WPCD 2B'J  CourierCG TimesCG Times BoldCG Times ItalicE37XPCG Timeset 4_230_1HPLAS4.PRS 4x  @\oeX@2 6F mf w3|w  CG TimesCG Times BoldCG Times Italic",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d<|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`L2 Z f i Xv'HP LaserJet 4_230_1HPLAS4.PRS 4Xw PE37\oeXP",tB^ f ^;C]ddCCCdCCCCddddddddddCCdxN`xoCCCddCdoYoYFdo8Co8odooYNCodddYdddd4dddddCddddddddo8dddddYYYYYN8N8N8N8oddddooooddpddddxodddXXddXddXdddddooL8doddNorddo8PdN8ppoddXXdpLoNpLodPDdopoopodXYXodoodddCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCdUUddddddFddddFCCssd44ddzzddd~ooCsdF"dsd9dCCzCddoddCdYds`zUvdddCCCCzozoYNYYYN8YooYdYzzdzddYYzozzzNdzYzzzzCCdddddddzCzdYC\   pxtll\tll@\@\`L\8wC;,Xw PE37XPD]7zC;, c!Xz_ pi7X^V"G($,hG PE37hP6uC;,cXu&_ x7XXa8DocumentgDocument Style StyleXX` `  ` 2pk?ka4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  2vtb pa7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` 2 " E   M!a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h 2%>"##$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 Technical2m(%&8''a1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxx9Q]/q",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L2D  yRRECORD ONL#Xw PE37XP#Y $//In the Matter of Hinton Telephone Company, FCC 95244//$ $/1.106 Petitions for Reconsideration/$ $/21.19 Waiver of Rules/$ $/21.20 Defective Applications/$ $/21.31 Mutually Exclusive Applications/$ $/21.902 Frequency Interference/$ $/21.915 OnetoaMarket Requirement/$ "10*0*0*" y @hBefore the  Y4W  FEDERAL COMMUNICATIONS COMMISSI#Xw PE37XP#ON #Xw PE37XP#у`&(#lFCC 95244  Y4S Washington, D.C.  Y`4#Xw PE37XP#In the Matter of the Applications of) ) HINTON TELEPHONE COMPANY) )  Y 4For Authority to Construct and Operate a)ppFile No. 2414CMP92 Multipoint Distribution Service Station on) the E Group Channels in Colony, Oklahoma) ) JAMES L. BRUBAKER) )  Yz4For Authority to Construct and Operate a)ppFile No. 51015CMP91 Multipoint Distribution Service Station on) the E Group Channels in Naples, Florida) ) KNOLLWOOD, LTD.) )  Y4For Authority to Construct and Operate a)ppFile No. 57452CMP91 Multipoint Distribution Service Station on) the F Group Channels in Terre Haute,) Indiana)  Yf4 MEMORANDUM OPINION AND ORDER ON RECONSIDERATION  YP4 Adopted: June 15, 1995`(#Released: July 7, 1995 By the Commission: "0*0*0*Q" fFI. 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  Y4Distribution Service (MDS) Y4ԍ The term MDS refers both to single channel and to multichannel stations used in the Multipoint Distribution Service (MDS). MDS stations on the E and F channel groups are sometimes referred to as Multichannel Multipoint Distribution Service (MMDS) stations. In this order, we use the terms MMDS and MDS stations on the E or F channel groups interchangeably. stations on the E or F channels at three transmitter sites. As  Y4these 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). xII. BACKGROUND x2. 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: XxUnless 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: (# Xx(1) The application is defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character; or(# Xx(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 cutoff date prescribed in  21.31 or  21.914 of this part." 47 C.F.R.  21.20(b)(4), (8)  Ye-and (9); see 47 C.F.R.  21.13, 21.15, 21.26 and 21.900.  Y9-x3. 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. XxThe Commission will consider applications to be mutually exclusive if their conflicts" 0*((!" 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.(#  YH-47 C.F.R.  21.31(a); see 47 C.F.R.  21.902(c), (d) and (f).<3H= Y -ԍ Section 21.31 of the rules explains how applications do not have to be directly  Y -mutually exclusive to be cutoff: XxFor example, applications A, B, and C are filed in that order. A and B are directly mutually exclusive, B and C are directly mutually exclusive. In order to be considered comparatively with B, C must be filed within the "cutoff" period  Y7-established by A even though C is not directly mutually exclusive with A. (# 47 C.F.R.  21.31(c).< In applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles of an authorized  Y -or previously proposed MDS station, = Y-ԍ MDS applicants must submit interference studies analyzing the potential for harmful interference with other MDS stations located within a 50 mile radius of the proposed station because "[i]t is possible for cochannel interference generated by one MDS station to cause  YK-unacceptable distortion of another station's signal from as far away as 50 miles."  R.L.  Y6-Mohr, 85 FCC 2d 596, 606 (1981); see  21.901(d)(7) and 21.902(c)(1) and (2) (1991).  Y!-The 50 mile benchmark for MDS stations was adopted in Amendments of Parts 1, 2, 21 and 43 of the Commission's Rules and Regulations to Provide for Licensing and Regulation of  Y-Common Carrier Radio Stations in the Multipoint Distribution Service, 45 FCC 2d 616, 620 Y-21 (1974) (hereinafter MDS Allocation Order), which codified, as a rebuttable presumption,  Y-Commission policy as to what constitutes mutually exclusive status. See also Amendment of Parts 1 and 21 of the Commission's Rules and Regulations Applicable to the Domestic Public  Y-Radio Services (Other Than Maritime Mobile), 60 FCC 2d 549, 559 (1976) (hereinafter  Y-Domestic Public Radio Services Order). The Commission adopted this 50 mile benchmark to enhance administrative efficiency in processing applications, avoid "gridlock" situations, and  Y^!-permit authorization of stations to proceed expeditiously. See R.L. Mohr, 85 FCC 2d at 604;  YI"-Sioux Valley Empire Elec. Ass'n, Inc., 2 FCC Rcd 7375, 7376 (Dom. Fac. Div. 1988).  and (2) within the radio horizon (with an unobstructed electrical path) of the protected service area of an authorized or previously proposed MDS  Y -station. /= Y%-ԍ As the Commission noted in the MDS technical rulemaking order, "the mileage between these [MDS] stations is not the only factor that determines whether interference will"&0*((&"  Y-occur." Amendment of Parts 21, 74 and 94 of the Commission's Rules and Regulations with regard to the technical requirements applicable to the Multipoint Distribution Service, the Instructional Fixed Television Service and the Private OperationalFixed Microwave Service  YM-(OFS), 98 FCC 2d 68, 90 (1984) (hereinafter MDS Technical Order). In a 1990 order,  Y8-Texas Wired Music, Inc., File No. 50009CMP90, Call Sign WDU282 (Dom. Fac. Div., released Aug. 27, 1990), we explained the basis for using the radio horizon as a standard for determining mutual exclusivity: Xx[T]he latest engineering analysis of the [applicant] demonstrates that a natural phenomenon, radio horizon, substantially reduces the possibility of interference occurring to any receiver of [the authorized station] located in [its] protected service area. . . . Underlying this methodology is the premise that once the signal reaches its radio horizon it is generally blocked or attenuated to such a level that it is not likely to interfere with a receiver beyond that point. The amount of signal attenuation at this point is dependent upon the type of surface the signal encounters and generally ranges between 6 and 20 db.(# Applications which are determined to be either within 50 miles or with an" &0*((^ " 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  Y-the standards specified in the Commission's rules. See 47 C.F.R.  21.902(b)(3) and (4) and  Y- 6 and 7, infra. For the abovereferenced 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 15mile buffer zone of an  Yc-authorized or previously proposed station.N c&= Y:-ԍ See Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency allocation to the Instructional Television Fixed Service, the Multipoint  Y-Distribution Service, and the Private Operational Fixed Microwave Service, 94 FCC 2d  Y-1203, 126264 (1983)(hereinafter MMDS Allocation Order). Section 21.901(d)(5), 47 C.F.R.  21.901(d)(5) (1991), provides:   XxNotwithstanding the provisions of Sec. 21.31(a) all applications that propose to locate transmission facilities within or within 15 miles of the border of a Standard Metropolitan Statistical Area (SMSA) will be considered together. In the case of a Standard Consolidated Statistical Area (SCSA) all applications that propose to locate facilities within or within 15 miles of the boundary of any SMSA contained in the SCSA will be considered together . . . . Each application will be entitled to comparative consideration or to be included in a lottery in only one such area.(#N  Y5-x4. Cutoff Rules. In order to be acceptable for filing, MDS applications were required to be filed on or before the applicable cutoff date for mutually exclusive applications. If an MMDS application is mutually exclusive with a 1983 application or" 0*((_ " authorized station, the applicable cutoff date is the oneday filing date designated for those  Y-applications, September 9, 1983. Establishment of MultiChannel 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, post1983, previously proposed or authorized station, the applicable cutoff rule is  21.31(b), which provides, in part, that in order to be entitled to comparative status: XxThe application [must be] received by the Commission in a condition acceptable for filing by whichever "cut-off" date is earlier:(# Xx(i) Sixty (60) days after the date of the public notice listing the first of the conflicting applications as accepted for filing; or(# Xx(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,  YM-post1983, previously proposed or authorized station, the applicable cutoff rule is  21.914,M= Y-ԍ Except for the September 9, 1983 cutoff date,  21.31(b) is the cutoff provision for MDS applications on the E or F channels filed between April 20, 1988 and October 31, 1990. which provides that: x XxNotwithstanding 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.  Y9-x5. 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  Y -protected service areasp K= Y$-ԍ Section 21.902(d) defines the protected service area for MDS stations.p 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." 0*((!" 21.902(b)(4). Section 21.902(f) defines harmful interference as the ratio of desired signal to undesired signal present in the cochannel or adjacent channel, at the output of a reference  Y-receiving antenna oriented to receive the maximum desired signal.9= YK-ԍ Cochannel harmful interference exists if a free space calculation of the ratio of desired signal to undesired signal is less than 45 dB. Adjacent channel harmful interference exists if a free space calculation of this ratio is less than 0 dB. 47 C.F.R.  21.902(f). 9  Y-x6. MDS Interference Studies. At the time the abovereferenced applications were filed, in order to demonstrate compliance with  21.902(b), and so that mutually exclusive determinations could be made,  21.902(c)(1) of the Commission's rules required that an 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)  Yy-(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).  Y-x7. 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.  Y -x8. 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  Y -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""K0*((#" boundary of a statistical area for which there was an MDS application for the E or F  Y-channels pending as of April 19, 1988. Public Notice, Common Carrier Bureau Opens Filing  Y-Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661  Y-(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  Ye-filing. Id. at 26612662.  Y9-x9. Summary. 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, 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 cutoff 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  Y-unacceptable for filing. Notice was also provided in the MMDS Allocation Order, 94 FCC  Y -2d 1203, and MDS Technical Order, 98 FCC 2d 68. e III. PETITIONS FOR RECONSIDERATION x10. 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"/'0*((P(" 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  Y-the 1988 Public Notice, Commission precedent supports a grant of a waiver. Some  Y-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.  Y5-x11. Colony, Oklahoma. On March 4, 1992, petitioner Hinton Telephone Company  Y -(HTC) filed an MMDS application proposing a transmitter site at Colony, Oklahoma.s  = Y -#XR  P7jQ=9XP#э Application File No. 2414CMP92.s 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  Yf-applicant. Lfy= Y-ԍ In item 1 of FCC 494, applicant lists its name as "Hinton Telephone Company." In item 31, which states in italicized letters "Must correspond with that shown on Page 1," applicant lists its name as "The Hinton Telephone Company of Hinton, Oklahoma, Incorporated." The staff characterization of this defect as grounds for return of the application was harmless error as the application was properly returned for the other reasons  Y-listed. See Greater Boston Television Corporation v. FCC, 444 F.2d 841, 851 (D.C. Cir.  Y-1970), cert. denied, 403 U.S. 923 (1971) (The court will not upset a decision because of errors that are not material, "there being room for the doctrine of harmless error.") A reconsideration petition for the returned application was timely filed on April 2, 1993. x12. The application proposed a transmitter site that was within 50 miles or the radio  Y -horizon of: (1) one 1983 previously proposed, subsequently authorized station;r  = YH -ԍ Call sign WMH613 at Lawton, Oklahoma, Application File No. 6902CMP83.r (2) seven 1983 previously proposed stations with applications pending on March 4, 1992, the date of  Y-the Colony application; > = Y#-ԍ Application File Nos. 10857CMP83; 6470CMP83; 15514CMP83; 10618CMP83; 14376CMP83; 2433CMP83; and 8751CMP83, all in Lawton, Oklahoma. and (3) 146 post1983 previously proposed MMDS stations.e = Y-#XR  P7jQ=9XP#э Including, but not limited to Application File Nos. 51475CMP91 through 51480 Yy-CMP91 for proposed stations in Weatherford, Oklahoma, approximately 14 miles away  Yb-from the applicant's proposed station in Colony, Oklahoma. e" K 0*(("Ԍx13. The application lacked interference studies, required by 21.902(b) and (c), for:  Y-(1) one 1983 previously proposed, subsequently authorized station;K= Y-ԍ Call sign WMH613 at Lawton, Oklahoma, Application File No. 6902CMP83, which appeared on public notice on September 30, 1986. (2) seven 1983 previously proposed stations with applications pending on March 4, 1992, the date of the  Y-Colony application;= YQ -ԍ Application File Nos. 10857CMP83; 6470CMP83; 15514CMP83; 10618CMP83; 14376CMP83; 2433CMP83; and 8751CMP83, all in Lawton, Oklahoma and all appearing on public notice on September 26, 1986. and 3) 145 previously proposed MMDS stations.h = Y-#XR  P7jQ=9XP#э Including, but not limited to Application File Nos. 51475CMP91 through 51480 Y-CMP91 for proposed stations in Weatherford, Oklahoma, approximately 14 miles away  Y-from the applicant's proposed station in Colony, Oklahoma. All of these applications appeared on the MDS inventory on March 13, 1991. 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  Y`-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  Y -previously proposed stations. See 21.902.  Y-x14. 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  Yg-a waiver of the Commission's 1988 Public Notice location requirements.g= Y -#Xw PE37=9XP#э Applicant states "This application does not comply with the FCC's Public Notice of April 20, 1988. However, HTC believes good cause exists for the FCC to accept this application."  Y;-x15. Naples, Florida. On October 12, 1990, James L. Brubaker filed an MMDS"; W0*(("  Y-application proposing a transmitter site at Naples, Florida.= Yy-#Xw PE37=9XP#э Application File No. 51015CMP91. Applicant attempted to resubmit this application on April 9, 1993, without a filing fee and after the April 9, 1992, freeze on the  YK-filing of new applications. For both of those reasons, the application was never accepted for  Y4-filing, but was considered as an exhibit with the petition for reconsideration. See 7 FCC Rcd. 3266, 327071.  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 cutoff 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 cutoff 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. x16. The application proposed a transmitter site that was within 50 miles or the radio  Y-horizon of : (1) two 1983 previously authorized MMDS stations;= Y`-#XR  P7jQ=9XP#э Call sign WHK973 at Ft. Myers, Florida, Application File No. 3158CMP83, and call sign WHK974 at Ft. Myers, Florida, Application File No. 8182CMP83. (2) one 1983 subsequently  Yy-authorized MMDS station;y= Y-#Xw PE37=9XP#э Call sign WMH632 at Naples, Florida, Application File No. 13311CMP83. While station WMH632 was subsequently forfeited on January 16, 1993, at the time the application was filed, the applicant was required by 21.902(b) and (c) to include an interference analysis for this station in its application. (3) four 1983 previously proposed MMDS stations, which had  Yb-applications pending on October 12, 1990, the filing date of the Naples application;b% = Y8-#Xw PE37=9XP#э These include three applications for Naples, Florida, Application File Nos. 5222CMP83; 9978CMP83; and 14501CMP83, and one application for Sarasota, Florida, Application File No. 8625CMP83.  and (4)  YK-11 post1983 previously proposed MMDS stations.K= Y#-#Xw PE37=9XP#э These include nine applications for Naples, Florida, Application File Nos. 52515CMP90; 55216CMP90; 55416CMP90; 55751CMP90; 55804CMP90; 55805CMP90; 55964CMP90; 50712CMP91; and 50945CMP91; and two applications for Marco Island, Florida, Application File Nos. 55045CMP90; and 55046CMP90.  "4 0*(( "Ԍx17. The application lacked interference studies, required by 21.902(b) and (c), for  Y-one subsequently authorized and 15 previously proposed MMDS stations.H= Yb-#XR  P7jQ=9XP#э For example, the applicant failed to submit an interference study for WMH632, an authorized station at Naples, Florida, approximately three miles away from the applicant's proposed station at Naples, Florida. The initial application for this station appeared on the MDS inventory by December 12, 1985. Nor did the applicant include interference studies for three applications for Naples, Florida, Application File Nos. 5222CMP83; 9978CMP83; and 14501CMP83, all of which appeared on public notice on December 15, 1986 and one application for Sarasota, Florida, Application File No. 8625CMP83, which appeared on public notice on May 25, 1986.  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  Y-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  Y -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  Y -stations.  See 21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by 21.902(g).  Y~-x18. The application contained a request for waiver of the MSA and fifty mile  Yg-location restrictions contained in the 1988 Public Notice.  Y;-x19. Terre Haute, Indiana. On January 17, 1991, petitioner Knollwood Ltd  Y$-("Knollwood") filed an MMDS application proposing a transmitter site at Terre Haute,  Y -Indiana.t = Y-#Xw PE37=9XP#э Application File No. 57452CMP91.t 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 Y-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  Y-would be reported, and the amount of time expected to respond, as required by 21.15(e);E = Y%-ԍ The staff characterization of this defect as grounds for return of the application was  Y&-harmless error as the application was properly returned for the other reasons listed. See  Y'-Greater Boston Television Corporation v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert."'0*(('"  Y-denied, 403 U.S. 923 (1971) (The court will not upset a decision because of errors that are not material, "there being room for the doctrine of harmless error.")E" d0*((^" 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. x20. The application proposed a transmitter site that was within 50 miles or the radio  Yv-horizon of : (1) one 1983 subsequently authorized MMDS station;vd= Y -#Xw PE37=9XP#э WMI833 at Terre Haute, Indiana, Application File No. 6519CMP83. (2) 17 1983 previously proposed MMDS stations, which had applications pending on January 17, 1991, the filing  YH-date of the Terre Haute application;H= Y-#XR  P7jQ=9XP#э These include, but are not limited to, four applications for Terre Haute, Indiana, Application File Nos. 9737CMP83; 7220CMP83; 4638CMP83; and 13679CMP83. and (4) two post1983 previously authorized MMDS  Y1-stations.1= Y-#Xw PE37=9XP#э Call sign WLW759 at Casey, Illinois, Application File No. 50262CMP89, and call sign WLW821 at Casey, Illinois, Application File No. 50532CMP90. While station WLW759 was subsequently forfeited on April 12, 1991, at the time the application was filed, the applicant was required by 21.902(b) and (c) to include an interference analysis for this station in its application.  x21. The application lacked interference studies, required by 21.902(b) and (c), for  Y -17 previously proposed MMDS stations.  = Y-#Xw PE37=9XP#э For example, the applicant failed to submit an interference study for Application File Nos. 9737CMP83; 7220CMP83; 4638CMP83; and 13679CMP83, which proposed stations in Terre Haute, Indiana, approximately three miles away from the applicant's proposed station in Terre Haute. Each of these applications appeared on public notice as of October 5, 1988. 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  Y -the authorized or previously proposed stations, as required by 21.902(c), (d) and (f) (see  Y-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  Y -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" Y0*((" 21.902(g). x22. No waiver requests were included in the Terre Haute application.  IV. DISCUSSION  Yv-x 23. Mutual Exclusivity and Cutoff. 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 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;` = YN-ԍ MDS Allocation Order, 45 FCC 2d at 62021.` (2) within the radio horizon (with an unobstructed electrical path)  Y -of the protected service area of an authorized or previously proposed MMDS station;X {= Y-ԍ MMDS Technical Order, 98 FCC at 109111.X or (3) within an MSA, or its 15mile buffer zone, for which there is an authorized or previously  Y-proposed MMDS station.\ .= Yo-ԍ MMDS Allocation Order, 94 FCC 2d at 126264.\ 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: Xx 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). x24. 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  Y -channel interference protection,}!a = Y$-ԍ MDS applicants consistently have been required to comply with  21.902(b). In the  Y%-Family Entertainment case, the Domestic Facilities Division returned as unacceptable for filing an application which demonstrated that the level of interference was within 0.16 dB of meeting the 45 dB cochannel standard. In so doing, it was stated that: "o' 0*(('"ԌXx[W]e reject FEN's claim that its applications should be granted because the level of  Yy-interference . . . is de minimis. Section 21.902(b)(3) requires that an applicant demonstrate 45 dB of cochannel interference protection. In this rule provision, no reference is made to qualifying terms, degrees or levels, other than 45 dB at which interference would be deemed acceptable. (# 9 FCC Rcd at 568. } and to demonstrate that protection in interference studies" !0*((-" submitted with the applications. Applicants must also demonstrate in their applications their  Y-efforts to provide adjacent channel interference protection. See  21.901(d)(7) and 21.902(a). x25. 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  Y -closely than ordinarily allowed and require careful planning and engineering. MMDS  Y -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  Y-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  Yj-interference protection showings in MDS applications for the E and F channels." j= Y -ԍ See, e.g., New Channels Communications, Inc., 57 RR 2d 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 required. .  Y&-. . "); Marylan J. Benson, 7 FCC Rcd 4668 (Dom. Fac. Div. 1992) ("[T]hose applications"&!0*((;'" 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. . . . ")  "jK"0*(("Ԍx26. Our evaluation of the interference statements actually submitted shows that petitioners' applications failed to demonstrate a lack of harmful interference as required by  Y-21.902. 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  YL-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.") x27. 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 previouslyproposed, cochannel and adjacentchannel, 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  Y%-subsequent to the filing of their own applications, as the Naples petitioner asserts. See, e.g.  Y-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  Y-Commonwealth's pending application in its interference analyses.") See also, Roundtree  Y-Communications, 7 FCC Rcd. 5456 (1992). While there have been periods of time when newlyfiled 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  Y^-of whether the applications had been placed on public notice.#_^K= YZ!-ԍ A printed listing of active MMDS applications filed with the Commission was available for public inspection. This lists, for each application, the applicant's name, the city proposed to be served, the coordinates of the proposed transmitter site, public notice date, and the application status. From this listing, a potential applicant could identify proposed stations for which interference studies must be submitted, and order copies of the necessary applications from the Commission's copy contractor. Files for authorized stations have always been available for public inspection in the Domestic Facilities Division Public"&"0*(( '" Reference Room. See 1988 Public Notice, 3"^y#0*(( " 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. x28. 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 Yv-group station at Colony.$vy= Y -ԍ WMI311, Application File No 5586CMP83. HTC filed petitions to deny applications for E and F group channels at Clinton, Oklahoma. 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  Y -21.902(c). See CNI Wireless, Inc., 9 FCC Rcd. at 2040. x29. 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  Y{-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  YO-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  Y-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  Y?-returned as unacceptable for filing. New Channels Communications, Inc., 57 RR 2d at 1602;  Y*-CNI Wireless, Inc., 9 FCC Rcd at 2040. x30. 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"!$0*(("" 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.  Y-x31. 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  YH-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.(# 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).  Y-x32. Location Requirements. The 1988 Public Notice allows the filing of MDS  Y-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  Yk-paragraph of the Notice explicitly stated that "[a]pplications filed must comply with the  YV-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 directives, each of the applications proposed a  Y-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  Y -filing of MDS applications. See 21.901(d)(4). The Naples petitioner filed within 15 miles  Y!-of the Ft. Myers MSA, in which there was an authorized cochannel station.1%!= Y6$-ԍ WHK973.1 The Naples  Y"-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. "z$y%0*((%" 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  Y-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. x33. 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  Ya-clear language in the 1988 Public Notice, we stressed, as early as 1980, the importance of  YL-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 directive, their applications were  Y -properly returned as unacceptable for filing. See Ranger v. FCC, 294 F.2d 240 (1961).  Y-x34. 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  YY-accompanied by a waiver request.&Y= Y-ԍ As discussed above, only the Naples, Florida petitioner properly filed a request for a waiver. In its petition, the Terre Haute applicant claims that  YB-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 nonroutine 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  Y-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  Y`-request and will not do so here. The Court in WAIT Radio made clear that: Xx 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  Y"-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"#b&0*(($"  Y-to 21.20(c)(2).'= Yy-ԍ The Commission may waive any rule or requirement on its own motion. See 21.20(c)(2). x 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: 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 Grande  Y-Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam)); see  Y}-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.") x36. The Terre Haute and Naples applicants' assertions that the proposed stations would not cause harmful interference to other existing or proposed stations are unsupported.  Y-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  Y-short of the stringent showing required by WAIT Radio of the existence of extraordinary or  Y-special circumstances justifying a waiver. (d= Y-ԍ A bald conclusion, without any offer of proof or documentary support, has no probative value in determining whether a proposed station would cause harmful interference.  Ym -Jim Bolton, 2 FCC Rcd 3207 (Comm. Car. Bur. 1987).  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  Y,-expeditiously and to efficiently allocate scarce engineering resources. See Boyd B. Hopkins,  Y-Sr., 9 FCC Rcd 569, 570 (Dom. Fac. Div. 1994); R.L. Mohr, 85 FCC 2d 596, 604 (1981).  Y-These purposes would not be served were we to routinely grant a waiver of the location restrictions to each and every applicant that demonstrated noninterference through the"(0*(( " submission of interference studies. Thus, we conclude that granting petitioners' requested waivers would frustrate the underlying purpose of the rules.  Y- x37. 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  Yv-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. x 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  Y -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.  Y8-x39. In addition, even if the 1988 Public Notice location restrictions had not prohibited the filing of the abovereferenced 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.  Y-x40. 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 MultiMicro, Inc. ("MultiMicro"), the previous conditional licensee of the Fgroup channels in Terre Haute, to tender its current authorization for cancellation and submit a new application for the station. Knollwood claims that MultiMicro 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 MultiMicro 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 MultiMicro the sole applicant and therefore allow it to be granted a new conditional license. Knollwood claims that "MultiMicro . . . refiled a new application in the name of Knollwood Ltd. on January 17, 1991," more than a month after MultiMicro tendered its authorization for cancellation. x41. As an initial matter, Knollwood's claim that "MultiMicro . . . refiled a new application in the name of Knollwood Ltd. on January 17, 1991" is incorrect. MultiMicro and Knollwood are not the same entity. Review of Knollwood's application reveals in")'(0*((P(" Exhibit V that Russell and MaryAnn Ritchie own 40% of MultiMicro. Exhibit VI, however, indicates that the Ritchies own 100% of Knollwood. Knollwood offers no explanation in its petition of its lack of identity with MultiMicro or its claim of reliance on statements allegedly made by Commission staff to MultiMicro, not to Knollwood. In addition, Knollwood waited until January 17, 1991, more than a month after MultiMicro 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 MultiMicro regarding immediately filing a new application.  Y1-x42. In any event, even assuming, for the sake of argument, that the staff made the alleged statements and that Knollwood and MultiMicro 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  Y -interpretations do so at their own risk. See, e.g., AAT Electronics Corp., 53 RR 2d 1241,  Y -122526 (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  Y-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. x43. 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 MultiMicro application for cancellation. Whether MultiMicro 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 MultiMicro's application for cancellation. x44. 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. ")'(0*((P("Ԍ Y-x45. 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  Y-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 cutoff 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  Ya-21.902. See Roundtree Communications, 7 FCC Rcd 5456 (1992); Boyd B. Hopkins, Sr.,  YL-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 longestablished and applicable at  Y -the time the returned applications were filed.o) = Y -ԍ For example, the interference study filing rule was adopted in a 1974 rulemaking  Y -order (MDS Allocation Order, 45 FCC 2d 616 (1974)) and the initial cutoff provisions of  Ym -21.31 were adopted in 1968. See Applications for Common Carrier Facilities, 13 FCC 2d 415 (1968).o 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  Y -application assumes the risk that the application will not be acceptable for filing." Ranger v.  Y -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 abovereferenced] applications . . . was not unreasonable or arbitrary, but rather was based on the [applicants'] failure to comply with  Yl-Commission rules." Family Entertainment, 9 FCC Rcd at 568.  Y@-x46. De Facto Policy. The Terre Haute petitioner, Knollwood, claims that under a de  Y+-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  Y-transmitter site which included a request for a waiver of the 1988 Public Notice location  Y-restrictions. Fortuna Systems Corp., 9 FCC Rcd 5280 (Video Serv. Div. 1994). The  Y-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  Yd-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  Y-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  Y!-otherwise meet the requirements for waiver.  See Fortuna, 9 FCC Rcd at 5281. The Terre"!8)0*(("" 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  Y-the 1988 Public Notice location restrictions were granted in the examples cited by the  Y-petitioners, the applicants requested a waiver of the restrictions and were required to show  Yx-that no harmful interference would be caused by grant of their application.*_x= Y-ԍ It appears that one of the applicants cited by the Knollwood petitioner was given a waiver of the interference study requirement for a number of identical applications for the same site as the applicant. However, the Knollwood petitioner does not request a waiver of the interference study requirement for applications for the same site and would not benefit from one since not only did it fail to file interference studies for applications at the same site, it also failed to file interference studies for numerous other previously proposed applications at different sites, as required by 21.902. 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  Y3-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 [shortspacing] waiver . . . now described as an error, does not deprive the agency of authority to require future  Y -applicants to meet certain standards in order to obtain such a waiver); Quinnipiac College, 8  Y -FCC Rcd 6285, 6286 (1993); Walter Faber, 4 FCC Rcd 5492, 5493 (1989), recon. denied, 6  Y -FCC Rcd 3601 (1991), aff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992).  Y-x47. 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  Y-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  Y-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  Y-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  YE-of its research.+E= Y%-ԍ As the Court of Appeals recognized in Columbia Communications Corp. v. FCC, 832 F.2d 189, 192 (D.C. Cir. 1987), "[t]he Commission staff must process annually thousands of"&*0*((&" applications. It cannot be expected to do research for applicants. . . . If the Commission staff were required to assume such a burden, little or nothing would be accomplished."  Yb-(citing Rio Grande Family Fellowship v. FCC, 406 F.2d at 666). Given this prefiling requirement to identify authorized and pending"EM+0*((" 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. x48. 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. x49. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by Hinton Telephone Company, Knollwood Ltd. and James L. Brubaker ARE HEREBY DENIED. x50. 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. x` `  FEDERAL COMMUNICATIONS COMMISSION   x` `  William F. Caton x` `  Acting Secretary