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In the Matter of the Application of ) ) CORN, LORD & ASSOCIATES ) File No. 61090-CM-P-91 ) for Authority ) to Construct and Operate ) Multipoint Distribution Stations ) on the E and F Group Channels ) at Dublin, Georgia ) MEMORANDUM OPNION AND ORDER ON RECONSIDERATION Adopted: June 15, 1995 Released: July 7, 1995 By the Commission: I. INTRODUCTION 1. Corn, Lord & Associates ("CLA") 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 ("MDS") stations in Emporia, Virginia and reinstatement of its application nunc pro tunc. In this order, we find that CLA's application was properly returned. Accordingly, CLA's petition for reconsideration is denied. 2. CLA's application for two MMDS stations using both the E- and F-channel groups at Emporia, Virginia was filed on July 26, 1991. The application was returned by the Division on delegated authority as unacceptable for filing by letter dated December 3, 1991. The letter explained that the application was returned because separate applications were needed for station authorizations on separate channel groups. On December 13, 1991, CLA timely filed its petition for reconsideration. II. PETITION FOR RECONSIDERATION 3. On reconsideration, CLA argues that the Commission's rules do not clearly require the filing of separate applications if an applicant seeks to utilize the entire 2596-2644 MHz band, or rather, both the E and F channel groups. According to CLA, 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. CLA 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, CLA 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. 4. Petitioner's claim that there are no rules requiring the filing of separate applications for 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 long-standing. 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 frequency 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 each station license. 47 C.F.R.  21.7. These rules, 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 MDS stations. Furthermore, the policy of issuing separate licenses for each station authorized on each of the channel groups was outlined and adopted by the 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 Fixed Microwave Service, 94 FCC 2d 1203, 1246-47 (1983)(hereinafter MMDS Allocation Order). 5. 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 filing requirements to permit the filing of a single application for both channel groups. In a that order, the Commission lifted the ban that prohibited any one applicant from filing more than one MMDS application in the same geographic market. 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 with the adoption of the order, the same applicant can now file for both the E and F channels in the same market. The Commission's procedural filing requirements set forth at  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), for failing to substantially comply with the Commission's rules. 6. CLA's application is also unacceptable for filing for other reasons as well. First, CLA violated the location restrictions set forth in Public Notice, Common Carrier Bureau Opens Filing Period for Multichannel Multipoint Distribution Service Applications, 3 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 50 miles from any existing authorized facility and any proposed location of an MMDS application pending on April 19, 1988. 1988 Public Notice, 3 FCC Rcd at 2661. In that notice, we emphasized that applications filed in violation of the location restrictions would be returned as unacceptable for filing. Id. CLA's application was filed within 50 miles of seven such pending applications. Thus, the application was unacceptable for filing as it violated the location restrictions of the 1988 Public Notice. 7. Second, CLA'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 proposed station has an unobstructed electrical path. See In the Matter of 4,430 Applications for Authority to Construct Multichannel Distribution Systems, 76 RR 2d 1254, 1258-59 (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 licensee." Family Entertainment Network, Inc., 9 FCC Rcd 566, 567-68, 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. MMDS Allocation Order, 94 FCC 2nd at 1264; see also  21.902(b) and (c). 8. CLA failed to include with its application the required interference studies and related demonstrations for 73 previously proposed MMDS stations which had appeared in the FCC internal staff listing of pending applications prior to the filing date of petitioner's application. The single interference study submitted by CLA was inadequate in that the applicant: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service area of the authorized or previously proposed stations, as required by  21.902(c), (d), and (f); (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 to  21.902(b)(3), and/or 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4). In addition, petitioner failed to satisfy the requirements of service of interference studies stipulated by  21.902(g). Therefore, CLA failed to demonstrate that its proposed station would not cause harmful interference to existing and previously proposed MMDS stations as required by  21.902. 9. Having considered all the arguments presented, we find that CLA's application was properly returned. Reinstatement is not warranted and reconsideration is not justified. Accordingly, IT IS ORDERED, that the petition for reconsideration is DENIED. 10. 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. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary