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A. 1. a.(1)(a) i) a)T,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP#     X` hp x (#%'0*,.8135@8:<    #:}D4P XP#,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP#Footnote9Íčfootnote tex#:'p #FxX  Pg9CXP#header;Ax 4 <D  #FxX  Pg9CXP# 24g<\b=~b>imd?^ereference<;#FxX  Pg9CXP#itemizeX1=&V 8F ` hp xr#FxX  Pg9CXP#header2>I ` hp x`    #FxX  Pg9CXP# heading 3?F` hp x #FxX  Pg9CXP# 2j@OfgA hBiQfooter!@!!#d\  PCP#CitatorFormat Secretary's Citator Output FileAW r5-#d6X@`7Ͽ@# XX  X B r5-S  BFormat DownloadFormat Downloaded DocumentBiޛ r5- XX    \ #d6X@`7Ͽ@#2j  #Xw PE37XP#RRECORD ONLY $//In the Matter of the Application of Coastal Wireless Cable Partners, FCC 95246//$ $/1.106 Petitions for Reconsideration/$ $/21.20 Defective Applications/$ $/21.5 Formal and Informal Applications/$ $/21.7 Standard application form for domestic public fixed radio service licenses/$ $/21.901 Frequencies/$ $/21.902 Frequency Interference/$ "10*0*0*"  @hBefore the  Y4W  FEDERAL COMMUNICATIONS COMMISSION ăxxXFCC 95246 SWashington, D.C.  Yw4In the Matter of the Application ofhhCq) ` `  hhCq)  YI4COASTAL WIRELESS CABLE PARTNERS)ppFile No. 59212CMP91 ` `  hhCq)  Y 4for Authority` `  hhCq)  Y 4to Construct and OperatehhCq)  Y 4Multipoint Distribution StationshhCq)  Y 4on the E and F Group ChannelshhCq)  Y 4at Emporia, Virginia hhCq)  Yz4 MEMORANDUM OPINION AND ORDER ON RECONSIDERATION ă  YM4Adopted: June 15, 1995hhCqReleased: July 7, 1995 By the Commission: fFI. INTRODUCTION  Y41. Coastal Wireless Cable Partners ("Coastal") seeks reconsideration of a Domestic Facilities Division ("Division") decision to return as unacceptable for filing its single application for authority to construct and operate two Multipoint Distribution Service  Y~4("MDS")~ȝ 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, the terms MMDS and MDS stations on the E or F channel groups are used interchangeably. stations in Emporia, Virginia and reinstatement of its application nunc pro tunc. In this order, we find that Coastal's application was properly returned. Accordingly, Coastal's petition for reconsideration is denied.  Y$42. Coastal's application for two MMDS stations using both the E and Fchannel groups at Emporia, Virginia was filed on March 17, 1991. The application was returned by the Division on delegated authority as unacceptable for filing by return notification letter dated May 5, 1992. The letter explained that the application was returned because separate applications were needed for station authorizations on separate channel groups. On May 7, 1992, Coastal filed its petition for reconsideration. ""0*0*0*!"Ԍ II. PETITION FOR RECONSIDERATION  Y-x3. On reconsideration, Coastal argues that the Commission's rules do not clearly require the filing of separate applications if an applicant seeks to utilize the entire 25962644  Y_-MHz band, or rather, both the E and F channel groups._= Y-ԍ Channels E1, E2, E3, and E4 are designated as the Egroup channels and are found at 25962602 MHz, 26082614 MHz, 26202626 MHz and 26322638 MHz. Channels F1, F2, F3, and F4 are designated as the Fgroup channels and are found at the 26022608 MHz, 26142620 MHz, 26262632 MHz, and 26382644 MHz. The E and Fgroup channels are what is commonly referred to as "interleaved." According to Coastal, without adopting a clearly articulated policy requiring separate applications and without providing adequate notice of the filing requirement, imposing such a rule violates traditional concepts of due process. Coastal states that the dismissal of an application is a sufficiently grave sanction to trigger a duty to provide adequate notice of filing requirements and that failure to provide notice prohibits the Commission from penalizing an applicant for reasonably interpreting the requirement. Moreover, Coastal argues, the Commission in a 1990 Report and Order revised its filing requirements and permitted the filing of a single application for both channel groups. x4. Petitioner's claim that there are no rules requiring the filing of separate applications for two separate MMDS stations is unfounded and its characterization of the Commission as recently adopting such a requirement without providing adequate notice is inaccurate. The rules which set forth the policy that separate stations must be authorized for each channel group and that a single authorization cannot be granted for the operation of two stations are longstanding. Section 21.5(b) of the Commission's rules provides that "a separate written application shall be filed for each instrument of authorization requested." 47 C.F.R.  21.5(b). Section 21.901(b)(4) and (5) designate the E and F channel groups as separate frequencies allocations, each requiring separate "assignments." 47 C.F.R.  21.901(b)(4) and (5). Section 21.7 requires the filing of separate MMDS applications for  Y-each station license. 47 C.F.R.  21.7. These rules,= Ya -ԍ All citations to the Commission's rules and to sections of 47 C.F.R. refer to the 1990 version of the C.F.R., which were the rules applicable to the petitioned application at the time it was filed. All rules cited were originally adopted between 1968 and October 9, 1987, the later date being more than 3 years before the petitioner filed its application. read in their totality, compel the Commission to treat stations on the E and F frequencies separately, to authorize separate station assignments for each channel group, and to require the filing of separate applications for separate MMDS stations. Furthermore, the policy of issuing separate licenses for each station authorized on each of the channel groups was outlined and adopted by the"7 0*((."  Y-Commission in 1983 when MMDS was established. 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 Distribution Service, and the Private Operational  Y-Fixed Microwave Service, 94 FCC 2d 1203, 124647 (1983) (hereinafter MMDS Allocation  Y-Order). x5. Petitioner also relies upon a 1990 Report and Order as support for its assertion that the Commission, in lifting certain ownership restrictions, also changed its application  YN-filing requirements to permit the filing of a single application for both channel groups.PN= Y -ԍ Amendment of Parts 21, 43, 74, 78, and 94 of the Commission's Rules Governing Use of the Frequencies in the 2.1 and 2.5 GHz Bands Affecting: Private OperationalFixed Microwave Service, Multipoint Distribution Service, Multichannel Multipoint Distribution  Y -Service, Instructional Television Fixed Service, and Cable Television Relay Service, 5 FCC  Yo -Rcd 6410 (1990), Order on Reconsideration, 6 FCC Rcd 6764, 677172 (1991), petition for  YZ-review filed, United States Independent Microwave Television Ass'n v. FCC, No. 911637 (D.C. Cir. filed Dec. 20, 1991) (held in abeyance by court order of February 21, 1992, pending action on second set of reconsideration petitions). In  Y7-that order, the Commission lifted the ban that prohibited any one person or entity from filing  Y -more than one MMDS application in the same geographic area.B = Y-ԍ Id. at 6411.B Petitioner cites the language "MDS applicants for the E and F channels" found throughout the order as support for its claim that applicants are permitted to file a single application to operate two stations. This language, however, does not reflect a change in the Commission's filing requirements, but instead it reflects a change in the Commission's ownership rules. The language highlights that the same applicant can now file for both the E and F channels in the same market. The Commission's filing requirements set forth in  21.5(b), 21.7, and 21.901(b)(4) and (5) were in no way changed by the use of this language. Therefore, the petitioner's reliance upon this language is misplaced. Thus, we find that the staff properly returned petitioner's application, pursuant to  21.20(a)(2), as failing to substantially comply with the Commission's rules. x6. Coastal's application is also unacceptable for filing for other reasons. First, Coastal's application specified a transmitter site within the RichmondPetersburg, Virginia Metropolitan Statistical Area ("MSA"), and thus, it is mutually exclusive with and cutoff by  Y-pending applications filed for locations within that MSA pursuant to  21.901(d)(5).` = Y #-ԍ Application File Nos. 15558CMP83 and 16538CMP83.`  Y-Second, Coastal violated the location restrictions set forth in Public Notice, Common Carrier  Y-Bureau Opens Filing Period for Multichannel Multipoint Distribution Service Applications, 3  Y-FCC Rcd 2661 (1988) (hereinafter 1988 Public Notice). The notice provides that MMDS applications filed after April 20, 1988 may be filed only for locations which are farther than"qD 0*((]" 50 miles from any existing authorized facility and any proposed location of an MMDS  Y-application pending on April 19, 1988. 1988 Public Notice, 3 FCC Rcd 2661. In that notice we also emphasized that applications filed in violation of the location restrictions would be  Y-returned as unacceptable for filing. Id. Coastal's application was filed within 50 miles of  Y-nine such pending applications.= Y!-ԍ These include, but are not limited to, Application File Nos. 15558CMP83 and 16538CMP83 for Richmond, Virginia, and 15821CMP83 and 11838CMP83 for Norfolk, Virginia. Thus, the application was also unacceptable for filing as it  Y-violated the location restrictions of the 1988 Public Notice. x7. Third, Coastal's application lacked interference studies as required by 21.902(b) and (c). Applicants for new MDS stations are required to file with their applications specific technical showings for authorized and pending cochannel and adjacent channel applications which are within 50 miles of the proposed station and to which the applicant's proposed  Y -station has an unobstructed electrical path. See In the Matter of 4,430 Applications, 76 RR 2d 1254, 125859 (1994). 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. We have 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  Yj-licensee." Family Entertainment Network, Inc., 9 FCC Rcd 566, 56768, n. 10 (Dom. Fac. Div. 1994). Those applications that do not contain an analysis of how the applicant intends to avoid cochannel interference in adjacent areas will not be considered acceptable for filing.  Y'-MMDS Allocation Order, 94 FCC 2nd at 1264; see also  21.902(b) and (c).  X x8. Coastal failed to include with its application the required interference studies and related demonstrations for eleven previously proposed MMDS stations that were within 50 miles of Coastal's proposed transmitter site and which had either appeared on public notice as being accepted for filing or were included in the FCC internal staff listing of pending  Y-applications prior to the filing date of petitioner's application.K= Y-ԍ These include, but are not limited to, Application File Nos. 15558CMP83, 16538CMP83 for Richmond, Virginia, and 15821CMP83 and 11838CMP83 for Norfolk, Virginia, which were placed on public notice on November 12, 1985. Two of these eleven  Y-applications were authorized subsequently to the filing of Coastal's application. = Y#-#XR  P7jQ=9XP#э These include, but are not limited to, Application File Nos. 58995CMP91 and 58996CMP91, which were filed for transmitter sites in Roanoke Rapids, North Carolina approximately 16 miles away from the applicant's proposed stations. These applications were placed on the FCC internal staff listing on May 8, 1991 and were subsequently authorized. In addition, the Instructional Television Fixed Service ("ITFS") interference studies submitted by Coastal"q# 0*((]" were invalid because incorrect technical specifications were used and because they indicated terrain blockage, but required demonstrations, such as shadow maps and terrain profiles,  Y-were not submitted. HO YK-ԍ For MDS applications on the E or F channels which were filed beginning October 11, 1990 through December 29, 1991, the applicant also was required to file with the application, pursuant to 47 C.F.R.  21.901(d)(1), an engineering analysis demonstrating a lack of harmful interference to each cochannel or adjacent channel Instructional Television Fixed Service (ITFS) licensed station with a transmitter site within 50 miles of the proposed MDS transmitter site. In addition, a copy of the analysis had to be served on each affected ITFS licensee. In the alternative, the MDS applicant could submit a statement from the ITFS licensee stating that it did not object to the MDS operation. Therefore, Coastal failed to meet the ITFS interference protection requirements of  21.902(i) or  21.901(d)(1). In addition, Coastal failed to satisfy the requirements of service of interference studies as required by  21.902(g). x9. Fourth, Coastal also failed to notify the FAA of the new antenna structure proposed in its application as required by  21.15(d).  Y1-x10. Having considered all the arguments presented, we find that Coastal's application was properly returned. Reconsideration is not warranted and reinstatement is not justified. Accordingly, IT IS ORDERED, that the petition for reconsideration is DENIED. x11. IT IS FURTHER ORDERED, that the staff of the Mass Media Bureau shall send copies of the foregoing decision to the authorized representative for the petitioner by certified mail, return receipt requested. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary