NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 FCC 95-231 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: Private Operational-Fixed ) Gen. Docket No. 90-54 Microwave Service, Multipoint Distribution ) Gen. Docket No. 80-113 Service, Multichannel Multipoint Distribution ) Service, Instructional Television Fixed Service, ) & Cable Television Relay Service ) Second Order on Reconsideration Adopted: June 15, 1995 Released: June 21, 1995 By the Commission: TABLE OF CONTENTS Para. I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . .1 II. Protected Service Area. . . . . . . . . . . . . . . . . . . . . . .2 A. Background . . . . . . . . . . . . . . . . . . . . . . . . .2 B. Petition . . . . . . . . . . . . . . . . . . . . . . . . . .4 C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . .7 D. Transition . . . . . . . . . . . . . . . . . . . . . . . . 20 III. ITFS Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 A. Background . . . . . . . . . . . . . . . . . . . . . . . . 32 B. Petition . . . . . . . . . . . . . . . . . . . . . . . . . 33 C. Opposition . . . . . . . . . . . . . . . . . . . . . . . . 35 D. Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . 36 E. Discussion. . . . . . . . . . . . . . . . . . . . . . . . 39 IV. Frequency Offset Interference Protection Standards. . . . . . . . 45 A. Background . . . . . . . . . . . . . . . . . . . . . . . . 45 B. Petition . . . . . . . . . . . . . . . . . . . . . . . . . 47 C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . 48 V. Cut-Off Rule Clarification. . . . . . . . . . . . . . . . . . . . 54 VI. Final Regulatory Flexibility Analysis . . . . . . . . . . . . . . 60 VII. Ordering Clauses . . . . . . . . . . . . . . . . . . . . . . . 68 APPENDIX A -- Rules I. INTRODUCTION 1. We take the opportunity provided by a petition for partial further reconsideration filed by The Wireless Cable Association, Inc. (the Association), to revisit three issues considered in the previous reconsideration order in this proceeding. We find that sufficient justification has been provided to revise the definition of protected service areas of Multipoint Distribution Service (MDS) stations, and in this order we expand the protected service areas of MDS operations from 710 square miles (which is the area of a circle 15 miles in radius) to approximately 3848 square miles (or a circle with a radius of 35 miles). We also reduce the periods for service of interference analyses on authorized Instructional Television Fixed Service (ITFS) stations and for filing ITFS petitions to deny; we clarify provisions regarding the demonstrations required for transmitter frequency offset when proposed in an MDS application as an interference abatement technique. II. PROTECTED SERVICE AREA 2. Background. On April 26, 1984, the Commission adopted Section 21.902(d), defining a protected service area for each MDS station. 47 C.F.R.  21.902(d). The protected service area represents the geographic demarcation of the area within which a particular MDS station is protected against harmful interference from other stations. Amendment of Parts 21, 74 and 94 of the Commission Rules and Regulations with regard to the technical requirements applicable to the Multipoint Distribution Service, the Instructional Television Fixed Service and the Private Operational-Fixed Microwave Service (OFS), 98 FCC 2d 68 (1984) (hereinafter cited as MDS Technical Rules Order). Section 21.902(d) provides as follows: Subject to the limitations contained in (e) of this section each MDS licensee shall be protected from harmful electrical interference as determined by the theoretical calculations within an area described as follows: (1) For a station using a transmitting antenna with an omnidirectional horizontal plane radiation pattern the boundary of the protected service area will be 24.1 kilometers (15 miles) from the transmitter site. (2) For a station using a transmitting antenna with a non-omnidirectional horizontal plane radiation pattern the boundary of the protected service area will be the locus of all points located at distances from the transmitter as determined by the following equation: Db = Dbmax in which the parameters are defined as follows: Db = the distance from the transmitter site to the boundary in direction of interest; G = the transmitter antenna gain in the direction of interest; Gmax = the maximum antenna gain; Dbmax = the distance to boundary, in the direction of maximum gain that will make the total area of the protected service area equal to or less than 1838 square kilometers (710 square miles); all distances are in kilometers (miles), the gains are in dB relative to an isotropic antenna, and the antilog is taken to the base 10; (3) Except that when the electrical horizon determined using the transmitting antenna height, a 30 foot receiving antenna height, and assuming 4/3 earth radius propagation conditions, is closer to the transmitter than boundary described in paragraph (d)(1) or (2) of this section, the electrical horizon shall be the boundary of the protected service area. 3. On February 8, 1990, we adopted a Notice of Proposed Rule Making and Notice of Inquiry, 5 FCC Rcd 971 (1990)(hereinafter cited as Notice). This Notice, among other things, requested public comment as to whether the MDS station's protected service area definition should be revised. Id. at 976-77. However, no revision of the definition was made in the Wireless Cable Order, 5 FCC Rcd at 6419-20. And several requests to expand the MDS station's protected service area made in the first set of reconsideration petitions filed in this proceeding were rejected. First Reconsideration Order, id., 6 FCC Rcd at 6765. 4. Petition. In its petition for reconsideration, the Association describes the current 710 square mile definition of an MDS station's protected service area as "a ticking time-bomb set to explode in the wireless industry's future." Petition at 2. In a survey of its membership, the trade association ascertained that the majority of subscribers are located more than 15 miles from the transmitter (more than 50% of the current subscribers of 59% of the wireless cable systems surveyed). Id. at 5. After acknowledging that the freeze on filing applications for new MDS stations currently protects wireless cable operators, it is asserted that "a field day for the unscrupulous" will be created once the freeze is lifted. Id. at 3, n. 6. If the current 710 square mile definition is still in effect at that time, wireless cable operators would have to choose between accepting harmful interference or buying out licensees of closely spaced stations. Id. at 3. "The net result is economic blackmail. The legitimate wireless cable operator must reach an accommodation if it is to have sufficient channel capacity to provide a viable service." Id. at 3, n. 6. In addition, service could not be provided to subscribers in the areas where harmful interference would be created by the closely spaced stations. Id. at 3. The Association asserts that interference between closely spaced stations threatens the very economic base on which the wireless cable industry is being built. Id. at 2. According to the Association, the ability of the wireless cable industry to offer the public a viable alternative to cable television service, and thus, compete with cable television systems will be enhanced by expansion of the MDS stations' protected service area. Id. at 13. 5. The Association also argues that "dramatic" technological innovations in reception equipment as compared to technology existing in 1980 justify an expansion of the MDS station's protected service area. "[D]ownconverters now introduce far less noise than they did in 1980. Moreover, inexpensive signal preamplifiers have been developed for installation at receive sites. . . . [F]ar less signal is necessary at the antenna input to produce an acceptable picture." Id. at 4. Because there has been a significant increase in the geographic area in which reliable service can be provided by MDS stations, it is asserted that there should be a corresponding increase in the size of the protected service area. Id. The Association makes careful note in its reply that "no one has opposed [the Association's] Petition to the extent it requests refinements in the way protected service areas are calculated under Section 21.902(d) of the Rules." (emphasis in original). 6. And finally in its reconsideration petition, the Association argues that it would "jeopardize the viability of wireless cable" if we attempt "to cram more stations into the band than the laws of physics allow." Id. at 13-14. The petition warns that "[t]he Commission should learn from the mistakes that have so badly crippled the AM service." Id. Quoting Commission language in Review of the Technical Assignment Criteria for the AM Broadcast Service, 6 FCC Rcd 6373, 6374-75 (1991), the Association emphasizes that "[a]dopting the rule revisions proposed by [the Association] will spare the wireless cable industry that [AM channel congestion and interference] future." Id. at 13-14. 7. Discussion. We agree with the Association that changed circumstances, including recent technological developments and the existing scope of MDS customer locations, warrant a change in the MDS protected service area definition. 8. A stated goal for this proceeding was to revise the MDS technical rules to maximize the service capabilities of MDS operators. Notice, 5 FCC Rcd at 971, 972. In the Wireless Cable Order, we reiterated that one goal of the proceeding is to "enhance the viability of wireless cable service and its stature as a competitive force in the multichannel video delivery marketplace." 5 FCC Rcd at 6411. We continue to believe that MDS holds the potential to function as a competitive spur to coaxial cable system operators. Notice, 5 FCC Rcd at 971. And, as we previously stated, "[a]t this time, wireless cable service is one of the most imminent sources of such competition." Wireless Cable Order, 5 FCC Rcd at 6417. We now believe that an expansion of the protected service area of MDS stations is the best way to serve these objectives. 9. Expanding protected service areas to more closely reflect actual service areas should strengthen the viability of authorized MDS stations by ensuring more of their customers are protected against harmful interference from other stations. As a result, the service should be more attractive to customers. An expansion of the MDS station's protected service area will promote other public interest benefits. For example, strengthening MDS stations' viability will contribute to the national economy overall. We expect our action to increase economic growth and create new jobs. We also expect the expansion of the MDS station's protected service area to enhance consumer access to the video entertainment programming market. Finally, wireless cable system operators often lease excess capacity from ITFS licensees. As part of these arrangements, MDS operators often furnish improved video capabilities to the ITFS licensee. We believe strengthening MDS operators will have important secondary benefits for ITFS licensees, and better enable them to meet their educational service objectives. See Wireless Cable Order, 5 FCC Rcd at 6411 ("[T]hese changes will enhance ITFS by improving service quality and potentially increasing the revenues received by ITFS entities through the leasing of excess capacity.") 10. In addition, since the filing of the Association's second reconsideration petition in this proceeding, there have been two developments at the Commission which are relevant to our revision of the MDS station protected service area definition. First, in the February 7, 1995 Report and Order in MM Docket No. 93-24, the Commission established a fixed 35-mile distance as one of several criterion for ITFS receive site interference protection. Amendment of Part 74 of the Commission's Rules With Regard to the Instructional Television Fixed Service, 10 FCC Rcd 2907, 2917 (1995). This is significant in considering the MDS station's protection. As the Notice for the Wireless Cable Order states, one of the purposes of this particular rulemaking proceeding was to make the rules for ITFS and MDS as compatible as practical within the context of the separate origination, purposes and historical development of the two sets of rules. Notice, 5 FCC Rcd at 971 ("to ... simplify, where possible, the host of disparate technical . . . requirements . . . applicable to MDS operators, with a view to facilitating this service." Id.). The adoption of a protected service area definition for MDS stations which uses a uniform 35-mile criterion would serve this goal by reconciling one MDS rule with its ITFS rule counterpart and by enhancing the compatibility for the wireless cable operator who uses ITFS and MDS channels, by lease or license, from the same transmitter site. 11. The second relevant rulemaking determination, after the Association's second reconsideration petition was filed, was our adoption of a Notice of Proposed Rulemaking in MM Docket No. 94-131, 9 FCC Rcd 7665 (1994), on November 10, 1994, which included competitive bidding procedures for initial applications for new MDS stations. In view of the competitive bidding procedures we are adopting today in the Report and Order in MM Docket No. 94-131, we have decided that it is even more important that an MDS station's protected service area boundary "be easy to use and understand so that the spectrum use rights of licensees be clear." MDS Technical Rules Order, 98 FCC 2d at 105. 12. In this context, we gave careful consideration to the Association's proposal that the protected service area boundary not be a uniform circle for MDS stations which use a non-omnidirectional antenna. This boundary proposed by the Association is a collection of calculated points, from 7.2 miles to 44 miles from the station transmitter site, for an MDS station using a non-omnidirectional antenna. Calculations must be made of the equivalent isotopically radiated power (EIRP) along each radial from the transmitter, at one degree intervals, for all 360 degrees of the protected service area boundary. However, this irregular and difficult to predict service area approach would be incompatible with the competitive bidding process adopted today in MM Docket No. 94-131. A protected service area definition which is a uniform circle with a radius of 35 miles will have several prospective benefits for the wireless cable operator after competitive bidding procedures are implemented. 13. For MDS stations with an omnidirectional transmitting antenna, the Association proposes circular protection zones with varying radii depending on the EIRP of the particular station involved. The Association provides a table to show the range of boundary distances it proposes, from 7.2 miles at 1.00 watt EIRP, to 32.5 miles at 1995.27 watts EIRP, to 44 miles for 7943.3 watts EIRP. Because Section 21.904(a) limits the maximum EIRP for an MDS station using an omnidirectional antenna to 2000 watts, frequently the protected service area boundary proposed by the Association would be about 33 miles because the station would be authorized at 2000 watts EIRP. 14. The need for a uniform fixed circle boundary is premised partially upon the ability of authorized MDS stations who are not competitive bidding winners to make modifications in their station design and location without getting the permission from the competitive bidding winners, who would be authorized for the area immediately adjacent to the 35-mile circle. Under the irregular boundary proposal, the orientation of the non- omnidirectional transmitting antennas would be crucial in the calculation of the boundary. It has been our experience with MDS stations over the last twenty years that the orientation is sometimes modified, with a corresponding change in the boundary of the MDS station's protected service area. In addition, MDS stations sometimes change from a non- omnidirectional to an omnidirectional antenna, again changing the boundary of the station's protected service area. MDS operators also increase a station's EIRP, which under the Association's proposal would expand the protected service area. Under our protected service area definition, the effective service area could be expanded to a distance of 35 miles from the transmitter site without a need to secure the consent of competitive bidding winners of immediately-adjacent areas. Thus, in terms of modifications made after any relevant competitive bidding, authorized in the Report and Order in MM Docket No. 94-131 adopted today, both omnidirectional and non-omnidirectional stations will benefit substantially from the flexibility afforded by a fixed mileage protected service area definition. Participants in competitive bidding for areas adjacent to a particular MDS station's protected service area would benefit as well from this clearly delineated, objective and consistent fixed mileage distance boundary. 15. Reflecting Commission experience with the disputes and application processing disruption that arise when a fixed mileage boundary is not used, the petition of the Association cautions that reasonable engineers using the current definition of Section 21.902(d) have frequently disagreed over the determination of protected service area boundaries for non-omnidirectional systems, resulting in unnecessary disputes. Petition at 11. After competitive bidding procedures are implemented, under the Association's proposal, there is a possibility that service would be delayed due to disputes between competitive bidding winners and authorized or previously proposed MDS stations as to the boundaries of a protected service area of an MDS station using a non-omnidirectional antenna. Thus, the adoption of the same definition for MDS stations which use a non- omnidirectional antenna would help to clarify the rights of applicants, conditional licensees and licensees of the previously-proposed and authorized stations and eliminate the inefficiency and disruption produced by disputes during and after application processing. 16. We note that 35 miles is a slightly greater distance than the 33 miles proposed by the Association for an omnidirectional antenna with the maximum authorized EIRP. To that extent, the Commission is providing a larger protected service area than requested by the petitioners herein. For MDS stations which use a non-omnidirectional antenna, we have done our own calculations. In nearly all instances, the current 710 square mile protected service area of MDS stations using non-omnidirectional antenna, even at the farthest boundary point, will fit completely within the expanded 3848 square mile protected service area. Also, MDS stations using a non-omnidirectional antenna will be able, pursuant to the provisions of 47 C.F.R.  21.913, to provide service to subscribers within the 35-mile circle using signal boosters when a signal cannot be received from the main transmitter. 17. With regard to the Association's proposal that MDS stations with a power level less than 2000 watts EIRP receive corresponding smaller protected service areas, as a means to deter speculators and restrain "economic blackmail" of authorized or previously- proposed stations, we have determined that a better approach to curb such abuses of our rules and procedures is: (1) more rigorous scrutiny of initial MDS applications for compliance with our technical processing requirements and interference protection rules, and (2) fewer grants of construction extension applications for both ITFS and MDS stations by stricter application of the previously-adopted standards. This should diminish the number of such initial applications filed by speculators which would be granted or eliminate the "economic blackmail" opportunity at the end of the first construction period. 18. We have considered all of the arguments advanced in the Association's petition and reply, and have analyzed the public interest benefits that should flow from an expansion of the MDS station's protected service area. We have also weighed the efficiencies and benefits to the public of prompt initiation of new MDS systems which would result from adoption of a definition using a uniform, fixed mileage boundary for the protected service area of MDS stations. In defining the protected service area boundary as a fixed distance from the transmitter, the Commission specifically stated "that there is a need to establish a protected service area boundary that is easy to use and understand so that the spectrum use rights of licensees are clear. Unlike calculated and measured contours, a fixed mileage boundary is easy to use and understand." MDS Technical Rules Order, 98 FCC 2d at 105-06. 19. In order to simplify MDS rules and promote the development of MDS stations as effective competitors to cable television systems, we adopt a uniform 35-mile boundary for the protected service area of each MDS station. The MDS station's protected service area increases from 710 square miles to approximately 3848 square miles. Because it could preclude the authorization of a closely spaced analog station for which a lack of harmful interference must be demonstrated in a subsequently-filed modification application as a condition precedent to installation of a digital transmitter in a previously-authorized MDS station, this expanded protected service area definition will best allow the transition from analog transmitters to digital compression technology, a transition now beginning to occur. Manufacturers have been developing appropriate MDS equipment. A number of experimental licenses have been issued for MDS stations during the last four years for the use of such digital compression technology. We also expect that the adoption of this expanded, fixed mileage definition will best conserve scarce Commission resources for the efficient processing of MDS applications and will help preserve the rights of previously-proposed and authorized MDS stations after competitive bidding. 20. Transition. With regard to the issue of transition from one definition to an expanded definition of an MDS station's protected service area, the Association states, "[w]hile transitional concerns must certainly be addressed, none is so thorny as to justify denying the public of the benefits that will accrue by affording wireless cable operators an appropriate" protected service area. Petition at 16. 21. The Association proposes a transition approach that would limit the use of the new protected service area definition to applications filed after the effective date of the new rule. Id. at 14. We have decided to adopt the proposal of the Association. Applications filed on or after the effective date of the revision to Section 21.902(d), including applications filed by competitive bidding winners, must base interference analyses on the protected service area definition of a circle with a radius of 35 miles, except as provided below. On the other hand, interference analyses for applications filed before the effective date must be based on the current protected service area definition of 710 square miles. 22. In order to protect the ability of applicants and licensees grandfathered under the old rules to amend their applications or modify their licenses, the Association proposes that an MDS station's protected service area would be reduced below a circle with a radius of 35 miles in prescribed circumstances. According to this proposal, interference analyses submitted in application amendments or modification applications could exclude from the protected service area any area where a desired station must accept harmful interference from any other station pursuant to the interference protection priorities of Section 21.902(e). It is claimed that this reduction of the MDS station's protected service area would allow cochannel licensees to take steps to reduce but not necessarily eliminate harmful interference. Petition at 14-16. 23. We are not persuaded that this proposal draws a sufficient demarcation of the rights of licensees, conditional licensees and applicants with previously authorized or proposed MDS stations, and may be incompatible in circumstances in which competitive bidding would occur. In this context, we note that one of the underlying purposes for this expansion of the geographic interference protection zone for authorized and previously- proposed MDS stations is to protect such stations. For example, we do not believe reducing the protected service area boundary to a distance of less than 35 miles from the coordinates of a desired station, authorized or with an application pending on the effective date of the expanded protected service area rule would serve the public interest. We are still interested in providing incentives for the affected parties to create station configuration solutions, which have repeatedly been used by MDS stations in the past. Therefore, the requested revision will not be made. 24. However, we are adopting a very limited exception to the 35-mile circle protected service area definition. The exception applies only to: (1) modification applications filed after the effective date of the expansion to a 35-mile circle protected service area; (2) MDS stations which were authorized or for which there was an application pending on or before the effective date of this expanded protected service area rule; and (3) the interference analysis of the protected service area of an MDS station which was authorized or for which there was an application pending on or before the effective date of the revision to Section 21.902(d). 25. The exception to the 35-mile circle protected service area allows such a modification application's interference analysis to exclude from the desired station's 35-mile circular protected service area the area defined by the intersection of the predicted 45 dB desired to undesired signal ratio contour line associated with the modification applicant's previously authorized station and the 35 mile circle boundary of the desired station. However, the modification application: (1) cannot increase the size of the geographic area suffering harmful interference, and (2) cannot cause harmful interference to any new portion of the other station's protected service area. The exception also does not apply to any point within the desired station's current 710 square mile protected service area. No modification will be allowed which would cause existing stations to adapt to additional interference. We emphasize that the limited exception adopted herein applies only to the 45 dB desired to undesired signal ratio contour line created by the signals of the desired station in the one interference analysis and the specified modifying applicant's station as to each other. In the alternative, a modification applicant may file a consent statement pursuant to a voluntary agreement. We expect that many accommodations will be made through voluntary agreements. This limited exception is similar, but not identical, to the approach adopted in the text of the MDS Technical Rules Order, in 1984 when the Commission changed from the previous scheme of calculation of signal strength contours and adopted the current 710 square mile definition of a protected service area, with regard to MDS stations authorized before 1984. MDS Technical Rules Order, 98 FCC 2d at 111-13. Moreover, we will consider waiver requests made in MDS modification applications filed for ITFS market settlements after the effective date of the expanded protected service area rule. 26. In addition to compliance with the current requirements of  21.902(a) - (c), each modification application for an authorized MDS station filed after the effective date of the expanded protected service area rule, which requests a waiver of the expanded protected service area definition of Section 21.902(d), must contain: (1) a waiver request and waiver justification pursuant to 47 C.F.R.  21.19, and (2) a map, 8 1/2 by 11 inches, depicting the boundary of the 45 dB desired to undesired signal ratio contour, which clearly states the mileage at each radial, measured at one degree intervals, for 360 degrees, of the protected service area boundary from the desired station's transmitter site coordinates. 27. We do not expect that the adoption of this expanded definition of the protected service area for MDS stations will preclude the filing of applications proposing new MDS stations in nearby areas, which might cause harmful interference to the expanded 3848 square mile protected service area, but would not have caused harmful interference to the currently defined 710 square mile protected service area. There are a number of engineering techniques which can be used, singularly or in combination, to avoid or eliminate the potential for harmful interference. Examples of such techniques include cross-polarization, receive site shielding, change in antenna height, increase or decrease of transmitter power, substitution of more modern receiving antenna, installation of a filter on receiving antenna, use of a transmitter with high stability local oscillators which allow frequency offset, change of directional antenna azimuth, change of the transmitting antenna design, change of the radiation pattern of the transmitting antenna, transmitting antenna beam tilt change, or increase transmission line losses. In the alternative, an MDS applicant might decide to propose a different transmitter site to avoid causing harmful interference to the protected service area of an authorized or previously-proposed MDS station. 28. We anticipate that these methods would be instrumental in resolving situations of potential harmful interference that may be caused by new MDS operations. If such techniques and alternatives fail to resolve potential interference problems, the parties may negotiate and reach a mutually-satisfactory accommodation. Indeed, the parties are required by Section 21.902(a) to cooperate fully and in good faith in attempting to resolve problems of potential harmful interference. 29. In order to ease the transition from the current definition of an MDS's protected service area to the new 35-mile boundary definition, we announce that the expanded protected service area rule will become effective 60 days after publication of a summary of this order in the Federal Register. Unless the exceptions described at paragraphs 24 and 25 supra apply, any modification applications or applications for new MDS stations filed after that effective date must use the definition of a protected service area as revised herein, including the winners of competitive bidding procedures. 30. One issue that is raised by the expansion of an MDS station's protected service area is the extent to which such expansion would impact compliance with the statutory and regulatory cable-MDS ownership and leasing prohibitions of 47 U.S.C.  553(a)(2) and 47 C.F.R.  21.912. Pursuant to the prohibition against cable ownership or leasing of MDS stations embodied in 47 C.F.R.  21.912, a cable television system operator may not hold a cognizable interest, directly or indirectly, in any MDS station if the MDS station's protected service area overlaps the cable television system's service area. Therefore, expansion of the protected service area adopted herein may cause cable leasing arrangements and common ownership of cable systems and MDS stations, formerly in compliance with Section 21.912, to fall now within the prohibitions of the rule. Based on our experience with the implementation of Section 21.912 since 1990, we anticipate few instances would occur. To the extent that there will be further restriction on the ability of cable television systems to own or lease, directly or indirectly, MDS stations in the same geographic area, we find that the further restriction implements the underlying purpose of Section 21.912, namely to enhance competition by a microwave provider of multichannel video entertainment programming as an alternative for consumers to cable television systems in the same area. 31. We hereby grant today temporary waivers of 47 C.F.R.  21.912 for prohibited overlaps that are a direct result of the expansion of the protected service area for MDS stations, but which did not exist under the current 710 square mile protected service area definition. These temporary waivers end June 1, 1996. A temporary waiver for a particular MDS station will continue until final action is taken on the waiver request for any MDS station for which there has been filed a waiver request pursuant to the special relief procedures specified at 47 C.F.R.  76.7 on or before June 1, 1996. We are providing such a lengthy period for waiver or divestment to avoid creating immediate capital flow problems for wireless cable operators and potential injury to the wireless cable industry. The waiver requests filed on or before June 1, 1996 should provide us with necessary information to measure the extent of any prohibited ownership or leasing arrangements newly-created by our adoption of a revised protected service area definition. III. ITFS NOTICE 32. Background. Under the rule provisions adopted in the First Reconsideration Order, MDS applicants proposing stations on the E, F or H channels do not serve cochannel or adjacent channel ITFS stations until 60 days after the Commission issues a public notice of the MDS station application. Thereafter, there is a separate 60 day period of time for the filing of an ITFS petition to deny. See 5 FCC Rcd at 6413. 33. Petition. The Association argues in its reconsideration petition that, in order to avoid unnecessary delay in processing MDS applications, the Commission should revise its rules concerning deadlines for ITFS service and petitions to deny. The Association complains that "the rules adopted in the Reconsideration Order . . . effectively delay for a minimum of six months the granting of even the most benign MDS application," and "afford ITFS entities far more protection than is necessary." Reply at 8. "[T]he adverse impact of these new rules on those attempting to develop wireless cable systems is patent." Petition at 17. 34. A special case is made with regard to modification applications. Because it is "a virtual impossibility" for a modification application for an MDS station to be mutually- exclusive with any other application, "an applicant for a MDS license modification should be permitted to serve its interference studies on ITFS interests prior to filing its application and that those ITFS interests should be required to file any petitions to deny" of the MDS modification application at an earlier date. Id. at 18-19. "Such an approach will expedite the processing of MDS modification applications by reducing the time before an application is ripe for grant, without having any adverse effect on the ITFS community." Id. at 19. 35. Opposition. The Crowell & Moring opposition is limited to this one issue, the deadlines for ITFS service and petitions to deny. According to this opposition, the rule adopted on October 10, 1990 in the Wireless Cable Order created administrative and financial hardships for ITFS licensees. From October 10, 1990 through December 29, 1991, ITFS stations were required to review and potentially filed petitions to deny for interference analyses for dozens of applications proposing identical station designs at the same location. Opposition at 3-4. "Furthermore, ITFS stations were required to review and analyze even those interference studies which accompanied MMDS applications which were unacceptable for filing or applications that would lose in the lottery, creating unnecessary work for ITFS licensees. . . ." Id. at 6. "Reviewing numerous MMDS applications and attempting to fund numerous petitions to deny, instead of a single one as the rules in the Order on Reconsideration prudently decided, strips educational organizations of resources which could be better directed toward the critically important goal of educating American citizens." Id. at 8. However, in the Order on Reconsideration, the Commission modified that procedure. Id. at 2. "The new rule decreases the costs and administrative burdens on ITFS licensees." Id. at 5. The opposition of Crowell & Moring also complains that the requisite rule requires service only of the ITFS interference analysis, not the entire MDS application. Id. at 4. 36. Reply. The Association agrees with Crowell & Moring that ITFS service provisions should be revised to require the service of complete applications, not just interference studies. Reply at 2. "Unfortunately, some applicants . . . recently have been serving interference studies that fail to provide sufficient information for the recipient to duplicate the analysis or to file an appropriate petition to deny. . . . [T]he newcomer is wrongly imposing an unnecessary burden on MDS and ITFS licensees and prior applicants." Id. 37. However, the Association opposes the delay in MDS application processing caused by retention of the 60 day deadline for ITFS service and a second 60 day deadline for filing an ITFS petition to deny, for a total period of 120 days after public notice, adopted in the First Reconsideration Order. "[T]he Commission should bear in mind that when the processing of MDS applications is unreasonably delayed, the introduction of new educational telecommunications services into the community is also delayed." Reply at 3. The Association describes the Private Radio Bureau's practice of placing H channel applications on public notice as accepted for filing and providing potentially affected ITFS entities thirty days to file a petition to deny. Even today, applicants for most modifications to ITFS stations need not serve potentially affected cochannel or adjacent channel ITFS entities. Rather, the Mass Media Bureau publishes public notice that such an ITFS application has been accepted for filing and potentially affected ITFS entities have thirty days to secure a copy of the application, analyze it and prepare a petition to deny. There is no evidence in record that any ITFS entity has ever been adversely impacted by Commission requirements forcing them to secure applications on their own and then file petitions to deny within 30 days after public notice! Reply at 5 (emphasis in original). In its reply, the Association proposes a scheme that is different from the proposal the Association made in its reconsideration petition, requiring service for authorized cochannel and adjacent-channel ITFS stations by certified mail prior to filing the MDS application with the Commission, together with submission of proof of receipt by the ITFS station at a later date. In turn, the ITFS petition to deny would be due thirty days after public notice of acceptance for filing of a non-mutually exclusive application or modification application or thirty days after public notice of selection for qualification review by lottery. "This will eliminate the problem Crowell & Moring cites -- the need to examine multiple mutually-exclusive applications -- without unduly delaying the processing of MDS applications." Reply at 5-6. "Particularly since ITFS entities have proven themselves able to protect their rights in 30 days even when they are not served with applications, the MDS application service requirement [the Association] proposes will assure that the ITFS entity has ample opportunity to analyze applications and submit post-lottery petitions to deny where necessary." Reply at 5-6. 38. The Association again makes a separate proposal for modification applications. "Returning to the approach adopted in the 1990 Report and Order with respect to at least modification applications will expedite the processing of MDS modification applications by reducing the time before an application is ripe for grant, without having any adverse effect on the ITFS community." Reply at 7. "[N]o analysis or petition to deny will be required until after the Commission gives public notice that the ... application has been accepted for filing." Reply at 7. "[B]ecause ITFS channels represent twenty of the thirty-[two] channels available for wireless cable use, wireless cable operators have every interest in assuring that they and their ITFS [lessors] have a full and fair opportunity to analyze applications proposing nearby stations and petition to deny if necessary. However, the rules adopted in the Reconsideration Order, which effectively delay for a minimum of six months the granting of even the most benign MDS application, afford ITFS entities far more protection than is necessary." Reply at 8. 39. Discussion. The existing delay between public notice and qualification review of MDS applications to accommodate ITFS service and the possible filing of an ITFS petition to deny, which frequently is not filed, conflicts with our goal that MDS stations become operational as soon as possible in order to provide competition for traditional cable television systems. We are interested in shortening this period when MDS applications proposing facilities which are cochannel or adjacent channel to authorized ITFS stations cannot be processed. 40. In response to the objection of Crowell & Moring to filing an ITFS petition to deny against an MDS application which has not yet been accepted for filing and the Association's concern with the delay in processing MDS applications which are cochannel or adjacent-channel to ITFS stations, we have decided to adopt the last proposal made by the Association, with some changes. An MDS applicant filing an initial application for a new station or a modification application, on October 1, 1995, or thereafter, proposing a station transmitter site within 50 miles of a grandfathered cochannel or adjacent channel ITFS station's transmitter site, must serve, by certified mail, return receipt requested, a copy of the complete initial or modification application, including each required interference analysis or exhibit, on each ITFS licensee or construction permittee with an authorized transmitter site within 50 miles of the MDS station's proposed transmitter site no later than the day the initial or modification application is filed with the Commission. If the copy of the requisite MDS application is mailed after the date of filing of the MDS application, or if an incomplete copy of the MDS application is mailed to the ITFS licensee or construction permittee, or if the ITFS Service Notice is filed after the 30-day deadline, it will be treated as a defect in the MDS application. See 47 C.F.R.  21.20(a) 41. Such MDS applicants will still be required to file an ITFS Service Notice, but now the deadline will be the 30th day after filing of the MDS application. The MDS application must include a certificate of service for the specified ITFS licensees and construction permittees stating that: (1) its complete application has been sent by certified mail, return receipt requested on or before the date of filing of the MDS application, (2) the date of mailing of the MDS application copy to the ITFS licensee or construction permittee, (3) the names of the ITFS licensees and construction permittees so served, and (4) the addresses of the ITFS entities so served. In this manner, at the time of review of any ITFS petition to deny, the MDS processing staff will have information as to what date each affected ITFS licensee or construction permittee received a copy of the complete MDS application. 42. In establishing deadlines for the rule provision concerning the ITFS interference protection duty of specified MDS entities, footnote 16 of the Wireless Cable Order segregated MDS applications into three categories based on the filing date of the MDS application: (1) applications filed prior to October 11, 1990; (2) applications filed from October 11, 1990 through January 24, 1991; and (3) applications filed after January 24, 1991 (subsequently this category's period was ended at December 29, 1991). The duties of such MDS applicants established in that order will continue after adoption of this order. In the First Reconsideration Order, a fourth category and set of duties for ITFS interference protection were established for specified MDS applications filed beginning on December 30, 1991 (by this order this category's period is ended September 30, 1995). The fourth category of duties was made applicable to H channel MDS applications in the Second Report and Order. Those duties established in that reconsideration order will continue after adoption of this order. We are today adding a fifth category: applications filed on October 1, 1995 and thereafter. This time we are beginning the period with the commencement of a fiscal year in order to speed the processing of MDS applications. 43. So that MDS applications can become ripe for grant more speedily and the initiation of MDS stations, providing new service to the public, can occur at an earlier date, we adopt a thirty day period for the filing of ITFS petitions to deny as requested in the Association's reply. This deadline is triggered still by the specified public notice of the MDS application, not the filing of the MDS application. If such an ITFS entity is not served prior to the date of the relevant public notice, we will ensure that the ITFS licensee or construction permittee is given 60 days from the date of actual receipt to file a petition to deny for the relevant cochannel or adjacent-channel MDS application. 44. ITFS petitions to deny will be due no later than the 30th day after public notice that: (1) the MDS modification application has been accepted for filing, (2) the initial application for a new MDS station appears to be non-mutually exclusive and is accepted for filing, (3) the initial application for a new MDS station has been selected for qualification review as the result of a random selection process (See 47 C.F.R.  1.824(c)); or (4) the application for a new MDS station submitted by the winning bidder of a competitive bidding process has been accepted for filing. Our rules are revised accordingly. IV. FREQUENCY OFFSET INTERFERENCE PROTECTION STANDARDS 45. Background. Section 21.902(c)(1) currently requires the submission with MDS applications of an analysis of the potential for harmful interference to authorized and previously-proposed cochannel stations. Section 21.902(f) defines harmful interference for MDS cochannel stations which provide video signals as a desired-to-undesired signal ratio of less than 45 dB. In the Wireless Cable Order, new equipment performance standards were adopted for frequency offsets, "to reduce cochannel interference," and "to allow an increase in the number of stations in a geographic area." Wireless Cable Order, 5 FCC Rcd at 6420. However, neither Section 21.902(c)(1) nor Section 21.902(f) were revised in the Wireless Cable Order, to either eliminate the requirement to file a cochannel interference analysis or to substitute a 22 dB standard or a 28 dB standard for the 45 dB desired-to- undesired signal ratio enunciated at Section 21.902(f). 46. In the First Reconsideration Order, we did not adopt a separate desired-to- undesired signal ratio to define harmful interference for cochannel stations when a frequency offset technique is used. We agreed with the assessment of The Wireless Cable Association that there "is simply not yet enough technical information available . . . to merit that degree of confidence in the ability of any given frequency offset technique to avoid interference." First Reconsideration Order, 6 FCC Rcd at 6770. However, we did clarify in that order that the Wireless Cable Order did not eliminate the requirement to demonstrate a lack of harmful interference to cochannel stations and that it was insufficient just to file an analysis showing a 28 dB, instead of a 45 dB, desired-to-undesired signal ratio, unless there is a voluntary agreement between affected MDS stations to employ a frequency offset technique. Id. 47. Petition. While explaining that "frequency offset is an effective tool for eliminating interference that would otherwise exist" and recognizing that "precision offset yields an acceptable signal even where the predicted co-channel [desired-to-undesired ratio] is well below 45" dB, however, the Association asserts again in its second reconsideration petition that insufficient data has been generated to date to allow the adoption of either a 22 dB or a 28 dB desired-to-undesired signal ratio. Petition at 21-22. "[I]t is premature to adopt final standards without more experience." Id. at 22. Therefore, the Commission should "permit a newcomer an opportunity on an ad hoc basis to demonstrate that its particular proposal will yield the equivalent of 45 dB." Id. at 22. It is asserted that an ad hoc approach for approval of the use of frequency offset techniques would maximize the number of stations that can operate without causing harmful electrical interference to receive sites of other stations, while the duty would remain with the subsequently-filing applicant to demonstrate a lack of harmful interference. Id. at 23. The trade association expects that in time the Commission will be able to abandon an ad hoc approach and develop a specific desired-to- undesired signal ratio for use when frequency offset techniques are proposed. Id. 48. Discussion. We have continued to receive MDS applications which state that no interference analysis is filed for an authorized or previously-proposed cochannel station because the Commission should order the authorized or previously-proposed station to use a frequency offset transmitter. In addition, we have received MDS applications which state that they are choosing a definition of harmful cochannel interference different than the desired-to-undesired signal ratio provided at Section 21.902(f), without any further discussion, demonstration, or justification, other than the fact that the Commission should order the authorized or previously-proposed station to use a frequency offset transmitter. We have never adopted such standards and we are not adopting such standards here. 49. It is not sufficient to merely file an analysis showing desired-to-undesired signal ratios of less than 45 dB, together with a statement that the authorized or previously- proposed station should be ordered by the Commission to install a frequency offset transmitter. More is required of MDS applicants. We note that, any subsequent-filing applicant that relies upon involuntary frequency offset transmitter upgrades of authorized or previously-proposed MDS stations as a method to meet interference protection standards for MDS stations, after the required notice and an administrative hearing, at a minimum, must demonstrate that it will install or has installed previously a frequency offset transmitter, in addition to meeting the other requirements of our rules. We emphasize that a statement alone, without the required analysis and demonstration that the equivalent of protection from harmful interference is provided by the applicant's proposal, is inadequate and does not comply with the requirements. Any MDS applications containing merely a statement and an interference analysis alone will not be accepted for filing in that form due to failure to comply with the requirements of Section 21.902(c)(1). See discussion of station design techniques and site selection at paragraph 27 supra. 50. Yet, we agree with the Association that MDS applicants should be allowed to make a request for waiver of the 45 dB standard only when the waiver request includes an additional demonstration to show that the location and configuration of the proposed MDS station will provide the equivalent of protection from harmful interference as the 45 dB desired-to-undesired signal ratio recognized at Section 21.902(f). Any lack of explicitness in our discussion in the First Reconsideration Order was an oversight. We hereby make the requested clarification. 51. We will assess demonstrations of a lack of harmful interference to authorized or previously-proposed cochannel MDS stations, on a case by case basis, when the subsequently-filing MDS application is proposing to use a frequency offset transmitter or when the authorized or previously-proposed MDS station already is authorized or proposes to use a frequency offset transmitter. However, in each instance, at a minimum, the application must contain: (1) an analysis showing the desired-to-undesired signal ratios, in addition to providing as a separate exhibit document: (2) a further analysis or demonstration that the applicant's proposed MDS station will provide the equivalent of protection from harmful interference to the authorized or previously-proposed cochannel MDS station, as would be provided to that authorized or previously-proposed station by the 45 dB desired-to-undesired signal strength ratio of Section 21.902(f). For example, an applicant may file a demonstration that the transmitters of both affected stations are designed with frequency tolerances to enable operation on a frequency offset basis which is equivalent to the 45 dB desired-to-undesired signal ratio standard. In the alternative, applicants may submit voluntary agreements or consent statements. 52. We also agree with the Association that insufficient data has been provided to the Commission and insufficient experience has accumulated to enable us to establish a desired-to-undesired signal ratio standard to define harmful interference for cochannel MDS stations when precision offset or a frequency offset transmitter is used. This must be left for a future rulemaking proceeding. We are especially concerned about the imminent transition from analog to digital transmissions for MDS stations and the effect of frequency offset transmitters on that transition. For example, data has not been submitted to the Commission as yet about the actual effect of a digital compression transmission on the signals of an MDS station using an analog transmitter, whether or not frequency offset is used. Therefore, it is possible that our authorization of an involuntary frequency offset may frustrate the subsequent conversion of that particular MDS station to digital compression technology. This is not a desirable result. Thus, we will not make any fundamental changes in these rules at this time. 53. However, in a Report and Order in MM Docket No. 94-131 adopted today, we note that interference analyses are no longer required to be filed routinely with MDS applications. Therefore, any interference analyses or demonstrations that must be filed by an applicant seeking to use the frequency offset technique as a method to reduce harmful interference to previously-proposed or authorized cochannel stations would be filed pursuant to a separate waiver request and justification, and not as a component of an application filed electronically. V. CUT-OFF RULE CLARIFICATION 54. Although not directly before us in petitions for reconsideration, we take this opportunity to reaffirm that the cut-off rule adopted in this docket satisfies the Administrative Procedure Act ("APA"). Rules governing the timing and order in which applications are processed are procedural in nature, despite the fact that they may have the effect of limiting the opportunities for parties to file applications. E.g., Neighborhood TV Co. v. FCC, 742 F.2d 629 (D.C. Cir. 1984) (hereinafter cited as Neighborhood); Buckeye Cablevision, Inc. v. United States, 438 F.2d 948 (6th Cir. 1971); Kessler v. FCC, 326 F.2d 673 (D.C. Cir. 1963). See JEM Broadcasting Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994) (hereinafter cited as JEM). Indeed, the United States Court of Appeals in Ranger v. FCC, 294 F.2d 240 (D.C. Cir. 1961) (hereinafter cited as Ranger), held that a cut-off rule similar to the one adopted in this proceeding was procedural. The Court in Ranger noted that even though "a failure to observe" a cut-off rule "might cause the loss of substantive rights," "this possibility does not make a procedural regulation a substantive one." 294 F.2d at 244. Like the cut-off rule in Ranger, the cut-off rule adopted in this proceeding does not involve substantive rights. Its purpose and effect is to establish in part the way in which applications will be processed. It does not preclude any person from filing a MDS application, nor does it "change the substantive standards by which the FCC evaluated license applications." JEM, 22 F.3d at 327 (emphasis omitted). 55. In the First Reconsideration Order, we stated that making the cutoff rule effective upon Federal Register publication will "preclude some entities from filing wireless cable applications." 6 FCC Rcd at 6779. We now clarify what we meant by this statement. MDS was an existing service long before the rules adopted in this proceeding. Interested persons had opportunities to file an application for this service long before the cut-off rule now in effect was adopted, and the other rule changes made in this proceeding did not create any new opportunities that were somehow foreclosed by the new cut-off rule. We recognize that one effect of the rule is to deny persons who failed to avail themselves of earlier opportunities, and instead filed after the cut-off date, the right to receive comparative consideration with earlier filed applications. This effect, however, occurs virtually anytime the Commission adopts or modifies a cut-off rule and applies the new rule to an existing service. 56. The APA by its express terms exempts procedural rules from the notice and comment requirements governing substantive rules, 5 U.S.C.  553(b)(A), and thus the Commission was not required to provide any notice or comment before modifying its cut-off procedures. See Ranger, supra. In any event, as we pointed out in the First Reconsideration Order, 6 FCC Rcd at 6778, the Notice in this docket specified the Commission's intention to consider the adoption of a same day cut-off procedure and provided interested persons with the opportunity to comment upon that proposal. Thus, even if the procedural rule exemption did not apply, the procedures used by the Commission fully satisfied the notice and comment provisions of the APA. 57. Similarly, the APA requires only "substantive rules" to be published not less than 30 days before their effective date, 5 U.S.C.  553(d). Because the cut-off rule is a procedural rule, rather than a substantive rule, it also is exempt from the 30 day advance publication requirement. In any event, as we explained previously, there was good cause for making the cut-off rule effective on less than 30 days notice. 58. The same day cut-off rule is a reasonable response to the abuses arising from the old cut-off procedures, such as the practice of some parties to file speculative applications by merely copying existing applications (including engineering data), and resubmitting them with the names changed. These speculators often would seek a financial settlement with the initial applicants who had undergone the trouble and expense of locating a market that can support a viable wireless cable system and had expended the resources necessary to prepare the necessary applications. The problems of speculative applications have been exacerbated by the practice of "application mills" to flood the Commission with speculative, mass produced applications. The "application mills" are in the business of preparing applications with the Commission, and thus have a financial interest in filing as many applications as possible. Through mass mailings and telephone operations, the application mills solicit prospective clients to file multiple applications with the Commission, whether or not those persons have any intention of constructing and operating a communications system. The short cut-off period adopted in this proceeding precludes speculators from receiving comparative consideration with the applications they copy. See First Reconsideration Order, 6 FCC Rcd at 6778. 59. Moreover, the Commission reasonably determined that this type of abuse of its processes should be corrected as soon as possible. For this reason, the Commission found that the public interest would be served by making the rule take effect immediately upon its publication in the Federal Register. VI. FINAL REGULATORY FLEXIBILITY ANALYSIS 60. Pursuant to the Regulatory Flexibility Act of 1980, the Commission's final analysis is as follows: 61. Need and purpose of this action: This second reconsideration order revises rules governing the Multipoint Distribution Service, in order to expand the protection from harmful interference of Multipoint Distribution Service stations and to increase the efficiency of processing Multipoint Distribution Service applications, so as to facilitate wireless cable service. This action furthers the Commission's goals of encouraging the development of competitive communications systems and of promoting efficiency in the allocation, licensing and shared use of the electromagnetic spectrum. 62. 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 second reconsideration order. 63. Significant alternatives considered: The Commission considered retaining the current definition of an MDS station's protected service area. In response to the pleadings received in this proceeding, we decided to expand the protection to be provided to MDS stations in order to enhance the potential for effective competition with traditional wireline cable systems. 64. On reconsideration, it was requested that some of the required delay in the processing of MDS applications be diminished by establishing that ITFS notice, when required, occur at an earlier time. For the same reason, the period of time provided for the filing of ITFS petitions to deny was reduced from 60 to 30 days. 65. The Commission also considered establishing a specific desired-to-undesired signal ratio to define harmful interference to an MDS station when one station uses a frequency offset transmitter. We decided to continue to use the definition of cochannel harmful interference provided at Section 21.902(f). 66. The Secretary shall send a copy of this Second 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 (Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. Section 601 et seq. (1981)). 67. The rule changes adopted here have been analyzed with respect to the Paperwork Reduction Act of 1980, and found to impose new or modified collection requirements on the public. This proposed change in the information collection burden is subject to approval by the Office of Management and Budget as prescribed by the Act. VII. ORDERING CLAUSES 68. For the reasons set forth above, Part 21 of the Commission's Rules ARE HEREBY AMENDED as discussed herein and as shown in Appendix A. IT IS FURTHER ORDERED that the rule changes set forth in Appendix A will become effective on October 1, 1995, except the revision of Section 21.902(d) which will become effective on the 60th day after publication of a summary of this order in the Federal Register. 69. Accordingly, IT IS ORDERED that pursuant to the authority contained in Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i) and 303(r), and Section 1.429(i) of the Commission's Rules, 47 C.F.R. Section 1.429(i), the Partial Petition for Reconsideration filed in this proceeding IS GRANTED to the extent indicated herein, and in all other respects IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary APPENDIX A 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, 404, 602; 47 U.S.C. 552, 554. 2. Section 21.902 is amended by revising paragraphs (d) and (i) to read as follows: Sec. 21.902. Frequency interference. * * * * * (d) Subject to the limitations contained in subsection (e) of this section, each MDS station licensee shall be protected from harmful electrical interference, as determined by the theoretical calculations, within a protected service area of which the boundary will be 56.3255 kilometers (35 miles) from the transmitter site. * * * * * (i)(1) For each initial application for a new station, or amendment thereto, or modification application, or amendment thereto, proposing Multipoint Distribution Service (MDS) facilities on E, F or H channels, filed on October 1, 1995 or thereafter, on 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 interference to each registered receive site of any existing D, E, F or G channel Instructional Television Fixed Service (ITFS) station, licensed or with a construction permit authorized 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. (A) In the alternative, an applicant for an MDS station may submit a statement from the ITFS licensee or construction permittee stating that the ITFS licensee or construction permittee does not object to operation of the MDS station. (B) In the alternative, an applicant for an MDS station may submit an analysis demonstrating that there are no ITFS licensees or construction permittees as described in (i)(1) of this paragraph within 50 miles of the coordinates of the proposed transmitter site of the MDS station. (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 or construction permittee described in (i)(1) of this paragraph. (3) For each application described in (i)(1) of this paragraph, the applicant must certify and file, with the application or amendment, its certification of its compliance with the requirements of (i)(2) of this paragraph; (4) For each application described in (i)(1) of this paragraph, the applicant must file, on or before the 30th day after the application or amendment described in (i)(1) of this paragraph is initially filed with the Commission, a written notice which contains the following: (i) caption -- ITFS Service Notice; (ii) applicant's name, address, proposed service area and channel group, and application file number, if known; (iii) a list of each ITFS licensee and construction permittee described in (i)(1) of this paragraph; (iv) the address of each ITFS licensee and construction permittee described in (i)(1) of this paragraph used for service; and (v) a list of the date each ITFS licensee and construction permittee described in (i)(1) of this paragraph received a copy of the complete application or amendment described in (i)(1) of this paragraph, or a notation of lack of receipt by the ITFS licensee or construction permittee of a copy of the complete application or amendment, on or before such 30th day, together with a description of its efforts for receipt by each such licensee or construction permittee lacking receipt of the application. (5) The public notices described in (i)(6) of this paragraph are as follows: (A) For initial applications for new MDS stations which participate in a lottery, this public notice is the notice announcing the selection of the applicant's application by lottery for qualification review. (B) For initial applications for new MDS stations which participate in a competitive bidding process, this public notice is the notice announcing the application of the winning bidder in the competitive bidding process has been accepted for filing. (C) For initial applications for new MDS stations which do not participate in a lottery or a competitive bidding process, this public notice is the notice announcing that the applicant's application is not mutually-exclusive with other MDS applications. (D) For MDS modification applications, this public notice is the notice announcing that the modification application has been accepted for filing. (6)(i) Notwithstanding the provisions of Sections 1.824(c) and 21.30(a)(4), for each application described in (i)(1) of this paragraph, each ITFS licensee and each ITFS construction permittee described in (i)(1) of this paragraph may file with the Commission on or before the 30th day after the public notice described in (i)(5) of this paragraph, a petition to deny the MDS application. (ii) Except for the requirements as to the filing time deadline, this petition to deny must otherwise comply with the provisions of Section 21.30 of this Part. (iii) In addition, this ITFS petition to deny must: (A) identify the subject MDS application, including the applicant's name, station location, channel group, and application file number; (B) include a certificate of service demonstrating service on the subject MDS applicant by certified mail, return receipt requested, on or before the 30th day after the MDS public notice described in (i)(5) of this paragraph; (C) include a demonstration that it made efforts to reach agreement with the MDS applicant but was unable to do so; (D) include an engineering analysis that operation of the proposed MDS station will cause harmful interference to its ITFS station; (E) include a demonstration, in those cases in which the MDS applicant's analysis is dependent upon modification(s) to the ITFS facility, that the harmful interference cannot be avoided by the proposed substitution of new or modified equipment to be supplied and installed by the MDS applicant, at no expense to the ITFS licensee or construction permittee; and (F) be limited to raising objections concerning the potential for harmful interference to its ITFS station or concerning a failure by the MDS applicant to serve the ITFS licensee or construction permittee with a copy of the complete application or amendment described in (i)(1) of this paragraph. (iv) The Commission will presume an ITFS licensee or construction permittee described in (i)(1) of this paragraph has no objection to operation of the MDS station, if the ITFS licensee or construction permittee fails to file a petition to deny by the deadline prescribed in (i)(6)(i) of this paragraph. * * * * *