Before the
                 FEDERAL COMMUNICATIONS COMMISSION   FCC 96-130
                         Washington, D.C.

In the Matter of Amendment of Parts 21, 43,)
74, 78, and 94 of the Commission's Rules)
Governing Use of the Frequencies in)
the 2.1 and 2.5 GHz Bands Affecting:)        Gen. Docket No. 90-54
Private Operational-Fixed Microwave)         Gen. Docket No. 80-113
Service, Multipoint Distribution Service,)
Multichannel Multipoint Distribution Service,)
Instructional Television Fixed Service,)
and Cable Television Relay Service.)
                                )
In the Matter of                )
                                )
Amendment of Parts 21 and 74 of the)
Commission's Rules With Regard to)
Filing Procedures in the Multipoint)         MM Docket No. 94-131
Distribution Service and in the )
Instructional Television Fixed Service)
                                )
and                             )
                                )
Implementation of Section 309(j) of the)          PP Docket No. 93-253
Communications Act - Competitive Bidding)
                                 

             THIRD ORDER ON RECONSIDERATION AND ORDER
                            TO CLARIFY

     Adopted:  March 22, 1996                Released:  April 1, 1996

By the Commission:


                 I. INTRODUCTION AND BACKGROUND 

     1.  The Commission has before it three petitions for reconsideration of the Second Order
on Reconsideration in Gen. Docket Nos. 90-54 and 80-113, 10 FCC Rcd 7074 (1995) ("Second
Order on Reconsideration"), which revised the definition of the protected service area of
Multipoint Distribution Service ("MDS") stations.  In the Second Order on Reconsideration, the
protected service area for MDS stations was enlarged from 710 square-miles (the area of a circle
with a 15-mile radius) to approximately 3,848 square-miles (the area of a circle with a 35-mile
radius).  Also revised were the rules for serving interference studies upon potentially affected
stations in the Instructional Television Fixed Service ("ITFS").  In addition, clarification was
provided regarding frequency offset interference protection and the MDS cut-off rule.  Three
petitions for reconsideration of various aspects of the Second Order on Reconsideration were
timely filed with the Commission.  The reconsideration petitions include a request for clarification
of certain provisions of the order and a request for reconsideration of a Commission public notice
issued after the order was released, which cited the order.  Two oppositions were received, and
no replies were filed.

     2.  The petitions for reconsideration principally raise issues regarding the expanded
protected service area for authorized and previously proposed MDS stations.  The major factors
that prompted adoption of the expanded protected service area in the Second Order on
Reconsideration included: (1) the many MDS operators that have been serving areas larger than
the 710 square-mile service area formerly provided by the MDS rules; (2) the technological
innovations in reception equipment that have contributed to a significant increase in the
geographic area to which reliable MDS service can be provided; and (3) the potential
overcrowding of the MDS spectrum that would result from continued use of the smaller service
area.  See Second Order on Reconsideration at 7077-78.  We also noted that the desirability of an
expansion of the protected service area had been enhanced by two separate rulemakings: a 1995
ITFS rulemaking which established a fixed 35-mile distance as one of several criterion for ITFS
receiver site protection, and the Report and Order in Amendment of Parts 21 and 74 of the
Commission's Rules With Regard to Filing Procedures in the Multipoint Distribution Service and
in the Instructional Television Fixed Service and Implementation of Section 309(j) of the
Communications Act - Competitive Bidding, 10 FCC Rcd 9589 (1995) ("MDS Report and
Order"), recon. granted in part and denied in part, Memorandum and Order on
Reconsideration, Amendment of Parts 21 and 74 of the Commission's Rules With Regard to
Filing Procedures in the Multipoint Distribution Service and in the Instructional Television
Fixed Service and Implementation of Section 309(j) of the Communications Act - Competitive
Bidding, FCC 95-445, MM Docket No. 94-131 and PP Docket No. 93-253 (released October 27,
1995), in which the Commission established competitive bidding procedures to select among
mutually exclusive MDS applications.  See Second Order on Reconsideration at 7079.

     3.  In addition to resolving the petitions for reconsideration filed in response to the Second
Order on Reconsideration in this order, we, on our own motion, provide clarification of certain
provisions set forth in the MDS Report and Order, including the interference study requirements
for pending ITFS applications and the 30-day period for the filing of either a MDS long-form
application or a statement of intention by winning bidders in the MDS auction. We also provide
guidance in respect to the instances that permit a winning bidder in the MDS auction to file a
statement of intention for an encumbered BTA.  See 47 C.F.R.
 21.956(a), Appendix C, MDS Report and Order, 10 FCC Rcd at 9702.  We deal first with the
petitions for reconsideration filed in response to the Second Order on Reconsideration.

                          II. DISCUSSION
     4.  Effective Date of Second Order on Reconsideration.  A petition for reconsideration
was filed by the Law Offices of John D. Pellegrin, Chartered ("Pellegrin"), on "behalf of clients,"
in which Pellegrin seeks clarification of the effective date of the revision of 47 C.F.R.  21.902(d),
which expanded the protected service areas for MDS stations, as provided in the Second Order
on Reconsideration.  In the Second Order on Reconsideration, the effective date of the revision
of  21.902(d) was stated as the "60th day after publication of a summary of [the] order in the
Federal Register."  Second Order on Reconsideration at 7096.  A summary of the Second Order
on Reconsideration was published at 60 Fed. Reg. 36,736 (July 18, 1995).  Pursuant to 47 C.F.R.
 1.4(e) and (j), the 60th day after July 18, 1995 is September 18, 1995.

     5.  Pellegrin concedes that September 18, 1995, is the effective date for this specific
 21.902(d) revision.  However, Pellegrin claims that, although the effective date of the expanded
protected service area can be discerned from reading the text of the order itself, clarification is
sought in light of the use of dates other than September 18, 1995, in the MDS Report and Order. 
We confirm Pellegrin's understanding that the Second Order on Reconsideration provided that the
effective date of the revision of  21.902(d), which expanded protected service areas for MDS
stations, was September 18, 1995.

     6.  Delay of the Effective Date of Second Order on Reconsideration.  Pellegrin also
requests that the Commission postpone the effective date of the revision of  21.902(d) to a
minimum of 120 days after the July 18, 1995, publication date of the summary of the Second
Order on Reconsideration in the Federal Register.  The effective date suggested by Pellegrin
would be November 15, 1995, 36 days after the October 10, 1995, deadline for the filing of
applications to participate in the MDS auction and two days after November 13, 1995, the first
day of competitive bidding in the MDS auction.  Pellegrin argues that, due to limited engineering
resources, additional time is needed to prepare modification applications which would be filed
with the Commission prior to September 18, 1995.  Pellegrin concludes, without elaboration, that
a later effective date "will not delay any prospective MDS auction."

     7.  In selecting an effective date for the revision of  21.902(d), the Commission balanced
two goals: (1) affording the expanded protected service area to previously proposed and
authorized stations as soon as possible; and (2) providing additional time to file modification
applications under the former protected service area rules.  The effective date was fully
considered in the Second Order on Reconsideration.  We also note that the record strongly
supported the selection of an effective date prior to the first application filing opportunity
provided under the new competitive bidding licensing procedures.  The party who filed the
petition for partial reconsideration that initiated the Second Order on Reconsideration, argued
persuasively that the expanded protected service area should become effective before the
Commission lifted the freeze on the filing of new applications.  Pellegrin did not file an
opposition or any type of response to that petition for partial reconsideration.  In addition, the
majority of the parties filing responses to a 1993 public notice, in which we announced our then-future intention to lift the freeze on the filing of new MDS applications, also requested that the
effective date of any expanded protected service area be prior to the Commission's lifting of the
freeze on the filing of new applications.  Pellegrin also did not file a response to this 1993 Public
Notice, although responses were encouraged.  The Commission announced on September 5,
1995, that the filing deadline for short-form applications (FCC Form 175-M) to participate in the
MDS auction would be October 10, 1995.

     8.  Moreover, we find that the September 18, 1995, effective date of the expanded
protected service area did provide an adequate amount of time for conditional licensees and
licensees to prepare and file modification applications based on the former 710 square-mile
protected service area.  The release date of the Second Order on Reconsideration, June 21, 1995,
provided licensees with nearly three months within which to file modification applications.  In
response to Pellegrin's claim that a "log jam of orders for consulting services" will be created due
to the "short FCC deadline" and the limited number of qualified consulting engineers who can
prepare the engineering analyses required for modification applications, WCA asserts that it has
"informally canvassed consulting engineers and wireless cable operators and has uncovered no
evidence that those who acted promptly in response to the release of the [order] are encountering
the difficulties in securing consulting services that [Petitioner] predicts."  Indeed, Pellegrin's
complaint was voiced by no other commenter.  Thus, we find Pellegrin's claims of hardship to be
speculative and belied by the evidence before us.

     9.  MDS conditional licensees and licensees were in no way prohibited from filing MDS
modification applications after September 18, 1995.  No freeze has been imposed upon the filing
of MDS modification applications.  A conditional licensee or licensee may file an application
requesting the same type station design, location or status modifications that were permissible
prior to the September 18, 1995, effective date of the  21.902(d) revision provided in the Second
Order on Reconsideration.  We, therefore, reject Pellegrin's argument that the effective date may
not have provided licensees an adequate amount of time to prepare modification applications. 
Pellegrin has failed to persuade us to reverse our earlier determination and further delay
implementation of this new interference protection standard.
  
     10.  We also reject Pellegrin's arguments that postponing the effective date would not
have delayed the MDS auction.  Although delaying the effective date of the revision of
 21.902(d) to expand the MDS protected service area would not have made it technically
impossible to begin the MDS auction on November 13, 1995, it would have made it commercially
impracticable.  We do not agree with Pellegrin's characterization that the Commission adopted a
"caveat emptor" policy for the MDS auction.  The record reflects that the Commission advised
potential bidders in the MDS auction that they were responsible for investigating the status of
markets due to the heavily encumbered nature of the service.  Over the past several months, we
have repeatedly encouraged interested bidders to thoroughly review all Commission orders, public
notices, MDS file information and other documentation prior to making a final determination to
bid on authorizations for BTAs.  Because high bidders in the auction must choose transmitter
sites and design stations so as to protect each point within the protected service area of all
previously proposed and authorized stations from harmful interference, it is important that the 
21.902(d) revision which expanded the MDS protected service area become effective on a date
well before the first day of bidding.  Delaying the effective of date of the expanded service area to
a date beyond the first day of bidding in the MDS auction would cut against the goal of market
certainty and would be incongruent with the auction licensing scheme.  Accordingly, and for all
the reasons discussed, we deny Pellegrin's request for a delay of the effective date of the revision
of
 21.902(d) to expand the protected service area for MDS stations.

     11.  Filing of Applications for New ITFS Stations.  On August 3, 1995, the
Commission announced by public notice that the Mass Media Bureau would accept ITFS
applications for major modifications for a limited period of time from August 3, 1995, through
September 15, 1995.  In a separate petition for reconsideration, Pellegrin requests that for
applicants who would file pursuant to 47 C.F.R.  74.990(a), the Commission permit the filing of
applications for new ITFS stations during this filing window for modification applications by
defining the term "major change" to include new applications filed pursuant to  74.990(a).

     12.  It appears, however, that Pellegrin's request for an opportunity to file applications for
new ITFS stations was addressed and resolved by the public notice released the day after the
August 3, 1995, public notice was issued.  On August 4, 1995, the Commission announced by
public notice that the Mass Media Bureau would open a window from October 16, 1995, through
October 20, 1995, for the filing of applications for new ITFS stations.  All those eligible to file
applications for new ITFS stations, including those filing pursuant to 47 C.F.R  74.990(a), were
permitted to file during that time.  Therefore, Pellegrin's concern about having a filing opportunity
before the issuance of the first BTA authorization has been addressed.  We, therefore, dismiss as
moot Pellegrin's reconsideration petition on this issue as the relief sought was previously granted.

     13.  Strict application of requirements for ITFS requests for extension of time to
construct.  The Commission announced in the Second Order on Reconsideration that it would
strictly scrutinize requests for extensions of time to construct ITFS and MDS stations in order to
address concerns over the "economic blackmail" that allegedly occurs when construction
permittees and conditional licensees repeatedly delay station construction over substantial periods
of time, while demanding protection from potential harmful electromagnetic interference caused
by subsequently proposed neighboring licensees.  Second Order on Reconsideration at 7081.  The
Law Firm of Schwartz, Woods & Miller ("Schwartz, Woods"), on behalf of its ITFS clients,
requests reconsideration of this policy as it applies to ITFS extension applicants, suggesting that
the Commission has not set out a public interest reason sufficient to justify the new strict review
policy.  Schwartz, Woods argues that the Commission has recognized that, due to the nature of
educational institutions, it generally takes ITFS construction permittees longer than it would
commercial entities to raise funds for construction, thereby causing a delay in completion of
construction.  ITFS construction permittees rely heavily upon MDS operators for construction
financing, Schwartz, Woods argues, and MDS operators frequently delay ITFS construction
financing until their own MDS systems generate profit.  Therefore, Schwartz, Woods asserts,
ITFS construction extension applications should be routinely granted. 

     14.  Section 73.3534(c) of the Commission's rules provides that:

     Applications for extension of time to construct . . . Instructional TV Fixed stations
     will be granted upon a specific and detailed showing that the failure to complete
     was due to causes not under the control of the permittee, or upon a specific and
     detailed showing . . . sufficient to justify an extension.

47 C.F.R.  73.3534 (1994).  As recently as February 1995, in an ITFS rulemaking order, we
explained with greater particularity the type of showing an educator must make to obtain an
extension of time within which to construct, including showings that: "(1) construction is
complete and testing of facilities has begun; (2) substantial progress has been made; or (3) reasons
clearly beyond the applicant's control, which applicant has taken all possible steps to resolve, have
prevented construction."  ITFS Filing Procedures Order, 10 FCC Rcd at 2921.  In denying a
request to shorten the 18-month ITFS station construction period to 12 months in order to
prevent speculative filings, we responded that application of our existing rules have "operated
sufficiently to prevent abuses by frequency speculators."  Id.  Our statement in the Second Order
on Reconsideration that we intend to strictly apply the ITFS extension requirements merely
underscores our previous statements.

     15.  It has long been Commission practice to consider a request for extension of time
within which to construct ITFS stations "on its merits."  Applications of Public Broadcasting
Service, 96 FCC 2d 555, 558 (1983).  In keeping with the priorities of maximum utilization of
ITFS frequencies and expeditious licensing of ITFS stations, Amendment of Part 74 of the
Commission's Rules and Regulations in regard to the Instructional Television Fixed Service, 98
FCC 2d 925, 935 (1984), we will continue to process or grant ITFS extension requests that meet
the requirements of  73.3534.  When we stated that the requirements for ITFS extensions of time
to construct would be strictly applied, we did not change our rules to heighten the requirements
for extension requests.  The Commission will continue to apply our extension rules fairly,
including denying and dismissing those applications that do not demonstrate compliance with our
rules. 

     16.  Schwartz, Woods argues that the Report and Order, 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 (1983) ("MMDS Allocation Order")
recognizes the Commission's responsibility to take into consideration funding complexities when
reviewing extension requests.  However, the Commission was actually discussing the rationale for
creating a spectrum reserve for ITFS and was not discussing the reasons ITFS construction
extension requests should be granted.  MMDS Allocation Order, 94 FCC 2d at 1224-25. 
Nevertheless, we agree that public funding complexities are the type of circumstances, when
proven by a specific and detailed showing as required by  73.3534, that are likely to be sufficient
to support grant of an extension request.  Indeed, a public educational institution which is denied
funding by a state legislature should provide a detailed and specific showing of the circumstances
and a showing that the lack of funding is beyond its control (e.g., that it submitted a budget
request).  In the alternative, an educator can submit a showing that it attempted to solicit funding
from other sources by providing copies of grant proposals.

     17.  Schwartz, Woods argues that the greatest difficulty in meeting ITFS construction
requirements results from financing arrangements with MDS operators.  However, MDS
operators are accustomed to construction requirements and extension request standards that are
more stringent than the ITFS requirements.  Therefore, MDS operators should be cooperative in
ensuring that ITFS permittees meet construction deadlines, especially if the MDS operator's lease
arrangement will be impacted by denial of an ITFS extension request, which subsequently results
in a cancellation of the ITFS authorization for failure to construct. As we stated in the ITFS
Filing Procedures Order, 10 FCC Rcd at 2907, it is our intention to continue to follow our
existing processing standards and methods, which complement our new wireless cable licensing
scheme and related new procedures.  We intend to grant ITFS requests for extension of time
within which to construct ITFS stations that meet the stated standards, and deny those that do
not.  We, therefore, deny Schwartz, Woods' request to exempt ITFS stations from our policy of
stricter application of the requirements for extension requests.

     18.  Other Issues and Clarification of the MDS Report and Order.  Finally, on our own
motion, we amend our rules to require service of new MDS station applications (long-form
applications) filed by BTA and Partitioned Service Area authorization holders, as well as
modification applications filed by incumbent MDS licensees, upon ITFS applicants with
applications pending.  In the Second Order on Reconsideration, we changed the date on which
MDS long-form applications must be served upon ITFS licensees and construction permittees to
on or before the date an application is filed.  Second Order on Reconsideration at 7089-90.  In
the MDS Report and Order, we adopted a rule that prohibits BTA and Partitioned Service Area
authorization holders from proposing and operating stations that would cause harmful
electromagnetic interference to ITFS station sites (and these stations' protected service areas)
proposed in pending ITFS applications.  See 47 C.F.R.
 21.938(b)(3), Appendix C, MDS Report and Order at 9696.  We did not in either order,
however, require that MDS applicants prepare studies of the potential interference to facilities
previously proposed in ITFS applications, or serve ITFS applicants with a copy of the long-form
applications and interference studies.  We take this opportunity to amend
 21.902 to require such service and to require the preparation of studies of the potential
interference to the facilities proposed in pending ITFS applications by BTA and Partitioned
Service Area authorization holders filing long-form applications and by incumbent MDS
applicants filing modification applications.  We believe that this ITFS service requirement will
further our goal of providing notice to all parties potentially affected by new or modified MDS
facilities.  See MDS Report and Order at 9624 (MDS applicants required to prepare interference
analyses and serve them on "potentially affected parties").

     19.  Also on our own motion, we correct 47 C.F.R.  21.956(a) to clarify that the period
within which a winning bidder in the MDS auction must file either an initial long-form application
or a statement of intention after being notified of its status as a winning bidder is 30 business days. 
Section 21.956(a) provides that the period is "30 days" from the time a bidder is notified of its
status as a high bidder, 47 C.F.R.  21.956(a), Appendix C, MDS Report and Order at 9702,
whereas the text of the MDS Report and Order provides that the period is "thirty business days." 
MDS Report and Order at 9655-56.  Through this amendment, we clarify that only business days
will count toward the completion of this 30-day filing period.

     20.  We next provide guidance regarding the filing of a "statement of intention."  In
particular, we want to give examples of situations in which the Commission will consider a BTA
so heavily encumbered that the winning bidder for that BTA would not be required to file a long-form application for a new MDS station within the prescribed 30 business day period, but rather
would be permitted to file a statement of intention, describing the encumbrances and the plan to
make possible the filing of a long-form application.  See 47 C.F.R.  21.956(a) in Appendix C,
MDS Report and Order at 9702.  In the MDS Report and Order, we noted that:

     [A] number of BTA service areas may be so encumbered that the winning bidder for     such a BTA may be unable to file a long-form application proposing another MDS
     station within the BTA while meeting the Commission's interference standards as to   all previously authorized or proposed MDS and ITFS facilities . . . . The winning    bidder
for a BTA service area so heavily encumbered that it believes it cannot file
     an acceptable long-form application proposing an MDS station with average       transmitted power within its BTA . . . . must file with the Commission, in lieu of a      long-form
application for an MDS station license, a statement of intention with regard    to the BTA
service area, showing the encumbered nature of the BTA, identifying the    incumbents, and
describing in detail its plan for obtaining the previously authorized or   proposed MDS
stations within the BTA.

MDS Report and Order at 9656-57.  The degree to which encumbrances preclude new MDS
stations in a BTA varies widely and depends on factors such as the size and shape of the BTA,
proximity of accessible transmitting antenna sites to unserved communities in the BTA, and
proximity to neighboring MDS and ITFS facilities in adjacent BTAs, which also must be
protected.  Additionally, terrain conditions are an important factor, as are the relative locations of
multiple protected areas slicing through a BTA, perhaps preventing the use of antenna cross
polarization as an interference abatement technique.  Thus, we cannot, nor do we wish, to
prescribe rigid technical criteria from which we would accept or reject statements of intention. 
Rather, each statement of intention will reflect the unique geographic and demographic conditions
in that BTA, and the existing and proposed use of MDS and ITFS channels in that region.  We
will examine statements of intention on a case-by-case basis, working with auction winners to
obtain any needed clarification or supporting documentation.        

     21.  We believe it would be helpful for the Commission to offer examples of what we
would normally consider to be heavily encumbered situations for which we would likely approve
statements of intention.  BTA auction winners for whom these situations apply need only
document their applicability.  This approach will simplify the showing in statements of intention,
easing the burden on applicants and the Commission's MDS processing staff.  We offer as an
example of an encumbered BTA for which a statement of intention could be filed one that is
entirely covered by the 56.33 kilometer (35 mile) service area of a previously authorized or
proposed ("protected") cochannel or adjacent channel incumbent MDS or ITFS facility, which
will preclude the use of a least one of the 13 MDS channels.  We will also consider a BTA to be
heavily encumbered where all communities in the BTA are located:  (1) within 64.4 kilometers
(40 miles) of the 56.33 kilometer (35 mile) service area of a protected MDS or ITFS facility or
within 64.4 kilometers of the boundary of an adjacent BTA not held by the same BTA winner, or
(2) within 24.4 kilometers (15 miles) of the 56.33 kilometer (35 mile) service area of a protected
station operating on an adjacent D- or G-group channel; provided further, that there are no
intervening terrain barriers that would completely shield such protected service areas or adjacent
BTAs.  A BTA winner may file a statement of intention if the use of at least one MDS channel is
precluded by such encumbrances throughout that BTA.  We note that the 64.4 kilometer distance
is merely a guideline, and, as such, does not necessarily preclude the filing of statements of
intention where the service areas of protected stations are further away from a BTA.  We chose
this distance because it is the distance to the otherwise unobstructed horizon for a transmitting
antenna height of 159 meters (522 feet), an ample antenna height for serving most communities. 
The 24.4 kilometer (15 mile) distance guideline for adjacent channels assumes line-of-sight
transmissions within a protected 56.33 kilometer (35 mile) service area, copolarized antennas, and
a desired-to-undesired signal strength ratio of 0 dB.  These conditions would be met, for example,
from an MDS station radiating 350 watts toward the protected service area and protecting a weak
desired signal level of -108 dBw.  Obviously, as the distance from the protected area increases
beyond 24.4 kilometers, there is greater flexibility to operate an MDS facility without causing
adjacent channel interference.
    
     22.  Our distance guidelines notwithstanding, there may be situations where communities
in a BTA are located more than 64.4 kilometers from protected service areas, but cannot be
adequately served without possibly interfering with other MDS or ITFS operations.  BTA
auction winners may use any means to show the preclusive effects of encumbrances in such cases. 
A statement of intention may be supported by showing that any one of the MDS channels could
not be used by a new station to serve a community in that BTA.  The BTA auction winner's
analysis may include desired-to-undesired signal strength calculations, using the authorized or
previously proposed facilities of protected stations.  A BTA winner may assume that any
hypothetical station it would operate would require sufficient power and antenna height to not
only serve a community, but also support an economically feasible operation.  A BTA winner who
is also an incumbent MDS operator in the same BTA may use the authorized parameters of the
incumbent system to show that it could not add an additional channel to that system.  In addition
to interference-related encumbrances, BTA winners (particularly for the smaller BTAs) might be
able to show that no reasonable facility could be operated in conformance with the limiting signal
strengths at the BTA boundaries.  See 47 C.F.R.  21.938, Appendix C, MDS Report and Order
at 9696.

     23.  There may be situations where there are one or more communities within a BTA for
which an MDS station could be constructed and operated on all MDS channels in full compliance
with the Commission's MDS interference rules (excluding channel 2 outside of the cities where its
use is permitted, see 47 C.F.R.  21.901), but that the winning bidder is unable to provide service
for other reasons.  In such cases, the winning bidder's statement of intention should detail those
reasons, together with factual documentation.

     24.  With regard to the showings in support of statements of intention, we would like to
clarify that, at a minimum, specific and detailed narrative descriptions are required and must
include the information and supporting documentation outlined in the MDS Report and Order, 10
FCC Rcd at 9657, including identification of encumbering stations or applications for all MDS
channels (even though the statement of intention may be filed if only one channel is encumbered). 
Statements of intention that detail a winning bidder's objective to purchase previously authorized
or proposed stations and/or ITFS leases within a BTA should include such information as the
estimated date for conclusion of negotiations and consummation of sales, and should identify the
parties with whom the winning bidders are engaged in negotiations.  We encourage BTA auction
winners to file maps, charts, diagrams, sketches, technical analyses or any other documents that,
together with the narrative descriptions, would best explain the status of a BTA and the BTA
winner's plan for initiating service in the BTA.         

     25.  We emphasize that we do not want statements of intention to become a regulatory
burden for BTA auction winners or the Commission's MDS processing staff.  We will make every
effort to issue BTA authorizations on the basis of factually supported statements of intention, and,
as deemed necessary, we may request additional information from a BTA winner, such as a map
of the BTA showing the protected circles of encumbering MDS and/or ITFS facilities.  We note
that the five-year build-out period for the BTA begins with the granting of the BTA authorization,
whether such authorization is granted on the basis of a long-form application or a statement of
intention.  See MDS Report and Order at 9613; 47 C.F.R.  21.930, Appendix C, MDS Report
and Order at 9692.  We believe that the running of the five-year build-out period from the date of
the BTA authorization grant will encourage auction winners who obtain BTA authorizations by
initially filing statements of intention to resolve encumbrances, file long-form application(s), and
initiate service in their BTAs in a timely fashion.




            III. FINAL REGULATORY FLEXIBILITY ANALYSIS

     26.  Pursuant to the Regulatory Flexibility Act of 1980 (Pub. L. No. 96-354, 94 Stat.
1164, 5 U.S.C. Section 601 et seq. (1981)), the Commission's final analysis is as follows:

     27.  Need and purpose of this action:  This third reconsideration order upholds the
Commission's decision to make effective on September 18, 1995, revisions of the rule governing
the Multipoint Distribution Service, in order to expand the area within which MDS stations will
be protected from harmful electromagnetic interference, and to increase the efficiency of
processing MDS applications.  This action also maintains the Commission policy of strict
application of the requirements for requests for extensions of time within which to construct ITFS
stations.  In adopting this order, the Commission's goals of promoting efficiency in the allocation,
licensing and shared use of the electromagnetic spectrum are furthered.

     28.  Summary of the issues raised by the public comments in response to the Initial
Regulatory Flexibility Analysis:  There were no comments submitted in response to the Initial
Regulatory Flexibility Analysis and none in connection with this third reconsideration order.

     29.  Significant alternatives considered:  The Commission considered all the alternatives
raised by petitioners and discussed herein.  In response to these petitions, we decided to maintain
the September 18, 1995, effective date of the expanded protected service areas provided to MDS
stations in order to enhance the potential for effective competition with traditional wireline cable
systems.  On reconsideration, it was also requested that we reverse our policy of strict application
of the requirements for requests for extensions of time within which to construct ITFS stations. 
We decided to maintain our strict application policy.

     30.  The Secretary shall send a copy of this Third Order on Reconsideration, including the
Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration, in accordance with paragraph 603(a) of the Regulatory Flexibility Act.

                       IV. ORDERING CLAUSES

     31.  In view of all the foregoing, we affirm our adoption of the Second Order on
Reconsideration.  Reconsideration of the order is not justified.  Accordingly, IT IS ORDERED
that pursuant to the authority contained in  4(i) and 303(r) of the Communications Act of 1934,
as amended, 47 U.S.C.  154(i) and 303(r), and  1.429(i) of the Commission's rules, 47 C.F.R.
 1.429(i), and for the reasons set forth above, petitioners' requests for reconsideration ARE
HEREBY DENIED IN PART, and DISMISSED AS MOOT IN PART, as discussed herein. 
Clarification of the Second Order on Reconsideration, where requested, has been provided.

     32.  IT IS FURTHER ORDERED that Sections 21.902(i) and 21.956(a) of the
Commission's rules, 47 C.F.R.  21.902(i) and 21.956(a), ARE AMENDED, as discussed herein
and as provided in Appendix B hereto.

     33.  IT IS FURTHER ORDERED that the rule amendments set forth in Appendix B
WILL BECOME EFFECTIVE 60 days after their publication in the Federal Register, except that
the new or modified paperwork requirements contained in Section 21.902(i), 47 C.F.R. 
21.902(i), which are subject to approval by the Office of Management and Budget ("OMB"), will
go into effect upon OMB approval.


                              Federal Communications Commission


                              William F. Caton
                              Acting Secretary                            APPENDIX A
                                 
          PLEADINGS WERE FILED BY THE FOLLOWING PARTIES:

1.   The Law Offices of John D. Pellegrin, Chartered ("Pellegrin")
2.   The Law Firm of Schwartz, Woods and Miller ("Schwartz, Woods") on behalf of its ITFS
     clients, Arizona State University, Board of Trustees of Community Technical Colleges,
     Boston Catholic Television Center, California State University - Fullerton, Catholic
     Diocese of Youngstown, Connecticut Public Broadcasting, Daytona Beach Community
     College, Detroit Educational Television Foundation, Fifteen Telecommunications, Inc.,
     Mid-South Public Communications Foundation, Mississippi Authority for Educational
     Television, Mississippi EdNet Institute, Inc., Monterey County Office of Education, New
     Jersey Public Broadcasting Authority, North Carolina Agricultural and Technical State
     University, North Carolina State University, Northern California Educational Television
     Association, Oregon Public Broadcasting, San Jose State University, Santa Clara County
     Office of Education, University of North Carolina at Charlotte, University of North
     Carolina Center for Public Television, University of North Carolina General
     Administration, WHYY, Inc., Winston-Salem State University, WJCT, Inc.
3.   The Wireless Cable Association International, Inc. ("WCA")                            APPENDIX B

I.  Part 21 of Chapter 1 of Title 47 of the Code of Federal Regulations is amended as follows:

PART 21- DOMESTIC PUBLIC FIXED RADIO SERVICES

1.  The authority citation for Part 21 continues to read as follows:

     Authority: Secs. 1, 2, 4, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 404, 410, 602;
48 Stat. 1064, 1066, 1070-1073, 1076, 1077, 1080, 1082, 1083, 1087, 1094, 1098, 1102, as
amended; 47 U.S.C. 151, 154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 602; 47 U.S.C.
552, 554.

2.  Section 21.902(i) is amended at subparagraphs (1) and (2) to read as follows:

 21.902 Frequency interference.

                            * * * * *
(i)(1)  For each application for a new station, or amendment thereto, or modification application,
or amendment thereto, proposing Multipoint Distribution Service (MDS) facilities on the E, F, or
H channels, filed on October 1, 1995, or thereafter, on or before the day the application or
amendment is filed, the applicant must prepare, but is not required to submit with its application
or amendment, an analysis demonstrating that operation of the MDS applicant's transmitter will
not cause harmful electrical interference to each registered receive site of any existing D, E, F, or
G channel Instructional Television Fixed Service station licensed, with a construct permit, or
proposed in a pending application on the day such MDS application is filed, with an ITFS
transmitter site within 50 miles of the coordinates of the MDS station's proposed transmitter site.

                              * * *

 (2)  For each application described in (i)(1) of this paragraph, the applicant must serve, by
certified mail, return receipt requested, on or before the day the application or amendment
described in (i)(1) of this paragraph is initially filed with the Commission, a copy of the complete
MDS application or amendment, including each exhibit and interference study, described in (i)(1)
of this paragraph, on each ITFS licensee, construction permittee, or applicant described in (i)(1)
of this paragraph.


3.  Section 21.956(a) is amended to read as follows:

 21.956 Filing of long-form applications or statements of intention.

(a) Within 30 business days of being notified of its status as a winning bidder, each winning bidder
for a BTA service area will be required to submit either: (1) an initial long-form application for an
MDS station license, along with any required exhibits; or (2) a statement of intention with regard
to the BTA service area, along with any required exhibits, showing the encumbered nature of the
BTA, identifying all previously authorized or proposed MDS and ITFS facilities, and describing in
detail the winning bidder's plan for obtaining the previously authorized and/or proposed MDS
stations within the BTA.  * * *

                            * * * * *