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 95-244 Washington, D.C. In the Matter of the Applications of ) ) HINTON TELEPHONE COMPANY ) ) For Authority to Construct and Operate a) File No. 2414-CM-P-92 Multipoint Distribution Service Station on) the E Group Channels in Colony, Oklahoma) ) JAMES L. BRUBAKER ) ) For Authority to Construct and Operate a) File No. 51015-CM-P-91 Multipoint Distribution Service Station on) the E Group Channels in Naples, Florida) ) KNOLLWOOD, LTD. ) ) For Authority to Construct and Operate a) File No. 57452-CM-P-91 Multipoint Distribution Service Station on) the F Group Channels in Terre Haute, ) Indiana ) 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 three applications for authority to construct and operate Multipoint Distribution Service (MDS) stations on the E or F channels at three transmitter sites. As these petitions raise common issues, we believe that their collective consideration is the most efficient use of Commission resources. Thus, we will consider these three petitions for reconsideration in this 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. Each of the returned applications proposed an MDS station on the E or F channels to which Part 21 of the Commission's rules apply. Section 21.20(a) of the rules sets forth the standards for returning MDS applications as unacceptable for filing: Unless the Commission shall otherwise permit, an application will be unacceptable for filing and will be returned to the applicant with a brief statement as to the omissions or discrepancies if: (1) The application is defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character; or (2) The application does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements. 47 C.F.R.  21.20(a). Section 21.20(b) lists examples of common deficiencies which result in defective applications under paragraph (a) such as, the "application does not demonstrate compliance with the special requirements applicable to the radio service involved," the "application does not include all necessary exhibits," and the "application is filed after the cut-off date prescribed in  21.31 or  21.914 of this part." 47 C.F.R.  21.20(b)(4), (8) and (9); see 47 C.F.R.  21.13, 21.15, 21.26 and 21.900. 3. Mutual Exclusivity. Typically, the first determination made by Commission staff is whether an MDS application is mutually exclusive with any previously filed application or authorized station. Section 21.31(a) of the Commission's rules provides the standard for this determination. The Commission will consider applications to be mutually exclusive if their conflicts are such that the grant of one application would effectively preclude by reason of harmful electrical interference, or other practical reason, the grant of one or more of the other applications. The Commission will presume "harmful electrical interference" to mean interference which would result in a material impairment to service rendered to the public despite full cooperation in good faith by all applicants or parties to achieve reasonable technical adjustments which would avoid electrical conflict. 47 C.F.R.  21.31(a); see 47 C.F.R.  21.902(c), (d) and (f). In applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles of an authorized or previously proposed MDS station, and (2) within the radio horizon (with an unobstructed electrical path) of the protected service area of an authorized or previously proposed MDS station. Applications which are determined to be either within 50 miles or with an unobstructed electrical path to any part of the protected service area of any station, are considered to be mutually exclusive with the station unless they demonstrate a lack of harmful interference by submission of interference studies with their applications pursuant to the standards specified in the Commission's rules. See 47 C.F.R.  21.902(b)(3) and (4) and  6 and 7, infra. For the above-referenced MDS applications on the E or F channels,  21.901(d)(5) also defines mutual exclusivity as based on whether the proposed transmitter site is within a Metropolitan Statistical Area (MSA) or the 15-mile buffer zone of an authorized or previously proposed station. 4. Cut-off Rules. 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. 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. For applications filed from April 20, 1988 through October 31, 1990, if there is no mutually exclusive 1983 application or authorized station, but there is a mutually exclusive, post-1983, previously proposed or authorized station, the applicable cut-off rule is  21.31(b), which provides, in part, that in order to be entitled to comparative status: The application [must be] received by the Commission in a condition acceptable for filing by whichever "cut-off" date is earlier: (i) Sixty (60) days after the date of the public notice listing the first of the conflicting applications as accepted for filing; or (ii) One (1) business day preceding the day on which the Commission takes final action on the previously filed application (should the Commission act upon such application in the interval between thirty (30) and sixty (60) days after the date of its public notice). 47 C.F.R.  21.31(b)(2). For applications filed after October 31, 1990, if there is no mutually exclusive 1983 application or authorized station, but there is a mutually exclusive, post-1983, previously proposed or authorized station, the applicable cut-off rule is  21.914, which provides that: Notwithstanding the provisions of  21.31(b)(2)(i) and (ii) of this part, to be entitled to be included in a random selection process or to comparative consideration with one or more conflicting applications, an [MDS] application . . . must be received by the Commission in a condition acceptable for filing on the same calendar day as the first of the conflicting applications is received by the Commission in a condition acceptable for filing. 47 C.F.R.  21.914. 5. Station Design Requirement. Section 21.902(b)(3) requires each MDS applicant to engineer its proposed station to provide at least 45 dB of interference protection within the protected service areas of all other authorized or previously proposed cochannel stations. 47 C.F.R.  21.902(b)(3). Section 21.902(b)(4) requires each MDS applicant to engineer its station to provide at least 0 dB of interference protection within the protected service areas of all other authorized or previously proposed adjacent channel stations. 47 C.F.R.  21.902(b)(4). Section 21.902(f) defines harmful interference as the ratio of desired signal to undesired signal present in the cochannel or adjacent channel, at the output of a reference receiving antenna oriented to receive the maximum desired signal. 6. MDS Interference Studies. At the time the above-referenced applications were filed, in order to demonstrate compliance with  21.902(b), and so that mutually exclusive determinations could be made,  21.902(c)(1) of the Commission's rules required that an 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)(1991). 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) (1991); see 47 C.F.R.  21.902(a), (b), (d) and (f). Section 21.901(d)(7) further requires 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 requires 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). 7. Service Requirement. In addition to submitting the required interference analyses to the Commission, an MDS 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. 8. Location Restrictions. After the initial filing date of September 9, 1983, no filing period was designated until 1988. In accordance with  21.901(d)(4) of the Commission's rules, it was 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. 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). The 1988 Public Notice also advised potential applicants that all applications must comply with the specified location restrictions, that grant of waivers of the location restrictions were not anticipated, and that applications failing to meet these location restrictions would be dismissed as unacceptable for filing. Id. at 2661-2662. 9. Summary. At the time the above-referenced 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, or of any existing facility, 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, or an existing authorized station, 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 cut-off dates. Applicants also were required to engineer the proposed station to provide at least 45 dB of interference protection within the protected service areas of all other authorized or previously proposed cochannel stations and at least 0 dB of interference protection within the protected service area of all other authorized or previously proposed adjacent channel stations. 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 return of their application as unacceptable for filing. Notice was also provided in the MMDS Allocation Order, 94 FCC 2d 1203, and MDS Technical Order, 98 FCC 2d 68. III. PETITIONS FOR RECONSIDERATION 10. Three petitions for reconsideration were filed for the three returned MMDS applications at three different transmitter sites. Petitioners contend that their applications fully complied with all pertinent Commission rules, or else presented facts which would compel the grant of any necessary waivers. In support, petitioners chiefly assert that they submitted all necessary interference analyses with their applications, that these analyses demonstrated that there is no improper interference to protected existing or proposed stations, and that to the extent the proposed stations failed to comply with the location restrictions in the 1988 Public Notice, Commission precedent supports a grant of a waiver. Some petitioners argue that the staff incorrectly applied the 1988 Public Notice location restrictions and other Commission rules, and provided insufficient detail in the letters returning the applications. Petitioners also claim that they relied on statements made by Commission staff regarding requirements for applications or petitions. 11. Colony, Oklahoma. On March 4, 1992, petitioner Hinton Telephone Company (HTC) filed an MMDS application proposing a transmitter site at Colony, Oklahoma. After reviewing the Colony application, the Commission staff returned it as defective and unacceptable for filing by return notification letter dated March 3, 1993. The letter indicated that the application was returned because: (1) the applicant filed in the geographic area of other authorized or pending MMDS applications; (2) the applicant 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; and (3) the application was not signed by the applicant. A reconsideration petition for the returned application was timely filed on April 2, 1993. 12. The application proposed a transmitter site that was within 50 miles or the radio horizon of: (1) one 1983 previously proposed, subsequently authorized station; (2) seven 1983 previously proposed stations with applications pending on March 4, 1992, the date of the Colony application; and (3) 146 post-1983 previously proposed MMDS stations. 13. The application lacked interference studies, required by  21.902(b) and (c), for: (1) one 1983 previously proposed, subsequently authorized station; (2) seven 1983 previously proposed stations with applications pending on March 4, 1992, the date of the Colony application; and 3) 145 previously proposed MMDS stations. The interference study that was submitted was inadequate in that the applicants: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service area of the previously proposed stations, as required by  21.902(c), (d) and (f) (see  21.902(e)); (2) failed to engineer the station to provide at least 45 dB of cochannel interference protection pursuant to  21.902(b)(3), and/or 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4); (3) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; and (4) failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). Thus, the Colony applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or previously proposed stations. See  21.902. 14. Notwithstanding checking "No" in response to question 19 of the application, which asks whether a waiver is required for the application, the applicant appears to request a waiver of the Commission's 1988 Public Notice location requirements. 15. Naples, Florida. On October 12, 1990, James L. Brubaker filed an MMDS application proposing a transmitter site at Naples, Florida. After reviewing the Naples application, the Commission staff returned it as defective and unacceptable for filing by return notification letter dated March 10, 1993. The letter indicated that the application was returned because the applicant: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications; (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; and (4) failed to comply with the Commission's requirements under  21.19 for grant of a waiver, and without a waiver, the application was unacceptable for filing. These applicants selected a transmitter site within the Fort Myers, Florida Metropolitan Statistical Area (MSA), and thus, are mutually exclusive with and cut-off by authorized stations within that MSA, pursuant to  21.901(d)(5). A reconsideration petition for the returned application was timely filed on April 9, 1993. 16. The application proposed a transmitter site that was within 50 miles or the radio horizon of: (1) two 1983 previously authorized MMDS stations; (2) one 1983 subsequently authorized MMDS station; (3) four 1983 previously proposed MMDS stations, which had applications pending on October 12, 1990, the filing date of the Naples application; and (4) 11 post-1983 previously proposed MMDS stations. 17. The application lacked interference studies, required by  21.902(b) and (c), for one subsequently authorized and 15 previously proposed MMDS stations. The interference studies that were submitted were inadequate in that the applicant: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service area of the authorized or previously proposed stations, as required by  21.902(c), (d) and (f) (see  21.902(e)); (2) used incorrect methodology in calculating the protected service area of authorized or previously proposed stations; (3) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; (4) failed to engineer the station to provide at least 45 dB of cochannel interference protection pursuant to  21.902(b)(3), and/or 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4); and (5) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. Thus, the Naples applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or previously proposed stations. See  21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). 18. The application contained a request for waiver of the MSA and fifty mile location restrictions contained in the 1988 Public Notice. 19. Terre Haute, Indiana. On January 17, 1991, petitioner Knollwood Ltd ("Knollwood") filed an MMDS application proposing a transmitter site at Terre Haute, Indiana. After reviewing the Terre Haute application, the Commission staff returned it as defective and unacceptable for filing by return notification letter dated July 27, 1994. The letter indicated that the application was returned because the applicant: (1) filed past the cut- off period established in  21.31 or  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications; (3) failed to provide a written description of emergency repair procedures to the local maintenance center, the manner in which outages would be reported, and the amount of time expected to respond, as required by  21.15(e); 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/or failure to consider all authorized or previously proposed MMDS or ITFS stations. A reconsideration petition for the returned application was timely filed on August 26, 1994. 