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LongStandar2Nf h.n f Z",tB^ f ^;LhddCCCdCCCCddddddddddCCdxLdxxoxxxCCCddCddYdYFdo88d8odddLL8oYdYLdddd4dddddCddddddddd8dddddYYYYYL8L8L8L8oddddoooozYddddxYdxddddXXddXddXdddddooL8ddddLdkdddx8xPxdxDx8ppoddLLdpLpLpLodxLx8xdopoopoxdxLxLxLdxdoodxdxdCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddLdYYddddddCddddCCCkkd88ddzzdddsssCkdC"d~d9dCCzCddoddCdYds`zUvdddCCCCzozoYNzYYYN8YooYdYzzdzddzYzYzozzzNdzzzYzzzzCCdddddddzzzzCzdYC\   pxtll\tll@\@\`L",tB^ f ^;LhddCCCdCCCCddddddddddCCdxLdxxoxxxCCCddCkkktk`t|=Pk`tt`qkY`tkk``dddd4dddddCddddddddd8dddddYYYYYL8L8L8L8oddddoooozYddddxYdxddddXXddXddXdddddooL8ddddLdkdddx8xPxdxDx8ppoddLLdpLpLpLodxLx8xdopoopoxdxLxLxLdxdoodxdxdCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddLdYYddddddCddddCCCkkd88ddzzdddsssCkdC"d~d9dCCzCddoddCdYds`zUvdddCCCCkkzbkkzb|tN>kktkttzbzbzbzbkk|zbNdzzzYzzzzCCdddddddzzzzCzdYC\   pxtll\tll@\@\`L2 Y4  gȝ` `  hhCqppg#XR  P7jQXP#RRECORD ONLY $//In the Matter of 159 Applications at Six Transmitter Sites, FCC 95232//$ $/1.106 Petitions for Reconsideration/$ $/21.19 Waiver of Rules/$ $/21.20 Defective Applications/$ $/21.31 Mutually Exclusive Applications/$ $/21.901 Frequencies/$ $/21.902 Frequency Interference/$ $/21.914 Mutually Exclusive MDS Applications/$ " 0*0*0*" fBefore the  Y4f FEDERAL COMMUNICATIONS COMMISSION FCC 95232 SWashington, D.C.  Y4  \` `  hhCqpp  Y4In the Matter of hhCq)  Yw4159 Applications for AuthorityhhCq )  Y`4To Construct and OperatehhCq)  YI4Multipoint DistributionhhCq)  Y24Service Stations at Six Transmitter Sitesq)  Y 4 MEMORANDUM OPINION AND ORDER ON RECONSIDERATION ă  Y 4Adopted: June 15, 1995hhCqReleased: July 7, 1995 By the Commission:  Yd4 STable of Contents  Y64  Y4Title`(#qParagraphsă  Y4I. Introduction hhCqpp  *xxX 1  Y4II. Background hhCqpp  *xxX 211  Y4III. Petitions for ReconsiderationhhCqpp  *xxX 1237 Lake View, Arkansas  Yg4 McGehee, Arkansas Wynne, Arkansas Rehobeth Beach, Delaware Pendleton, Oregon Ridgeway, Pennsylvania  Y4IV. Discussion hhCqpp  *xxX 3865  Y!4V. Conclusion hhCqpp  *xxX 6667(#(# "#0*0*0*!" f1I. INTRODUCTION 1. The Commission has before it petitions for reconsideration of the return, pursuant to delegated authority, of 159 applications for authority to construct and operate Multipoint  Y-Distribution Service ("MDS")= Y-ԍ The term MDS refers both to single channel and to multichannel stations using MDS frequencies. MDS stations on the E or F channel groups are sometimes referred to as Multichannel Multipoint Distribution Service ("MMDS") stations. In this order, we use the terms MMDS and MDS stations on the E or F channel groups interchangeably.  stations on the E or F channels at the following six transmitter sites: Lake View, Arkansas; McGehee, Arkansas; Wynne, Arkansas; Rehobeth Beach, Delaware; Pendleton, Oregon; and Ridgeway, Pennsylvania. These 159 applications were filed with the Commission between September 27, 1991 and April 2, 1992, after the Commission had reopened the filing period for MDS applications for the E and F channels,  Y1-subject to certain restrictions. See  9, infra.||14= Y-ԍ Several months after the last of these applications was filed, the Commission imposed a freeze on the filing of applications for new MDS stations in a rulemaking proceeding which  Y-was initiated to explore options to expedite the processing of MDS applications. Notice of  Y-Proposed Rulemaking, in PR Docket No. 9280, 7 FCC Rcd 3266, 327071 (1992). The freeze does not apply to MDS applications for modification, renewal, assignment of license,  Y-transfer of control, extension of time to construct or signal boosters. Id.| Because these petitions raise common issues,:31x = YZ-ԍ All of the subject applications were returned by individual return notification letters after review by Commission staff. Review of these applications and the Commission's data base indicates that, for each named service area, the same transmitter site was proposed in every application, and there are many common elements in the applications. With few  Y-exceptions, which are noted in Sections III and IV, infra, the applications for each named service area contained identical interference narratives for each channel group applied for, and made identical waiver and public interest showings. In addition, the petitions filed for all applicants who had filed applications proposing the same transmitter site were either identical or substantially similar.:  Y -their collective consideration is the most efficient use of Commission resources. Thus, we will consider these petitions for reconsideration in this single order, which has been referred by the staff to the Commission pursuant to 1.106(a) of the Commission's rules, 47 C.F.R. 1.106(a).  Y -2II. BACKGROUND 2. Each of the returned applications proposed an MDS station on the E or F channels which are subject to Part 21 of the Commission's rules. Section 21.20(a) of the rules sets forth the standards for returning MDS applications as unacceptable for filing:    XUnless the Commission shall otherwise permit, an application will be unacceptable for filing and will be returned to the applicant with a brief statement as to the omissions"s0*((" or discrepancies if: (# X(1) The application is defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character; or(# X(2) The application does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements.(#  Yv-47 C.F.R.  21.20(a). Section 21.20(b) lists examples of common deficiencies which result in defective applications under paragraph (a), such as, the "application does not demonstrate compliance with the special requirements applicable to the radio service involved," the "application does not include all necessary exhibits," and the "application is filed after the cutoff date prescribed in  21.31 or  21.914 of this part." 47 C.F.R.  21.20(b)(4), (8)  Y -and (9); see 47 C.F.R.  21.13, 21.15, 21.26 and 21.900.  Y -3. Mutual Exclusivity. Typically, the first determination made by Commission staff is whether an MDS application is mutually exclusive with any authorized station or previously filed application. Section 21.31(a) of the Commission's rules provides the following standard for this determination:    XThe Commission will consider applications to be mutually exclusive if their conflicts are such that the grant of one application would effectively preclude by reason of harmful electrical interference, or other practical reason, the grant of one or more of the other applications. The Commission will presume "harmful electrical interference" to mean interference which would result in a material impairment to service rendered to the public despite full cooperation in good faith by all applicants or parties to achieve reasonable technical adjustments which would avoid electrical conflict.(#  Y-47 C.F.R.  21.31(a); see 47 C.F.R.  21.902(c), (d) and (f).M1= Y-ԍ Section 21.31 of the rules explains how applications do not have to be directly  Y-mutually exclusive to be cutoff:  For example, applications A, B, and C are filed in that order. A and B are directly mutually exclusive, B and C are directly mutually exclusive. In order to be considered comparatively with B, C must be filed within the "cutoff" period established by A even though C is not directly mutually exclusive with A.  YV"-  47 C.F.R.  21.31(c).M In applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles of an  Yi-authorized or previously proposed MDS station, i = Y%-ԍ MDS applicants must submit interference studies analyzing the potential for harmful interference with other MDS stations located within a 50 mile radius of the proposed station"&0*((&" because "[i]t is possible for cochannel interference generated by one MDS station to cause  Yy-unacceptable distortion of another station's signal from as far away as 50 miles."  R.L.  Yd-Mohr, 85 FCC 2d 596, 606 (1981); see 47 C.F.R. 21.901(d)(7) and 21.902(c)(1) and  YO-(2)(1991). The 50 mile benchmark for MDS stations was adopted in Amendments of Parts 1, 2, 21 and 43 of the Commission's Rules and Regulations to Provide for Licensing and  Y#-Regulation of Common Carrier Radio Stations in the Multipoint Distribution Service, 45 FCC  Y-2d 616, 620621 (1974) (hereinafter MDS Allocation Order), which codified, as a rebuttable presumption, Commission policy as what constitutes mutually exclusive status for MDS  Y-stations. See also Amendment of Parts 1 and 21 of the Commission's Rules and Regulations  Y -Applicable to the Domestic Public Radio Services (Other Than Maritime Mobile), 60 FCC 2d  Y -549, 559 (1976) (hereinafter Domestic Public Radio Services Order). The Commission adopted this 50 mile benchmark to enhance administrative efficiency in processing applications, avoid "gridlock" situations, and permit authorization of stations to proceed  Yu -expeditiously. See R.L. Mohr, 85 FCC 2d 596, 604 (1981); Sioux Valley Empire Elec.  Y`-Ass'n, Inc., 3 FCC Rcd 7375, 7376 (Dom. Fac. Div. 1988).  and (2) within the radio horizon, with an"iK0*((?" unobstructed electrical path, of the protected service area of an authorized or previously  Y-proposed MDS station.hK= Y-ԍ As the Commission noted in the MDS technical rulemaking order, "the mileage between these [MDS] stations is not the only factor that determines whether interference will  Y-occur... ." Amendment of Parts 21, 74 and 94 of the Commission's Rules and Regulations with regard to the technical requirements applicable to the Multipoint Distribution Service, the Instructional Fixed Television Service and the Private OperationalFixed Microwave  Yt-Service, 98 FCC 2d 68, 90 (1984) (hereinafter MDS Technical Order). In a 1990 order,  Y_-Texas Wired Music, Inc., File No. 50009CMP90, Call Sign WDU282 (Dom. Fac. Div., released Aug. 27, 1990), the Domestic Facilities Division explained the basis for using the radio horizon as a standard for determining mutual exclusivity: X[T]he latest engineering analysis of the [applicant] demonstrates that a natural phenomenon, radio horizon, substantially reduces the possibility of interference occurring to any receiver of [the authorized station]. . . . Underlying this methodology is the premise that once the signal reaches its radio horizon it is generally blocked or attenuated to such a level that it is not likely to interfere with a  Y-receiver beyond that point.(# h Applications which are determined to be either within 50 miles, or with an unobstructed electrical path to any part of the protected service area of any station, are considered to be mutually exclusive with the station, unless the applicant demonstrates a lack of harmful interference by submission of interference studies with its application  Y-pursuant to the standards specified in the Commission's rules. See 47 C.F.R. 21.902(b)(3)  Yx-and (4) and text,  7, infra. For the abovereferenced MDS applications, 21.901(d)(5) also defines mutual exclusivity based on whether the proposed transmitter site is within a Metropolitan Statistical Area ("MSA") and its 15mile buffer zone for which there is an"L0*(("  Y-authorized or previously proposed station.] = Yy-ԍ See Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency allocation to the Instructional Television Fixed Service, the Multipoint  YM-Distribution Service, and the Private Operational Fixed Microwave Service, 94 FCC 2d  Y8-1203, 126264 (1983) (hereinafter MMDS Allocation Order). Section 21.901(d)(5), 47 C.F.R. 21.901(d)(5) (1991), provides:   XNotwithstanding the provisions of  21.31(a) all applications that propose to locate transmission facilities within or within 15 miles of the border of a Standard Metropolitan Statistical Area ("SMSA") will be considered together. In the case of a Standard Consolidated Statistical Area ("SCSA") all applications that propose to locate facilities within or within 15 miles of the boundary of any SMSA contained in the SCSA will be considered together. . . . Each application will be entitled to comparative consideration or to be included in a lottery in only one such service area.(#]   Y-4. Cutoff Rules. In order to be acceptable for filing, MDS applications must be  Y-filed on or before the applicable cutoff date for mutually exclusive applications.f k = Y-ԍ In Domestic Public Radio Services Order, 60 FCC 2d at 551, we explained the reasons for the cutoff rule: X[W]hat is commonly called our "cutoff" rule originated in our need for an orderly  Y}-administrative procedure to control the disposition of our caseload.  See 47 U.S.C. 154(j). . . [T]o provide early consolidation of competing applications and to prevent processing disruption by late filings, we require an application for a frequency,  Y:-previously applied for, to be filed within a certain date. Competing applications filed after this date are considered to be "cutoff" from comparative consideration.(#  Y-(citations omitted). See also City of Angels Broadcasting, Inc. v. FCC, 745 F.2d 656, 663 (D.C. Cir. 1984) ("The cutoff rule basically serves two purposes. First, it advances the interest of administrative finality. . .. Second, it aids timely . . . applicants by granting them a 'protected status'. . . . ") (citations omitted). f The Commission initially authorized the filing of MDS applications on the E or F channels on  Y-one filing date, September 9, 1983. See MMDS Allocation Order, 94 FCC 2d at 126266;  Yx-Establishment of MultiChannel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746 (1983). Thereafter, no additional applications for new stations on the E or F channels were accepted for filing until April 20, 1988, pursuant to 47 C.F.R.  21.901(d)(4). Applications for the E or F channels which complied with specified restrictions could be filed  Y -between April 20, 1988 and April 9, 1992.  See  9 and 10, infra. and note 2, supra.  5. If an MMDS application is mutually exclusive with a 1983 authorized station or application, the applicable cutoff date is the oneday filing date designated for these" 0*((N "  Y-applications, September 9, 1983. Establishment of MultiChannel Systems, 48 Fed. Reg. at  Y-33,873, as corrected, 48 Fed. Reg. 34,746. If there is no mutually exclusive 1983 authorized station or application, but there is a mutually exclusive, post1983, authorized station or application, the applicable cutoff rule for the abovereferenced applications, all of which were filed after October 31, 1990, is  21.914, which provides that:    XNotwithstanding the provisions of  21.31(b)(2)(i) and (ii) of this part, to be entitled to be included in a random selection process or to comparative consideration with one or more conflicting applications, an [MDS] application . . . must be received by the Commission in a condition acceptable for filing on the same calendar day as the first of the conflicting applications is received by the Commission in a condition acceptable for filing.(#  Y - 47 C.F.R.  21.914.  = YR-ԍ Section 21.914, commonly referred to as the "same calendar day rule," was adopted in order to address the problems caused by the volume of MDS applications filed by speculators, which had resulted in delays in the licensing process and overburdened the  Y -Commission's limited resources. See 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 OperationalFixed Microwave Service, Multipoint Distribution Service, Multichannel Multipoint Distribution Service, Instructional Television Fixed Service, and  Y-Cable Television Relay Service, 5 FCC Rcd 6410, 6424 (1990) (hereinafter Wireless Cable  Y-Order); Order on Reconsideration, 6 FCC Rcd 6764, 677679 (1991) (hereinafter Wireless  Y-Cable Reconsideration Order), petition for review filed, United States Independent Microwave  Yt-Television Ass'n v. FCC, No. 911637 (D.C. Cir. filed Dec. 20, 1991) (held in abeyance by Court Order of February 21, 1992). Section 21.31(b) is the cutoff provision for MDS applications on the E or F channels filed between April 20, 1988 and October 31, 1990. Section 21.31(b) provides, in part, that in order to be entitled to comparative status: XThe application [must be] received by the Commission in a condition acceptable for filing by whichever "cutoff" date is earlier:(# X(i) Sixty (60) days after the date of the public notice listing the first of the conflicting applications as accepted for filing, or(# X(ii) One (1) business day preceding the day on which the Commission takes final action on the previously filed application (should the Commission act upon such application in the interval between thirty (30) and sixty (60) days after the date of its public notice).(# 47 C.F.R.  21.31(b)(2).   Y -6. Station Design Requirement. Section 21.902(b)(3) requires each MDS applicant to engineer its station to provide at least 45 dB of interference protection within the protected"[ 0*(("  Y-service areasp = Yy-ԍ Section 21.902(d) defines the protected service area for MDS stations.p of all other authorized or previously proposed cochannel stations. 47 C.F.R. 21.902(b)(3). Section 21.902(b)(4) similarly calls for each MDS applicant to engineer its station to provide at least 0 dB of interference protection within the protected service areas of  Y-all other authorized or previously proposed adjacent channel stations. 47 C.F.R.   21.902(b)(4). Cochannel harmful interference exists if a free space calculation of the ratio of desired signal to undesired signal is less than 45 dB. Adjacent channel harmful interference exists if a free space calculation of the ratio is less than 0 dB. 47 C.F.R. 21.902(f).  Y1-7. MDS Interference Studies. In order to demonstrate compliance with  21.902(b), and so that determinations could be made about mutualexclusivity, at the time these applications were filed,  21.902(c)(1) of the Commission's rules required that an MDS applicant include with the application an analysis of the potential for harmful cochannel interference with any authorized or previously proposed station, if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any other authorized or previously proposed cochannel station, or if the applicant's proposed transmitter was within 50 miles of the transmitter coordinates of any other authorized or previously proposed cochannel station. 47 C.F.R.  21.902(c)(1)(1991). In addition, 21.902(c)(2) of the Commission's rules required that an MDS applicant include with the application an analysis of the potential for harmful adjacent channel interference if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any other authorized or previously proposed adjacent channel  Y-station. 47 C.F.R.  21.902(c)(2)(1991); see 47 C.F.R.  21.902(a), (b), (d) and (f).  Section 21.901(d)(7) also requires that each MDS application for the E or F channels include a written statement of the techniques that would be employed at the proposed station to avoid interference with the operation of adjacent channel stations. The applicant must also show what steps the applicant has taken to comply with the requirements of  21.902(a), which requires each MDS applicant, licensee, and conditional licensee to make exceptional efforts to avoid harmful interference to others and to avoid blocking potential adjacent channel  Yg-stations in the same area and cochannel stations in nearby areas. 47 C.F.R. 21.901(d)(7). gy= Y-ԍ We emphasized in the MDS Technical Order that "[w]e do not intend to accept any new MDS applications that do not contain a detailed explanation of how the applicant has complied with this section [21.902(a)] and how it will comply in the future should the need  YN!-arise." #XRo=  x7.Q~XX##XR  P7jQ=9XP#98 FCC 2d at 91.  Y9-8. Service Requirement. In addition to submitting the required interference analyses to the Commission, an MDS applicant also must serve each required interference study upon the applicant, conditional licensee or licensee of each authorized or previously proposed station required to be studied, pursuant to  21.902(g) of the Commission's rules. 47 C.F.R. 21.902(g). The same rule requires that a list identifying each applicant, conditional" 0*(( " licensee and licensee served be submitted to the Commission at the time the application is  Y-filed.  Id.  Y-9. Location Restrictions. After the initial filing date of September 9, 1983, no filing period was designated until April 20, 1988. In accordance with  21.901(d)(4) of the Commission's rules, MDS applications for E or F channel stations could then be submitted  Yx-for filing commencing April 20, 1988, but only for locations which were: (1) farther than 50 miles from any proposed location of an MDS application pending on April 19, 1988, or an existing authorized facility, and (2) farther than 15 miles from the boundary of a statistical  Y5-area for which there was an MDS application pending as of April 19, 1988. Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution  Y -Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988) (hereinafter 1988 Public  Y -Notice). The 1988 Public Notice also advised potential applicants that all applications had to comply with the specified location restrictions, that grants of waivers of the location requirements were not anticipated, and that applications failing to meet these location  Y -restrictions would be dismissed as unacceptable for filing. Id. at 26612662. 10. The 1988 location restrictions were a natural outgrowth of a policy that had provided certain efficiencies in the processing of MDS applications for channels 1, 2, and 2A. In 1981, we noted: XAt the inception of the MDS service in 1974 . . . we . . . established the presumption that no harmful interference would occur if stations were greater than 50 miles apart. If a proposed station were to be located 50 miles or closer to an existing station then we required (and still require) that the applicant submit an engineering showing of the possible impact it would have on the other station. The 50 mile presumption was primarily a processing standard to assist the staff . . . . Our intention was to establish general standards which would permit authorization of operations to proceed in an expeditious manner.(#  YZ-R.L. Mohr, 85 FCC 2d at 604. See also Sioux Valley, 3 FCC Rcd at 7376. It was our experience prior to 1988 that there had been far fewer interference analyses submitted for authorized or previously proposed stations with transmitter sites beyond 50 miles of the subsequently proposed transmitter sites, but within the radio horizon and with an unobstructed electrical path, than for authorized or previously proposed stations within 50 miles. Without the need to review interference analyses for 1983 stations within 50 miles of the post1983 MMDS applications' transmitter sites, scarce engineering resources could be used instead to review interference analyses filed for modification applications, or to make necessary engineering determinations on 1983 applications.  Yv$-11. Summary. Thus, at the time the abovereferenced applications were filed, applicants for new MMDS stations were required to propose a location farther than 50 miles from the location of any authorized station or proposed station which was pending as of April 19, 1988, and farther than 15 miles from the boundary of a statistical area for which there"1' 0*((P(" was one or more pending MMDS applications on April 19, 1988. Applicants were permitted to file: (1) beyond 50 miles of a station proposed in an application pending on April 19,  Y-1988 or an existing authorized station, as long as the location was also farther than 15 miles from the boundary of a statistical area for which there was one or more MMDS applications pending on April 19, 1988; and (2) within 50 miles of a station proposed in an application filed after April 19, 1988. e III. PETITIONS FOR RECONSIDERATION 12. Identical or substantially similar petitions for reconsideration were filed for the 159 returned MMDS applications proposing six different transmitter sites. The petitioners contend that their applications fully complied with all pertinent Commission rules, or else presented facts which would compel the grant of any necessary waivers. In support, petitioners chiefly assert that the interference analyses submitted with their applications demonstrated that there was no realistic possibility of harmful interference to existing or proposed stations, and that to the extent the returned applications proposed locations that  Y-failed to comply with the location restrictions in the 1988 Public Notice, Commission precedent supports the grant of a waiver. Petitioners also argue that the staff incorrectly  Yd-applied the 1988 Public Notice location restrictions and other Commission rules, and  YO-provided insufficient detail in the letters returning the applications.  13. A description of the applications filed for each of these locations and the reasons for the staff's disposition of the applications follows. As discussed in detail below, we conclude that each application was defective because the applicant failed to submit and serve the required interference analyses for authorized and previously proposed MMDS stations. The applications were also properly returned as unacceptable for filing because they were filed within the geographic area of authorized or previously proposed MMDS stations, in  Y-violation of specific filing requirements set forth in the 1988 Public Notice, and presented no grounds justifying the grant of a waiver. Finally, these applications were mutually exclusive with an authorized station or previously filed application with an earlier cutoff date, and thus, not entitled to comparative consideration even if in a form acceptable for filing.  Y&-14. Lake View, Arkansas. On March 6, 1992, certain petitioners filed 10 MMDS  Y-applications proposing the same transmitter site at Lake View, Arkansas. = Y -ԍ Application File Nos. 02595CMP92; 02694CMP92; 02699CMP92; 02732CMP92; 02735CMP92; 02738CMP92; 02742CMP92; 02744CMP92; 02766CMP92; and 02791CMP92. After reviewing each of these Lake View applications, the Commission staff returned each application as defective and unacceptable for filing by return notification letter dated July 8, 1993. The letters indicated that the applications were returned because the applicants: (1) filed in an area not open for filing, in that the applicant filed in the geographic area of an authorized"! K 0*((""  Y-MMDS station or pending MMDS application, a= Yy-ԍ This language refers to the applicant's noncompliance with the location restrictions  Yb-contained in the 1988 Public Notice. When this language is included in a return letter, it means that the applicant: (1) selected an incorrect transmitter site; (2) filed on a date not designated by the Commission, in contravention of 21.901(d)(4); and, in most cases, (3) filed past the relevant cutoff date, in that the applicant selected a transmitter site which made the proposed station mutually exclusive with an authorized or previously proposed station, for which the cutoff date had past.  (2) failed to meet the requirements for performance of interference analysis as required by  21.902 due to failure to serve all affected parties with interference studies and/or failure to consider all authorized or previously proposed MMDS or ITFS stations; and (3) failed to comply with the Commission's requirements under 47 C.F.R. 21.19 for grant of a waiver, and, without a waiver, the applications were unacceptable for filing. Reconsideration petitions for the  Yv-returned applications were untimely filed on August 17, 1993 and August 23, 1993. v= Y-ԍ Reconsideration petitions for these 10 applications were filed on dates ranging from  Y-eight days to two weeks after the 30 ĩday deadline for the filing of such petitions. See  Y-Section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, 47 C.F.R. 1.4(b)(5) and 1.106(f). Four petitioners attached onesentence statements specifying the date on which they received their returned applications: Elisa How Mei Chung and John Lim (Application File Nos. 02735CMP92 and 02738CMP92, respectively) stated July 19, 1993; Bert Hassler (Application File No. 02742CMP92) stated "about 7/20/93;" and GCFNetshare Group (Application File No. 02699CMP92) stated "late in July." By their own admission, petitioners received the return letters before the deadline for filing for reconsideration. Petitioners submitted no further explanation for their tardiness. A reconsideration petition for Application File No. 02800CMP92 was also filed on September 15, 1993. Because this application is still pending, the petition will be dismissed as premature.  15. The applications proposed a transmitter site that was within 50 miles or the radio  Y1-horizon of 28 post1983 previously proposed MMDS stations, which had applications  Y -pending on March 6, 1992, the filing date of the Lake View applications.[ = Y[-ԍ These include, but are not limited to, Application File Nos. 55880CMP90 through 55886CMP90 for Clarksdale, Mississippi; two applications for Brinkley, Arkansas, Application File Nos. 57197CMP91 and 57198CMP91; and one application for Forrest City, Arkansas, Application File No. 53228CMP92.[ 16. The applications lacked interference studies, required by 21.902(b) and (c), for" 0*((m "  Y-22 previously proposed MMDS stations.= Yy-ԍ For example, the applicants failed to submit an interference study for a proposed station in Clarksdale, Mississippi, Application File No. 55142CMP91, which was placed on the FCC internal staff listing on January 24, 1992.  Furthermore, the interference studies that were submitted were inadequate in that the applicants used incorrect technical parameters for the  Y-reference receiving antenna gain. Thus, these Lake View applicants failed to demonstrate that the station proposed in the returned applications would not cause harmful interference to  Y-authorized or previously proposed stations.  See 21.902. In addition, the applicants failed to satisfy the requirements for service of interference studies stipulated by 21.902(g).  Yb- 17. The applications included requests for waiver of the 50 mile location restriction  YK-contained in the 1988 Public Notice.7KK= YG -ԍ While each application requested a waiver of the 50 mile location restriction contained  Y0-in the 1988 Public Notice, no such waiver was required for these Lake View applications, because there were no existing or pending 1983 stations within 50 miles on the filing date of  Y-the applications. Although the Commission staff was thus incorrect in finding the area of the proposed Lake View transmitter site not open for filing, it was harmless error nonetheless as these Lake View applications were deficient and unacceptable for filing for other reasons  Y-discussed herein. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C.  Y-Cir. 1970), cert. denied, 403 U.S. 923 (1971) (The court will not upset a decision because of errors that are not material, "there being room for the doctrine of harmless error.")  Y -18. McGehee, Arkansas   . On April 2, 1992, certain petitioners filed 50 MMDS  Y -applications proposing the same transmitter site at McGehee, Arkansas._ J = Y-ԍ Application File Nos. 03813CMP92; 03821CMP92; 03825CMP92; 03832CMP92; 03834CMP92 through 03840CMP92; 03842CMP92 through 03846CMP92; 03848CMP92 through 03853CMP92; 03855CMP92 through 03857CMP92; 03859CMP92 through 03862CMP92; 03864CMP92 through 03866CMP92; 03868CMP92 through 03873CMP92; 03875CMP92; 03876CMP92; 03880CMP92 through 03884CMP92; 03886CMP92; 03888CMP92; and 03895CMP92 through 03897CMP92. After reviewing each of the McGehee applications, the Commission staff returned each application as defective and unacceptable for filing by return notification letter dated March 17, 1993. The  Y -letters indicated that the applications were returned because the applicants: (1) filed past the  Y -cutoff period established in 21.31 or 21.914;1 q= Y#-ԍ Petitioners contend that their applications were filed before the cutoff date, which,  Y$-according to the petitioners, was April 2, 1992 . However, the cutoff date for the E channel was established by a mutually exclusive application filed on September 9, 1983, proposing a  Y&-transmitter site at Greenville, Mississippi. See Establishment of MultiChannel Systems, 48  Yt'-Fed. Reg. 34,746 ; see also  21.914.1 (2) filed in an area not open for filing, in" 0*((=" that the applicants filed in the geographic area of an authorized MMDS station or a pending MMDS application; (3) failed to meet the requirements for performance of interference analysis as required by  21.902 due to failure to serve all affected parties with interference studies and failure to consider all previously proposed or authorized MMDS or ITFS stations; and (4) failed to comply with the Commission's requirements under 21.19 for grant of a waiver, and without a waiver, the applications were unacceptable for filing.  Yv- Reconsideration petitions for 41 returned applications were timely filed on April 16, 1993. Reconsideration petitions for the nine other returned applications were untimely filed on  YH-April 27 and May 21, 1993.HxH= Y -ԍ Reconsideration petitions for Application File Nos. 03838CMP92 and 03843CMP92 were filed on April 27, 1993, 11 days after the 30day deadline for the filing of such petitions. Seven reconsideration petitions for Application File Nos. 03821CMP92; 03836CMP92; 03852CMP92; 03857CMP92; 03872CMP92; 03883CMP92; and 03895CMP92 were filed on May 21, 1993, five weeks after the 30day deadline for the filing of  YN-such petitions. See 47 U.S.C.  405, 47 C.F.R.  1.4(b)(5) and 1.106(f).H 19. The applications proposed a transmitter site that was within 50 miles or the radio  Y -horizon of : (1) one 1983 previously authorized MMDS station;v = Y-ԍ WMI276 at Greenville, Mississippi , Application File No. 08723CMP83.v and (2) 102 post1983  Y -previously proposed MMDS stations, which had applications pending on April 2, 1992 , the  Y -filing date of the McGehee applications.a = Y?-ԍ These include, but are not limited to, Application File Nos. 60552CMP91; 52087CMP91; 52179CMP91; and 55649CMP91 for Greenville, Mississippi; 60677CMP91 through 60732CMP91 for Hamburg, Arkansas; and 55175CMP91; 56783CMP91; 56806CMP91; and 55166CMP91 for Pine Bluff, Arkansas. a 20. The applications lacked interference studies, required by 21.902(b) and (c), for  Y-101 previously proposed MMDS stations.% = Yf-ԍ For example, the applicants failed to submit an interference study for a proposed station in Pine Bluff, Arkansas, Application File No. 55175CMP91, which was placed on public notice on November 12, 1991. The interference studies that were submitted were inadequate in that the applicants: (1) used incorrect methodology in calculating the protected service area of the authorized station; (2) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; (3) failed to engineer the station to provide at least 45 dB of cochannel interference protection pursuant to 21.902(b)(3), and 0 dB of adjacent channel interference protection pursuant to 21.902(b)(4); and (4) used incorrect technical parameters for the reference receiving antenna gain. Thus, these McGehee applicants failed to demonstrate that the station proposed in the returned applications would not cause harmful interference to authorized or  Y-previously proposed stations.  See 21.902. In addition, the applicants failed to satisfy the" 0*((" requirements for service of interference studies stipulated by 21.902(g).  Y-  Y- 21. The applications included requests for waiver of the 50 mile location restriction  Y-contained in the 1988 Public Notice.  Y-   Y-22. Wynne, Arkansas. On February 13, 1992, certain petitioners filed 45 MMDS  Yx-applications proposing the same transmitter site at Wynne, Arkansas.1x= Y-#XR  P7jQ=9XP#э Application File Nos. 01765CMP92; 01766CMP92; 01769CMP92; 01770CMP92; 01772CMP92 through 01774CMP92; 01776CMP92; 01779CMP92; 01781CMP92; 01782CMP92; 01784CMP92; 01786CMP92; 01790CMP92; 01792CMP92; 01795CMP92; 01797CMP92; 01799CMP92; 01800CMP92; 01802CMP92 through 01804CMP92; 01807CMP92; 01808CMP92; 01810CMP92; 01811CMP92; 01813CMP92; 01814CMP92; 01816CMP92; 01817CMP92; 01821CMP92; 01823CMP92 through 01825CMP92; 01827CMP92; 01829CMP92; 01830CMP92; 01832CMP92; 01834CMP92 through 01837CMP92; 01839CMP92; 01841CMP92; and 01845CMP92. After reviewing each Wynne application, the Commission staff returned the applications as defective and unacceptable for filing by return notification letter dated March 10, 1993. The letters  Y3-indicated that the applications were returned because the applicants: (1) filed in the  Y -geographic area of other authorized or pending MMDS applications;"N = Y-#XR  P7jQ=9XP#э One petitioner, Thomas McBurney, Jr. (Application File No. 01835CMP92), contends that his application established the cutoff date for this market. However, his application was mutually exclusive, pursuant to  21.31, with previously filed applications in Augusta, Brinkley, and Jonesboro, Arkansas; Memphis, Tennessee; and Jackson, Mississippi. Thus, contrary to petitioner's assertion, the cutoff date was established by  Y-these MMDS applications filed on September 9, 1983. See MMDS Allocation Order, 94  Y-FCC 2d at 126266; Establishment of MultiChannel Systems, 48 Fed. Reg. 33,873, as  Y-corrected, 48 Fed. Reg. 34,746 (1983). " (2) failed to meet the requirements for performance of interference analysis as required by 21.902 due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MMDS or ITFS stations; and (3) failed to comply with the Commission's requirements under  21.19 for grant of a waiver, and without a waiver, the applications were unacceptable for filing. Reconsideration petitions for the returned applications were untimely filed on April 12, 1993, April 16, 1993, April 27, 1993, May 11,  Y{-1993, and May 21, 1993.=xH{= Y#-ԍ All of the reconsideration petitions were untimely filed, with filing dates ranging from  Y#-three days to six weeks after the 30day deadline for the filing of such petitions. See 47 U.S.C.  405, 47 C.F.R.  1.4(b)(5) and 1.106(f). Two petitioners, Robert A. Schaeffer and PfautzWay Partnership (Application File Nos. 01807CMP92 and 01836CMP92), indicated in their petitions that their addresses had changed. Specifically, petitioner Schaeffer submitted a handwritten note, dated March 30, 1993, with his reconsideration"'0*(('" petition, which was filed on April 12, 1993, stating that he did not receive the March 10, 1993, return notification letter until March 20, 1993, due to the delay incurred in having his mail forwarded to his new address. Petitioner PfautzWay Partnership stated in its petition that it did not receive the March 10, 1993, return notification letter until around March 22, 1993. By their own admission, both received the March 10 return letter at least two weeks before the expiration of the 30day filing period. In addition, neither petitioner informed the Commission of their change of address, as required by47 C.F.R. 1.5(b), prior to submitting the petitions for reconsideration. = "{0*(("Ԍ23. The applications proposed a transmitter site that was within 50 miles or the radio  Y-horizon of : ( 1) one 1983 subsequently authorized MMDS station;k= Yr -ԍ WHT728 at Memphis, Tennessee, Application File No. 08568CMP83.k (2) 11 1983 previously proposed MMDS stations, which had applications pending on February 13, 1992, the filing  Y-date of the Wynne applications; = Y-ԍ These include, but are not limited to, Application File Nos. 08736CMP83 for Jackson, Mississippi; 00014CMP83; 05914CMP83; 12886CM83; and 16655CMP83  Y-for Memphis, Tennessee.  and (3) 29 post1983 previously proposed MMDS stations,  Y-which had applications pending on February 13, 1992 . = Yb-ԍ These include, but are not limited to, Application File Nos. 61730CMP91; 61733CMP91; 62641CMP91; and 62642CMP91 for Augusta, Arkansas; 57197CMP91; and 57198CMP91 for Brinkley, Arkansas; and 55872CMP91; 55873CMP91; 55880CMP91 through 55883CMP91; 55888CMP91 through 55893CMP91; and 55898CMP91 through 55902CMP91 for Jonesboro, Arkansas.  24. The applications lacked interference studies, required by 21.902(b) and (c), for  Y`-40 previously proposed MMDS stations.`a= Yr-ԍ For example, the applicants failed to submit an interference study for a proposed station in Memphis, Tennessee, Application File No. 12886CMP83, placed on public notice on November 12, 1985. The interference studies that were submitted  YI-were inadequate in that the applicants: (1) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; and (2) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. Thus, these Wynne applicants failed to demonstrate that the station proposed in the returned applications would not cause harmful interference to authorized or previously  Y -proposed stations. See  21.902. In addition, the applicants failed to satisfy the requirements for service of interference studies stipulated by  21.902(g).  Y - 25. The applications included requests for waiver of the 50 mile location restriction  Y|-contained in the 1988 Public Notice. "g0*(("Ԍ Y-26. Rehoboth Beach, Delaware. On January 10, 1992, certain petitioners filed 52  Y-MMDS applications proposing the same transmitter site at Rehoboth Beach, Delaware./ = Yb-ԍ Application File Nos. 00536CMP92; 00538CMP92; 00539CMP92; 00542CMP92; 00544CMP92; 00545CMP92; 00547CMP92; 00549CMP92; 00556CMP92; 00559CMP92 through 00561CMP92; 00565CMP92; 00573CMP92; 00578CMP92; 00581CMP92; 00582CMP92; 00584CMP92; 00585CMP92; 00588CMP92; 00590CMP92; 00596CMP92; 00599CMP92; 00602CMP92; 00603CMP92; 00604CMP92; 00605CMP92; 00606CMP92; 00608CMP92; 00612CMP92; 00613CMP92; 00616CMP92; 00618CMP92; 00622CMP92; 00623CMP92; 00625CMP92; 00628CMP92; 00630CMP92; 00632CMP92 through 00634CMP92; 00636CMP92 through 00638CMP92; 00643CMP92; 00644CMP92; 00646CMP92; 00648CMP92; 00649CMP92; and 00651CMP92 through 00653CMP92./ After reviewing the Rehoboth Beach applications, the Commission staff returned each application as defective and unacceptable for filing by return notification letter dated March 3, 1993. The letters indicated that the applications were returned because the applicants: (1) filed in the geographic area of other authorized or pending MMDS applications; (2) failed to meet the requirements for performance of interference analysis required by  21.902 due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MMDS or ITFS stations; and (3) failed to comply with the Commission's requirements under  21.19 for a grant of a waiver, and without a waiver, the applications were unacceptable for filing. Reconsideration petitions for the returned  Y -applications were untimely filed on April 16, 1993.  = Y^-ԍ The reconsideration petitions were filed 13 days after the 30day deadline for the  YG-filing of such petitions. See 47 U.S.C.  405, 47 C.F.R.  1.4(b)(5) and 1.106(f). 27. The applications propose a transmitter site that is within 50 miles or the radio  Y -horizon of: (1) one 1983 previously authorized MMDS station;N! F = Y-ԍ WMH320 at Ocean City, Maryland, Application File No. 14776CMP83. While WMH320 was subsequently cancelled on January 17, 1992, at the time these applications were filed, the applicants were required to include interference analyses of this station as required by  21.902(b) and (c). N (2) two 1983 subsequently  Y -authorized MMDS stations;" = Y !-ԍ WHM345 at Salisbury, Maryland, Application File No. 10008CMP83; and WMI894 in Cambridge, Maryland, Application File No. 09901CMP83. While WHM345 was subsequently forfeited on February 19, 1993, and WMI894 was subsequently forfeited on July 15, 1993, at the time these applications were filed, the applicants were required to include interference analyses of these stations as required by  21.902(b) and (c).  (3) 11 1983 proposed MMDS stations, which had applications" "0*((="  Y-pending on January 10, 1992, the filing date of the Rehoboth Beach applications;#v= Yy-ԍ These include six applications for Baltimore, Maryland, Application File Nos. 03772CMP83; 04106CMP83; 04107CMP83; 04111CMP83; 05597CMP83; and 07558CMP83; three applications for Salisbury, Maryland, 02293CMP83; 03773CMP83; and 16032CMP83; one application for Atlantic City, New Jersey, Application File No. 11120CMP83; and one application for Cambridge, Maryland, Application File No. 13721CMP83.  and (4)  Y-256 post1983 proposed MMDS stations with applications pending on January 10, 1992.$= Y -ԍ These include, but are not limited to, Application File Nos. 51158CMP91 through 51162CMP92 for Salisbury, Maryland; and 57430CMP90 and 57405CMP90 for Dover, Delaware. 28. The applications lacked interference studies, required by  21.902(b) and (c), for  Y-one subsequently authorized station and for 190 previously proposed MMDS stations.% = Y-ԍ For example, the applicants failed to submit an interference study for a proposed station in Baltimore, Maryland, Application File No. 03772CMP83, placed on public notice on September 24, 1985. The interference studies that were submitted were inadequate in that the applicants used incorrect technical parameters for the transmitting antenna gain. Thus, these Rehoboth Beach applicants failed to demonstrate that the station proposed in the returned applications would  YH-not cause harmful interference to authorized or previously proposed stations. See  21.902. In addition, the applicants failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). 29. Notwithstanding checking "No" in response to question 19 of the application form, which asks whether a waiver is required for grant of the application, the applicants  Y -requested a waiver of the 1988 Public Notice at Exhibit E to the application.  Y-30. Pendleton, Oregon . On September 27, 1991, one petitioner filed an MMDS  Y}-application proposing a transmitter site at Pendleton, Oregon.O&} = Y:-ԍ Application File No. 62422CMP91. O After reviewing this Pendleton application, the Commission staff returned the application as defective and unacceptable for filing by return notification letter dated September 17, 1992. The letter indicated that the application was returned because the applicant: (1) filed in the geographic area of other authorized or pending MMDS applications; and (2) failed to comply with the Commission's requirements under  21.19 for a grant of a waiver, and without a waiver, the application was unacceptable for filing. A reconsideration petition for the returned"&0*(("  Y-application was untimely filed on May 21, 1993..'= Yy-ԍ The reconsideration petition for Application File No. 62422CMP91 was filed more  Yb-than seven months after the 30day deadline for the filing of such petitions. See 47 U.S.C.  405, 47 C.F.R.  1.4(b)(5) and 1.106(f). . 31. The application proposed a transmitter site that is within 50 miles or the radio  Y-horizon of : (1) one 1983 subsequently authorized MMDS station;k(M= Y-ԍ WML477, Richland, Washington, Application File No. 10895CMP83.k (2) 10 1983 previously proposed MMDS stations, which had applications pending on September 27, 1991, the filing  Y-date of this Pendleton application;)= Y< -ԍ These are Application File Nos. 04548CMP83; 07130CMP83; 11695CMP83; 13589CMP83; 15710CMP83; 01651CMP83; 10594CMP83; 14027CMP83; 00567CMP83; and 04147CMP83 for Richland, Washington. and (3) 164 post1983 previously proposed MMDS  Yv-stations, which had applications pending on September 27, 1991.f*v = Y-ԍ These include, but are not limited to, 81 Pendleton, Oregon applications, Application File Nos. 62268CMP91 through 62371CMP91; two applications for Walla Walla, Washington, Application File Nos. 59414CMP91 and 59415CMP91; and one application for Richland, Washington, Application File No. 57569CMP91. f 32. The application lacked interference studies, required by 21.902(b) and (c), for  Y1-83 previously proposed MMDS stations. +1 = Y-ԍ For example, the applicant failed to submit an interference study for a proposed station in Walla Walla, Washington, Application File No. 59414CMP91, which appeared on the FCC internal staff listing on August 27, 1991.  The interference studies that were submitted were inadequate in that the applicant: (1) used incorrect methodology in calculating the protected service area of previously proposed stations; (2) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; (3) failed to engineer the station to provide 45 dB of cochannel interference protection pursuant to 21.902(b)(3) and/or 0 dB of adjacent channel interference protection pursuant to 21.902(b)(4); (4) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain; and (5) used incorrect antenna specifications. Thus, this Pendleton applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or previously proposed  YK-stations.  See 21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by 21.902(g). 33. The application included a request for waiver of the 50 mile location restriction  Y-contained in the 1988 Public Notice. "p+0*(("Ԍ Y-34. Ridgeway, Pennsylvania. On December 6, 1991, one petitioner filed an MMDS  Y-application proposing a transmitter site at Ridgeway, Pennsylvania.M,= Yb-ԍ Application File No. 52279CMP92.M After reviewing the Ridgeway application, the Commission staff returned the application as defective and unacceptable for filing by return notification letter mailed January 29, 1993. The letter indicated that the application was returned because the applicant filed in the geographic area of other authorized or pending MMDS applications. A reconsideration petition for the  Yv-returned application was untimely filed on May 24, 1993.-vy= Y -ԍ The reconsideration petition was filed more than two months after the 30day  Y -deadline for the filing of such petitions. See 47 U.S.C. 405, 47 C.F.R.  1.4(b)(5) and 1.106(f). 35. The application proposed a transmitter site that is within 50 miles or the radio  Y1-horizon of: (1) one 1983 subsequently authorized MMDS station;t.1= Y-ԍ WMI366 at State College, Pennsylvania, Application File No. 06723CMP83.t (2) one 1983 previously proposed MMDS station, which had an application pending on December 6, 1991, the filing  Y -date of the Ridgeway application;m/ = Yc-ԍ Application File No. 01664CMP83 for State College, Pennsylvania.m and (3) 13 post1983 previously proposed MMDS  Y -stations, which had applications pending on December 6, 1991.0 ` = Y-ԍ These include 13 applications for Clarion, Pennsylvania, Application File Nos. 52193CMP92; 52194CMP92; and 51304CMP92 through 51314CMP92. 36. The application lacked interference studies, required by  21.902(b) and (c), for  Y -one subsequently authorized and 14 previously proposed MMDS stations.1 = YR-ԍ For example, the applicant failed to submit an interference study for a proposed station in State College, Pennsylvania, Application File No. 01664CMP83, which was placed on public notice on March 28, 1990. Thus, the Ridgeway applicant failed to demonstrate that the station proposed in the returned application  Yy-would not cause harmful interference to authorized or previously proposed stations. See 21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by  21.902(g).  Y-37. No waiver request was included in the Ridgeway application. xx- X  Y-  8IV. DISCUSSION   Y- 38. Untimely Petitions for Reconsideration. As a preliminary matter, we note that"}10*(("  Y-118 of the 159 petitions for reconsideration were untimely filed.-2= Yy-ԍ Untimely petitions for reconsideration were filed for Application File Nos. 00536CMP92; 00538CMP92; 00539CMP92; 00542CMP92; 00544CMP92; 00545CMP92; 00547CMP92; 00549CMP92; 00556CMP92; 00559CMP92 through 00561CMP92; 00565CMP92; 00573CMP92; 00578CMP92; 00581CMP92; 00582CMP92; 00584CMP92; 00585CMP92; 00588CMP92; 00590CMP92; 00596CMP92; 00599CMP92; 00602CMP92; 00603CMP92; 00604CMP92; 00605CMP92; 00606CMP92; 00608CMP92; 00612CMP92; 00613CMP92; 00616CMP92; 00618CMP92; 00622CMP92; 00623CMP92; 00625CMP92; 00628CMP92; 00630CMP92; 00632CMP92 through 00634CMP92; 00636CMP92 through 00638CMP92; 00643CMP92; 00644CMP92; 00646CMP92; 00648CMP92; 00649CMP92; 00651CMP92 through 00653CMP92; 01765CMP92; 01766CMP92; 01769CMP92; 01770CMP92; 01772CMP92 through 01774CMP92; 01776CMP92; 01779CMP92; 01781CMP92; 01782CMP92; 01784CMP92; 01786CMP92; 01790CMP92; 01792CMP92; 01795CMP92; 01797CMP92; 01799CMP92; 01800CMP92; 01802CMP92 through 01804CMP92; 01807CMP92; 01808CMP92; 01810CMP92; 01811CMP92; 01813CMP92; 01814CMP92; 01816CMP92; 01817CMP92; 01821CMP92; 01823CMP92 through 01825CMP92; 01827CMP92; 01829CMP92; 01830CMP92; 01832CMP92; 01834CMP92 through 01837CMP92; 01839CMP92; 01841CMP92; 01845CMP92; 02595CMP92; 02694CMP92; 02699CMP92; 02732CMP92; 02735CMP92; 02738CMP92; 02742CMP92; 02744CMP92; 02766CMP92; 02791CMP92; 03821CMP92; 03836CMP92;  Y-03838CMP92; 03843CMP92; 03852CMP92; 03857CMP92; 03872CMP92; 03883CMP92; 03895CMP92; 52279CMP92 and 62422CMP92.- Section 405 of the Communications Act requires that petitions for reconsideration "must be filed within thirty days from the date upon which public notice is given of the order, decision, report, or action  Y-complained of."3= Y-ԍ Section 1.106(f) of the Commission's rules, 47 C.F.R.  1.106(f), which implements this statutory mandate, establishes that a petition for reconsideration must be filed within 30 days from the date of the return notification letter, or the date of public notice of the return action, if any, as those dates are defined in  1.4(b) of the Commission's rules, 47 C.F.R. 1.4.  Because the time period for filing petitions for reconsideration is prescribed by statute, the Commission may not ordinarily waive or extend the filing period.  Y-Reuters Limited v. FCC, 781 F.2d 946, 952 (D.C. Cir. 1986) ("[W]e conclude that the Commission acted beyond its lawful authority when it entertained the belated petition for  Ya-reconsideration."); Metromedia, Inc., 56 FCC 2d 909 (1975) (Commission may not waive  YL-30day filing period to accept a petition for reconsideration filed one day late ), recon.  Y7-denied, 59 FCC 2d 189 (1976). Here, the untimely petitions were filed between three days"730*(("  Y-and seven months late. Only six petitioners offered any justification for their late filing.4 = Yy-ԍ The Court of Appeals for the D.C. Circuit, in Gardner v. FCC, 530 F.2d 1086 (D.C. Cir. 1976), created a narrow exception to the rule prohibiting acceptance of untimely filings by holding that the Commission may extend or waive the 30day filing period in the "extraordinary case" where the latefiling is due to the Commission's failure to give a party  Y-timely notice of the action for which reconsideration is sought. Under the holding of  Y-Gardner:   XA petitioner has a burden to show (a) when and how he received notice in fact, (b) that the time remaining was inadequate to allow him reasonably to meet the 30day requirement (from date of issuance) of  405, and (c) that he moved for reconsideration promptly on receiving actual notice.(#  Yi -Gardner, 530 F.2d at 109192, n.24.  Due to these applicants' failure to comply with 47 U.S.C.  405, or to meet the burden  Y-imposed by Gardner to justify acceptance of their latefiled petitions for reconsideration,r5k = Y-ԍ Four Lake View, Arkansas petitioners allege that they received their returned  Y-applications from 10 to 12 days after the date of the return letter, see note 14, supra, but no certification or proof to support the allegation is provided. Moreover, none of these four petitioners argues that this was an unreasonable period of time for mail delivery or claims that the receipt of their return letter more than one week prior to the 30day deadline affected their ability to file a timely petition. Two Wynne, Arkansas petitioners contend that a tenday and twelveday period for mail delivery was attributable to the post office's forwarding  YO-of mail to a new address. See note 26, supra. Neither petitioner informed the Commission of their change of address, as required by  1.5(b), prior to submitting their petition for reconsideration. The Commission previously has refused to excuse the untimely filing of petitions attributable to delays experienced in the course of forwarding mail or because of a change of address. "[T]he final day for the filing of a petition for reconsideration . . . [is]  Y-30 days from the date of the Bureau's letter and not from the date of the receipt of the letter. A more lenient test would expose all parties concerned to the vagaries of mail deliveries and  Y-contentions of nondelivery." Public Communicators, Inc., 34 RR 2d 715, 719 (1975). See  Y-Dan J. McLean, 9 FCC Rcd 1902 (Field Oper. Bur. 1994);  Cheyenne Corp., 8 FCC Rcd  Y-7049 (Dom. Fac. Div. 1993); MultiPoint Television Distributors, Inc., 5 FCC Rcd 519  Ys -(Comm. Car. Bur. 1990); and Fortuna Systems Corp., 3 FCC Rcd 5122, 5123 (Comm. Car. Bur. 1988) (substantial delay in forwarding mail insufficient justification for reconsideration and reinstatement). Consequently, these six untimely petitioners do not meet the stringent  Y0#-burden placed on a late petitioner by Gardner. r  Y-these untimely petitions for reconsideration will be dismissed. We note, however, that even if we were to consider the merits of the arguments raised in the untimely petitions for reconsideration, we would still deny these 118 petitions for the reasons discussed below."I"50*(("Ԍ Y-ԙ39. Mutual Exclusivity and Cutoff. Based on our review of the returned applications and publicly available information regarding authorized MMDS stations and pending applications, we conclude that the petitioned applications were mutually exclusive with and cutoff by authorized stations or previously filed applications. MDS applications are presumed to be mutually exclusive pursuant to 21.31(a) if filed: (1) within 50 miles of  Y-an authorized or previously proposed MMDS station,g6= Y-ԍ  MDS Allocation Order, 45 FCC 2d at 620621.g (2) within the radio horizon, with an unobstructed electrical path, of the protected service area of an authorized or previously  Y_-proposed MDS station,X7_{= Y -ԍ MDS Technical Order, 98 FCC 2d at 8991.X or (3) within the MSA or its 15mile buffer zone of an authorized  YH-or previously proposed MDS station.\8H.= Y' -ԍ MMDS Allocation Order, 94 FCC 2d at 126264.\ Each of the abovereferenced applications proposed a transmitter site making the proposed stations mutually exclusive with and cutoff by  Y -authorized or previously proposed MDS stations, pursuant to 21.31 or 21.914. See  3 Y -5, supra. Specifically, each of the returned applications is mutually exclusive with a 1983 authorized or previously proposed station for which the cutoff date was September 9,  Y -1983.E9x = Yk-ԍ All of these applications, except the ten Lake View, Arkansas applications, were mutually exclusive with and cutoff by 1983 authorized or previously proposed stations within 50 miles of their proposed site. The Lake View, Arkansas applications were mutually exclusive with and cutoff by 1983 authorized and previously proposed stations pursuant to 21.31(c), which provides that applications may be cutoff by applications with which they  Y-are not directly mutuallyexclusive. See note 4, supra.  E Thus, the abovereferenced applications were properly returned as unacceptable for filing pursuant to 21.31(d), which states: X An application otherwise mutually exclusive with one [or] more previously filed applications, but filed after the appropriate date prescribed in paragraph (b)(2) of this section, will be returned without prejudice and will be eligible for refiling only after final action is taken by the Commission with respect to the previously filed application (or applications).(# 47 C.F.R.  21.31(d). 40. Some petitioners contend that their applications establish the cutoff date for the service area involved. In all such cases, we have established that earlier filed MMDS  Y-applications established the applicable cutoff dates.R:! = Y%-ԍ See notes 19 and 25, supra. R We reject the contention of these petitioners that because the application they filed listed a specified service area and was filed on the same date as all other applications that listed the same service area, their application" :0*((" could not have been filed past the cutoff period established in  21.31 or 21.914.  Y-Whether an MDS application is cutoff is not determined solely by the date of filing visavis applications specifying the same transmitter site and listing the same service area, but also by: (1) whether, pursuant to  21.31, granting the application would result in harmful interference to any previously proposed or authorized station for which the cutoff date is past; or (2) whether, pursuant to  21.901(d)(5), the application proposes a transmitter site that is within or within 15 miles of the borders of an MSA, which has a previously proposed  Ya-or authorized station for which the cutoff date is past. See  35, supra. As previously explained, the abovereferenced applications were cutoff by mutually exclusive, authorized or previously proposed stations which, although they specified service areas different than the service areas specified by the returned applications, would have received harmful interference from the stations proposed in the returned applications. Thus, the abovereferenced MDS applications were properly returned by the Commission because they were mutually exclusive with authorized or previously proposed MDS stations.  Y -41. Interference Protection. We also find that the abovereferenced applications were properly returned for failure to comply with our interference protection requirements. At the very inception of MDS, the Commission established that subsequently filed applications must not cause harmful interference to any authorized or previously proposed MDS station. "Of course, the applicant for the second channel sought will be expected to demonstrate that his system is designed so that significant interference will not occur with respect to the first  Y!-MDS channel. . . ." MDS Allocation Order, 45 FCC 2d at 621. Almost ten years before any of these petitioners filed the abovereferenced applications, the Commission explained its emphasis on this requirement for MDS applications: XIt is possible for cochannel interference generated by one MDS station to cause unacceptable distortion of another station's signal from as far away as 50 miles. Section 21.90[2](c) of our Rules therefore requires an MDS application to include an interference study containing an analysis of the potential for harmful interference with other MDS stations located within a 50 mile radius of the proposed station.(#  Y=-R.L. Mohr, 85 FCC 2d at 606.F;== Y-ԍ In 1984, the distance was extended to the radio horizon with an unobstructed electrical path from the applicant's proposed MDS station to the protected service area of the  Y -authorized or previously proposed station. MDS Technical Order, 98 FCC 2d at 8991. F It has also been recognized that "the demonstration of interference protection, at the time of filing, aids the Commission in the public interest determination that an applicant is technically qualified to be an MDS/MMDS licensee."  Y-Family Entertainment Network, Inc., 9 FCC Rcd 566, 56768, n.10 (Dom. Fac. Div. 1994).  Y-Thus,  21.902(b) sets certain threshold interference protection levels,< M= Y%-ԍ MDS applicants consistently have been required to comply with  21.902(b). In the  Y&-Family Entertainment case, the Domestic Facilities Division returned as unacceptable for"&;0*((&" filing an application which demonstrated that the level of interference was within 0.16 dB of meeting the 45 dB cochannel standard. In so doing, the Division stated: X[W]e reject FEN's claim that its applications should be granted because the level of  Y4-interference . . . is de minimis. Section 21.902(b)(3) requires that an applicant demonstrate 45 dB of cochannel interference protection. In this rule provision, no reference is made to qualifying terms, degrees or levels, other than 45 dB at which  Y-interference would be deemed acceptable. (#  Y -9 FCC Rcd at 568 (footnote omitted).  see  6, supra, and" <0*(( " requires all MDS applicants to demonstrate that protection in interference studies submitted with the applications. 42. Each of petitioners' applications failed to include the required analyses to demonstrate a lack of harmful interference to authorized and previously proposed MDS stations on the E or F channels. These interference analyses are a significant requirement because the Commission, in reallocating the E and F channels from Instructional Television Fixed Service ("ITFS") to MDS, did so with the understanding that certain adjacent channel interference problems might arise. The Commission also anticipated that some authorized cochannel stations would be spaced more closely than ordinarily allowed and require careful  Y -planning and engineering. MMDS Allocation Order, 94 FCC 2d at 1264. Thus, the Commission stressed that "we expect applicants to address this problem in their applications.  W -Those applications that do not contain an analysis of how the applicant intends to avoid  Y -cochannel interference in adjacent areas will not be considered acceptable for filing." Id.  Y -(emphasis in original). See also  21.902(b) and (c). Consequently, there has been a series of cases emphasizing that analysis of the potential for harmful interference is an essential  Y-technical showing in MDS applications for the E or F channels.=  = Y-ԍ See, e.g., New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985) ("In our view, an MDS application which does not contain the important and essential technical showing required by  21.902(c) cannot be characterized as complete, or in substantial compliance with Commission rules and regulations, as required by the criteria for  Y-acceptability outlined in rule  21.20(a)."); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994) ("Section 21.902(c)(2) requires that an applicant initially file with the application an analysis of the potential for harmful interference with any authorized or previously proposed adjacent channel stations within the radio horizon of the applicant's proposed transmitting antenna. . . . [B]ased upon CNI's failure to comply with Section 21.902, the Division's finding, that CNI's application was defective and unacceptable for  Y$-filing, was proper."); G.C. Cooper, 8 FCC Rcd 7007, n.9 (Dom. Fac. Div. 1993) ("[T]he standard for evaluating applications under Part 21 of the rules is not 'substantial completeness' but rather 'acceptability for filing'. . . . Cooper's application was properly returned as unacceptable for filing . . . for failure to include the technical showing required "&<0*((2'"  Y-. . . . "); Marylan J. Benson, 7 FCC Rcd 4668 (Dom. Fac. Div. 1992) ("This interference protection showing is a significant requirement . . . .") "d=0*(("Ԍ Y-ԙ43. "[T]he filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an  Y-application." Family Entertainment, 9 FCC Rcd at 567. Because the petitioners here failed to make the required showings regarding interference protection, their applications cannot be  Y-characterized as complete or in substantial compliance with the Commission's rules.  "In the processing of MDS station applications, the interference analyses required by 47 C.F.R. Sec.  Yx-21.902 are crucial." Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). All of the applicants failed to file interference studies for authorized or previously proposed MDS stations which should have been studied. 44. Where interference analyses were submitted, the petitioners' applications failed to comply with the requirements of Section 21.902 in various respects. The interference studies that were submitted were inadequate in that the applicant: (1) used incorrect methodology in calculating the protected service area of previously proposed stations; (2) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles pursuant to  21.902(d); (3) failed to engineer the station to provide 45 dB of cochannel interference protection pursuant to 21.902(b)(3) and/or 0 dB of adjacent channel interference protection pursuant to 21.902(b)(4); (4) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain; and/or  YO-(5) used incorrect antenna specifications.  See Revision of Part 21 of The Commission's  Y:-Rules, 2 FCC Rcd 5713, 5716 (1987) ("Coordination of MDS . . . systems . . . relies on  Y%-accurate data about the interference environment.") See also MDS Technical Order, 98 FCC 2d at 93 ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference as  Y-described herein will not be accepted for filing.") Thus, these applications were properly  Y-returned as unacceptable for filing.  45. We reject petitioners' claims that they were not required to perform interference analyses for applications which had not appeared on public notice as accepted for filing on the dates the 159 petitioned applications were filed. Section 21.902(c) requires an MDS applicant to file interference studies for authorized or previously proposed cochannel and adjacent channel stations. The rules do not excuse applicants from submitting interference studies unless or until the previously proposed applications have been placed on public  Y-notice. MDS applicants must consider all previously proposed, pending applications before  Y-filing their applications. See CNI Wireless, 9 FCC Rcd at 2040; Edna Cornaggia, 8 FCC Rcd 5442, 5443 (Dom. Fac. Div. 1993). Petitioners also argue that they were unable to perform interference analyses for applications which had not been listed in the FCC staff internal listing of active applications, which they characterize as the "FCC internal inventory." We note that petitioners fail to present any specific allegations regarding which FCC staff internal listing they reviewed and which applications it was not possible to"#d=0*(($"  Y-identify. See Jim Bolton, 2 FCC Rcd 3207 (Comm. Car. Bur. 1987) ("Bolton's engineering statement has no probative value. It is merely a bald conclusion, unsupported by any offer  Y-of proof or factual documentation."). In addition, in a de novo review at the time of reconsideration, we have determined that each of these petitioners failed to file required interference studies for authorized or previously proposed stations which had appeared on public notice or in the FCC staff internal listing prior to the filing date of petitioners'  Yz-applications. See notes 16, 23, 30, 37, 43 and 49, supra. Thus, we reject petitioners' claim that their failure to file interference studies was somehow caused by the Commission's policies regarding listing of applications filed. ` ` 46. We also disagree with petitioners' assertion that the staff should have provided, when the applications were returned, a list of applications which had not been "released to the public" at the time of filing of petitioners' applications for petitioners to use in their reconsideration petitions. Each MDS applicant had the burden of considering, prior to the filing of an application, each cochannel and adjacent channel station within 50 miles or within the radio horizon with an unobstructed electrical path in order to fulfill the mandates  Y-of  21.902. (See, e.g., 21.902(a), (b), (c), (d), (f), (i), (j), and (k).) As stated supra at 45, each of these petitioners failed to file interference studies for applications which had appeared on public notice or on the FCC staff internal inventory at the time they submitted their applications and, which were, thus, publicly available. Given that the requirement to identify authorized and previously proposed stations must be fulfilled prior to the filing of the application, the petitioners can claim no disadvantage based on the Commission's failure to specify those stations in the return notification letter. Moreover, as the Court of Appeals  Y-recognized in Columbia Communications Corp. v. FCC, "the Commission staff must process annually thousands of applications. It cannot be expected to do research for applicants. . . . If the Commission staff were required to assume such a burden, little or nothing would be  Y-accomplished." 832 F.2d 189, 192 (D.C. Cir. 1987) (quoting Rio Grande Family Fellowship  Y-v. FCC, 406 F.2d 664, 666 (D.C. Cir. 1968) (per curiam)). 47. In addition, petitioners' assertions that they will make every effort to avoid harmful interference to other stations and cooperate with them in good faith should any interference occur does not excuse their failure to submit interference studies as required by 21.902. The mandate that applicants submit interference analyses with their applications is a separate requirement from the good faith commandment of 21.902(a), which mandates that "[a]ll [MDS] applicants, permittees, and licensees shall make exceptional efforts to avoid harmful interference . . . . [and] are expected to cooperate fully in attempting to resolve  Y -problems of potential interference . . . ." See also 21.31. A pledge to comply with the requirements of Section 21.902(a) does not exempt any MDS applicant from compliance with  Y"-the requirements of Sections 21.901(d)(7) or 21.902(c). See, e.g., G.C. Cooper, 8 FCC Rcd at 7008 ("An applicant's general statement that he would use 'all legitimate engineering  Yz$-techniques' does not constitute the kind of showing discussed in the MMDS Allocation Order  Ye%-and required under 47 C.F.R. 21.901(d)(7).") We are not persuaded by petitioners' "pledg[e] to cease operations, if necessary, should interference be detected." As described at  Y7'-Section II, supra, the interference analyses are necessary at the beginning of processing a"7'=0*((P(" particular MDS application so that mutual exclusivity determinations may be made. This is not a step which can be skipped, as implied by these petitioners. In addition, Part 21 of the rules is structured so that applicants must demonstrate a lack of harmful interference as a  Y-prerequisite to the grant of a license. Based upon these considerations, we conclude that petitioners failed to comply with the technical requirements set forth in  21.902 regarding interference protection and failed to demonstrate that they are technically qualified to be MDS licensees as required by  21.900. Thus, these applications were properly returned as  Y_-unacceptable for filing. New Channels, 57 RR 2d at 1602; CNI Wireless, 9 FCC Rcd at 2040.  Y -48. Notice to Affected Parties. Each applicant failed to serve copies of required interference analyses, as mandated by  21.902(g), on all applicants, conditional licensees and licensees for stations stipulated to be studied by  21.902(c), thus depriving affected  Y -parties of notice and an opportunity to be heard. In Edna Cornaggia, the return of a modification application was upheld for failure to comply with 21.902(g):   XThe Commission makes provision for actual notice and an opportunity to be heard by parties in interest by requiring at Section 21.902(g) that microwave stations that might be affected by operation of an MDS station be served a copy of the required interference analysis for their station. Cornaggia admittedly failed to properly serve VisionAire with a copy of the interference analysis . . . . Due to this lack of service, the orderly process contemplated in the Commission's rulemaking order, in which the Commission staff resolves interference problems after oppositions are filed, was negated.(# 8 FCC Rcd at 5444. Thus, these applications were properly returned for failure to meet the requirements of 21.902(g).  Y-49. Location Restrictions. The 1988 Public Notice allowed the filing of MDS  Yk-applications for the E or F channels commencing April 20, 1988, but only for locations that were: (1) farther than 50 miles from any proposed location of an MMDS application pending on April 19, 1988 or an authorized station; and (2) farther than 15 miles from the boundary  Y(-of a statistical area for which there were applications pending on April 19, 1988. The first  Y-paragraph of the Notice explicitly stated that "[a]pplications filed must comply with the location restrictions contained in this Notice. We do not anticipate granting any waivers of  Y-this location requirement." 1988 Public Notice, 3 FCC Rcd at 2661. The Notice also twice stated that applications filed in violation of the location requirements would be returned as  Y!-unacceptable for filing. Id. Despite these clear directives, each of the abovereferenced MMDS applications, with the exception of the ten Lake View applications, proposed a  Y#-transmitter site in violation of the location restrictions of the 1988 Public Notice. Therefore, because the location restrictions prohibited the filing of applications for the sites chosen by 149 of these applicants, the applications were submitted on dates not designated for filing of  YJ&-MDS applications for those proposed locations. See  21.901(d)(4); see also  9, supra. Accordingly, these applications were properly returned as unacceptable for filing. "5'=0*((P("Ԍ50. Petitioners can claim no surprise concerning the important burden placed on applicants to select carefully the proposed location of an MDS station. In addition to the  Y-clear language in the 1988 Public Notice, we stressed, as early as 1980, the importance of  Y-compliance with the site selection requirements for MDS stations. In R.L. Mohr, 77 FCC 2d 30 (1980), we explained that "given the rather severe shortage of frequencies in these lower, more desirable bands, . . . [t]o be able to use these frequencies [for MDS] imposes a cost,  Yz-a cost in terms of more careful engineering and site location, and perhaps in use of more  Ye-sophisticated equipment than would be otherwise required." Id. at 37 (emphasis added). Thus, petitioners had full notice of the necessity to comply with location restrictions. Because petitioners chose to disregard the Commission's clear directive, their applications were properly returned as unacceptable for filing. 51. Petitioners argue that they should be excused from compliance with the location  Y -restrictions in the 1988 Public Notice based upon conversations between their consulting engineer and Commission staff. The petitioners' consulting engineer claims that he was informed that the location restrictions were not being enforced and that applications filed within 50 miles of an authorized or proposed station did not have to include waiver  Y-requests.>v= Y-ԍ All of the petitioners state in their reconsideration petitions that they have relied on statements made by Commission staff suggesting that location restrictions were not being enforced, and refer the reader to the signed statement of Omar Jennings, consulting engineer, attached to the reconsideration petition. The Pendleton and Ridgeway petitioners fail to attach any such statements.  We note that the applicants included waiver requests in most of these applications, despite these alleged conversations with staff. 52. Even assuming the Commission staff made these representations, such staff statements are not binding on the Commission and do not prevent us from applying our  Y-regulations. The Commission has specifically held that parties who rely on staff advice or  Y-interpretations do so at their own risk. See, e.g., AAT Electronics Corp., 53 RR 2d 1241,  Y-122526 (1983), aff'd, P&R Temmer v. FCC, 743 F.2d 918, 931 (D.C. Cir. 1984). When the staff advice is contrary to the Commission's rules, the Commission may still enforce its  Y-rules, despite any reliance by the public. See Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) (affirming Commission's decision to enforce its rules despite earlier staff statements giving erroneous interpretation of the rules at official seminar). The location  Yu-restrictions included in the 1988 Public Notice are clear. The Commission reasonably expects that applicants will turn to those requirements for guidance on whether a waiver would be needed for their application to be accepted.  Y-53. Similarly, we note that even if there are instances in which the staff mistakenly granted applications which were filed without the proper waiver requests, the Commission is  Y-not bound by such staff errors. See, e.g., North Texas Media, Inc. v. FCC, 778 F.2d 28, 33">0*(( " (D.C. Cir. 1985) ("The initial improvident grant of a [shortspacing] waiver . . . now described as an error, does not deprive the agency of authority to require future applicants to  Y-meet certain standards in order to obtain such a waiver."); Quinnipiac College, 8 FCC Rcd  Y-6285, 6286 (1993); Walter P. Faber, 4 FCC Rcd at 5492, 5493 (1989), recon. denied, 6  Y-FCC Rcd 3601 (1991), aff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992).  Y|-54. Waiver Requests. Section 21.20(c)(1) states that a defective application may still  Ye-be accepted for filing if the application is accompanied by a waiver request. All but the ten Lake View, Arkansas applicants should have requested a waiver of the location restrictions  Y7-contained in the 1988 Public Notice.  The Ridgeway petitioner failed to include any request for waiver with his application. The Rehoboth Beach petitioners insist that, while they made no formal requests for waiver, the inclusion of Exhibit E, which deals with interference analysis, with their applications, should be considered an "informal request for a waiver."  Y -See, e.g., Rehoboth Beach, Delaware, Application File No. 00636CMP92, at 3. The Commission has no duty to consider waiver requests where they have not been explicitly requested. The provisions of Section 21.20(c)(1), which allow the Commission to accept defective applications for filing when they are accompanied by a waiver are permissive, not mandatory. Furthermore, even if Commission staff had chosen to evaluate the merits of waivers when they had not been explicitly requested, no justification for a waiver, as  YU-required by Section 21.19, was presented here. See  5562, infra. These applicants, therefore, do not meet the requirements of this rule. Nor, in the absence of any justification  Y)-for waiver, will we grant waivers on our own motion for these applications.?)= Y-ԍ The Commission may waive any rule or requirement on its own motion. See  21.20(c)(2). xx-  Y-55. In the remaining cases where waivers have been explicitly requested, we find that their grant would not serve the public interest. Section 21.19 provides that applications seeking waiver of the Commission's rules must contain a statement of reasons sufficient to justify a waiver. A waiver will only be granted upon an affirmative showing that:   X(a) The underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or(# X(b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome, or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. (# 47 C.F.R. 21.19. The regulations allowing for the grant of a waiver are difficult to meet. "An applicant for waiver faces a high hurdle even at the starting gate. When an applicant seeks a waiver of a rule, it must plead with particularity the facts and circumstances which  Y"-warrant such action.'" WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing  Y#-Rio Grande Family Radio, 406 F.2d 664); see also David Laustsen, 3 FCC Rcd 2053, 2054"#d?0*(($" (Comm. Car. Bur. 1988) ("[A] request for waiver ... must affirmatively demonstrate that application of the rule would frustrate the underlying purposes of the rule.")  56. To justify their request for a waiver of the 50 mile separation restrictions  Y-announced in the 1988 Public Notice, petitioners assert that they are entitled to a waiver because their applications identified all stations within 50 miles of the applicants' proposed stations, and, given the distance between those identified stations and the applicants' proposed stations, "there is no realistic possibility" that harmful interference will be caused by their proposed station. However, the Commission already has determined that the "mileage between [MDS] stations is not the only factor that determines whether interference  Y -will occur." MDS Technical Order, 98 FCC 2d at 90. In 1984 the Commission adopted, at 47 C.F.R. 21.902(f), the definition of harmful interference as a free space calculation of a  Y -specified desired to undesired signal ratio. See MDS Technical Order, 98 FCC 2d at 8990.  Y -As discussed in Section III, supra, each of the returned applications lacked interference studies, as required by  21.902, for authorized or previously proposed MMDS stations within 50 miles of their proposed transmitter sites, and failed to demonstrate that the proposed station would not cause harmful interference. Indeed, in each of these returned  Y-applications petitioners failed to even identify all of the authorized or previously proposed stations, contrary to the claims in the reconsideration petitions. Thus, their assertion that there is "no realistic possibility of harmful interference" to other existing or proposed stations  Y>-is unsupported. @>= Y-ԍ A bald conclusion, without any offer of proof or documentary support, has no probative value in determining whether a proposed station would cause harmful interference.  Y-Jim Bolton, 2 FCC Rcd 3207.  These unsupported assertions fall far short of the stringent showing  Y'-required by WAIT Radio of the existence of extraordinary or special circumstances justifying  Y-waiver.1A M= Y-ԍ We also disagree with the petitioners' assertion that this reading of the 1988 Public  Y-Notice "comports with the FCC's recent proposal to replace interference analysis with rigid  Y-separation standards," citing Notice of Proposed Rulemaking, PR Docket No. 9280, 7 FCC Rcd 3266 (1992). While the outcome of the cited rulemaking proceeding would have no effect on the filing requirements that existed at the time the abovereferenced applications were filed, the Commission did not, as petitioners predicted, replace the interference criteria  Y-set forth in  21.902 with preset distance separation standards. Amendment of Parts 1, 2, and 21 of the Commission's Rules Governing the Use of the Frequencies in the 2.1 and 2.5  Y`!-GHz Bands, 8 FCC Rcd 1444, 1445 (1993). Moreover, as discussed above, petitioners have failed to demonstrate that their proposed stations would not cause interference to authorized and pending MDS stations. 1  57. Petitioners also assert, incorrectly, that the purpose of the location restrictions  Y-contained in the 1988 Public Notice is "solely to avoid harmful interference." The location restrictions, however, serve other important administrative purposes which do not concern""A0*((~" interference avoidance. The location restrictions also minimize the possibility for application gridlock, and allow us to process applications more expeditiously and to utilize efficiently  Y-scarce engineering resources. See Boyd B. Hopkins, Sr., 9 FCC Rcd 569, 570 (Dom. Fac.  Y-Div. 1994); R.L. Mohr, 85 FCC 2d at 604. These purposes would not be served were we to routinely grant a waiver of the location restrictions to each and every applicant that demonstrated noninterference through the submission of interference studies, which, we note, petitioners failed to do here. Thus, we conclude that granting petitioners' requested  Yc-waivers would frustrate the underlying purpose of the 1988 Public Notice location restrictions.  Y -58. We also reject petitioners' assertion that the 1988 Public Notice contemplated that waivers of the 50 mile location requirement would be routinely granted whenever an  Y -MMDS applicant "demonstrate[s] noninterference." The Notice states that the Commission did not anticipate granting waivers of the location restrictions. Petitioners' reliance on a subsequent paraphrase of  21.20, the rule governing acceptability for filing, and language in  Y -the Notice reminding applicants that they also must comply with the rules requiring the filing of interference studies for ITFS and MMDS authorized and proposed stations within 50 miles, as inviting applicants to file for waivers of the location requirement, is misplaced. The language referred to simply reminded interested parties that the imposition of additional location restrictions on post1983 applicants did not exempt those applicants from the requirements to file both MMDS and ITFS interference studies, which were adopted in 1984  Y)-and at that time were contained in  21.901(d)(1), 21.902(i) and 21.902(c). See MDS  Y-Technical Order, 98 FCC 2d 68 (1984). This language did not explicitly or implicitly override the Commission's express warning that waivers of the location restrictions were not contemplated.  Y-59. While petitioners cite Austin Movie and Sports Cable, Inc., 4 FCC Rcd 6174 (Dom. Fac. Div. 1989), to support their position that the Commission should have granted a waiver of the location restrictions and accepted their applications for filing, that case is  Yw-distinguishable from the instant case. In Austin Movie, the required interference analyses were filed with the application. The Commission granted the application, notwithstanding the potential for interference, based, in part, on the applicant's and other party's stated willingness to comply with the  21.902(a) mandate to resolve potential interference problems and on the imposition of several express conditions to ensure interferencefree  Y-operation. Id. at 6176. Here, petitioners failed to submit the required analyses, and they have not presented any statements by previously proposed or authorized stations regarding  Y -their willingness to address potential interference problems. In addition, the application in  Y!-Austin Movie was filed for Channel 2A, to which the 1988 Public Notice is inapplicable.  Y"-Thus, the additional consideration of whether the underlying purpose of the Notice's location restriction would be frustrated or whether there were any unique circumstances which would make the application of those restrictions unduly burdensome or unfair was not presented in  Yk%-that case. Petitioners also cite Lawrence N. Brandt, 7 FCC Rcd 4511 (Dom. Fac. Div.  YV&-1992), as supporting their waiver request. In Brandt, however, the applicant did not request a waiver and the decision does not discuss waiver issues. Instead, Brandt's filing was"A'A0*((P(" dismissed for failure to file interference studies pursuant to  21.902. The decision specifically noted that due to Brandt's failure to include all required information concerning the potential for harmful interference, it was not necessary to address an affected party's argument that Brandt's filing also should be dismissed for failure to consider all previously  Y-filed MMDS applications proposing locations within 50 miles. Id. at 4512. 60. Petitioners also claim that a waiver of the 50 mile location restrictions would be in the public interest because it would result in service to currently unserved communities. This argument implies that the proposed communities can only be served from an MDS transmitter located within each community's borders. In support of this contention, some petitioners attach to their petitions diagrams showing existing or proposed MDS transmitters within 50 miles of petitioners' proposed communities and their 15 mile protected service  Y -areas. See, e.g., Petition for Reconsideration for Lake View, Arkansas, Application File No. 02800CMP92 at 3, Figure 1. Petitioners then claim that none of these MDS transmitters can serve the communities for which petitioners have applied. These diagrams, however, do not demonstrate whether the proposed communities can receive MDS service from the existing or proposed transmitters; they merely show the radius of the protected service area of these authorized or proposed stations. We recognized as early as 1973 that communities can be served by MDS stations located in nearby areas even when the  YO-transmitter is not located within the city limits of the specified community. See Microband  Y:-Corp. of America, 41 FCC 2d 184 (1973). In addition, because these documents fail to include terrain blockage studies, it is impossible to determine whether the topography of these particular areas would preclude these communities from receiving MDS service from authorized or proposed transmitters located within 50 miles. 61. Petitioners also fail to address, as required by Section 21.19(b), the issue of whether there was a reasonable alternative site that is located more than 50 miles from the sites of 1983 previously proposed or authorized stations, from which they could provide acceptable service to their specified communities. An applicant must affirmatively  Ym-demonstrate a lack of a reasonable alternative under  21.19(b). See Edna Cornaggia, 8 FCC Rcd at 5444, n.6 ("Contrary to the assertion in the reconsideration petition that the Gary site ... is the only possible site for this MMDS station, the [seven transmitter sites studied by the applicant] do not exhaust the numerous potential sites in the Chicago ...  Y-CMSA and its 15mile buffer zone.") See also Boyd B. Hopkins, Sr., 9 FCC Rcd at 570;  Y-Cheyenne Corp., 8 FCC Rcd at 7050. The necessity of eliminating alternative sites has been recognized in other services regulated by the Commission. "Commission precedent makes clear that an applicant seeking waiver of the minimum spacing rules must, as an initial matter, establish the nonavailability of fullyspaced sites. . . . [Without such a showing, the  Y"-applicant's] waiver request died, as it were, at the starting gate." Orange Park Florida T.V.,  Y#-Inc. v. FCC, 811 F.2d 664, 669 (D.C. Cir. 1987) (citations omitted).  Yc%- 62. Petitioners also argue that their waiver requests should have been more closely examined given the Commission's interest in encouraging MDS as a competitor to cable services. The Commission's interest in encouraging competitors to cable services does not"5' A0*((P(" override its obligation to impartially apply its regulations. Moreover, the granting of waiver requests to any of this group of petitioners would undercut the interference protection guarantees given to earlierfiled MDS licensees or applicants, ultimately discouraging investment in MDS services. In addition, the experience of existing MDS stations demonstrates that competition with the cable industry can flourish when MDS stations are  Y-located in accordance with our rules. See Falcon Telecable, 10 FCC Rcd 1654 (Cable Serv. Bur. 1995) (rescinding cable rate regulation of municipality due to effective competition from wireless cable television operator). Petitioners fail to justify why their applications merit different treatment from that which we applied to thousands of other post1983 MMDS applications. In view of these considerations, we find it would be contrary to the public  Y -interest to grant a waiver of the location restrictions in the 1988 Public Notice. Therefore, we conclude that petitioners' requests for waiver of the location requirements were properly denied.  Y -   Y - 63. Petitioners assert that the staff's disposition of their waiver requests by "the mere checking of boxes on a form or listing of standard set of 'form statements' in returning the application in question" cannot, on its face, meet the courtimposed requirement to give a  Y}-"hard look" to waiver requests. However, the Court in WAIT Radio made clear that: AB X The agency is not bound to process in depth what are only generalized pleas, a requirement that would condemn it to divert resources of time and personnel to hollow claims. The applicant for waiver must articulate a specific pleading, and adduce concrete support, preferably documentary. Even when an applicant complies with these rigorous requirements, the agency is not required to author an essay for the disposition of each application. (#  Y-418 F.2d at 1157, n.9. See also Adams Telecom, Inc. v. FCC, 38 F.3d 576, 582 (D.C. Cir. 1995) (FCC dismissal letters and order providing only brief explanations of why applications failed to satisfy requirements upheld as sufficient because parties could understand the basis of decision). Here, the Ridgeway application did not even include a waiver request, while the Rehobeth Beach petitioners argue that a request for waiver should have been implied. Where the application did request a waiver, the request was of a general nature and lacked concrete, documentary support. Under these circumstances, and in light of the thousands of applications the staff was processing, the return notification letters indicating that the request was denied as failing to comply with  21.19 of the Commission's rules were sufficient. Moreover, we have now reviewed the staff's denial of petitioners' waiver requests and have fully explained the basis for denying those requests.  Y"-64. In addition, even if the 1988 Public Notice location restrictions had not prohibited the filing of 149 of the 159 the abovereferenced applications, in each instance these applications still would have been returned as unacceptable for filing due to violations of other Commission rules in effect at the time the returned applications were filed, including filing after the relevant cutoff date of mutually exclusive applications and failing to submit adequate interference analyses for authorized stations or applications. "-'!B0*((P("Ԍ 65. Finally, we disagree with the petitioners' argument that we have changed the requirements, rules and standards applied to the returned applications and adopted more  Y-stringent separation standards ex post facto by refusing to grant the waivers and accept these applications for filing. As discussed at length above, the petitioners' applications were returned as unacceptable because they were filed after the relevant cutoff dates established in  21.31 and 21.914 of the rules, and failed to submit and serve the required interference  Ya-studies at the time the application was initially filed, as specified by  21.902. See  YL-Roundtree Communications, 7 FCC Rcd 5456 (1992); Boyd B. Hopkins, Sr., 9 FCC Rcd  Y7-569; Edna Cornaggia, 8 FCC Rcd 5442. All of the pertinent rules cited herein were long Y" -established and applicable at the time the returned applications were filed.C" = Y -ԍ For example, the interference study filing rule was adopted in the 1974 MDS  Y -Allocation Order, and the initial cutoff provisions of  21.31 were adopted in 1968.  See Amendment of Section 1.227(b)(3) of the Commission's Rules Relating to Applications for  YZ-Common Carrier Facilities, 13 FCC 2d 415 (1968).  All MDS applicants are charged with being familiar with Part 21 of the Commission's rules. Any applicant who "either ignores or fails to understand clear and valid rules of the Commission respecting the requirements for an application assumes the risk that the application will not  Y -be acceptable for filing." Ranger v. FCC, 294 F.2d 240, 242 (D.C. Cir. 1961); see also  Y -Donald E. Benson, 8 FCC Rcd 1872, 1873 (Dom. Fac. Div. 1993). Thus, we reject petitioners' claims that the Commission engaged in arbitrary and capricious action and find that "[t]he Division's return of [the abovereferenced] applications . . . was not unreasonable or arbitrary, but rather was based on [the applicant's] failure to comply with Commission  YW-rules." Family Entertainment, 9 FCC Rcd at 568. 5V. CONCLUSION  66. In view of all the foregoing considerations, we affirm the staff's return of the applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. Accordingly, IT IS ORDERED, That the  Y-untimely reconsideration petitions filed by the 118 applicants listed in note 50, supra, ARE HEREBY DISMISSED and that the reconsideration petitions filed by the remaining abovereferenced applicants ARE HEREBY DENIED. IT IS FURTHER ORDERED, That the  Yu-premature reconsideration petition listed at note 14 supra, IS HEREBY DISMISSED. "`":C0*((/" 67. IT IS FURTHER ORDERED, That the staff of the Mass Media Bureau shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. ` `  FEDERAL COMMUNICATIONS COMMISSION   ` `  William F. Caton ` `  Acting Secretary