WPCjE 2BJ  Courier3|w  Xw PE37XPCG Timeset 4_230_1HPLAS4.PRS 4x  @\oeX@2 6F f 3|w CG TimesCG Times BoldCG Times ItalicCourierCourier Bold",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d<|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`L2 Z$ v~ p kdHP LaserJet 4_230_1HPLAS4.PRS 4Xw PE37\oeXPa8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  2klvta5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# 2-  j a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# 2  c+a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# 2]-a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . 2ka6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   2D C3a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)Documentg2%v ez$$_%PleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:z  z $ a5Right ParRi><q*"xxxxWWxxxWWkkxxx><q*"xxxxWWxxxWWkkxxxFx6X@`7X@?xxx,/x `7X<R&HHH,'d,H6X@`7h@2hEȝ  X` hp x (#%'0*,.8135@8:&-47 C.F.R.  21.31(a). X01Í ÍX01ÍÍIn applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles of an authorized or previously proposed MDS"''0*((P(" station,X01ÍÍX01Í ÍX01Í ÍX01Í ÍX01Í ÍX01Í Í and (2) within an unobstructed electrical path to the protected service area of an  Y-authorized or previously proposed MDS station.3 Yb-ԍ See In the Matter of 4,430 Applications for Authority to Construct Multichannel  YM-Distribution Systems, 10 FCC Rcd 1335, 133839 (1994). 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  Y-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  YJ-its 15mile buffer zone of an authorized or previously proposed station.  Y -5. 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. If an MDS application is mutually exclusive with a 1983 application or authorized station, the applicable cutoff date is the oneday filing date designated for those applications, September 9, 1983.  Y -Establishment of MultiChannel 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, post1983, previously proposed or authorized MMDS station, the applicable cutoff 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: 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). For applications filed on or after November 1, 1990, the applicable cutoff rule 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. (# 47 C.F.R.  21.914."#f0*(($"Ԍ Y-ԙ6. 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  Y-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.  Ya-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  Y -meet these location restrictions would be dismissed as unacceptable for filing. Id. at 26612662.  Y -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  Y -protected service areasq 3 Y&-ԍ Section 21.902(d) defines the protected service area for MMDS stations.q 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  Y#-receiving antenna oriented to receive the maximum desired signal.9#y3 YM-ԍ 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 this ratio is less than 0 dB. 47 C.F.R.  21.902(f). 9  Y- 8. MMDS Interference Studies. At the time the abovereferenced 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.  Y - 21.902(c)(2) (1991); see 47 C.F.R.  21.902(a), (b), (d) and (f). Section 21.901(d)(7)" 0*((!" 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).  YH-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.  Y -   Y -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  YK-Instructional Television Fixed Service (ITFS)WK3 Y-ԍ See 47 C.F.R.  74.90174.996. W 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  Y-operation. {3 Y-ԍ For applications filed before October 11, 1990, the MMDS conditional licensee is required to file, prior to commencing construction, a consent statement from all cochannel and adjacent channel ITFS licensees with transmitters within 50 miles of the proposed MMDS transmitter. In the event the MMDS conditional licensee cannot obtain such a statement, it is required to submit a Petition for Declaratory Ruling of lack of harmful  Y-interference, together with the required interference analyses.  Wireless Cable Order, 5 FCC  Y-Rcd at 6438, n. 16; see also People's Choice TV, Inc., 7 FCC Rcd 3628 (Dom. Fac. Div. 1992). The rule provision was later revised and codified as  21.902(i). Thus, for MDS applications on the E, F or H channels filed on or after December 30, 1991, the required ITFS analysis or consent statement must be filed, pursuant to 47 C.F.R.  21.902(i)(2), on  Y9"-or before the 60th day after the application is placed on public notice. See Wireless Cable  Y$#-Reconsideration Order, 6 FCC Rcd 6764, 677172 (1991). See Wireless Cable Order, 5 FCC Rcd 6410, 6413 (1990). "70*((n"Ԍ 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.  Y_-12. Augusta, Georgia. On June 7, 1991, a petitioner filed an MMDS application  YH-proposing a transmitter site at Augusta, Georgia.tH3 Y -#XR  P7jQ=9XP#э Application File No. 59628CMP91.t 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  Y -returned because the applicant: (1) filed past the cutoff period established in 21.31 or  Y -21.914;z y3 Y-#XR  P7jQ=9XP#э The Commission staff was incorrect in listing violation of cutoff provisions as a return reason. It was harmless error nonetheless, as petitioners' applications were deficient  Y-and unacceptable for filing for other reasons discussed herein. See Greater Boston Television  Y-Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971) (holding that the court will not upset a decision because of errors that are not material, "there  Y-being room for the doctrine of harmless error"). Į (2) filed in the geographic area of other authorized or pending MMDS  Y -applications in violation of the 1988 Public Notice; (3) proposed a transmitter site within an  Y -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  Y -unobstructed electrical path of : (1) 29 1983 previously proposed MMDS stations, which had  Y-applications pending on June 7, 1991, the filing date of the Augusta application; 3 Y_-#XR  P7jQ=9XP#э These include, but are not limited to, Application File Nos. 5513CMP83; 15228CMP83; 15628CMP83; and 13507CMP83 for Augusta, Georgia. and (2) 158  Y-post1983 previously proposed MMDS stations, U 3 Y"-#Xw PE37=9XP#э These include, but are not limited to, Application File Nos. 55818CMP90; 55956CMP90; 55957CMP90; and 50443CMP90 for Augusta, Georgia. which had applications pending on June 7, 1991. The application lacked interference studies, required by 21.902(b) and (c), for 187" 0*(("  Y-previously proposed MMDS stations.K 3 Yy-#XR  P7jQ=9XP#э For example, the applicant failed to submit an interference study for a proposed station in Augusta, Georgia, which was placed on public notice on March 28, 1986, and was approximately .38 miles away from the applicant's proposed station.K The applicant also failed to comply with the requirements of 21.901(d)(1) or 21.902(i) because the ITFS studies submitted contained  Y-incorrect technical specifications and were invalid.5 K3 Y-ԍ Invalid studies were filed for WHQ373, Application File No. BPLIF900912DB, at Lexington, South Carolina; WHR473, Application File No. BPLIF850320DC, for Barnwell, South Carolina; and WHR726, Application File No. BPLIF820174MD, for Greenwood\Kersey, South Carolina.5 Thus, the Augusta applicant failed to demonstrate that the station proposed in the returned application would not cause harmful  Y-interference to previously proposed stations.  See 21.902. In addition, the applicant failed  Y-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  YJ-to the 1988 Public Notice, and was mutually exclusive with and cutoff by a pending  Y5-application filed for a transmitter site within that MSA pursuant to  21.901(d)(5).e 53 Y-ԍ Application File No. 560CMP83 for Aiken, South Carolina.e  Y -14. Waterloo, Iowa. On March 27, 1992, a petitioner filed an MMDS application  Y -proposing a transmitter site at Waterloo, Iowa.s h 3 Y -#XR  P7jQ=9XP#э Application File No. 3514CMP92.s 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  Y -returned because the applicant: (1) filed past the cutoff period established in 21.31 or  Y-21.914; 3 Y^-#XR  P7jQ=9XP#э The Commission staff was incorrect in listing violation of cutoff provisions as a return reason. It was harmless error nonetheless, as petitioners' applications were deficient  Y0-and unacceptable for filing for other reasons discussed herein. See note 8, supra. (2) filed in the geographic area of other authorized or pending MMDS  Y}-applications in violation of the 1988 Public Notice; (3) proposed a transmitter site within an  Yh-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"0*(("  Y-unobstructed electrical path of : (1) one 1983 previously authorized MMDS station;3 Yy-#XR  P7jQ=9XP#э Call sign WHK956 at Waterloo, Iowa, Application File No. 14575CMP83. The petitioner proposed to colocate with this previously authorized adjacent channel station. (2) three 1983 previously proposed MMDS stations, which had applications pending on March 27,  Y-1992, the filing date of the Waterloo application;b3 Y-#XR  P7jQ=9XP#э These include Application File Nos. 10959CMP83; 15443CMP83; and 6405CMP83 for Cedar Rapids, Iowa. and (6) three post1983 previously  Y-proposed MMDS stations(s), 3 Yh -#Xw PE37=9XP#э These include two applications for Maynard, Iowa, Application File Nos. 62092CMP91; and 62093CMP91; and one application for Cedar Rapids, Iowa, Application File No. 57294CMP91.  which had applications pending on March 27, 1992. The application lacked interference studies, required by 21.902(b) and (c), for six previously  Y-proposed MMDS stations.u 3 Y-#XR  P7jQ=9XP#э For example, the applicant failed to submit an interference study for a proposed station in Maynard, Iowa, which was listed in the March 20, 1990 FCC internal staff listing of pending applications and was approximately 32 miles away from the applicant's station in Waterloo, Iowa.u Thus, the Waterloo applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to  Y_-authorized or previously proposed stations.  See 21.902. In addition, the applicant failed  YJ-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 WaterlooCedar Falls, Iowa MSA, which was not open for  Y -filing pursuant to the 1988 Public Notice, and was mutually exclusive with pending  Y -applications filed for transmitter sites within that MSA pursuant to  21.901(d)(5). 3 Y-ԍ These applications include, but are not limited to, Application File Nos. 62092CMP91 and 62093CMP91 for Maynard, Iowa, and Application File No. 57294CMP91 for Cedar Rapids, Iowa.  Y -16. Independence, Kansas. On October 30, 1990, certain petitioners filed two  Y -MMDS applications proposing the same transmitter site at Independence, Kansas. n3 Y -#XR  P7jQ=9XP#э Application File Nos. 54152CMP91 and 54153CMP91. 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,  Yf-1992 and July 1, 1992.f3 Y6%-ԍ Application File No. 54153CMP91 was returned on April 30, 1992 and 54152CMP91 was returned on 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"O 0*((9"  Y-in violation of the 1988 Public Notice. Reconsideration petitions for the returned application  Y-were timely filed on May 26, 1992 and July 15, 1992.3 Yd-ԍ Petitions for reconsideration for Application File Nos. 54153CMP91 and 54152CMP91 were filed respectively on May 26, 1992 and July 15, 1992. 17. The applications proposed a transmitter site that was within 50 miles or an  Y-unobstructed electrical path of : (1) five 1983 previously proposed MMDS stations, which had  Y-applications pending on October 30, 1990, the filing date of the Independence applications;b3 Y -#XR  P7jQ=9XP#э These include one application for Coffeyville, Kansas, Application File No. 16639CMP83; one application for Chaunte, Kansas, Application File No. 6990CMP83; one application for Parsons, Kansas, Application File No. 657CMP83; one application for Tulsa, Oklahoma, Application File No. 14583CMP83; and one application for Bartlesville, Oklahoma, Application File No. 339CMP83.  Yx-and (2) two post1983 previously proposed MMDS stations,x3 Y-#Xw PE37=9XP#э These include Application File Nos. 52706CMP90 and 52707CMP90 for Erie,  Y-Kansas. which had applications pending on October 30, 1990. The applications lacked interference studies, required by 21.902(b)  YJ-and (c), for seven previously proposed MMDS stations.JQ 3 YL-#XR  P7jQ=9XP#э For example, the applicants failed to submit an interference study for a proposed station in Coffeyville, Kansas, which was listed in the October 25, 1990 FCC internal staff listing of pending applications and was approximately 15 miles away from the applicants' proposed stations in Independence, Kansas. 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  Y -the proposed MMDS station's transmitter site. 3 Ys-#XR  P7jQ=9XP#э Call sign WLX296, Application File No. BPLIF900921DE, at Erie, Kansas. Thus, these Independence applicants failed to demonstrate that the station proposed in the returned applications would not cause harmful  Y -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  Y -21.902(g). No waiver requests were included in the Independence applications.  Y}-18. Monroe, Louisiana. On April 23, 1991, a petitioner filed an MMDS application  Yf-proposing a transmitter site at Monroe, Louisiana.tfn3 Y#-#XR  P7jQ=9XP#э Application File No. 58969CMP91.t 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  Y -MMDS applications in violation of the 1988 Public Notice. A reconsideration petition for"  0*((" the returned application was timely filed on July 31, 1992. 19. The application proposed a transmitter site that was within 50 miles or an  Y-unobstructed electrical path of : (1) one 1983 previously authorized MMDS station;3 Y4-#XR  P7jQ=9XP#э Call sign WHM413 at Rayville, Louisiana, Application File No. 8058CMP83. and (2) seven 1983 previously proposed MMDS stations, which had applications pending on April  Y-23, 1991, the filing date of the Monroe application.^y3 Y-ԍ These include, but are not limited to, Application File Nos. 5020CMP83; 6920CMP83; 15529CMP83; and 16531CMP83 for Monroe, Louisiana. The applicant proposed to colocate with the transmitter site proposed in 6920CMP83, which was authorized subsequently to the filing of the subject application.^ The application lacked interference studies, required by 21.902(b) and (c), for one authorized, and six previously proposed  Y_-MMDS stations.{_3 Y-#XR  P7jQ=9XP#э For example, the applicant failed to submit an interference study for an authorized  Y- station in Rayville, Louisiana, which was placed on public notice on October 10, 1990 and was aapproximately 29 miles away from the applicant's proposed station in Monroe, Louisiana.{ Thus, this Monroe applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or  Y1-previously proposed stations.  See 21.902. In addition, the applicant failed to satisfy the  Y -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  Y -for filing pursuant to the 1988 Public Notice, and was mutually exclusive with and cutoff by  Y -a previously authorized station within that MSA pursuant to  21.901(d)(5).G Q 3 Y-ԍ WHM413 at Rayville, Lousiana.G The application contained a request for waiver of the 21.902 interference study requirements  Y -and of the location restrictions contained in the 1988 Public Notice.!  3 Y^-ԍ Commission staff did not address the applicant's waiver request in the return letter.  YG-However, a de novo review of the request indicates that it was not sufficient to justify a grant of the rule waiver sought. The applicant sought waiver of the location restrictions in order that it be permitted to file within 50 miles of several pending applications, which were lottery losers to the tentative selectee with which the applicant proposed to colocate, and sought waiver of the interference analysis study requirements for those lottery losers. The applicant's justification for the grant of waivers for these two rules is that a grant would "clearly advance the public interest" and that the applicant has proven that its proposed station would not "cause harmful electrical interference to any proposed or authorized" stations. We find that the applicant did not plead with particularity the facts and circumstances which warrant a grant of the requested waivers and did not meet the  Yc&-requirements of  21.19, the Commission's waiver rule. See  3036, infra, for a discussion of the requirements that an applicant must meet in requesting a waiver." !0*((L"Ԍ  Y-20. Clarksdale, Mississippi. On October 10, 1990, a petitioner filed an MMDS  Y-application proposing a transmitter site at Clarksdale, Mississippi.t"3 YK-#XR  P7jQ=9XP#э Application File No. 50787CMP91.t 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 cutoff  Yv-period established in 21.31 or 21.914;#vy3 Y -#XR  P7jQ=9XP#э The Commission staff was incorrect in listing violation of cutoff provisions as a return reason. It was harmless error nonetheless, as petitioners' applications were deficient  Yr -and unacceptable for filing for other reasons discussed herein. See note 8, supra.Ď (2) filed in the geographic area of other  Y_-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,  Y -1990.R$a 3 YX-ԍ Applications File Nos. 55142CMP91, 55864CMP90; 55869CMP90; 55868CMP90; 55870CMP90; 55880CMP90; 55881CMP90; 55882CMP90; 55883CMP90; 55885CMP90; 55886CMP90; 50763CMP91; 50764CMP91; 50765CMP91; 50766CMP91; 50767CMP91; 50768CMP91; 50769CMP91; 50770CMP91; 50771CMP91; and 50787CMP91. Each of these applications was filed on one of the three dates given and proposed the same transmitter site as the application listed in note 34,  Y-supra, and discussed in  20.R 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  YM-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  Y-Clarksdale applications.L%' 3 Y%-#XR  P7jQ=9XP#э These include one application for Cleveland, Mississippi, Application File No. 444CMP83; one application for Greenwood, Mississippi, Application File No. 526CMP83; and one application for Poplar Bluff, Missouri, Application File No. 667CMP83.L The applications lacked interference studies, required by" %0*(("  Y-21.902(b) and (c), for these three previously proposed MMDS stations.&3 Yy-#XR  P7jQ=9XP#э For example, the applicants failed to submit an interference study for a proposed station in Cleveland, Mississippi, which was listed in the July 7, 1990 FCC internal staff listing of pending applications and was approximately 29 miles away from the applicants' proposed stations in Clarksdale, Mississippi. Thus, these Clarksdale applicants failed to demonstrate that the station proposed in the returned  Y-applications would not cause harmful interference to previously proposed stations.  See  Y-21.902. In addition, the applicants failed to satisfy the requirements for service of  Y-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.  Y4-23. Hattiesburg, Mississippi. On October 30, 1990, a petitioner filed an MMDS  Y -application proposing a transmitter site at Hattiesburg, Mississippi.t' 43 Y-#XR  P7jQ=9XP#э Application File No. 54224CMP91.t 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 cutoff  Y -period established in 21.31 or 21.914;( 3 YW-#XR  P7jQ=9XP#э The Commission staff was incorrect in listing violation of cutoff provisions as a return reason. It was harmless error nonetheless, as petitioners' applications were deficient  Y)-and unacceptable for filing for other reasons discussed herein. See note 8, supra. (2) filed in the geographic area of other  Y -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  Y -an unobstructed electrical path to : (1) one 1983 subsequently authorized MMDS station;) j 3 Y& -#XR  P7jQ=9XP#э Call sign WMH324 at Laurel, Mississippi, Application File No. 1285CMP83. While station WMH324 was subsequently forfeited on April 16, 1992, at the time the Hattiesburg application was filed, the applicant was required to submit with its application an interference analysis for the proposed station site pursuant to 21.902(b) and (c). (2) two 1983 previously proposed MMDS stations, which had applications pending on  Y-October 30, 1990, the filing date of the Hattiesburg application;*3 Yd&-#XR  P7jQ=9XP#э Application File Nos. 600CMP83 for Magee/Laurel, Mississippi; and 451CMP83 for Columbia, Mississippi. and (3) one post1983" p*0*(("  Y-previously proposed MMDS station,+3 Yy-#Xw PE37=9XP#э Application File No. 55176CMP90 for Hattiesburg, Mississippi. ĝ which had an application pending on October 30, 1990. The application lacked interference studies, required by 21.902(b) and (c), for one  Y-authorized, and three previously proposed MMDS stations.,y3 Y-#XR  P7jQ=9XP#э For example, the applicant failed to submit an interference study for a proposed station in Hattiesburg, Mississippi, which was listed in the October 25, 1990 FCC internal staff listing of pending applications and was approximately 7 miles away from the applicant's proposed station in Hattiesburg. The applicant also failed to comply with the requirements of 21.901(d)(1) or 21.902(i) because the ITFS studies  Y-submitted contained incorrect technical specifications and were invalid.!-3 Y: -ԍ Invalid studies were filed for WLX499, Application File No. BPLIF890821DY, for Melba, Mississippi; WLX417, Application File No. BPLIF890821DC, for McHenry, Mississippi; and WLX483, Application File No. BPLIF890821EA, for Rose Hill, Mississippi.! 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  Y_-stations.  See 21.902. In addition, the applicant failed to satisfy the requirements for  YJ-service of interference studies stipulated by 21.902(g). No waiver requests were included in the Hattiesburg applications. :IV. DISCUSSION  Y -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  Y-within 50 miles of their proposed transmitter site..Q 3 Y#-ԍ These include petitioners who filed Application File Nos. 59628CMP91 for Augusta, Georgia, 54512CMP91 for Independence, Kansas, and 58969CMP91 for Monroe, Louisiana. On reconsideration, two of the three".0*(("  Y-petitionersd/3 Yy-ԍ The Independence, Kansas and Monroe, Louisiana petitioner.d request waivers of the 1988 Public Notice  Y-50 mile location restriction but have provided no showing as to how they meet the  Y-requirements of the Commission's waiver rules found at 47 C.F.R.  21.19. See  3036,Ä  Y-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  YN-listing of pending applications.G0Ny3 Yx -ԍ Printed listings of MMDS applications filed with the Commission were available for public inspection. For each application, these lists include the applicant's name, the city proposed to be served, the coordinates of the proposed transmitter site, and the application type and status.G 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  Y:-the October 25, 1990 listing;1 :3 Y-ԍ The petitioner who filed Application File No. 54152CMP91 for Independence, Kansas attached to its petition for reconsideration a photocopied page from the October 4, 1990 FCC internal staff listing. Petitioner offers the photocopy as support for its argument that an E channel application, which was pending on the October 30, 1990 filing date of the petitioned application and was within 50 miles of petitioner's application, did not appear on the listing. Although this pending application (Application File No. 16639CMP83 filed by MDS Microwave, Inc. for Coffeyville, Kansas) did not appear on the October 4, 1990 listing, there were five other pending applications listed that were also within 50 miles of petitioner's application for which petitioner did not file interference studies or request a waiver of the 50 mile location restriction (Application File Nos. 399CMP83; 657CMP83; 6990CMP83; 52706CMP90; and 52707CMP90). These application numbers were found on the pages following the photocopied page referenced by the petitioner. Thus, petitioner's assertion fails to persuade us that sufficient research was done. (4) Monroe, Louisiana: eight pending applications included in the April 9, 1991 listing; (5) Clarksdale, Mississippi: three applications were included in the  Y -July 11, 1990 listing ; and (6) Hattiesburg, Mississippi: four pending applications were" 10*((" 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  Y-applications and authorized stations.K23 Y-ԍ The Augusta, Georgia, Waterloo, Iowa, and Monroe, Louisiana petitioners all filed applications that were within 50 miles of pending applications that were placed on public notice up to five years, six years, and eight months respectively prior to the filing of these returned applications.K 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 online contractor to obtain a listing of  Y_-pending applications and authorized stations.E3_43 YD -ԍ See Public Notice: New Contractor for Online Public Access to Commission Data  Y/-Bases, Mimeo No. 10511 (Nov. 7, 1990) (announcing the availability of a "read only" copy  Y-of the MDS data base through a third party access contractor).E If, as the petitioners claim, the listings  YH-compiled by the Commission and made available to the public4H3 Y-ԍ The Commission identified the listing of pending applications as a resource to be used  Y-by applicants. See 1988 Public Notice, 3 FCC Rcd at 2661. 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  Y -1988 Public Notice. Petitioners have not made a case sufficient to support reinstatement.  Y-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  Yd-did not consider at the time of filing.5dW 3 Yl-ԍ These include petitioners who filed Application File Nos. 54152CMP91 (Independence, Kansas) and 58969CMP91 (Monroe, Louisiana). 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: "~ 50*((|"ԌX(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.(#  YH-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  Y -which warrant such action.' " WAIT Radio v. FCC, 418 F. 2d 1153, 1157 (D.C. Cir.  Y -1969)(citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir  Y -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  Y-monies" spent by the petitioners would be lost if a waiver is not granted.6a3 Y-ԍ The Independence, Kansas petitioner also argues that the location restriction should be waived in this case because, as petitioner claims, certain applications failed to appear on the  Y-Commission's internal staff list of active applications. However, as noted in  28, supra, there were five pending applications included on the Commission's list that were within 50 miles of the petitioner's application for which the petitioner did not request a waiver of the 50 mile location restriction. Therefore, this claim does not form a sufficient basis for the grant of a waiver of the 50 mile location restrictions under  21.19. 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.  Y-See Nelson County Broadcasting, Inc., 64 FCC 2d 932, 933 (1977); see generally WAIT  Y-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"60*((" applications does not obviate the fact the applications were deficient in ways beyond violation  Y-of the 50 mile location restriction. For example, a de novo review revealed that the Monroe, Louisiana application was cutoff 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  Y-legally, technically, and otherwise acceptable for filing. See 47 C.F.R.  21.20.  Yf-35. Finally, #Xw P=9XP#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 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 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 post1983 MMDS applications. In view of these considerations, we find it would be contrary to  Y=-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).  Y -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.  YB&-37. Failure to File Interference Studies. In every instance, the 28 petitioned applications did not include any interference studies for pending and authorized cochannel"+'60*((P("  Y-and adjacent channel applications.73 Yy-ԍ As noted at  1224, the petitioned applications also were defective in additional ways including violating the applicable cutoff rules, the 50 mile location restriction and MSA location restriction. At the very inception of MMDS, the Commission established the principle that subsequently filed applications must not cause harmful  Y-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  Y-Regulation of Common Carrier Radio Stations in the Multipoint Distribution Service, 45 FCC  Y-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."  Y -Family Entertainment Network, Inc., 9 FCC Rcd 566, 56768, 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  Y -of harmful interference to existing and previously proposed MMDS stations.O87 K3 Y-ԍ There has been a series of cases emphasizing the importance of including interference  Y-protection showings in MMDS applications at the time they are filed. See, e.g., New  Y}-Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985) ("[A]n 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 the Commission's  Y:-rules and regulations, as required by . . .  21.20(a)."); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994) ("[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 filing, was proper.").O  Y-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  Y<-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  Y-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  Y-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.") "J 80*((^"Ԍ39. 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. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,William F. Caton ` `  hh,Acting Secretary