20. The application proposed a transmitter site that was within 50 miles or the radio horizon of: (1) one 1983 subsequently authorized MMDS station; (2) 17 1983 previously proposed MMDS stations, which had applications pending on January 17, 1991, the filing date of the Terre Haute application; and (4) two post-1983 previously authorized MMDS stations. 21. The application lacked interference studies, required by  21.902(b) and (c), for 17 previously proposed MMDS stations. The interference studies that were submitted were inadequate in that the applicant: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service area of the authorized or previously proposed stations, as required by  21.902(c), (d) and (f) (see  21.902(e)); (2) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; (3) failed to engineer the station to provide at least 45 dB of cochannel interference protection pursuant to  21.902(b)(3), and/or 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4); and (4) used incorrect technical parameters for the transmitting antenna gain. Thus, the Terre Haute applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or previously proposed stations. See  21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). 22. No waiver requests were included in the Terre Haute application. IV. DISCUSSION 23. Mutual Exclusivity and Cut-off. Based upon our review of the returned applications and publicly available information regarding authorized MMDS stations and pending applications, we 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 if the above-referenced 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 proposed MMDS station; (2) within the radio horizon (with an unobstructed electrical path) of the protected service area of an authorized or previously proposed MMDS station; or (3) within an MSA, or its 15-mile buffer zone, for which there is an authorized or previously proposed MMDS station. These returned applications propose a transmitter site which made the proposed stations mutually exclusive, pursuant to  21.31,  21.914, or  21.915(d)(5), with authorized or previously proposed MMDS stations. Thus, the 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). 24. Section 21.902(b) requires all MDS applicants and licensees to provide at least 45 dB of cochannel interference protection and, whenever possible, at least 0 dB of adjacent channel interference protection, and to demonstrate that protection in interference studies submitted with the applications. Applicants must also demonstrate in their applications their efforts to provide adjacent channel interference protection. See  21.901(d)(7) and  21.902(a). 25. Petitioners' applications failed to demonstrate a lack of harmful interference to authorized MMDS licensees and to previously proposed MMDS applicants. Applicants for new MDS stations on the E or F channels are required to file specific technical interference protection showings for cochannel and adjacent channel stations. These interference showings are a significant requirement because the Commission, in reallocating the E and F channels from Instructional Television Fixed Service ("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 1246, 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. at 1264. 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 and F channels. 26. Our evaluation of the interference statements actually submitted shows that petitioners' applications failed to demonstrate a lack of harmful interference as required by  21.902. See Revision of Part 21 of The Commission's Rules, 2 FCC Rcd 5713, 5716-17 (1987) ("Coordination of MDS . . . systems . . . relies on accurate data about the interference environment.") Thus, these applications were properly returned as unacceptable for filing. See MMDS Technical Order, 98 FCC 2d at 93 ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference as described herein will not be accepted for filing."); see also Family Entertainment, 9 FCC Rcd at 567 ("[T]he filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application."); Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992) ("In the processing of MDS station applications, the interference analyses required by [ 21.902] are crucial.") 27. We reject the Naples petitioner's claim that he was only required to perform interference analyses for applications which had been placed on public notice. Section 21.902(c) requires an MDS applicant to file interference studies for specified "authorized or previously-proposed, cochannel and adjacent-channel, stations. . . ." The rule does not excuse applicants from submitting interference studies unless or until the previously proposed applications have been placed on public notice. Nor are applicants excused from filing interference analyses for previously proposed lottery losing stations that were dismissed subsequent to the filing of their own applications, as the Naples petitioner asserts. See, e.g. CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 n. 7 (Dom. Fac. Div. 1994) ("Commonwealth's application was dismissed. . . after CNI's application was filed. . . . However, inasmuch as Commonwealth's application had not been dismissed, CNI was required to consider Commonwealth's pending application in its interference analyses.") See also, Roundtree Communications, 7 FCC Rcd. 5456 (1992). While there have been periods of time when newly-filed MDS applications have not been available for public inspection through the Domestic Facilities Division Public Reference Room, copies of these applications have been available since at least 1988 from the Commission's public record copy contractor, regardless of whether the applications had been placed on public notice. See 1988 Public Notice, 3 FCC Rcd at 2663. Thus, we reject petitioner's claim that his failure to file interference studies was somehow caused by the Commission's policies regarding access to applications. 28. Similarly, the Colony, Oklahoma, petitioner, HTC, argues that previously filed applications for MMDS stations at Clinton, Oklahoma should not have been accepted for filing as they are within eighteen miles of HTC's previously filed, subsequently authorized F- group station at Colony. HTC therefore argues that it did not have to file interference studies for the previously proposed Clinton applications pending at the time of HTC's application. As explained above, petitioner's reasoning is incorrect. While many of these previously proposed Clinton applications were dismissed or returned subsequent to petitioner's filing, at the time petitioner submitted its application, these previously proposed stations were pending and HTC was required to file interference studies for them pursuant to  21.902(c). See CNI Wireless, Inc., 9 FCC Rcd. at 2040. 29. In addition, the Naples and Terre Haute petitioners' commitments to avoid harmful interference to others and to cooperate in good faith should any interference occur in the future does not excuse their failure to submit detailed interference studies as required by  21.902. 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).") The requirement of  21.902(c) that an applicant submit interference analyses at the time its application is filed is separate from the requirement in  21.902(a) 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 . . . ," and is also separate from the requirement in  21.901(d)(7) that applicants submit a showing of how interference will be avoided and statements as to what steps they are willing to take with this station to comply with  21.902(a). See also  21.31. 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 an MDS licensee as required by  21.900. Thus, these applications were properly returned as unacceptable for filing. New Channels Communications, Inc., 57 RR 2d at 1602; CNI Wireless, Inc., 9 FCC Rcd at 2040. 30. The Terre Haute petitioner's claim that it was unable to determine if lottery losers were pending and had "no way of knowing who such applicants were" is not supported by the facts. A review of printed Commission lists of pending MDS applications and authorized stations available prior to the file date for each of these three applications reveals that interference studies were omitted in each instance for pending applications and/or authorized stations appearing on the lists. Therefore, we reject petitioner's contention that it was unable to know about these applications, and hence, should not be held responsible for filing the required interference analyses for these applications. 31. 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 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 oppositions are filed, was negated. Thus, 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). 32. Location Requirements. The 1988 Public Notice allows the filing of MDS applications on the E or F channels commencing April 20, 1988, but only for locations that are: (1) farther than 50 miles from the proposed location of an MMDS application pending on April 19, 1988, or an authorized station; and (2) farther than 15 miles from the boundary of a statistical area for which there were applications pending on April 19, 1988. The first 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 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 unacceptable for filing. Id. Despite these directives, each of the applications proposed a transmitter site in violation of the location restrictions of the 1988 Public Notice. Therefore, these applicants submitted applications on dates not designated by the Commission for the filing of MDS applications. See  21.901(d)(4). The Naples petitioner filed within 15 miles of the Ft. Myers MSA, in which there was an authorized co-channel station. The Naples petitioner is incorrect in arguing that it did not violate the 1988 Public Notice, as stated in the return letter, because there were no pending applications in the Fort Myers MSA. The two requirements of the 1988 Public Notice described above are conjunctive, not disjunctive. Therefore, even if the Naples proposed station were more than 15 miles beyond the boundary of the Ft. Myers MSA and there were no applications pending as of April 19, 1988, the application still violated the first part of the 1988 Public Notice by filing within 50 miles of authorized MMDS stations within the Ft. Myers MSA. 33. 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 Commission's directive, their applications were properly returned as unacceptable for filing. See Ranger v. FCC, 294 F.2d 240 (1961). 34. Waiver Requests. Section 21.20(c)(1) states that a defective application may be filed and remain pending until a determination is made on the waiver, if the application is accompanied by a waiver request. In its petition, the Terre Haute applicant claims that under some circumstances, waivers of the location restrictions in the 1988 Public Notice were not required and that "[T]he notion of a 'waiver,' which by definition suggests non- routine FCC action, was nonsensical as applied to this situation." Petitioner also claims that waivers were only required for "formal FCC rules, not [for] temporary processing policies." As discussed above, the Terre Haute application was returned for violating "formal FCC rules;" because the Terre Haute application was not accompanied by a request for waiver of those rules, the Terre Haute applicant failed to meet the requirements of  21.20(c)(1). The Colony petitioner specifically indicated that it was not requesting a waiver and admits that the application violated 1988 Public Notice. Although petitioner "believes good cause exists for the FCC to accept" the application, the Commission is under no obligation to imply a waiver request and will not do so here. The Court in WAIT Radio made clear that: The 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. 418 F.2d at 1157, n.9. In addition, for the reasons discussed below, we do not find that grant of waivers for the location restrictions of the 1988 Public Notice would serve the public interest, and thus will not grant the requested waiver or waivers on our own motion pursuant to  21.20(c)(2). 35. 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 be granted upon an affirmative showing that: (a) The underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. "An applicant 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 such action. " Wait Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam)); see also 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.") 36. The Terre Haute and Naples applicants' assertions that the proposed stations would not cause harmful interference to other existing or proposed stations are unsupported. As 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 station would not cause harmful interference. These wholly unsupported assertions fall far short of the stringent showing required by WAIT Radio of the existence of extraordinary or special circumstances justifying a waiver. Moreover, the 1988 Public Notice location restrictions and  21.901(d)(5) serve important administrative purposes which do not concern interference avoidance. The location restrictions represent the Commission's attempt to minimize the possibility for application gridlock, and allow us to process applications more expeditiously and to efficiently allocate scarce engineering resources. See Boyd B. Hopkins, Sr., 9 FCC Rcd 569, 570 (Dom. Fac. Div. 1994); R.L. Mohr, 85 FCC 2d 596, 604 (1981). These purposes would not be served were we to routinely grant a waiver of the location restrictions to each and every applicant that demonstrated non-interference through the submission of interference studies. Thus, we conclude that granting petitioners' requested waivers would frustrate the underlying purpose of the rules. 37. Petitioners failed to present justification as to why their applications merit treatment different from that which we applied to thousands of other post-1983 MMDS applications. In view of these considerations, we do not find it would be in the public interest to grant a waiver of the location restrictions in the 1988 Public Notice. Therefore, we conclude that petitioners' requests for waivers of the location requirements were properly denied. 38. The Naples petitioner asserts that the staff's disposition of his waiver request failed "to express its factual basis" and therefore "renders it incapable of supporting its own legality." Petitioner therefore concludes that it was arbitrary and capricious. However, the Court in WAIT Radio made clear that "[e]ven when an applicant complies with these rigorous [waiver request] requirements, the agency is not required to author an essay for the disposition of each application. 418 F.2d at 1157, n.9. In addition to listing the failures of the application discussed above, the return notification letter indicated that the waiver request was denied because it failed to comply with the requirements of  21.19. This is sufficiently explicit to constitute a rational basis for denial of the waiver. 39. In addition, even if the 1988 Public Notice location restrictions had not prohibited the filing of the above-referenced applications, in each instance these applications still would have been returned as unacceptable for filing. These applications violated other Commission rules in effect at the time the returned applications were filed by failing to submit adequate interference analyses for authorized stations or applications. 40. Reliance on Staff Statements. Petitioners assert varying degrees of detriment resulting from reliance on alleged statements of Commission staff. Knollwood contends that Commission staff advised Multi-Micro, Inc. ("Multi-Micro"), the previous conditional licensee of the F-group channels in Terre Haute, to tender its current authorization for cancellation and submit a new application for the station. Knollwood claims that Multi- Micro relied on that alleged advice and tendered its current authorization for cancellation on December 14, 1990, the same day the conditional authorization was to be automatically forfeited pursuant to  21.44. Knollwood contends that Commission staff told Multi-Micro that under the one day filing window, it could immediately file a new application, before the cancellation appeared on public notice. This would most likely make Multi-Micro the sole applicant and therefore allow it to be granted a new conditional license. Knollwood claims that "Multi-Micro . . . refiled a new application -- in the name of Knollwood Ltd. -- on January 17, 1991," more than a month after Multi-Micro tendered its authorization for cancellation. 41. As an initial matter, Knollwood's claim that "Multi-Micro . . . refiled a new application -- in the name of Knollwood Ltd. -- on January 17, 1991" is incorrect. Multi- Micro and Knollwood are not the same entity. Review of Knollwood's application reveals in Exhibit V that Russell and MaryAnn Ritchie own 40% of Multi-Micro. Exhibit VI, however, indicates that the Ritchies own 100% of Knollwood. Knollwood offers no explanation in its petition of its lack of identity with Multi-Micro or its claim of reliance on statements allegedly made by Commission staff to Multi-Micro, not to Knollwood. In addition, Knollwood waited until January 17, 1991, more than a month after Multi-Micro tendered its authorization for cancellation, to file an application for Terre Haute. This is in conflict with its alleged reliance on Commission staff advice to Multi-Micro regarding immediately filing a new application. 42. In any event, even assuming, for the sake of argument, that the staff made the alleged statements and that Knollwood and Multi-Micro were the same entity, such statements neither bind the Commission nor prevent us from enforcing Commission regulations. The Commission has specifically held that parties who rely on staff advice or interpretations do so at their own risk. See, e.g., AAT Electronics Corp., 53 RR 2d 1241, 1225-26 (1983), aff'd, P&R Temmer v. FCC, 743 F.2d 918, 931 (D.C. Cir. 1984). When the staff advice is contrary to the Commission's rules, the Commission may still enforce its rules, despite any reliance by the public. See Malkan FM 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 for filing a new application are clear and the Commission reasonably requires applicants to turn to those requirements for guidance. Those requirements are the same for all applicants, regardless of whether or not they have previously cancelled a license for the market for which they are applying. 43. Furthermore, Knollwood cannot even claim any detrimental reliance on staff advice in this case because its application was unacceptable for filing for reasons unrelated to the tendering of the Multi-Micro application for cancellation. Whether Multi-Micro submitted the license for cancellation pursuant to staff advice or the license was automatically forfeited pursuant to  21.44 is immaterial where, as here, the new application was submitted in a condition otherwise unacceptable for filing. Knollwood does not allege that Commission staff stated that it would be exempt from any of the regulations it failed to comply with when it filed its application. Thus, the return of Knollwood's application due to lack of compliance with Commission rules and requirements has no relationship to Knollwood's alleged reliance on oral advice from Commission staff regarding the tendering of Multi- Micro's application for cancellation. 44. Both the Colony and Naples petitioners claim that they contacted Commission staff after the return of their applications to learn the deficiencies in their returned applications. As these alleged conversations with Commission staff took place after the applications were returned, there could not have been any detrimental reliance on Commission staff statements by the applicants when they submitted their applications. The alleged discussions thus are irrelevant to our analysis of the applications, which were unacceptable when submitted. 45. Ex Post Facto Standards. We disagree with petitioners' argument that we have changed the requirements, rules, and standards applied to the returned applications and have adopted more stringent separation standards ex post facto by refusing to grant the waivers and accept these applications for filing. As discussed at length above, petitioners' applications were returned as unacceptable because they were filed after the relevant cut-off dates established in  21.31 or  21.914 of the rules, and failed to submit and serve the required interference studies at the time the application was initially filed, as specified by  21.902. See Roundtree Communications, 7 FCC Rcd 5456 (1992); Boyd B. Hopkins, Sr., 9 FCC Rcd 569 (Dom. Fac. Div. 1994); Edna Cornaggia, 8 FCC Rcd 5442 (Dom. Fac. Div. 1993). All of the pertinent rules cited herein were long-established and applicable at the time the returned applications were filed. 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 application will not be acceptable for filing." Ranger v. FCC, 294 F.2d 240, 242 (1961); see also Donald E. Benson, 8 FCC Rcd at 1873. Thus, we reject petitioners' claims that the Commission engaged in arbitrary and capricious action and find that "[t]he Division's return of [the above-referenced] applications . . . was not unreasonable or arbitrary, but rather was based on the [applicants'] failure to comply with Commission rules." Family Entertainment, 9 FCC Rcd at 568. 46. De Facto Policy. The Terre Haute petitioner, Knollwood, claims that under a de facto policy, applications for new MMDS stations within 50 miles of pending or authorized stations were accepted for 1983 lottery service areas if they proposed the transmitter site of a previously authorized station whose license was cancelled or forfeited. Knollwood cites several examples of stations which it claims were granted pursuant to this policy. The staff previously has upheld the return of an application which filed for a previously licensed 1983 transmitter site which included a request for a waiver of the 1988 Public Notice location restrictions. Fortuna Systems Corp., 9 FCC Rcd 5280 (Video Serv. Div. 1994). The Division upheld the staff's return of the application for violation of the 1988 Public Notice, failure to file adequate interference studies and failure to show that there were no alternative transmitter sites which did not violate the 1988 Public Notice, necessary for the grant of a waiver under section 21.19(b). Given that the staff has not previously accepted the rationale that applicants filing for previously licensed 1983 transmitter sites should be allowed to file for those transmitter sites without submitting the necessary interference protection studies, we will not do so here. We find that, at a minimum, an applicant filing for a forfeited or cancelled 1983 transmitter site must be required to show that their proposed transmitter site would not cause harmful interference to other previously authorized or proposed stations and otherwise meet the requirements for waiver. See Fortuna, 9 FCC Rcd at 5281. The Terre Haute petitioner did not even include a waiver request with its application and additionally failed to file adequate interference studies for other authorized and previously proposed stations, giving the staff no way in which to evaluate whether their proposal would cause harmful interference to the authorized and previously proposed stations. Where waivers of the 1988 Public Notice location restrictions were granted in the examples cited by the petitioners, the applicants requested a waiver of the restrictions and were required to show that no harmful interference would be caused by grant of their application. To the extent that any applicants filing for 1983 transmitter sites did not meet these requirements, grants of those applications were erroneous and are not precedent to be followed here. The Commission is not bound by such staff errors. See e.g., North Texas Media, Inc. v. FCC, 778 F.2d 28, 33 (D.C. Cir. 1985) ("The initial improvident grant of a [short-spacing] waiver . . . now described as an error, does not deprive the agency of authority to require future applicants to meet certain standards in order to obtain such a waiver); Quinnipiac College, 8 FCC Rcd 6285, 6286 (1993); Walter Faber, 4 FCC Rcd 5492, 5493 (1989), recon. denied, 6 FCC Rcd 3601 (1991), aff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992). 47. Sufficiency of Statement of Reasons for Return. The Naples petitioner argues that the return letter failed to detail the reasons for returning the applications. 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 petitioners here. We find that the return notification letters sent to the Naples petitioner gave sufficient explanation of the reasons for the return of the application. The return notification letter indicated four reasons why the application was unacceptable for filing, and cited the relevant rule sections. As discussed in Section III, supra, the Naples applicant was afforded sufficient information to know that its application was being returned due to defects specified in the return letters. The applicant had a duty, prior to the filing of the application, to identify: (1) each cochannel and adjacent channel station within 50 miles or the radio horizon with an unobstructed electrical path of its proposed station and (2) the applicable MSA and its buffer zone, in order to fulfill the mandates of Sections 21.901 and 21.902. See, e.g.,  21.902(a) - (d), (f), (i) - (k). Thus, petitioner should have discovered the authorized stations and previously filed applications with which it was mutually exclusive in the course of its research. Given this pre-filing requirement to identify authorized and pending stations, petitioner fails to show how its right to challenge the Commission's return of its application was impeded by the lack of information contained in an application return notification letter. In any event, we have now identified, in Section III herein, the authorized and previously proposed stations which petitioner was required to consider before filing its application. 48. In view of all of 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. 49. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by Hinton Telephone Company, Knollwood Ltd. and James L. Brubaker ARE HEREBY DENIED. 50. IT IS FURTHER ORDERED, that the staff of the Mass Media Bureau shall send copies of the decision to counsel for petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary