WPC>P 2B'J  CourierCG TimesCG Times BoldCG Times ItalicE37XPCG Timeset 4_230_1HPLAS4.PRS 4x  @\oeX@2 6 F ZPf 3|w  HP LaserJet 4_230_1HPLAS4.PRS 4Xw PE37\oeXP",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@\@\`L2B XvpvCG TimesCG Times Boldf ^;C]ddCCCdCCCCddddddddddCCdxN`xoCCCddCdoYoYFdo8Co8odooYNCodddYdddd4dddddCddddddddo8dddddYYYYYN8N8N8N8oddddooooddpddddxodddXXddXddXdddddooL8doddNorddo8PdN8ppoddXXdpLoNpLodPDdopoopodXYXodoodddCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCdUUddddddFddddFCCssd44ddzzddd~ooCsdF"dsd9dCCzCddoddCdYds`zUvdddCCCCzozoYNYYYN8YooYdYzzdzddYYzozzzNdzYzzzzCCdddddddzCzdYC\   pxtll\tll@\@\`LK8wC;,Xw PE37XPDL7zC;, c!Xz_ pi7XMV"G($,hG PE37hP6uC;,cXu&_ x7XXa8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . 2 kkva6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` 2t; I BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2"  q &!!a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# 2X&"#$%a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# 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. ׃  2(&''F(a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  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The 1988 location restrictions were a natural outgrowth of a policy that had provided certain efficiencies in the processing of MDS applications for channels 1, 2, and 2A. In 1981, we noted:   XxAt the inception of the MDS service in 1974 . . . we . . . established the presumption that no harmful interference would occur if stations were greater than 50"5 0*((n" miles apart. If a proposed station were to be located 50 miles or closer to an existing station then we required (and still require) that the applicant submit an engineering showing of the possible impact it would have on the other station. The 50 mile presumption was primarily a processing standard to assist staff . . . . Our intention was to establish general standards which would permit authorization of operations to proceed in an expeditious manner.(#  Y_-R.L. Mohr, 85 FCC 2d at 604. See also Sioux Valley, 2 FCC Rcd at 7376. It was our experience prior to 1988 that there were fewer interference analyses submitted for authorized or previously proposed stations with transmitter sites beyond 50 miles of the subsequently proposed transmitter sites, but within the radio horizon, than for authorized or previously proposed stations within 50 miles. Without the need to review interference analyses for 1983 stations within 50 miles of the post1983 MMDS applications' transmitter sites, scarce engineering resources instead could be used to review interference analyses filed for modification applications, or to make necessary engineering determinations on 1983 applications.  Y{-x11. Summary. Thus, at the time the abovereferenced applications were filed, applicants for new MMDS stations were required to file for a location farther than 50 miles from the location of any station proposed in an application which was pending on April 19, 1988, and farther than 15 miles from the boundary of a statistical area for which there was one or more MMDS applications pending on April 19, 1988. Applicants were permitted to file: (1) beyond 50 miles of a station proposed in an application pending on April 19, 1988,  Y-as long as the location was also farther than 15 miles from the boundary of a statistical area for which there was one or more MMDS applications pending on April 19, 1988; and (2) within 50 miles of a station proposed in an application filed after April 19, 1988. Applicants filing within these areas were required to file their applications before the applicable cutoff dates. In order to demonstrate compliance with these interference protection standards, applicants were directed to submit, as part of their application, interference studies which analyzed the potential for harmful cochannel and adjacent channel interference for all stations and pending applications within 50 miles or the radio horizon of the proposed station, and to serve those studies on the stations and applicants required to be studied. In addition, for applications filed beginning October 11, 1990, through December 29, 1991, the MMDS applicant was also required to submit with its application either an engineering analysis demonstrating a lack of harmful interference to each cochannel or adjacent channel ITFS licensee with a transmitter site within 50 miles of the proposed MMDS transmitter site, or a no objection letter from each ITFS station licensee. Section 21.20 of the rules explicitly put all applicants on notice that failure to comply with these requirements would result in the  Y"-return of their application as unacceptable for filing. Notice was also provided in the MMDS  Y#-Allocation Order, 94 FCC 2d 1203, and MDS Technical Order, 98 FCC 2d 68. III. PETITIONS FOR RECONSIDERATION T")' 0*((P("Ԍx12. On March 12, 1991, petitioners filed nine applications proposing the same  Y-transmitter site at Bismarck, North Dakota. = Yb-#Xw PE37=9XP#э Application File Nos. 58226CMP91 through 58230CMP91; 58232CMP91; 58233CMP91; 58236CMP91; and 58237CMP91. After review of the Bismarck applications by the staff, each was returned by return notification letter dated May 4, 1992. The letters indicated that each application was returned for failure to serve all affected parties with interference studies pursuant to  21.902(g). On June 10, 1992, petitioners filed sworn  Y-statements indicating that another party had been served. _b= Y -#Xw PE37=9XP#э This document was filed more than one month after return of the applications. As discussed below, petitioners alternately characterize this filing as an amendment to, and as refiling of, the applications in their entirety. Applicants did not, in this filing, take the necessary steps to qualify this as a refiling of the applications, hence it cannot be considered a refiling of the applications. Further, as this filing was not a petition for reconsideration, the date on which the 30 day deadline began for the filing of petitions was still May 4, 1992, the date the original application was returned. These filings were returned by return notification letter dated July 13, 1992, as untimely filed. A consolidated reconsideration petition was untimely filed for the nine returned applications on August 10,  YH-1992.\ H = Y-#Xw PE37=9XP#э One reconsideration petition for these applications was filed August 10, 1992, more  Yk-than two months after the 30day deadline following initial return of the applications. See 47 U.S.C. 405, 47 C.F.R. 1.4(b)(5) and 1.106(f). \ x13. The applications proposed a transmitter site that was within 50 miles or the radio  Y -horizon of : (1) one 1983 previously authorized MMDS station;  = Y-#XR  P7jQ=9XP#э Call sign WLW961 at Bismarck, North Dakota, Application File No. 2067CMP83 . ĭ and (2) seven 1983 previously proposed MMDS stations, which had applications pending on March 12, 1991, the  Y -filing date of the Bismarck applications. = YF-#XR  P7jQ=9XP#э Applications for Bismarck, North Dakota: Application File Nos. 4322CMP83; 10492CMP83; 10765CMP83; 6398CMP83; 10953CMP83; 411CMP83; and 141 Y-CMP83.  x14. The applicants failed to conduct interference studies for and serve: (1) one 1983  Y-previously authorized MMDS station;B= Y#-#XR  P7jQ=9XP#э Call sign WLW961 at Bismarck, North Dakota, Application File No. 2067CMP83,  Ym$-placed on Public Notice September 26, 1986. While station WLW961 was subsequently forfeited on April 24, 1991, at the time the applications were filed, applicants were required to include an interference analysis for this stations in their applications and serve this licensee with the analysis, as required by 21.902(b), (c) and (g).  and (2) seven 1983 previously proposed MMDS" 0*((K" stations, which had applications pending on March 12, 1991, the filing date of the Bismarck  Y-applications.J= Yb-#Xw PE37=9XP#э Applications for Bismarck, North Dakota: Application File Nos. 4322CMP83; 10492CMP83; 10765CMP83; 6398CMP83; 10953CMP83; 411CMP83; and 141 Y4-CMP83, all placed on Public Notice September 26, 1986. J No waiver requests were included in the Bismarck applications.  III. DISCUSSION  Y-x15. Untimely Petition for Reconsideration. As a preliminary matter, we note that this consolidated petition for reconsideration was untimely filed. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.  405, requires that petitions for reconsideration "must be filed within thirty days from the date upon which public notice is  Y1-given of the order, decision, report, or action complained of."1K= Y--#Xw PE37=9XP#э Section 1.106(f) of the Commission's rules, 47 C.F.R. 1.106(f), which implements this statutory mandate, establishes that a petition for reconsideration must be filed within 30 days from the date of the public notice of the return action, if any, as those dates are defined in  1.4(b)(5) of the Commission's rules, 47 C.F.R.  1.4(b)(5).  Because the time period for filing petitions for reconsideration is prescribed by statute, the Commission may not  Y -ordinarily waive or extend the filing period. Reuters Limited v. FCC, 781 F.2d 946, 952 (D.C. Cir. 1986) ("[W]e conclude that the Commission acted beyond its lawful authority  Y -when it entertained the belated petition for reconsideration."); Metromedia, Inc., 56 FCC 2d 909 (1975) (Commission may not waive 30 day filing period to accept a petition for  Y -reconsideration filed one day late).v = Y-ԍ The Court of Appeals for the D.C. Circuit, in Gardner v. FCC, 530 F.2d 1086 (D.C. Cir. 1976), created a narrow exception to this rule by holding that the Commission may extend or waive the 30day filing period in the "extraordinary case" where the latefiling is due to the Commission's failure to give a party timely notice of the action for which  Y-reconsideration is sought. Under the holding of Gardner:   Xx A petitioner has the burden to show (a) when and how he received notice in fact, (b) that the time remaining was inadequate to allow him reasonably to meet the 30day requirement (from date of issuance) of  405, and (c) that he moved for reconsideration promptly on receiving actual notice.(#  Y"-Gardner, 530 F.2d at 109192, n.24. v x16. Here, the untimely petition was filed more than two months after the initial return of the applications. Petitioners acknowledge their tardiness in filing the reconsideration petition, and request waiver of  1.106(f) "to the extent necessary." Petitioners claim that delay in filing this reconsideration petition was due to delay in filing what they have alternately characterized as amendments to, and as resubmission of,"! q0*((" applications filed on June 10, 1992. Petitioners also claim that delay in filing these June 10, 1992, amendments was due to the receipt of returned applications on different dates, if at all. Moreover, petitioners allege that the decision to make a June 10, 1992, filing was made because of an informal request by Commission staff that petitioners resubmit all the applications at one time. Petitioners claim that this delayed their submission because all of the applications had not been returned and those that had been returned were not received at one time. Petitioners do not claim Commission staff indicated that they were exempt from Commission regulations with regard to timeliness of filing.  Y1-x17. Reliance on Staff Statements. Petitioners assert detriment resulting from  Y -reliance on alleged statements of Commission staff. Even assuming, for the sake of  Y -argument, that such statements were made, they neither bind the Commission nor prevent us from enforcing Commission regulations. The Commission has specifically held that parties  Y -who rely on staff advice or interpretations do so at their own risk. See, e.g., AAT  Y -Electronics Corp., 53 RR 2d 1241, 122526 (1983), aff'd, P&R Temmer v. FCC, 743 F.2d  Y -918, 931 (D.C. Cir. 1984). When the staff advice is contrary to the Commission's rules, the  Y-Commission may still enforce its rules, despite any reliance by the public. See Malkan FM  Y-Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) (affirming Commission's decision to enforce its rules despite earlier staff statements giving erroneous interpretation of the rules at official seminar). Here, the requirements are clear and the Commission reasonably expects that applicants will turn to those requirements for guidance. x18. Further, at the time they filed the sworn statements of service on June 10, 1992, petitioners characterized the filings as "minor amendments." These amendments, however, were untimely since the applications had already been returned on May 24, 1992, and were  Y-therefore no longer pending. Therefore, petitioners had no right to file amendments.<R= YB-ԍ See, e.g., Edna Cornaggia, 8 FCC Rcd at 5444, n.7 ("[I]t is no longer possible to  Y--amend an application which has already been dismissed . . . ."); Earl V. Levels, 8 FCC Rcd 5506 (curative amendments filed with petition for reconsideration, attempting to supply a  Y-missing interference showing and other missing information, not allowed); Marylan J.  Y-Benson, 7 FCC Rcd at 4699, n. 9 ("We reject Benson's contention that she should be  Y-permitted to file curative amendments and have her application reinstated nunc pro tunc, for further processing. We believe that the Division's initial return of the abovereferenced Benson application as unacceptable for filing was correct . . . .")< See  21.23(a)(1). x19. In their reconsideration petition, however, petitioners characterize the June 10, 1992, filing not as an amendment but as a resubmission of applications. These resubmissions were not filed in accordance with the rules for filing applications, or with the appropriate fees, hence they cannot be considered as applications. Further, even if the Commission were to consider these filings as refiling of the applications, because they were filed after the filing"* 0*(("  Y-freeze, they could not be accepted.Dz= Yy-ԍ The Commission imposed a freeze, effective April 9, 1992, on the filing of new applications for MDS stations in a rulemaking proceeding to further explore options which  YK-would expedite the processing of MDS applications. Notice of Proposed Rulemaking, PR Docket No. 9280, 7 FCC Rcd 3266, 3270 (1992). The freeze does not apply to MDS applications for modification, renewal, assignment of license, transfer of control, extension  Y-of time to construct and signal boosters. Id. at 3271.D Whether these filings are characterized as minor amendments or resubmissions, the reconsideration petition was due not later than 30 days from May 4, 1992, when the original applications were returned. Consequently, the reconsideration petition, received August 10, 1992, was more than two months late. Because of these applicants' failure to comply with 47 U.S.C.  405, the untimely petition for reconsideration will be dismissed. We note, however, that even if we were to consider the merits of the arguments raised in the untimely petition for reconsideration, we would still deny the petition for the reason discussed below.  Y1-x20. Interference Protection. In a de novo review, we have determined that each applicant failed to perform and serve interference studies, as required by  21.902, for all applicants, conditional licensees and licensees for stations required to be studied by  21.902(c), when the applications were filed, thus depriving affected parties of notice and  Y -an opportunity to be heard.f = Y-ԍ See footnotes 15 and 16, supra, and accompanying text.f Section 21.20 of the rules explicitly put all applicants on notice that failure to comply with these requirements would result in the return of their applications  Y -as unacceptable for filing. Notice was also provided in the MMDS Allocation Order, 94  Y-FCC 2d 1203, and MDS Technical Order, 98 FCC 2d 68. 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):   XxThe Commission makes provision for actual notice and an opportunity to be heard by parties in interest by requiring at Section 21.902(g) that microwave stations that might be affected by operation of an MDS station be served a copy of the required interference analysis for their station. Cornaggia admittedly failed to properly serve VisionAire with a copy of the interference analysis . . . . Due to this lack of service, the orderly process contemplated in the Commission's rulemaking order, in which the Commission staff resolves interference problems after oppositions are filed, was negated.(#  Yk-x21. Mutual Exclusivity and Cutoff. After conducting a de novo review of the returned applications and publicly available information regarding authorized MMDS stations and pending applications, we also conclude that the petitioned applications were untimely filed with respect to authorized stations or previously filed applications with which the returned applications were mutually exclusive. The determining factors we used to ascertain" 0*((" if the abovereferenced MMDS applications were mutually exclusive pursuant to  21.31(a) were whether the applications were filed: (1) within 50 miles of an authorized or previously  Y-proposed MMDS station;`= YK-ԍ MDS Allocation Order, 45 FCC 2d at 62021.` or (2) within the radio horizon (with an unobstructed electrical  Y-path) of the protected service area of an authorized or previously proposed MMDS station.X{= Y-ԍ MMDS Technical Order, 98 FCC at 109111.X  Y-Each of these returned applications propose a transmitter site which made the proposed stations mutually exclusive, pursuant to  21.31 or 21.914, with authorized or previously  Yv-proposed MMDS stations. See  35, supra. Specifically, all of the returned applications were mutually exclusive and were cutoff with respect to: (1) a 1983 pending application or authorized station (for which the cutoff date was September 9, 1983); or (2) a post1983 pending application or authorized station, which had a cutoff date prior to the filing date of  Y -the returned applications. .= Y-ԍ All nine returned applications were mutually exclusive with and cutoff by previously filed MDS applications, with a cutoff date of September 9, 1983. Thus, the applications were cutoff and were properly returned as unacceptable for filing pursuant to  21.31(d), which states: XxAn 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 (# xfinal action is taken by the Commission with respect to the previously filed  Y{- xapplication (or applications). 47 C.F.R.  21.31(d).  Y-x22. Location Requirements. The 1988 Public Notice allowed the filing of MDS  Y -applications on the E and F channels commencing April 20, 1988, but only for locations that were: (1) farther than 50 miles from any proposed location of an MMDS application pending on April 19, 1988 or an existing station; and (2) farther than 15 miles from the boundary of  Y-a statistical area for which there are applications pending on April 19, 1988. The 1988  Y-Public Notice set the dates on which applications for the E or F channels could be filed, pursuant to the stipulations of the Commission's authority under  21.901(d)(4). The first  Y-paragraph of the Notice explicitly stated that "[a]pplications filed must comply with the location restrictions contained in this Notice. We do not anticipate granting any waivers of  YZ-this location requirement." 1988 Public Notice, 3 FCC Rcd at 2661. It also emphasized twice that applications filed in violation of the location requirements would be returned as  Y.-unacceptable for filing. Id. Despite these directives, the abovereferenced MMDS  Y-applications proposed a transmitter site in violation of the location restriction of the 1988  Y-Public Notice. Therefore, these applicants submitted applications on dates not designated by the Commission for filing of MDS applications."0*(( "Ԍx23. 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. x24. Accordingly, IT IS ORDERED, that the untimely consolidated reconsideration petition filed by the applicants IS HEREBY DISMISSED. x25. IT IS FURTHER ORDERED, that the staff of the Mass Media Bureau shall send copies of the decision to the authorized representative for petitioners by certified mail, return receipt requested. x` `  FEDERAL COMMUNICATIONS COMMISSION   x` `  William F. Caton  Y-x` `  Acting Secretary