma) ORDER ON RECONSIDERATION Adopted: April 20, 1998 Released: April 27, 1998 I. INTRODUCTION 1. The Video Service Division has before it five petitions for reconsideration of the return, pursuant to 47 C.F.R.  1.106(a) on delegated authority, of applications for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the F channels at Henryetta, Oklahoma. These applications were filed with the Commission on May 18, 1990, and July 2, 1990, after the Commission had reopened the filing period for MMDS applications on the E or F channels, subject to certain location restrictions. See  8, infra. Because these petitions raise common issues, their collective consideration is the most efficient use of Commission resources. Thus, we will consider these petitions for reconsideration in this single order. II. BACKGROUND 2. These applications for the F group channels proposed a transmitter site at Henryetta, Oklahoma (hereinafter Henryetta applications) and were filed with the Commission, on May 18, 1990, and July 2, 1990. A preliminary review of the Henryetta applications, conducted by Commission staff, revealed that the applications were unacceptable for filing. Specifically, the return notification letters stated that the Henryetta applicants filed in an area not open for filing pursuant to 47 C.F.R.  21.901(d)(4) because they 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) (hereinafter 1988 Public Notice), which states that an applicant may not file in a geographic area of a pending MMDS application. Consequently, Commission staff returned the Henryetta applications by return notification letters dated September 30, 1992, and February 22, 1993 pursuant to 47 C.F.R.  21.20. 3. Petitioners' Arguments on Reconsideration In accordance with their respective return dates, the Henryetta applicants filed timely petitions for reconsideration for the five returned applications. On reconsideration, petitioners contend that a review of Commission records indicated that only three pending, previously proposed applications, for the F channels were within 50 miles of petitioners' proposed site: (1) at Canadian, Oklahoma; (2) at McAlester, Oklahoma; and (3) at Tulsa, Oklahoma. 4. Petitioners admit to filing for a site within 50 miles of these 1983 applications, but contend that the 1988 Public Notice did not prohibit the filing of applications for sites within 50 miles of stations existing and pending on April 19, 1988. Specifically, petitioners claim that paragraph two, which prohibits the filing of applications for locations within 50 miles of stations existing or pending on April 19, 1988, and paragraph six, which quotes 47 C.F.R.  21.902 governing the filing of interference studies, of the 1988 Public Notice are in patent conflict. Moreover, petitioners assert, a literal interpretation of the 50 mile location restriction contained in the 1988 Public Notice would bar filings for adjacent channels for which a 1983 application had been filed which, petitioners allege, Commission engineering staff acknowledged was not intended. Therefore, petitioners contend the 1988 Public Notice is contradictory within itself and with Section 21.902 of the rules and, hence, it was improper to return petitioners' applications on these grounds. 5. Petitioners report filing interference studies, with their original applications, for one Tulsa F channel applicant, which demonstrated no harmful interference. On October 24, 1990, petitioners each filed an amendment, as a matter of right, stating that the attached Exhibit E (containing interference studies) replaced the Exhibit E in the Henryetta applications, and providing new certificates of service. The amendment included, for the first time, interference analyses purporting to show no harmful interference to the previously proposed MMDS station at McAlester, Application File No. 01028-CM-P-83; petitioners also resubmitted the original interference analysis for the above mentioned Tulsa MMDS applicant. Petitioners assert that the one Tulsa site studied was 49.8 miles from their proposed site and, hence, it was possible that another Tulsa application selected in a future lottery would be located over 50 miles from petitioners' site. Nonetheless, petitioners' amendments retroactively requested waivers of the Commission's rules in order to file their applications, and stated that any required interference analyses would be submitted after a new Tulsa winner was selected. In their amended applications, petitioners also allege, without providing any support, that it was their understanding that then-current FCC policy permitted them to file their applications without proving non-interference to pending applications which had been included in a lottery, but were not selected. Furthermore, petitioners note, Commission staff failed to address petitioners' waiver requests in the return letters. Therefore, petitioners urge reinstatement of their applications as they claim that their waiver requests adequately addressed the applications' alleged deficiencies, and that petitioners had agreed to provide interference analyses upon selection of a Tulsa lottery winner and to take extraordinary measures to avoid interference. 6. Regarding the pending application at Canadian, Oklahoma, Application File No. 02528- CM-P-83, petitioners argue that the Commission provided no notice, at the time of the Henryetta applications' filings, of the pending 1983 Canadian Valley Telephone application (hereinafter Canadian Valley). Petitioners contend that in preparing the engineering work for the Henryetta applications, they relied on a 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. They contend that neither source listed the 1983 Canadian Valley application. Hence, petitioners argue, fairness and due process require that their applications be given precedence over the 1983 Canadian Valley application, notwithstanding its filing priority. Alternatively, petitioners assert that waivers requested in their amended applications, to allow them to submit an interference study once a Tulsa lottery winner was selected, should, at that time, also allow them to submit interference studies for the Canadian Valley application. III. DISCUSSION 7. In reviewing petitioners' amended applications de novo, we note that the Henryetta applicants submitted amendments in accordance with Section 21.23(a) of the Commission's rules. 47 C.F.R.  21.23(a) (1990). See Mickelson Media, Inc., 8 FCC Rcd 3102 (Dom. Fac. Div. 1993). See also Kansas City Southern Industries, Inc., 3 FCC Rcd 2851 (Dom. Fac. Div. 1988). At the time the Henryetta applicants submitted their amendments, their applications had not been designated for hearing, comparative evaluation, or tentatively selected by the random selection process. Hence, petitioners' applications were amended as a matter of right and have been reviewed accordingly. Also, in reviewing petitioners' amended applications de novo, we note that while some of the errors contained in the applications, discussed herein, were not specified as grounds for return in the return notification letters, see supra  2, petitioners failed to comply with these Commission rules as well. 8. Location Restrictions. After the initial MMDS application filing date of September 9, 1983, no filing period was again designated until 1988. In accordance with Section 21.901(d)(4) of the Commission's rules, the Commission then designated that MMDS applications could be submitted for filing commencing April 20, 1988, but only for locations which were: (1) farther than 50 miles from any proposed location of an MMDS application pending on April 19, 1988, or an authorized station; and (2) farther than 15 miles from the boundary of a statistical area for which there were applications pending on April 19, 1988. These location restrictions were announced in the first paragraph of the 1988 Public Notice and twice repeated on the first page. In addition, it was explicitly stated, in the first paragraph, "We do not anticipate granting any waivers of this location requirement. Applications that fail to comply with this requirement will be dismissed as unacceptable for filing." 1988 Public Notice, 3 FCC Rcd at 2661. It was also emphasized twice that applications filed in violation of the location restrictions would be returned as unacceptable for filing. Id. Despite these clear directives, petitioners proposed a transmitter site in violation of the location restrictions of the 1988 Public Notice. Indeed petitioners admit, both in their applications and on reconsideration, to filing applications for a site within 50 miles of other pending previously proposed MMDS applications. 9. With respect to petitioners' allegations that FCC engineering staff indicated it was permissible to file within 50 miles of pending, previously proposed adjacent channel stations, all of the amended Henryetta applications requested waivers of the "Commission's Rules" to permit the filing of their applications, without specifying which rules. Even assuming, for the sake of argument, that such statements were made by the staff, they neither bind the Commission nor prevent us from enforcing Commission regulations. The Commission has specifically held that parties who rely on staff advice or interpretations do so at their own risk. See, e.g., AAT Electronics Corp., 53 RR 2d 1215, 1225-26 (1983), aff'd, P&R Temmer v. FCC, 743 F.2d 918, 931 (D.C. Cir. 1984). When staff advice is contrary to the Commission's rules, the Commission may still enforce its rules, despite any reliance by the public. See Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) (affirming Commission's decision to enforce its rules despite earlier staff statements giving erroneous interpretation of the rules at official seminar). Here, the official pronouncement of the location restrictions was published in the 1988 Public Notice, which stated that applications could not be filed in the areas noted above. See supra  8. These requirements were clear and the Commission reasonably expected that applicants would turn to those requirements for guidance. 10. Petitioners contend that the 1988 Public Notice was contradictory, within itself and with Section 21.902 and, hence, did not prohibit the filing of applications proposing sites within 50 miles of applications pending on April 19, 1988. Section 21.902, in pertinent part, stated: The following interference studies, as appropriate, shall be included with each application: (1) An analysis of the potential for harmful co-channel interference with any authorized or previously proposed stations(s), if: (i) The proposed transmitting antenna has an unobstructed electrical path to any part of the protected service area of any other station(s) that utilize(s), or would utilize, the same frequency; or (ii) if the proposed transmitter is within 50 miles of the coordinates of any such station . . . . (2) An analysis of the potential for harmful interference with any authorized or previously proposed stations(s), if the proposed transmitting antenna has an unobstructed electrical path to any part of the protected service area of any other station(s) that utilizes, or would utilize, an adjacent channel frequency . . . . 47 C.F.R.  21.902(c)(1) and (2) (1989). These interference analysis requirements were in addition to the location restrictions that were announced in the 1988 Public Notice. It is within this context that in the sixth paragraph on the second page, the 1988 Public Notice addresses the issue of interference studies by citing to Section 21.902 of the rules. As noted, supra, the 1988 Public Notice repeatedly stated, in pertinent part, that MMDS applicants could propose transmitter sites for locations which were farther than 50 miles from any then authorized MMDS station or MMDS application pending on April 19, 1988. The 1988 Public Notice was specifically designed to restrict MMDS applicants from filing within 50 miles of these areas. Therefore, in light of the clear intent of the 1988 Public Notice to prohibit MMDS applicants from proposing transmitter sites within these location areas, a reader could not reasonably understand a subsequent reminder to preexisting rules that also governed applications, to rescind the very restrictions that the public notice was intended to announce. 11. Thus, because the 1988 Public Notice prohibited the filing of these applications, petitioners' applications were properly found to have violated these location restrictions. In addition, because the filing window as open only to applications for sites located more than 50 miles from applications authorized or pending on April 19, 1988, and more than 15 miles from the boundary of a statistical area for which there were applications pending on April 19, 1988, by not adhering to these parameters, the Henryetta applicants filed on dates not designated by the Commission for filing of MDS applications for the F channels. See 47 C.F.R.  21.901(d)(4). Petitioners can claim no surprise concerning the important burden placed on applicants to carefully select the proposed location of an MDS station. In addition to the clear language in the 1988 Public Notice, the Commission stressed, as early as 1980, the importance of compliance with site selection requirements for MDS stations. In R.L. Mohr, 77 FCC 2d 30 (1980), the Commission explained that "given the rather severe shortage of frequencies in these lower more desirable bands, . . . [t]o be able to use these frequencies [for MDS] imposes a cost, a cost in terms of more careful engineering and site location, and perhaps in use of more sophisticated equipment than would otherwise be required." Id. at 37 (emphasis added). Therefore, petitioners had full notice of the necessity to comply with the location restrictions. Because petitioners chose to disregard the clear directive announced in the 1988 Public Notice, petitioners' applications were properly returned as unacceptable for filing. 12. Mutual Exclusivity and Cut-Off. We also conclude that petitioners' applications were mutually exclusive with and cut-off by previously proposed or authorized stations. Typically, the first determination made by Commission staff is whether an MDS application is mutually exclusive with any previously filed application or authorized station. Section 21.31(a) of the Commission's rules provides the standard for the determination of mutual exclusivity. The Commission will consider applications to be mutually exclusive if their conflicts are such that the grant of one application would effectively preclude by reason of harmful electrical interference, or other practical reason, the grant of one or more of the other applications. The Commission will presume "harmful electrical interference" to mean interference which would result in a material impairment to service rendered to the public despite full cooperation in good faith by all applicants or parties to achieve reasonable technical adjustments which would avoid electrical conflict. 47 C.F.R.  21.31(a); see 47 C.F.R.  21.902(c), (d), (f). In applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles of an authorized or previously proposed MDS station, and (2) within the radio horizon (with an unobstructed electrical path) of the protected service area of an authorized or previously proposed MDS station. Applications which are determined to be either within 50 miles or with an unobstructed electrical path to any part of the protected service area of any station, are considered to be mutually exclusive with the station unless they demonstrate a lack of harmful interference by submission of interference studies with their applications pursuant to the standards specified in the Commission's rules. See 47 C.F.R.  21.902(b)(3)-(4). 13. In order to be acceptable for filing MDS applications must be filed on or before the applicable cut-off date for mutually exclusive applications. By way of background, the Commission initially authorized the filing of MDS applications on the E or F channels on one filing date, September 9, 1983. 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, 1262-1266 (1983) (hereinafter MMDS Allocation Order); Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746 (1983). Thereafter, no additional applications for new stations were accepted for filing until April 20, 1988, pursuant to Section 21.901(d)(4). Applications for the E or F channels which complied with specified restrictions could then be filed between April 20, 1988, and April 9, 1992. 14. If an MMDS application is mutually exclusive with a 1983 application or authorized station, the applicable cut-off date is the one-day filing date designated for those applications, September 9, 1983. Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746. Based upon our de novo review of the returned Henryetta applications and the publicly available information regarding authorized MMDS stations and previously filed applications, we conclude that each of the Henryetta applications was mutually exclusive with and cut-off by 1983 pending, previously proposed and authorized stations for which the cut-off date was September 9, 1983. See 47 C.F.R.  21.31 ; see also Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746. Specifically, all of the Henryetta applicants proposed a transmitter site that was within 50 miles of, or with an unobstructed electrical path to, three 1983 authorized or previously proposed MMDS stations, which had applications pending on May 18, 1990, and July 2, 1990, the filing dates of the Henryetta applications. Thus, the above-referenced applications were properly returned as unacceptable for filing pursuant to Section 21.31(d), which states in part: "An application otherwise mutually exclusive with one [or] more previously filed applications, but filed after the appropriate [cut-off] date . . . will be returned without prejudice . . . ." 47 C.F.R.  21.31(d). 15. 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. . . ." MDS Allocation Order, 45 FCC 2d at 621. Almost a decade before the Henryetta 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 21.90[2](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 at 606 (1981). We have also 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,  21.902(b) requires all MDS applicants and licensees to provide 45 dB of cochannel interference protection and 0 dB of adjacent channel interference protection, and to demonstrate that protection in interference studies submitted with the applications. 16. At the time the Henryetta applications were filed, in order to demonstrate compliance with Section 21.902(b), and so 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 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) (1989). 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)(1989); 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 the operation of adjacent channel stations. The applicant was also required to show what steps would be taken 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.  21.901(d)(7). These interference showings are a significant requirement because 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. MMDS Allocation Order, 94 FCC 2d at 1264. 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." Id; 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. 17. In addition to being mutually exclusive with and cut-off by pending, previously filed applications, see supra  14, we also find that the Henryetta applications were properly returned for failure to comply with our interference protection requirements. Each of petitioners' applications did not include all of the required analyses of the potential for harmful interference to authorized or previously proposed MMDS cochannel stations within 50 miles, and adjacent channel stations for which there was an unobstructed electrical path. Specifically, in our de novo review on reconsideration, we have determined that each Henryetta applicant failed to file required interference studies for: (1) one 1983 previously authorized MMDS station; (2) three 1983 subsequently authorized MMDS stations; and (3) 63 pending previously proposed 1983 applications. In addition, the Henryetta applications filed on May 18, 1990, failed to file interference studies for 18 pending previously proposed post-1983 applications. The Henryetta applications filed on July 2, 1990, failed to file interference analyses for 20 pending previously proposed post-1983 applications. 18. Regarding petitioners' failure to file required interference studies, we note that the Henryetta 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, the Henryetta applicants failed to submit an interference study for an authorized station in Clayton, Oklahoma, WLK382 which was placed on public notice on July 20, 1988, almost two years prior to petitioners' filing dates. Petitioners do not attempt to explain their failure to file these required interference analyses except with regard to one pending 1983 Canadian Valley application, Application File No. 02528-CM-P-83. Thus, given petitioners' failure to file interference studies for pending previously proposed and authorized 1983 and post-1983 stations listed on public notice or FCC internal staff listings, we find that any failure of petitioners to file interference studies for the Canadian Valley application would not have affected our determination that the Henryetta applicants failed to comply with Section 21.902(c). 19. As for petitioners' use of other independent data bases, these are by definition not affiliated with the Commission and, hence, the Commission does not attest to their accuracy. 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 MDS 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 unofficial, non-Commission affiliated data bases and did so at the risk that this unofficial data base was not accurate and complete. 20. In addition, petitioners' pledge, contained in their applications, to take all measures necessary to avoid harmful interference, including ceasing operations, does not excuse petitioners' failure to submit interference studies as required by Section 21.902. 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. A pledge to comply with the requirements of Section 21.902(a) does not exempt any MDS applicant from submitting interference studies. As discussed previously, interference analyses are necessary at the beginning of processing a particular MDS application so that mutual exclusivity determinations may be made. This is a step which cannot be skipped, as implied by these petitions. Moreover, Part 21 of the rules is structured so that applicants must demonstrate a lack of harmful interference as a prerequisite to the grant of a license. 21. Lastly, the study that was submitted for a pending 1983 McAlester, Oklahoma application, Application File No. 01028-CM-P-83, failed to meet the interference analysis requirements. Specifically, petitioners failed to engineer the proposed stations to provide at least 45 dB of cochannel interference protection, pursuant to Section 21.902(b)(3); submitted incorrect free space calculations for the desired to undesired signal ratio to each reference receiving antenna gain within the protected service area of the previously proposed station; and used incorrect technical parameters for the transmitting antenna gain and the reference receiving gain. "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." MDS Technical Order, 98 FCC 2d at 93. Because petitioners here failed to make the required showings regarding interference protection, their applications cannot be characterized as complete or in substantial compliance with the Commission's rules. New Channels, 57 RR 2d at 1602. Thus, due to the lack of required interference analyses, the Henryetta applications were unacceptable for filing and were properly returned. 22. Notice to Affected Parties. In addition, we find that each of the Henryetta applicants failed to serve copies of the required interference analyses, as mandated by 47 C.F.R.  21.902(g), on all 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 returned as unacceptable for filing due to their failure to comply with the service requirements of Section 21.902(g). 23. Failure to Satisfy Waiver Requirements. Regarding petitioners' requests for waivers, we find that their grant would not serve the public interest. 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. "An applicant for waiver faces a high hurdle even at the starting gate. When an applicant seeks a waiver of a rule, 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."). 24. While petitioners, in their amended applications, seek waivers "of the Commission's Rules," it appears from the context of the request that the Henryetta applicants were requesting waiver of the 50 mile location restriction, contained in the 1988 Public Notice, and the interference analyses, required by Section 21.902, specifically for the pending previously proposed Tulsa applications. On reconsideration, petitioners attempt to expand their waiver requests to include the Canadian Valley application as well. 25. Regarding petitioners' requests for waiver of the 50 mile location restriction, we note that petitioners fail to address, as required by Section 21.19(b), the issue of whether there was a reasonable alternative site which is located more than 50 miles from the sites of 1983 previously proposed stations. An applicant must demonstrate a lack of a reasonable alternative under Section 21.19(b). See Edna Cornaggia, 8 FCC Rcd at 5444 n.6 ("Contrary to the assertion in the reconsideration petition that the Gary site . . . is the only possible site for this MMDS station, the [seven transmitter sites studied by the applicant] do not exhaust the numerous potential sites in the Chicago . . . CMSA and its 15 mile buffer zone."). See also Boyd B. Hopkins, Sr., 9 FCC Rcd at 570; Cheyenne Corp., 8 FCC Rcd 6049, 7050 (Dom. Fac. Div. 1993). The necessity of eliminating alternative sites has been recognized in another context. "Commission precedent makes clear that an applicant seeking waiver of the minimum spacing rules must, as an initial matter, establish the nonavailability of fully-spaced sites . . . . [Without such a showing, the applicant's] waiver request died, as it were, at the starting gate." Orange Park Florida TV, Inc., v. FCC, 811 FCC 2d 664, 669 (D.C. Cir. 1987) (citations omitted). 26. Petitioners assert that the one Tulsa interference analysis submitted with their applications, based on the dismissed Tulsa application, see supra note 11, showed no harmful interference would be caused by their proposed stations, given the distance and the terrain blockage between the Tulsa site and petitioners' proposed site. However, petitioners' Tulsa interference study was inadequate since petitioners used incorrect technical parameters for the transmitting antenna gain and referenced receiving antenna gain, and stated incorrect line loss. In addition, we note, that while petitioners performed an interference analysis which was representative, with regard to the coordinates and frequency, of some of the pending Tulsa applications, it was not representative and, hence, not probative regarding the potential for interference for numerous other pending Tulsa applications which proposed different, closer transmitter sites or proposed using the E channel frequencies. 27. Moreover, petitioners' statements, in their applications to submit interference studies for the new Tulsa lottery winners after these were selected by the Commission, and petitioners' statements on reconsideration seeking to submit, at that time also, an interference analysis for the Canadian Valley application, ignore the purposes behind the interference analysis requirement. As discussed previously, the interference analysis requirement is an imperative one which demands complete compliance at the time of application. See MMDS Allocation Order, 94 FCC 2d at 1264; see also G.C. Cooper, 8 FCC Rcd at 7008; Boyd B. Hopkins, Sr., 9 FCC Rcd at 570 ("[S]tation engineering must be demonstrated at the time of filing the application, pursuant to Section 21.902(c) . . . ."). Interference studies are necessary at the time of filing in order for determinations of mutual exclusivity to be made, without such studies, a logjam would be created making it more difficult to reach final actions. See Sioux Valley, 3 FCC Rcd at 7376 ("Traditionally, the classification of MDS applications as mutually-exclusive was determined by a review of each of the applicants' interference analyses . . . ."). If the Commission allowed an indefinite time period for submitting interference studies, the staff would lack sufficient technical information for evaluating applications and would be unable to act on many applications until the studies were submitted. Furthermore, applicants may be tempted to wait as long as possible to submit interference studies so as to minimize the number that must be submitted. Widespread abuse of this tactic would lead to a stalemate where the Commission could neither grant, nor return or dismiss, any MMDS application. As noted, supra, each of the Henryetta applications lacked interference studies required by Section 21.902, for pending, previously proposed MMDS stations within 50 miles of petitioners' proposed transmitter site, and failed to demonstrate that the proposed station would not cause harmful interference. Thus, their assertion that interference to other previously proposed stations was unlikely is unsupported. These unsupported assertions fall far short of the stringent showing required by WAIT Radio of the existence of extraordinary or special circumstances justifying waiver. 28. We also find petitioners' statements, contained in their waiver requests, that it was their understanding that Commission policies would allow them to file their applications without proving non-interference to all 1983 lottery losers, to be unsupported assertions. Applicants for MMDS stations were required to file interference studies for all pending, previously proposed stations within 50 miles of their proposed sites, including lottery losers. 47 C.F.R.  21.902(c). We do not believe the facts and circumstances of the Henryetta applications are sufficiently unique so as to warrant a waiver of this requirement. More importantly, due to the procedures established for MDS lotteries, it is not unusual for an applicant that initially loses in a lottery to be subsequently granted, because the initial tentative selectee did not survive qualification review. See 47 C.F.R.  1.824(a). This is exactly what happened here. After subsequent lotteries of 1983 Tulsa applications, the Henryetta applications lacked required interference analyses for subsequent lottery-winning applications which then became authorized stations. 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, but subsequently authorized stations. Thus, if we granted petitioners' waiver requests, we would effectively strip subsequently authorized MDS stations of the interference protection to which they are entitled pursuant to Sections 21.901(d)(7) and 21.902. Similarly, petitioners' pledges "to take extraordinary measures" to ensure noninterference to these proposed stations also fail to address this underlying purpose, since all applicants are required by Section 21.902(b) "to cooperate fully and in good faith to resolve interference . . . problems." 47 C.F.R.  21.902(b). Petitioners fail to justify why their applications merit different treatment from that which we applied to thousands of other post-1983 MMDS applications. 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). 29. In view of these considerations, we find it would be contrary to the public interest to grant waivers of the location restrictions in the 1988 Public Notice and the interference analysis requirements mandated by Section 21.902. Therefore, we conclude that petitioners' waiver requests should be denied. In addition, even if the 1988 Public Notice location restrictions and the interference analysis requirements stipulated by Section 21.902 were waived as to the 1983 MMDS applications, the Henryetta applications would still have been returned as unacceptable for filing due to violations of other Commission rules, including the cut-off rule, in effect at the time the returned applications were filed. See supra  14. IV. CONCLUSION 30. In view of all the foregoing considerations, we affirm the staff's return of the Henryetta applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. 31. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the Henryetta applicants ARE HEREBY DENIED. 32. IT IS FURTHER ORDERED, that the staff of the Video Service Division shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau