NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** Before the FEDERAL COMMUNICATIONS COMMISSION FCC 95-236 Washington, D.C. In the Matter of ) 28 Applications for Authority ) to Construct and Operate ) Multipoint Distribution Service Stations) at Six Transmitter Sites ) MEMORANDUM OPINION AND ORDER ON RECONSIDERATION Adopted: June 15, 1995 Released: July 7, 1995 By the Commission: I. INTRODUCTION 1. The Commission has before it petitions for reconsideration of the return, pursuant to delegated authority, of 28 applications for authority to construct and operate Multipoint Distribution Service (MDS) stations on the E- or F-channel groups at the following six different transmitter sites: Augusta, Georgia; Waterloo, Iowa; Independence, Kansas; Monroe, Louisiana; Clarksdale, Mississippi; and Hattiesburg, Mississippi. Petitioners seek reconsideration of the Commission staff decision to return their applications as unacceptable for filing. 2. As these petitions raise common issues, their collective consideration is the most efficient use of Commission resources. Thus, we 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. In this order, we find that the applications were properly returned. Accordingly, the petitions for reconsideration are denied. II. BACKGROUND 3. The subject applications were filed with the Commission between September 27, 1990 and March 27, 1992, after the filing period for MDS applications on the E or F channels was reopened, subject to certain location restrictions. See Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988) (hereinafter 1988 Public Notice). Commission staff reviewed the applications, which were returned by individual return letters. Each of the returned applications proposed an MDS station on the E or F channels to which Part 21 of the Commission's rules apply. Section 21.20(a) of the rules sets forth the standards for returning MDS applications as unacceptable for filing: Unless 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 or discrepancies if: (1) The application is defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character; or (2) The application does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements. 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 cut-off date prescribed in  21.31 or  21.914 of this part." 47 C.F.R.  21.20(b)(4), (8) and (9). 4. Mutual Exclusivity. Typically, the first determination made by Commission staff is whether an MDS application is mutually exclusive with any previously filed application or authorized station. Section 21.31(a) of the Commission's rules provides the standard for this determination. The Commission will consider applications to be mutually exclusive if their conflicts are such that the grant of one application would effectively preclude by reason of harmful electrical interference, or other practical reason, the grant of one or more of the other applications. The Commission will presume "harmful electrical interference" to mean interference which would result in a material impairment to service rendered to the public despite full cooperation in good faith by all applicants or parties to achieve reasonable technical adjustments which would avoid electrical conflict. 47 C.F.R.  21.31(a). In applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles of an authorized or previously proposed MDS station, and (2) within an unobstructed electrical path to the protected service area of an authorized or previously proposed MDS station. Applications which are determined to be either within 50 miles or with an unobstructed electrical path to any part of the protected service area of any station, are considered to be mutually exclusive with the station unless they demonstrate a lack of harmful interference by submission of interference studies with their applications pursuant to the standards specified in the Commission's rules. See 47 C.F.R.  21.902(b)(3) and (4). Section 21.901(d)(5) also defines mutual exclusivity as based on whether the proposed transmitter site is within a Metropolitan Statistical Area (MSA) or its 15-mile buffer zone of an authorized or previously proposed station. 5. Cut-off Rules. In order to be acceptable for filing, MDS applications must be filed on or before the applicable cut-off date for mutually exclusive applications. If an MDS application is mutually exclusive with a 1983 application or authorized station, the applicable cut-off date is the one-day filing date designated for those applications, September 9, 1983. Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746. If there is no mutually exclusive 1983 application or authorized station, but there is a mutually exclusive, post-1983, previously proposed or authorized MMDS station, the applicable cut-off rule for applications filed from April 20, 1988 through October 31, 1990 is  21.31(b), which provides, in part, that in order to be entitled to comparative status: The application [must be] received by the Commission in a condition acceptable for filing by whichever "cut-off" date is earlier: (i) Sixty (60) days after the date of the public notice listing the first of the conflicting applications as accepted for filing; or (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). For applications filed on or after November 1, 1990, the applicable cut-off rule is 21.914, which provides that: Notwithstanding 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. 47 C.F.R.  21.914. 6. Location Restrictions. After an initial filing date of September 9, 1983, no date for the filing of new MMDS applications was designated until 1988. In 1988, in accordance with  21.901(d)(4) of the Commission's rules, it was announced that MMDS applications could be submitted for filing commencing April 20, 1988, but only for locations which were: (1) farther than 50 miles from any authorized station or proposed location of an MMDS application pending on April 19, 1988, and (2) farther than 15 miles from the boundary of a statistical area for which there was an MMDS application pending as of April 19, 1988. 1988 Public Notice, 3 FCC Rcd at 2661. The 1988 Public Notice also advised potential applicants that all applications must comply with the specified location restrictions, that grant of waivers of the location restrictions were not anticipated, and that applications failing to meet these location restrictions would be dismissed as unacceptable for filing. Id. at 2661- 2662. 7. Station Design Requirement. Section 21.902(b)(3) requires each MMDS applicant to engineer its proposed station to provide at least 45 dB of interference protection within the protected service areas of all other authorized or previously proposed cochannel stations. 47 C.F.R.  21.902(b)(3). Section 21.902(b)(4) requires each MMDS applicant to engineer its station to provide at least 0 dB of interference protection within the protected service areas of all other authorized or previously proposed adjacent channel stations. 47 C.F.R.  21.902(b)(4). Section 21.902(f) defines harmful interference as the ratio of desired signal to undesired signal present in the cochannel or adjacent channel, at the output of a reference receiving antenna oriented to receive the maximum desired signal. 8. MMDS Interference Studies. At the time the above-referenced applications were filed, in order to demonstrate compliance with  21.902(b), and so that mutually exclusive determinations could be made,  21.902(c)(1) of the Commission's rules required that an MMDS 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). In addition,  21.902(c)(2) required that an MMDS applicant include with the application an analysis of the potential for harmful adjacent channel interference if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any other authorized or previously proposed adjacent channel station. 47 C.F.R.  21.902(c)(2) (1991); see 47 C.F.R.  21.902(a), (b), (d) and (f). Section 21.901(d)(7) further requires that each MMDS application include the applicant's written statement of the techniques that would be employed at the proposed station to avoid interference with the operation of adjacent channel stations. The applicant must also show what steps it has taken to comply with the requirements of  21.902(a), which requires MMDS applicants, licensees, and conditional licensees, to make exceptional efforts to avoid harmful interference to other users and to avoid blocking potential adjacent channel stations in the same area and cochannel stations in nearby areas. 47 C.F.R.  21.901(d)(7). 9. Service Requirement. In addition to submitting the required interference analyses to the Commission, an MMDS applicant also must serve each required interference study upon the previously proposed or authorized station applicant, conditional licensee or licensee 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 licensee, and licensee served be submitted with the application. 10. ITFS Interference Protection. For MMDS applications which were filed beginning October 11, 1990 through December 29, 1991, the applicant also was required to file with the application, pursuant to 47 C.F.R.  21.901(d)(1), an engineering analysis demonstrating a lack of harmful interference to each cochannel or adjacent channel Instructional Television Fixed Service (ITFS) licensed station with a transmitter site within 50 miles of the proposed MMDS transmitter site. In addition, a copy of the analysis had to be served on each affected ITFS licensee. In the alternative, the MMDS applicant could submit a statement from the ITFS licensee stating that it did not object to the MMDS operation. See Wireless Cable Order, 5 FCC Rcd 6410, 6413 (1990). III. PETITIONS FOR RECONSIDERATION 11. Identical or substantially similar petitions for reconsideration were filed for 28 returned applications filed proposing six different transmitter sites. There follows a description of the applications filed for each of these locations and the reasons for the staff's return of each application. 12. Augusta, Georgia. On June 7, 1991, a petitioner filed an MMDS application proposing a transmitter site at Augusta, Georgia. After reviewing the Augusta application, the Commission staff returned the application as defective and unacceptable for filing by return notification letter dated April 14, 1993. The letter indicated that the application was returned because the applicant: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications in violation of the 1988 Public Notice; (3) proposed a transmitter site within an MSA or its buffer zone in noncompliance with the MMDS Allocation Order and  21.901(d)(5); and (4) 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. A reconsideration petition for the returned application was timely filed on May 13, 1993. 13. The application proposed a transmitter site that was within 50 miles or an unobstructed electrical path of: (1) 29 1983 previously proposed MMDS stations, which had applications pending on June 7, 1991, the filing date of the Augusta application; and (2) 158 post-1983 previously proposed MMDS stations, which had applications pending on June 7, 1991. The application lacked interference studies, required by  21.902(b) and (c), for 187 previously proposed MMDS stations. The applicant also failed to comply with the requirements of  21.901(d)(1) or  21.902(i) because the ITFS studies submitted contained incorrect technical specifications and were invalid. Thus, the Augusta applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to 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). No waiver requests were included in the Augusta application. The application was also filed for a transmitter site within the Augusta, Georgia MSA, which was not open for filing pursuant to the 1988 Public Notice, and was mutually exclusive with and cut-off by a pending application filed for a transmitter site within that MSA pursuant to  21.901(d)(5). 14. Waterloo, Iowa. On March 27, 1992, a petitioner filed an MMDS application proposing a transmitter site at Waterloo, Iowa. After reviewing the Waterloo application, the Commission staff returned the application as defective and unacceptable for filing by return notification letter dated May 26, 1993. The letter indicated that the application was returned because the applicant: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications in violation of the 1988 Public Notice; (3) proposed a transmitter site within an MSA or it buffer zone in noncompliance with the MMDS Allocation Order and  21.901(d)(5); and (4) 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. A reconsideration petition for the returned application was timely filed on June 25, 1993. 15. The application proposed a transmitter site that was within 50 miles or an unobstructed electrical path of: (1) one 1983 previously authorized MMDS station; (2) three 1983 previously proposed MMDS stations, which had applications pending on March 27, 1992, the filing date of the Waterloo application; and (6) three post-1983 previously proposed MMDS stations(s), which had applications pending on March 27, 1992. The application lacked interference studies, required by  21.902(b) and (c), for six previously proposed MMDS stations. Thus, the Waterloo applicant failed to demonstrate that the station proposed in the returned application 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). No waiver requests were included in the Waterloo application. The application was also filed for a transmitter site within the Waterloo-Cedar Falls, Iowa MSA, which was not open for filing pursuant to the 1988 Public Notice, and was mutually exclusive with pending applications filed for transmitter sites within that MSA pursuant to  21.901(d)(5). 16. Independence, Kansas. On October 30, 1990, certain petitioners filed two MMDS applications proposing the same transmitter site at Independence, Kansas. After reviewing the Independence applications, the Commission staff returned each application as defective and unacceptable for filing by separate return notification letters dated April 30, 1992 and July 1, 1992. The letters indicated that the applications were returned because the applicants filed in the geographic area of other authorized or pending MMDS applications in violation of the 1988 Public Notice. Reconsideration petitions for the returned application were timely filed on May 26, 1992 and July 15, 1992. 17. The applications proposed a transmitter site that was within 50 miles or an unobstructed electrical path of: (1) five 1983 previously proposed MMDS stations, which had applications pending on October 30, 1990, the filing date of the Independence applications; and (2) two post-1983 previously proposed MMDS stations, which had applications pending on October 30, 1990. The applications lacked interference studies, required by  21.902(b) and (c), for seven previously proposed MMDS stations. The applicants also failed to comply with the requirements of  21.901(d)(1) or  21.902(i) because interference studies were not submitted for each authorized ITFS station with a transmitter site within 50 miles of the proposed MMDS station's transmitter site. Thus, these Independence applicants failed to demonstrate that the station proposed in the returned applications would 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). No waiver requests were included in the Independence applications. 18. Monroe, Louisiana. On April 23, 1991, a petitioner filed an MMDS application proposing a transmitter site at Monroe, Louisiana. After reviewing the Monroe application, the Commission staff returned the application as defective and unacceptable for filing by return notification letter dated July 1, 1992. The letter indicated that the application was returned because the applicant filed in the geographic area of other authorized or pending MMDS applications in violation of the 1988 Public Notice. A reconsideration petition for the returned application was timely filed on July 31, 1992. 19. The application proposed a transmitter site that was within 50 miles or an unobstructed electrical path of: (1) one 1983 previously authorized MMDS station; and (2) seven 1983 previously proposed MMDS stations, which had applications pending on April 23, 1991, the filing date of the Monroe application. The application lacked interference studies, required by  21.902(b) and (c), for one authorized, and six previously proposed MMDS stations. Thus, this Monroe applicant failed to demonstrate that the station proposed in the returned application 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). The application also was filed for a transmitter site within the Monroe, Louisiana MSA, which was not open for filing pursuant to the 1988 Public Notice, and was mutually exclusive with and cut-off by a previously authorized station within that MSA pursuant to  21.901(d)(5). The application contained a request for waiver of the  21.902 interference study requirements and of the location restrictions contained in the 1988 Public Notice. 20. Clarksdale, Mississippi. On October 10, 1990, a petitioner filed an MMDS application proposing a transmitter site at Clarksdale, Mississippi. After reviewing the Clarksdale application, the Commission staff returned the application as defective and unacceptable for filing by return notification letter dated March 24, 1993. The letter indicated that the application was returned because the applicant: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications in violation of the 1988 Public Notice; and (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 authorized or previously proposed MMDS or ITFS stations. A reconsideration petition for the returned application was timely filed on April 23, 1993. 21. Certain petitioners filed 21 MMDS applications proposing the same transmitter site at Clarksdale, Mississippi on September 27, 1990, October 10, 1990, and October 30, 1990. After reviewing these Clarksdale applications, the Commission staff returned the applications as defective and unacceptable for filing by return notification letters dated May 1, 1992. The letters indicated that the applications were returned because the applicants filed in the geographic area of other authorized or pending MMDS applications in violation of the 1988 Public Notice. Reconsideration petitions were timely filed for returned applications on May 29, 1992. 22. All the Clarksdale applications proposed a transmitter site that was within 50 miles or an unobstructed electrical path of three 1983 previously proposed MMDS stations, which had applications pending on September 27, 1990, the earliest of the filing dates of the Clarksdale applications. The applications lacked interference studies, required by  21.902(b) and (c), for these three previously proposed MMDS stations. Thus, these Clarksdale applicants failed to demonstrate that the station proposed in the returned applications would not cause harmful interference to 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). Notwithstanding checking "Yes" in response to question 19 of the applications, which asks whether a waiver is required for the application, the applicants did not attach the required Exhibit I to the applications indicating the Commission's rules for which they were requesting a waiver. 23. Hattiesburg, Mississippi. On October 30, 1990, a petitioner filed an MMDS application proposing a transmitter site at Hattiesburg, Mississippi. After reviewing the Hattiesburg application, the Commission staff returned the application as defective and unacceptable for filing by return notification letter dated March 24, 1993. The letter indicated that the application was returned because the applicant: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications in violation of the 1988 Public Notice; and (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 authorized or previously proposed MMDS or ITFS stations. A reconsideration petition for the returned application was timely filed on April 23, 1993. 24. The application proposed a transmitter site that was within 50 miles of or within an unobstructed electrical path to: (1) one 1983 subsequently authorized MMDS station; (2) two 1983 previously proposed MMDS stations, which had applications pending on October 30, 1990, the filing date of the Hattiesburg application; and (3) one post-1983 previously proposed MMDS station, which had an application pending on October 30, 1990. The application lacked interference studies, required by  21.902(b) and (c), for one authorized, and three previously proposed MMDS stations. The applicant also failed to comply with the requirements of  21.901(d)(1) or  21.902(i) because the ITFS studies submitted contained incorrect technical specifications and were invalid. Thus, the Hattiesburg applicant failed to demonstrate that the station proposed in the returned application 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). No waiver requests were included in the Hattiesburg applications. IV. DISCUSSION 25. Availability of Information on Authorized or Previously Proposed Stations. On reconsideration, petitioners argue that the returned applications were acceptable for filing. Primarily, they claim that their consulting engineers relied upon publicly available information compiled by the Commission and found no pending or authorized stations within 50 miles of the petitioned applications. Therefore, petitioners maintain their applications were in compliance with the Commission's interference study requirements, service requirements, and location restrictions. Petitioners argue that the applications should today be reinstated in that the applications complied with all Commission rules in light of the information available at the time of filing. 26. Three petitioners claim that upon receiving notice that their applications were returned, they discovered that there were either pending applications or authorized stations within 50 miles of their proposed transmitter site. On reconsideration, two of the three petitioners request waivers of the 1988 Public Notice 50 mile location restriction but have provided no showing as to how they meet the requirements of the Commission's waiver rules found at 47 C.F.R.  21.19. See  30-36, infra. 27. Petitioners included a statement in their applications that their engineers consulted the "Commission's MDS list" for information concerning pending applications and authorized stations. We believe the list to which petitioners refer is the FCC internal staff listing of pending applications. Despite petitioners' claims that they referred to the listing and that they were not aware of any authorized stations or pending applications filed for the geographic areas of the returned applications, our independent review of the listings available prior to the filing date of every returned application reveals that there were pending applications within 50 miles of every petitioned application -- some filed as early as 1983. 28. The following information summarizes by market area the number of pending applications and authorized stations that were within 50 miles of the returned applications and appeared on the FCC internal staff listing available prior to the date the petitioned applications were filed: (1) Augusta, Georgia: 187 pending applications were included in the May 8, 1991 listing; (2) Waterloo, Iowa: six pending applications were included in the March 20, 1992 listing; (3) Independence, Kansas: five pending applications were included in the October 25, 1990 listing; (4) Monroe, Louisiana: eight pending applications included in the April 9, 1991 listing; (5) Clarksdale, Mississippi: three applications were included in the July 11, 1990 listing; and (6) Hattiesburg, Mississippi: four pending applications were included in the October 25, 1990 listing. 29. Additional sources of information were also available for petitioners' use. For example, public notices provided another means for several petitioners to learn of pending applications and authorized stations. Petitioners cannot claim that they could not have knowledge of applications after they appeared on public notice. Petitioners could have also utilized the data base of the Commission's official on-line contractor to obtain a listing of pending applications and authorized stations. If, as the petitioners claim, the listings compiled by the Commission and made available to the public were consulted by petitioners, the required interference studies could have been prepared and transmitter sites could have been selected with more care based on the information available. In light of petitioners' claim that they checked the Commission's internal staff listings and in light of the results of our own review of the listings, petitioners have failed to satisfactorily explain why their applications lacked interference studies and violated the location restrictions of the 1988 Public Notice. Petitioners have not made a case sufficient to support reinstatement. 30. Waiver Requests. Two petitioners seek waiver of the 50 mile location restriction now that they have discovered previously filed applications and authorized stations that they did not consider at the time of filing. Petitioners' applications did not contain waiver requests and the Commission need not consider these requests as the petitioners have not made persuasive arguments explaining why these previously proposed applications and authorized stations were not considered initially. However, even if the Commission were to consider the petitioners' waiver requests they would be denied for failure to meet the requirements of  21.19 of the Commission's rules. 31. Section 21.19 requires that a waiver request contain a statement of reasons sufficient to justify the grant of a waiver. The rule provides further that a waiver will not be granted except upon an affirmative showing that: (a) The underlying purpose of the rule will not be served or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. An applicant requesting a waiver "faces a high hurdle even at the starting gate. 'When an applicant seeks a waiver . . . it must plead with particularity the facts and circumstances which warrant such action.' " WAIT Radio v. FCC, 418 F. 2d 1153, 1157 (D.C. Cir. 1969)(citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir 1968) (per curiam)). See also Thomas Radio Co. v. FCC, 716 F. 2d 921, 924 (D.C. Cir. 1983). 32. In support of the request, petitioners argue that fairness demands that their requests for waiver of the 50 mile location restriction be granted because "substantial monies" spent by the petitioners would be lost if a waiver is not granted. Petitioners further contend that it would be contrary to the public interest to deny the requests because the communities the petitioners proposed to serve would not receive wireless cable service and because denying the waiver request would not promote competition in the video programming marketplace. 33. Neither of these reasons, however, constitute sufficient justification for grant of the waiver requests. First, an economic justification has previously been rejected by the Commission as a basis for a waiver when claims of economic hardship are not substantiated. See Nelson County Broadcasting, Inc., 64 FCC 2d 932, 933 (1977); see generally WAIT Radio, 418 F.2d at 1157 (finding that an applicant requesting a waiver must "plead with particularity the facts and circumstances" supporting a grant). Aside from making the assertion that "substantial monies" would be lost, petitioners fail to substantiate this assertion with information or documentation that would demonstrate that the facts and circumstances of petitioners' case are so unique as to render application of the 50 mile location restriction inequitable or unduly burdensome. For example, petitioners' have not proven that the expenses incurred were beyond that incurred by the average applicant. Furthermore, petitioners' claim that monies were expended in connection with filing the returned applications does not obviate the fact the applications were deficient in ways beyond violation of the 50 mile location restriction. For example, a de novo review revealed that the Monroe, Louisiana application was cut-off by a mutually exclusive application filed on September 9, 1983 at Rayville, Lousiana, and the Independence, Kansas application lacked interference studies for authorized ITFS stations with transmitter sites within 50 miles of the proposed Independence, Kansas transmitter site. 34. Second, petitioners are incorrect in claiming that denying their waiver request would also deny wireless cable service to the communities they proposed to serve in their applications. Petitioners were not the only applicants who applied for authority to operate MDS stations in Monroe, Louisiana and Independence, Kansas or in adjacent communities, and the provision of MMDS service to those communities was not dependent solely upon the grant of petitioners' applications. Furthermore, we stress that the petitioners' public interest statements do not eliminate the deficiencies petitioners' applications in addition to violation of the 50 mile location restrictions. Therefore, despite the petitioners' public interest claims, it would be a disservice to the public interest to reinstate its application when they are not legally, technically, and otherwise acceptable for filing. See 47 C.F.R.  21.20. 35. Finally, we also reject petitioners' second public interest argument that a grant of the waiver requests would promote MDS station operators as competitors to wired cable operators. The Commission's interest in encouraging competition in the video marketplace does not override its obligation to impartially apply its regulations. Moreover, the granting of waiver requests of these two petitioners would undercut the interference protection guarantees given to earlier-filed 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 located in accordance with our rules. See Falcon Telecable, 10 FCC Rcd 1654 (Cable Services Bureau, 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 post- 1983 MMDS applications. In view of these considerations, we find it would be contrary to the public interest to grant a waiver of the location restrictions in the 1988 Public Notice. Additionally, the applicant failed to demonstrate that there is a lack of a reasonable alternative to the proposed transmitter site in the application (i.e., a transmitter site more than 50 miles away from any authorized or proposed stations) as required by  21.19(b). 36. In light of the foregoing, we find that even if the Commission were to consider the petitioners' request for a waiver on reconsideration, the requests would be denied. Petitioners have failed to make a showing sufficient to support a waiver of the 50 mile location restriction pursuant to  21.19(b), and absent such a showing, waiver cannot be granted. 37. Failure to File Interference Studies. In every instance, the 28 petitioned applications did not include any interference studies for pending and authorized cochannel and adjacent channel applications. At the very inception of MMDS, the Commission established the principle that subsequently filed applications must not cause harmful interference to any previously proposed or authorized MMDS station. Amendments of Parts 1, 2, 21 and 43 of the Commission's Rules and Regulations to Provide for Licensing and Regulation of Common Carrier Radio Stations in the Multipoint Distribution Service, 45 FCC 2d 616, 621 (1974)(an applicant "for the second channel sought will be expected to demonstrate that his system is designed so that significant interference will not occur with respect to the first MDS channel . . . ."). It has 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." Family Entertainment Network, Inc., 9 FCC Rcd 566, 567-68, n. 10 (Dom. Fac. Div. 1994). Thus,  21.902(b) requires all MMDS applicants and licensees to provide 45 dB of cochannel interference protection and 0 dB of adjacent channel interference protection, and to demonstrate that protection in interference studies submitted with the applications. In failing to include interference studies with their applications, petitioners failed to demonstrate a lack of harmful interference to existing and previously proposed MMDS stations. 38. Thus, having conducted a de novo review of the applications and having considered the petitioners' arguments on reconsideration, we conclude the staff action returning the petitioned applications was proper in that the applications were unacceptable for filing. See MMDS 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 described herein will not be accepted for filing."); see also Family Entertainment, 9 FCC Rcd at 567 ("[T]he filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application."); Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992) ("In the processing of MDS station applications, the interference analyses required by [ 21.902] are crucial.") 39. Therefore, it is based upon all the foregoing considerations that we affirm the staff's return of the applications under consideration in this order. Reinstatement is not warranted and reconsideration is not justified. 40. Accordingly, IT IS ORDERED, that the reconsideration petitions subject to this order ARE HEREBY DENIED. 41. IT IS FURTHER ORDERED, that the staff of the Mass Media Bureau shall send copies of the decision to the authorized representatives for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary