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 95-238 Washington, D.C. In the Matter of ) 15 Applications for Authority ) To Construct and Operate ) Multipoint Distribution ) Service Stations on the E Group and ) F Group Channels at Bay City, Texas ) 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 15 applications for authority to construct and operate Multipoint Distribution Service ("MDS") stations on the E or F channels at Bay City, Texas. These 15 applications were filed with the Commission between October 26, 1990, and November 19, 1990, after the Commission had reopened the filing period for MDS applications on the E and F channels, subject to certain location restrictions. See  5, infra. Because these petitions raise common issues, 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). II. BACKGROUND 2. These 15 applications for the E or F group channels proposed the same transmitter site at Bay City, Texas (hereinafter Bay City applications) and were filed with the Commission, on October 26, 1990, November 14, 1990, and November 19, 1990, respectively. A preliminary review of the Bay City applications, conducted by Commission staff, revealed that the applications were unacceptable for filing. Specifically, the return letters stated that the Bay City applicants: (1) filed past the cut-off period established in 47 C.F.R.  21.31 or 21.914; (2) filed in an area not open for filing, pursuant to 47 C.F.R.  21.901(d)(4), as it did not meet the criteria established in 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) which specifically states, that an applicant may not file in a geographic area of an authorized MMDS station or pending MMDS application; (3) performed an inadequate interference analysis pursuant to 47 C.F.R.  21.902 due to failure to serve all affected parties pursuant to 47 C.F.R.  21.902(g) and failure to consider all previously proposed or authorized MMDS or Instructional Television Fixed Service ("ITFS") stations pursuant to 47 C.F.R. 21.902(c) and/or 21.902(i); and (4) did not comply with Amendments of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service, and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1262-64 (1983) (hereinafter MMDS Allocation Order). See 47 C.F.R.  21.901(d)(5). See also Public Notice, "Designation of Lottery Areas in Multichannel Multipoint Distribution Service (MMDS) Applications." Reminder, Mimeo No. 5754 (August 4, 1983). Consequently, the Commission staff returned the Bay City applications by individual return notification letters dated April 7, 1993, pursuant to 47 C.F.R.  21.20. 3. Petitioners' Arguments on Reconsideration. On May 7, 1993, the Bay City applicants filed petitions for reconsideration for the 15 returned applications. On reconsideration, petitioners contend that the interference assessments accompanying their applications were based on thorough engineering analyses which showed that there were no cochannel or adjacent channel MMDS applicants or licensees within 50 miles of petitioners' proposed Bay City site. All petitioners attach a declaration of the engineer who performed the work for the Bay City applicants which they assert confirms these contentions. Some petitioners also state that there were no licensed ITFS stations within 50 miles of their proposed site. Some petitioners acknowledge that their engineering review did reveal one applicant for the E channels in El Campo, Texas, but allege that this application had been dismissed prior to their filing dates and, hence, no interference analysis was necessary. Moreover, some petitioners state that a review of a "recent" MMDS data base confirms their original interference assessment that there were no licensees or pending applicants for the cochannels or adjacent channels listed on the data base at the time petitioners filed their applications. In addition, some petitioners contend that their Bay City site was chosen specifically because there were no other cochannel or adjacent channel applicants or licensees within 50 miles of petitioners' proposed site. All of the Bay City petitioners contend it was sufficient that they recognized that there could have been previously proposed stations which had not yet appeared on public notice or on the FCC data base and, hence, each Bay City applicant pledged, in this event, to cooperate with any eventual grantee to prevent interference to the grantee's station. Furthermore, petitioners assert, where an application was not listed on the most recent data base, nor on public notice, petitioners could not have been aware of such an application, and, therefore, it would be unreasonable and unfair for the Commission to dismiss their applications because they failed to take such an application into account. In the alternative, petitioners contend, they should be afforded an opportunity to address any newly-revealed applications. 4. Finally, petitioners claim their Bay City site is more than 15 miles from the border of the closest CMSA (Houston, Texas). Petitioners assert that the engineer's declaration verifies this conclusion. III. DISCUSSION 5. Location Restrictions. After the initial filing date of September 9, 1983, no filing period was again designated until 1988. In accordance with  21.901(d)(4) of the Commission's rules, the Commission then designated that MDS applications for E or F channel stations could be submitted 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 for the E or F channels pending on April 19, 1988, or an existing authorized facility, and (2) farther than 15 miles from the boundary of a statistical area for which there was an MDS application for the E or F channels pending as of April 19, 1988. See 1988 Public Notice. These location restrictions were announced in the first paragraph of the 1988 Public Notice and twice repeated on the first page. In addition it was explicitly stated in the first paragraph,"We do not anticipate granting any waivers of this location requirement. Applications that fail to comply with this requirement will be dismissed as unacceptable for filing." 1988 Public Notice, 3 FCC Rcd at 2661. It was also emphasized twice that applications filed in violation of the location requirements would be returned as unacceptable for filing. Id. 6. Despite these clear directives, petitioners proposed a transmitter site in violation of the location restrictions contained in the 1988 Public Notice. Therefore, because the 1988 Public Notice prohibited the filing of these applications, petitioners' applications were properly found to have violated these location restrictions. In addition, because the date for filing applications applied only to applications for sites located more than 50 miles from applications pending on April 19, 1988, or more than 15 miles from the border of a statistical area which applications pending on April 19, 1988, the Bay City applicants filed on a date not designated by the Commission for filing of MDS applications for the E and F channels. See  21.901(d)(4). Petitioners can claim no surprise concerning the important burden placed on applicants to carefully select the proposed location of an MDS station. In addition to the clear language in the 1988 Public Notice, we stressed, as early as 1980, the importance of compliance with 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, a cost in terms of more careful engineering and site location, and perhaps in use of more sophisticated equipment than would be otherwise required." Id. at 37 (emphasis added). Thus, petitioners had full notice of the necessity to comply with the location restrictions. Because petitioners chose to disregard the clear directive, announced in the 1988 Public Notice, their applications were properly returned as unacceptable for filing. 7. Mutual Exclusivity and Cut-off. 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); see 47 C.F.R.  21.902(c), (d) and (f). In determining whether MMDS applications are mutually exclusive pursuant to  21.31(a), the staff evaluates whether the MMDS applications were filed: (1) within 50 miles of an authorized or previously proposed MMDS station; or (2) within the radio horizon with an unobstructed electrical path of the protected service area of an authorized or previously proposed MMDS 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). 8. In addition,  21.901(d)(5) states: Notwithstanding the provision of  21.31(a) all applications that propose to locate transmission facilities within or within 24.1 kilometers (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 24.1 kilometers (15 miles) of the boundary of any SMSA contained in the SCSA will be considered together. 47 C.F.R.  21.901(d)(5). These metropolitan statistical areas and consolidated metropolitan statistical areas were adopted by the Commission for mutual exclusivity and cut- off purposes in order to avoid "gridlock" which refers to situations where applications proposing to serve widely separated geographical areas are mutually exclusive. See MMDS Allocation Order 94 FCC 2d at 1262-1263. Also in the MMDS Allocation Order, we stated our intention to use the United States Census Bureau 1983 definitions of Consolidated Metropolitan Statistical Areas, Primary Metropolitan Statistical Areas, and Metropolitan Statistical Areas which were released by the Office of Management and Budget ("OMB") on June 27, 1983, and effective on June 30, 1983, as our definitional source for metropolitan statistical areas for the MDS service. 94 FCC 2d at 1263 n. 43 9. In order to be acceptable for filing, MDS applications were required to be filed on or before the applicable cut-off date for mutually exclusive applications. By way of background, the Commission initially authorized the filing of MDS applications on the E or F channels on one filing date, September 9, 1983. See MMDS Allocation Order, 94 FCC 2d at 1262-66; see also Establishment of Multi-Channel Systems, 48 Fed. Reg. 33, 873 as corrected, 48 Fed. Reg. 34,746. Thereafter, no additional applications for new stations were accepted for filing until April 20, 1988, pursuant to  21.901(d)(4). Applications for the E or F channels which complied with specified restrictions could then be filed between April 20, 1988 and April 9, 1992. If an MMDS 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. 10. Based upon our de novo review of the returned Bay City applications and the publicly available information regarding authorized MMDS stations and previously filed applications, we conclude, as discussed in detail below, that each of these petitioned applications were cut-off by authorized stations or previously filed applications with which the returned applications were mutually exclusive. See  21.31 and 21.901(d)(5). The Bay City applicants were within 15 miles of the border of the Houston CMSA and, hence, were mutually exclusive and cut-off by two 1983 proposed stations within the Houston CMSA which became authorized stations for which the cut-off date was September 9, 1983. On May 28, 1985, the referenced Houston CMSA applications appeared on public notice as accepted for filing. See Public Notice: Multichannel Multipoint Distribution Service Applications Accepted for Filing and Notification of Lottery Date, No. MMDSL-1 (May 28, 1985). On September 16, 1985, we announced that two lotteries, one for the E group applicants and one for the F group applicants, for the Houston CMSA would be held on September 27, 1985. See Public Notice: Multichannel Multipoint Distribution Service Applications Accepted for Filing and Notification of Lottery Date, Rpt. No. MMDSL-2 (September 16, 1985). On October 1, 1985, we announced WLK305 and WMI812, see supra note 19, as the Houston CMSA lottery winners. See Public Notice: Multichannel Multipoint Distribution Service Permittees Chosen in First Nine Markets, Mimeo. No. 004 October 1, 1985), as corrected by Public Notice: Erratum, Mimeo. No. 0025 (October 2, 1985). These Houston CMSA lottery winners' applications were later granted, on October 27, 1986 (WLK305), and March 26, 1992, (WMI812), respectively. As noted above, at the time the Bay City applications were filed, Section 21.901(d)(5) stated that all applications proposing to locate within or within 15 miles of the boundary of a CMSA were mutually exclusive with each other, and, thus, the Bay City petitioners were cut-off on September 9, 1983, by these Houston CMSA applications. 11. We reject petitioners' claim that their Bay City site is more than 15 miles from the border of the Houston CMSA as contrary to the facts. The basis, as declared by petitioners' engineer, for petitioners' claim that their proposed location is outside the Houston CMSA is premised on incorrect data. Our own independent review, using a computer program based on the 1983 OMB list determined again, on reconsideration, that the coordinates specified in the petitioners' applications are within 15 miles of the border of the Houston CMSA. The coordinates specified in petitioners' engineer's declaration, which was attached to the petitions for reconsideration, are inconsistent with the coordinates first noted above which were specified in petitioners' applications. While these incorrectly stated coordinates are further than 15 miles from the border of the Houston CMSA, the incorrect coordinates are for a site 11.29 miles from the site petitioners proposed in their applications. The mutual exclusivity determination for these Bay City applications was based on the coordinates provided by the applicants on their applications, not on substitute coordinates for a different site provided on reconsideration. Thus, the above-referenced applications were properly returned as unacceptable for filing pursuant to  21.31(d), which states: 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). 12. Interference Protection. At the very inception of MDS, the Commission established the principle that subsequently filed applications must not cause harmful interference to any previously proposed or authorized 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 MDS channel. . . ." MDS Allocation Order, 45 FCC 2d at 621. Over nine years before the above- referenced applications were filed, the Commission explained its emphasis on this requirement for MDS applications. It is possible for co-channel 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. R.L. Mohr, 85 FCC 2d at 606. 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." Family Entertainment Network, Inc., 9 FCC Rcd 566, 567-68, n. 10 (Dom. Fac. Div. 1994) (hereinafter Family Entertainment). Thus,  21.902(b) requires all MDS 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. 13. At the time the Bay City 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 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 is within 50 miles of the transmitter coordinates of any other authorized or previously proposed cochannel station. 47 C.F.R.  21.902(c)(1)(1990). In addition,  21.902(c)(2) 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 station. 47 C.F.R.  21.902(c)(2) (1990); see 47 C.F.R.  21.902(a), (b), (d) and (f). Section 21.901(d)(7) further required that each MDS application for the E or F channels 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 required MDS 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). These interference showings are a significant requirement because the Commission, in reallocating the E and F channels from 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 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. Those applications that do not contain an analysis of how the applicant intends to avoid cochannel interference in adjacent areas will not be considered acceptable for filing." Id. See also  21.902(b) and (c). Consequently, there has been a series of cases emphasizing the importance of interference protection showings in MDS applications for the E or F channels. "[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." Family Entertainment, 9 FCC Rcd at 567. "In the processing of MDS station applications, the interference analyses required by [ 21.902] are crucial." Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). 14. In addition to being mutually exclusive and cut-off by pending 1983 proposed and authorized stations, see supra  10, we find that the Bay City applications were properly returned for failure to comply with our interference protection requirements. Specifically, in our de novo review, we have determined that each Bay City applicant failed to include required interference studies for three 1983 pending previously proposed MMDS stations and up to 160 post-1983 previously proposed MMDS stations. 15. Regarding petitioners' failure to file required interference studies, we note that the Bay City applicants failed to submit required interference analyses for previously proposed stations which had appeared on public notice or FCC staff internal listings prior to the filing dates of petitioners' applications. For example, with respect to the three pending 1983 applications that the Bay City applicants failed to submit interference studies for: (1) Application File Nos. 11855-CM-P-83, in Houston, Texas was placed on public notice on May 28, 1985, over five years prior to petitioners' application filing dates; (2) Application File No. 02540-CM-P-83, in Victoria, Texas was placed on public notice on November 15, 1986, over four years prior to the Bay City applicants' filings; and (3) Application File No. 09139-CM-P-83, in El Campo, Texas appeared on the FCC internal staff listings immediately preceding the filing dates of the Bay City applications. As for the post-1983 pending previously proposed stations, again we note that the Bay City applicants failed to submit interference studies for proposed stations which had appeared on public notice prior to petitioners' application filing dates. For example, Application File No. 52007-CM-P-90 in Bay City, Texas was placed on public notice on September 19, 1990, over one month prior to petitioners' application filings. Thus, given petitioners' failure to file for pending previously proposed 1983 and post-1983 stations listed on public notice or FCC internal staff listings, we find that even apart from any failure of petitioners to file interference studies for recently proposed stations not included on public notice or FCC internal staff listings, the Bay City applicants failed to comply with  21.902(c). 16. In addressing petitioners' contentions, we further note that petitioners fail to provide many of the factual particulars upon which their allegations are based. See Jim Bolton, 2 FCC Rcd 3207 (a bald conclusion, without any offer of proof or documentary support, has no probative value) (Comm. Car. Bur. 1987). Here, petitioners assert that there were no cochannel or adjacent channel applicants or stations within 50 miles of their proposed site based on their review of "available databases" or "MMDS database" or "the Commission's records." Petitioners do not, however, state which particular data base they consulted, nor when they conducted their review of said data base, or the date of any Commission records utilized by petitioners in conducting their interference assessments. Similarly, some petitioners contend that a review of a "recent" MMDS data base confirmed their original interference assessment that there were no licensees or pending applicants for the cochannels or adjacent channels listed on the data base at the time petitioners filed their applications without providing the necessary information to review this assertion. Finally, petitioners' engineer's declaration, attached to the reconsideration petitions, merely states that to the best of his knowledge and belief no such harmful interference would be caused by the Bay City applicants, but he fails to provide the basis upon which his conclusion rests. As we have previously discussed, our review of public notices and FCC internal staff listings available at the time petitioners filed their applications revealed numerous pending 1983 and post-1983 previously proposed stations that were within 50 miles or with an unobstructed electrical path of the Bay City applicants' proposed site. 17. Petitioners' assertions, contained in their applications, that they would cooperate fully and in good faith to resolve any harmful electrical interference, should there be an application which was pending or granted which the Bay City applicants did not locate, 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 problems of potential interference . . . ." See also 47 C.F.R.  21.31. A pledge to comply with the requirements of Section 21.902(a) does not exempt any MDS applicant from compliance with 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 techniques' does not constitute the kind of showing discussed in the MMDS Allocation Order and required under 47 C.F.R.  21.901(d)(7)." As described above, the interference analyses are necessary at the beginning of processing a particular MDS application so that mutual exclusivity determinations may be made. This is a step which cannot be skipped, as implied by these petitions. In addition, Part 21 of the rules is structured so that applicants must demonstrate a lack of harmful interference as a prerequisite to the grant of an application. 18. We also reject petitioners' request to be permitted to address now, on reconsideration, any "newly-revealed" applications for which petitioners were required to submit interference studies. Petitioners had ample notice of pending 1983 and post-1983 previously proposed stations, and should have submitted their interference analyses for those stations with their applications. Because petitioners here failed to make the required showings regarding interference protection, their applications cannot be characterized as complete or in substantial compliance with the Commission's rules. New Channels, 57 RR 2d at 1602. Thus, due to the lack of required interference analyses the Bay City applications were unacceptable for filing. 19. Notice to Affected Parties. Section 21.902(g) requires an MDS applicant to serve each required interference study upon the previously proposed or authorized station applicants, conditional licensees or licensees required to be studied and to submit, with the application, a list identifying each applicant, conditional licensee, and licensee served. 47 C.F.R.  21.902(g). Each of the Bay City applicants failed to serve any copies of the required interference analyses, as mandated by  21.902(g), on any of these applicants, conditional licensees and licensees for stations stipulated to be studied by  21.902(c), thus depriving affected parties of notice and opportunity to be heard. In Edna Cornaggia, 8 FCC Rcd 5442, 5444 (Dom. Fac. Div. 1993), the return of a modification application was upheld for failure to comply with  21.902(g): The 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 opposition are filed, was negated. 47 C.F.R.  21.902(g). Thus, these applications were properly returned as unacceptable for filing based on their failure to comply with the service requirements contained in  21.902(g). IV. CONCLUSION 20. 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. 21. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the Bay City applicants ARE HEREBY DENIED. 22. 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