WPCU 2BJ  Courier3|w s BoldTimes New Roman BoldXPCG Timeset 4_230_1HPLAS4.PRS 4x  @\oeX@2 6 F ZPv3|wHP LaserJet 4_230_1HPLAS4.PRS 4Xw PE37\oeXPa8DocumentgDocument Style StyleXX` `  ` 2=pRkk-a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  2votY a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` 2  o  a3DocumentgDocument Style Style B b  ?  1.  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 22   Y 2 a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# 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 Technical2d 4Ba1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   2"o1a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . 2 3oea8TechnicalTechnical 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)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxx-MDS applications for the E or F channels. >= Y -ԍxSee, e.g., New Channels Communications, Inc., 57 RR2d 1600, 1602 (1985) ("In our view, an MDS application which does not contain the important and essential technical showing required by  21.902(c) cannot be characterized as complete, or in substantial compliance with the Commission's rules and regulations, as required by the criteria for  Y-acceptability outlined in rule  21.20(a)."); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994) ("Section 21.902(c)(2) requires that an applicant initially file with the application analysis of the potential for harmful interference with any authorized or previously proposed adjacent channel stations within the radio horizon of the applicant's proposed transmitting antenna . . . [B]ased upon CNI's failure to comply with Section 21.902, the Division's finding, that CNI's application was defective and unacceptable for  Y*#-filing, was proper.");  G.C. Cooper, 8 FCC Rcd 7007, n.9 (Dom. Fac. Div. 1993) ("[T]he standard for evaluating applications under Part 21 of the rules is not 'substantial completeness' but rather 'acceptability for filing'. . . . Cooper's application was properly returned as unacceptable for filing . . . for failure to include the technical showing  Y&-required. . . "); Marylan J. Benson, 7 FCC Rcd 4668 (Dom. Fac. Div. 1992) ("[T]hose"&0*((;'" applications that do not contain an analysis of how the applicant intends to avoid cochannel interference in adjacent areas will not be considered acceptable . . . This interference protection showing is a significant requirement . . . ."). ">K0*(("Ԍ Y- x23. Our analysis of the interference statements submitted shows that the returned  Y-applications failed, inter alia, to provide at least 45 dB of cochannel interference protection or at least 0 dB of adjacent channel interference protection as required by  21.902(b); failed to submit free space calculations of the desired to undesired signal ratios to each reference receiving antenna within the protected service area of the previously proposed stations as  Y-required by  21.902(f); failed to demonstrate terrain blockage (see  21.902(d)); and contained incorrect technical specifications for the petitioner's station or the previously  Yc-proposed station. See Revision of Part 21 of The Commission's Rules, 2 FCC Rcd 5713, 571617 (1987) ("Coordination of MDS . . . systems . . . relies on accurate data about the interference environment.") Thus, these applications were properly returned as unacceptable  Y -for filing. See MMDS Technical Order, 98 FCC 2d at 93 ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference as described herein will not be accepted for  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."). Based upon these considerations, we conclude that petitioners failed to comply with the technical requirements set forth in  21.902 regarding interference protection and failed to demonstrate that the applicants are technically qualified to be MDS licensees as required by  21.900. Thus, these applications  Y)-were properly returned as unacceptable for filing. New Channels Communications, Inc., 57  Y-RR2d at 1602; CNI Wireless, Inc., 9 FCC Rcd at 2040. x  Y-x24. Notice to Affected Parties. In addition, each applicant failed to serve, as required by  21.902(g), all applicants, conditional licensees and licensees for stations required to be studied by  21.902(c), thus depriving affected parties of notice and an  Y-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):   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.(#""K0*((#"ԌThus, these applications were also properly returned as unacceptable for filing based on their failure to comply with the service requirements contained in  21.902(g).  Y-x25. Location Requirements. The 1988 Public Notice allows the filing of MDS  Y-applications on the E and F channels commencing April 20, 1988, but only for locations that are: (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  Yc-a statistical area for which there are applications pending on April 19, 1988. c= Y-ԍx As noted supra n. 13 and 15, the Santa Cruz petitioners filed applications proposing transmitter sites within the Salinas, California MSA. The first  YL-paragraph of the Notice explicitly stated that "[a]pplications filed must comply with the location restrictions contained in this Notice. We do not anticipate granting any waivers of  Y -this location requirement." 1988 Public Notice, 3 FCC Rcd at 2661. It also emphasized twice that applications filed in violation of the location requirements would be returned as  Y -unacceptable for filing. Id. Despite these clear directives, all of the abovereferenced MMDS applications proposed a transmitter site in violation of the location restriction of the  Y -1988 Public Notice. Therefore, these applicants submitted applications on dates not designated by the Commission for filing of MDS applications for the E or F channels. x26. 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  YW-clear language in the 1988 Public Notice, we stressed, as early as 1980, the importance of  YB-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  Y-more desirable bands, . . . [t]o be able to use these frequencies [for MDS] imposes a cost, a  Y-cost in terms of more careful engineering and site location, and perhaps in use of more  Y-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 Commission's clear directive, their applications  Y-were properly returned as unacceptable for filing.  Ranger v. FCC, 294 F.2d 240, 242 (1961).  Yf-x27. Waiver Requests. Petitioners assert that their waiver requests provided an  YO-"affirmative showing" to meet the threshold requirements of 21.19, and, therefore, the Commission was required to grant the Rockingham applicants' request for waiver of the  Y!-location restrictions contained in the 1988 Public Notice, and the Santa Cruz applicants' request for waiver of  21.901(d)(5). No provision of  21.20 requires that waivers be granted. For the reasons discussed below, we do not find that grant of the waivers would serve the public interest. x 28. Section 21.19 provides that applications seeking waiver of the Commission's rules must contain a statement of reasons sufficient to justify a waiver. A waiver will only"#d 0*(($" be granted upon an affirmative showing that:   Xx(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(# Xx(b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. (# "An applicant for waiver faces a high hurdle even at the starting gate. 'When an applicant seeks a waiver. . . it must plead with particularity the facts and circumstances which warrant  Y -such action." WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio  Y -Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per  Y -curiam)); see also David Laustsen, 3 FCC Rcd 2053, 2054 (Comm. Car. Bur. 1988) ("[A] request for waiver ... must affirmatively demonstrate that application of the rules would frustrate the underlying purposes of the rule.")  Y-x29. Petitioners assert that they are entitled to waivers of the 1988 Public Notice  Yj-location requirements and  21.901(d)(5) because grant of a waiver would not result in  YS-harmful interference to authorized or previously proposed MMDS stations.!xS= Y-ԍxThe petitioners not only assert that no harmful interference would result from grant of  Y-their applications, but also claim to have proven no harmful interference would result to previously proposed stations. However, Commission staff review of the technical showing submitted in the Rockingham applications, for example, reveals that harmful interference would have resulted to a 1983 authorized station, WMI309, located at Florence, South Carolina. However, as  Y<-shown in Section III, supra, each of the returned applicants failed to submit interference studies, as required by  21.902, for all authorized or previously proposed MMDS stations within 50 miles of their proposed transmitter sites, and to demonstrate that the proposed  Y-station would not cause harmful interference. Indeed, petitioners failed to even identify all authorized or previously proposed stations in their applications. Thus, petitioners' assertion that each application had demonstrated a lack of harmful interference to other authorized or  Y-proposed stations is unsupported.)"= Yo -ԍxA bald conclusion, without any offer of proof or documentary support, has no probative value in determining whether a proposed station would cause harmful interference.  YA"-Jim Bolton, 2 FCC Rcd 3207 (Comm. Car. Bur. 1987). ) These unsupported assertions fall far short of the  Y-stringent showing required by WAIT Radio of the existence of extraordinary or special  Y-circumstances justifying waiver.  x30. Furthermore, the location restrictions serve other important administrative purposes which do not concern interference avoidance. The location restrictions also"E "0*((." minimize the possibility for application gridlock, and allow us to process applications more  Y-expeditiously. See Boyd B. Hopkins, Sr., 9 FCC Rcd 569, 570 (Dom. Fac. Div. 1994); R.L.  Y-Mohr, 85 FCC 2d at 604. One of the most significant underlying purposes of the location restrictions is to avoid diversion of scarce engineering resources from making necessary engineering determinations for 1983 MMDS applications or modification applications to reviewing interference analyses filed with post1983 applications. These purposes would not be served were we to routinely grant a waiver of the location restrictions to each applicant that demonstrated noninterference through the submission of interference studies. Thus, we conclude that granting petitioners' requested waivers would frustrate the underlying purposes  Y5-of the 1988 Public Notice location restrictions. h x31. The Santa Cruz petitioners request a waiver of  21.901(d)(5) with respect to the San Francisco, California MSA. To justify their waiver request, the Santa Cruz applicants claim that the configuration of the San Francisco MSA, along with the characteristics of the terrain separating their proposed service area in Santa Cruz and the San Francisco MSA, eliminates the possibility of any San Franciscooriginated transmissions from reaching the Santa Cruz area. The Santa Cruz applicants conclude that unless  21.901(d)(5) is waived, residents of Santa Cruz will indefinitely be deprived of an alternative form of video distribution, thereby frustrating the underlying purpose of  21.901(d)(5), which is "to foster the development of wireless cable systems in an administratively efficient way." x32. As a preliminary matter, the Santa Cruz applicants have incorrectly identified San Francisco as the MSA for which they require a waiver of  21.901(d)(5), when they have actually proposed transmitter sites located within the Salinas, California MSA buffer zone. The Santa Cruz applicants never discuss in their waiver requests the selection of a transmitter site inside the Salinas MSA. Pursuant to  21.901(d)(5), the Santa Cruz applications are thus mutually exclusive with and cutoff by MMDS applications filed in 1983 in Salinas because the Santa Cruz applications were filed after the relevant cutoff date of September 9, 1983. In addition, the Santa Cruz waiver requests fail to address the provision of service to the Santa Cruz community from facilities located within the Salinas MSA. This is particularly relevant since two 1983 subsequently authorized stations for Salinas could  Y=-provide service to the Santa Cruz applicants' proposed service area.#== Y-ԍxStation WMI322, Application File No. 15563CMP83, and station WMI278, Application File No. 15164CMP83, located at Salinas, California can provide service to the Santa Cruz applicants' proposed service area.  Also, we note that, had the correct MSA been identified, grant of the waivers requested here would permanently block the grant of necessary modification applications filed for these authorized MMDS stations at Salinas. Furthermore, even if the waiver request was granted, we would still conclude that the Santa Cruz applications were unacceptable for filing for failure to demonstrate that their proposed stations would not cause harmful interference to authorized or previously proposed MMDS stations within 50 miles. ""K#0*((#"Ԍx33. Like the Santa Cruz petitioners, the Rockingham petitioners claim that grant of their waiver request would be in the public interest because it would result in service to unserved communities, implying that the proposed communities can only be served from an  Y-MDS transmitter located within each community's borders.$= Y4-ԍxPetitioners assert that their proposed community of license is unserved and has various unmet needs. To support their public interest argument, petitioners also claim that providing consumers a competitive alternative to cable through the development of a viable  Y-MMDS system can only be achieved by grant of a waiver. We disagree. The Commission determined as early as 1973 that communities can be served, even when the transmitter is not located within the city limits of the specified community, by MDS stations located in nearby  Yv-areas. In Microband Corp. of America, 41 FCC 2d 184 (1973), the Commission returned as unacceptable for filing an MDS application proposing a station at Newark, New Jersey as mutually exclusive and cutoff by a previously proposed New York City MDS application, despite the Newark applicant's claim that service to New Jersey would be precluded in violation of 47 U.S.C.  307(b). In doing so we recognized that "the NewarkElizabethJersey City areas as a whole would be better served through a station located in New York  Y -City than through a . . . station located in Newark." Id. at 18586. However, petitioners fail to address the provision of cable competitive MMDS service from a location more than 50 miles away from 1983 station sites. Petitioners offer no documentary support for their assertions and fail to address whether there is a lack of a reasonable alternative, as required by  21.19. Thus, petitioners have failed to "plead with particularity the facts and  Y}-circumstances" warranting a waiver. WAIT Radio, 418 F.2d at 1157.  YQ- x34. Petitioners failed to present justification as to why their applications merit treatment different from that which we applied to thousands of other post1983 MMDS applications. In view of these considerations, we do not find it would be in the public  Y -interest to grant waiver of the location restrictions contained in the 1988 Public Notice or waiver of  21.901(d)(5). Therefore, we conclude that petitioners' requests for waiver of the  Y-location restrictions contained in the 1988 Public Notice and of  21.901(d)(5) were properly denied. x35. Petitioners assert that the staff failed to meet the courtimposed requirement to give waiver requests a "hard look," and failed to give a reasoned explanation for denying  Yo-their requests.%eo6= YV!-ԍxAs an example of the court applying WAIT Radio's "hard look" requirement to waiver  YA"-requests, petitioners cite Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir.  Y,#-1970), cert. denied, 403 U.S. 923. In support of their "hard look" argument, petitioners claim that the application return notification letters only cited one deficiency, failure to meet  21.19 requirements for a request of waiver, and failed to provide an explanation as to why the waiver requests were deficient. Contrary to petitioners' assertions, in addition to citing the deficiency as to  21.19, the return letters also cited either failure to comply with the "&$0*(('"  Y-MMDS Allocation Order and 21.901(d)(5), or failure to meet the criteria established in the  Y{-1988 Public Notice, see supra  13, 16.  However, the Court in WAIT Radio made clear that:"of%0*((?"ԌXxThe agency is not bound to process in depth what are only generalized pleas, a requirement that would condemn it to divert resources of time and personnel to hollow claims. The applicant for waiver must articulate a specific pleading, and adduce concrete support, preferably documentary. Even when an applicant complies with these rigorous requirements, the agency is not required to author an essay for the disposition of each application. (#  Y_-418 F.2d at 1157, n.9.  Here, the requests were of a general nature and lacked concrete, documentary support. Under these circumstances, and in light of the thousands of applications the staff was processing, the return notification letters indicating that the request was denied as failing to comply with  21.19 of the Commission's rules were sufficient. Moreover, we have now reviewed the staff's denial of petitioners' waiver requests and have fully explained the basis for denying those requests.  Y -x36. In addition, even if the 1988 Public Notice location restrictions and  21.901(d)(5) had not prohibited the filing of the abovereferenced applications, in each instance these applications still would have been returned as unacceptable for filing due to violations of other Commission rules in effect at the time the returned applications were filed, including filing after the relevant cutoff date of mutually exclusive applications and failing to submit interference analyses for authorized stations or previously filed applications. All MDS applicants are charged with being familiar with Part 21 of the Commission's rules. Any applicant who "either ignores or fails to understand clear and valid rules of the Commission respecting the requirements for an application assumes the risk that the  Y-application will not be acceptable for filing." Ranger, 294 F.2d at 242 (1961); see also  Y-Donald E. Benson, 8 FCC Rcd 1872, 1873 (Dom. Fac. Div. 1993).  Y-x37. Finally, we reject petitioners' implication that the denial of their waiver requests  Y-violates fundamental precepts of administrative due process. The 1988 Public Notice states that the Commission did not anticipate granting waivers of the location restrictions. In fact,  Ym-language in the Notice reminded applicants that they must comply with the rules requiring the filing of interference studies for ITFS and MMDS authorized and proposed stations within 50 miles, and that the imposition of additional location restrictions on post1983 applicants did not exempt those applicants from the requirements to file both MMDS and ITFS interference studies, which were adopted in 1984 and are contained in  21.901(d)(1), 21.902(i) and  Y-21.902(c). See MDS Technical Order, 98 FCC 2d 68. Section 21.905(d)(5), moreover, was  Y-adopted on May 26, 1983. See MMDS Allocation Order, 94 FCC 2d at 126364 and 127879. Having been given notice of the MMDS and ITFS interference study filing requirements, and given the Commission's express warning that waivers of the location restrictions were not contemplated, petitioners fail to show how they were deprived of their fundamental due process rights. Moreover, due process does not require that all waiver"#f%0*(($" requests must be granted. Applicants fail to meet the requirements for grant of their waiver requests, and thus, their requests were properly denied.  Y-x38. Sufficiency of Statement of Reasons for Return. Petitioners suggest that the return letters failed to detail the reasons for the applications' return. However,  21.20(a), which governs the disposition of defective applications, merely requires "a brief statement as to the omissions or discrepancies," not the breadth of detail demanded by the petitioners here. We find that the return notification letters sent to petitioners gave sufficient explanation of the reasons for the return of the applications. In each case, the return notification letters indicated at least one reason why the applications were unacceptable for  Y -filing, and cited the relevant rule section or Commission decision. "[T]he agency is not  Y -required to author an essay for the disposition of each application." WAIT Radio, 418 F.2d  Y -at 1157, n.9. As discussed in Section III, supra, these petitioning applicants were afforded sufficient information to know that their applications were being returned due to defects specified in the return letters.  Y - x x39. 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. x40. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by the abovereferenced applicants ARE HEREBY DENIED. x41. 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. x` `  FEDERAL COMMUNICATIONS COMMISSION   x` `  William F. Caton  Y$-x` `  Acting Secretary