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In the Matter of the Applications of ) ) RURALVISION CENTRAL, INC. ) File No. 337-CM-P-92 ) File No. 392-CM-P-92 ) for Authority ) to Construct and Operate ) Multipoint Distribution Service Stations) on the E- or F-Group Channels ) at Randolph, Kansas ) 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 two petitions for reconsideration of the return, pursuant to delegated authority, of two applications for authority to construct and operate Multipoint Distribution Service (MDS) stations on the E or F channels at Randolph, Kansas. The petitioners seek reconsideration of the Commission staff decision to return their applications as unacceptable for filing. In this order, we find that the applications were properly returned. Accordingly, the petitions for reconsideration are denied. II. BACKGROUND 2. The subject applications, to which Part 21 of the Commission's rules apply, were filed with the Commission on January 2, 1992, after the Commission had reopened the filing period for MDS applications on the E or F channels, subject to certain location restrictions. See Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661 (1988) (hereinafter 1988 Public Notice). Commission staff reviewed both the applications, which were returned by individual return letters dated January 28, 1993. The return letters indicated that applications were returned because they contained inadequate interference analysis due to the failure to consider "all previously proposed and authorized ITFS or MMDS stations pursuant to 47 C.F.R.  21.902(c) and/or (i)" and the failure "to serve all affected parties pursuant to 47 C.F.R. 21.902(g)." 3. 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). The petitioned applications did not include interference analyses for pending applications within 50 miles of the proposed transmitter sites as required by  21.902(c) and therefore fell under the  21.20(a)(1) and (2) grounds for return. III. PETITIONS FOR RECONSIDERATION 4. On reconsideration, petitioners argue that their returned applications were acceptable for filing. Primarily, petitioners claim that their failure to file interference studies for pending MMDS applications resulted from reliance upon publicly available information which was inaccurate. Specifically, the petitioners state that in preparing their applications they used a certain privately maintained electronic data base which did not list all pending MMDS applications and authorized stations which triggered the interference analysis requirements of 47 C.F.R.  21.902. It is for that reason, petitioners assert, that they filed applications for areas within 50 miles of previously proposed and pending MMDS applications without submitting the necessary interference studies. Petitioners argue that the applications should today be reinstated in that the applications were substantially complete and complied with all Commission rules in light of the information available at the time of filing. Moreover, petitioners assert, they should not be held responsible for information which is beyond their "ken." 5. Availability of Information on Authorized and Previously Proposed Stations. Petitioners claim that for purposes of preparing interference studies they used a privately maintained electronic data base, which indicated that there were no pending or authorized MMDS applications within 50 miles of the petitioners' applications. The data base used by petitioner was not the Commission's official MDS on-line contractor at the time petitioners filed their applications nor is it currently Commission's official MDS on-line contractor. If the data base maintained by the Commission's official MMDS on-line contractor been consulted, petitioners would have accessed the more accurate market information. Petitioners who rely upon an unofficial data base must accept the risk and responsibility of relying upon incomplete information. Such reliance, therefore, does not provide relief from or exception to the Commission's interference study requirements and petitioners are not protected in any way on reconsideration. 6. Moreover, the Commission's internal staff listing of pending applications, which the Commission identified as a resource to be used by applicants, was also available for review by petitioners at the time they filed their applications. The Dec. 16, 1991 internal staff listing reflects that there were 168 pending applications within 50 miles of petitioners' applications. If petitioners had consulted the FCC internal staff listing or the data base of the Commission's official on-line contractor, they would have accessed the more accurate market information needed to prepare acceptable applications. Furthermore, public notices provide an additional opportunity for petitioners to learn of pending applications. One hundred eight of these 168 pending applications within 50 miles of petitioners' applications were placed on public notice on Sept. 27, 1991, approximately three months before petitioners filed their applications. 7. The failure of the petitioners to consult more reliable sources of information, such as the Commission's internal staff listing, public notices or the data base of the official MMDS on-line contractor, does not establish Commission staff error or support a decision to reinstate their applications. Petitioners' voluntary use of incomplete and inaccurate information further demonstrates the inadequacy of the petitioners' applications. 8. In addition, we reject petitioners' argument that their applications should be accepted for filing because they were "substantially complete" due to the limited information available to the applicants. In light of petitioners' failure to show that accurate and reliable information was not available to them, this argument is not persuasive. Further, "substantially complete" is not the criterion for acceptability of MDS applications. The Part 21 standard for acceptability of applications is whether an application is "acceptable for filing." See  21.31(b) and 21.914. Section 21.20(a) of the Commission's rules sets forth the two different tests under either of which an application is determined to be unacceptable for filing, and states that an application deemed unacceptable for filing will be returned to the applicant. See  3, supra. As we clarified earlier, the substantially complete standard "is no longer applicable to applications filed under Part 21 of the Commission's rules. . . . [T]he standard for evaluating applications under Part 21 of the rules is not substantial completeness,' but rather acceptability for filing.'" G.C. Cooper, 8 FCC Rcd 7007, n.9 (Dom. Fac. Div. 1993) (citations omitted). 9. Curative Amendments/Disparate Treatment. We also disagree with petitioner's assertion that it should have been contacted by the Commission staff and given an opportunity to file, prior to the return of its applications, interference studies for those pending applications they claim were not listed in a private data base. Petitioner contends that the staff's failure to do so is a violation of administrative due process as the staff has notified applicants with similar application deficiencies and granted such applicants the opportunity to file amendments prior to returning their applications. Petitioner cites several cases, including Stephen Communications, Inc., 8 FCC Rcd 935 (Dom. Fac. Div. 1993); T/V Communications Assoc., 7 FCC Rcd 7647 (Dom. Fac. Div. 1992); Stephen C. Bailey, 7 FCC Rcd 7252 (Dom. Fac. Div. 1992); and Microwave Video Services, 7 FCC Rcd 7258 (Dom. Fac. Div. 1992), to support its proposition that it was treated disparately from other similar applicants. 10. The cases cited by petitioner all involve applications that were included in the lottery process. Generally, applications are reviewed, and if deemed to be acceptable for filing pursuant to  21.20 and 21.28, are included in the lottery selection process. Second Report and Order, Amendments of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in Regard to Frequency Allocation to the Instructional Television Fixed Service, and the Private Operational-Fixed Microwave Service, 57 RR 2d 943, 949 (1985) (hereinafter MMDS Lottery Order). After an application is randomly selected through the lottery process, the Commission staff conducts a post-lottery review to ensure that the applicant is legally, technically, financially, and otherwise qualified to be a licensee. 47 C.F.R.  1.824(a). If there are any deficiencies precluding such a finding, applicants are contacted by letter and afforded an opportunity to cure such deficiencies pursuant to  21.23(a)(2). The cases cited by petitioner all involve applicants who were initially found to be acceptable for filing, chosen as tentative selectees through the lottery process, and were later contacted by the Commission staff to cure application deficiencies pursuant to  21.23(a)(2). Although petitioner attempts to draw these scenarios as parallel to its own, they are not. Unlike the tentative selectees in a lottery, petitioner's applications did not pass initial application review. Petitioner's applications were deficient in ways that rendered them unacceptable for filing and subject to return by Commission staff. 11. We recognize that in the cases cited by petitioner, tentative selectees were given an opportunity to amend their applications to cure deficiencies in their applications, some of which went to their acceptability for filing. This fact indicates that several of these applications were erroneously found to be acceptable for filing prior to being entered in their respective lotteries, in contravention of the provisions of the MMDS Lottery Order, which provides that an application must be acceptable for filing in order to be included in a lottery. MMDS Lottery Order, 57 RR 2d at 949. The Commission is not bound by such staff errors. See Walter P. Faber, 4 FCC Rcd at 5492, 5493 (1989), recon. denied, 6 FCC Rcd 3601 (1991), aff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992) (citing North Texas Media, Inc. v. FCC, 778 F.2d 28, 33 (D.C. Cir. 1985) ("[I]nasmuch as these deviant actions were taken by delegated authority, not by the Commission, we reject . . . [petitioner's] attempt to rely on these cases as establishing a Commission policy . . . ."). The fact that several of the tentative selectees in the cited cases were included improperly in the random selection process by the staff and given an opportunity to cure deficiencies which made them unacceptable for filing, contrary to Commission rules and requirements, cannot be interpreted to require the Commission to grant applications which are unacceptable for filing. We find that petitioner's applications received proper review and processing, and were properly returned as being unacceptable for filing. 12. Failure to File Interference Studies. Applicants for new MDS stations are required to file with their applications specific, technical interference showings for authorized and pending cochannel and adjacent channel applications: (1) which are within 50 miles of the proposed station; and (2) to which the proposed station has an unobstructed electrical path. See In the Matter of 4,330 Applications, 76 RR 2d at 1258-59. Section 21.902(b) of the Commission's rules requires all MDS applicants to provide 45 dB of cochannel interference protection and 0 dB of adjacent channel protection, and  21.902(c) requires that the applicant demonstrate that protection in interference studies submitted with the applications. It has been recognized that "the demonstration of interference protection, at the time of filing, aids the Commission in the public interest determination that an applicant is technically qualified to be an MDS/MMDS licensee." Family Entertainment Network, Inc., 9 FCC Rcd 566, 567-68, n. 10 (Dom. Fac. Div. 1994). 13. Petitioners failed to file interference analyses for the 168 previously proposed MMDS stations that were within 50 miles of the applicants' proposed transmitter site. On reconsideration, petitioners submitted interference studies for two of these 168 pending applications. However, because these two stations were listed as pending applications in a publicly available source of Commission information prior to the filing date of the petitioned applications, the studies will not be considered at this juncture. Furthermore, it is established that the Commission is under no obligation to accept curative showings after an application has been returned or dismissed, and there has been a series of cases denying attempts to submit such showings post-return. See, e.g., Edna Cornaggia, 8 FCC Rcd 5442, 5444, n.7 (Dom. Fac. Div. 1993)("[It is not longer possible to amend an application which has already been dismissed . . . ."); Marylan J. Benson,7 FCC Rcd 4668, 4669, n.9 (Dom. Fac. Div. 1992) ("We reject Benson's contention that she should be permitted to file curative amendments and her applications reinstated nunc pro tunc for further processing. We believe that the Division's initial return of the . . . application as unacceptable for filing was correct . . . ."). 14. Even if we were to accept these interference studies on reconsideration, the studies are inadequate in that they: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service are of 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; and (3) failed to engineer the station to provide at least 45 dB of cochannel interference protection pursuant  21.902(b)(3), and/or 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4). Furthermore, the petitioners did not include studies for the additional 166 previously proposed applications which were pending at the time their applications were filed. 15. Therefore, we find that these applications were properly returned as unacceptable for filing. See MDS Technical Order, 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 Operational-Fixed Microwave Service (OFS), 98 FCC 2d 68, 93 (1984) ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference . . . 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.") 16. In addition, the Randolph petitioners 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 at 5444, 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. 17. Having conducted a de novo review of the Randolph applications, we conclude the staff action returning the applications was proper in that the applications were unacceptable for filing for failing to include the necessary interference analyses and related demonstrations. We reject the petitioners' arguments that the Commission prohibited the filing of curative amendments and hence violated their due process rights. 18. Therefore, it is based upon all the foregoing considerations that we affirm the staff's return of the applications under consideration in this order. Reinstatement is not warranted and reconsideration is not justified. 19. Accordingly, IT IS ORDERED, that the petitions for reconsideration ARE HEREBY DENIED. 20. IT IS FURTHER ORDERED, that the staff of the Mass Media Bureau shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary