NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** Before the FEDERAL COMMUNICATIONS COMMISSION FCC 95-248 Washington, D.C. In the Matter of the Application of ) ) R. STANLEY ALLEN ) File No. 58541-CM-P-91 ) for Authority ) to Construct and Operate ) Multipoint Distribution Stations ) on the E and F Group Channels ) at Bayse, West Virginia ) MEMORANDUM OPINION AND ORDER ON RECONSIDERATION Adopted: June 15, 1994 Released: July 7, 1995 By the Commission: I. INTRODUCTION 1. R. Stanley Allen ("Allen") seeks reconsideration of a Domestic Facilities Division ("Division") decision to return as unacceptable for filing his single application for authority to construct and operate two Multipoint Distribution Service ("MDS") stations in Bayse, West Virginia and reinstatement of his application nunc pro tunc. In this order, we find that Allen's application was properly returned. Accordingly, Allen's petition for reconsideration is denied. 2. Allen's application for two MMDS stations using both the E- and F-channel groups at Bayse, West Virginia was filed on March 25, 1991. The application was returned by the Division on delegated authority as unacceptable for filing by return notification letter dated July 1, 1992. The letter explained that the application was returned because separate applications were needed for station authorizations on separate channel groups. On July 7, 1992, Allen timely filed his petition for reconsideration. II. PETITION FOR RECONSIDERATION 3. On reconsideration, Allen 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 Allen, 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. Allen 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, Allen 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 two separate MMDS stations is unfounded and his 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 applications for each MMDS 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 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 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 his assertion that the Commission, in lifting certain ownership restrictions, also changed its application filing requirements to permit the filing of a single application for two stations. By adopting that order, the Commission lifted the ban that prohibited any one person or entity from filing more than one MMDS application in the same geographic area. Petitioner cites the language "MDS applicants for the E and F channels" found throughout the order as support for his 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 procedureal 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. 6. Allen's application was also unacceptable because it lacked interference studies as required by  21.902(b) and (c). 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. Thus, 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, 76 RR 2d at 1258-59. 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 2d at 1264; see  21.902(b) and (c). 7. Allen failed to include with his application the required interference studies and related demonstrations for 47 previously proposed MMDS stations which were included in the FCC internal staff listing of pending applications prior to the filing date of Allen's application. The single interference study submitted by Allen was inadequate in that: (1) incorrect methodology was used in calculating the protected service area of authorized or previously proposed stations; (2) terrain blockage was indicated but demonstrations, such as shadow maps or terrain profiles, were not submitted; (3) it did not demonstrate that the proposed station was engineered 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) incorrect technical parameters were used for the transmitting antenna gain and the reference receiving antenna gain. In addition, petitioner failed to satisfy the requirements of service of interference studies stipulated by  21.902(g). Therefore, Allen failed to demonstrate that his proposed station would not cause harmful interference to previously proposed MMDS stations. 8. Having considered all the arguments presented, we find that Allen's application was properly returned. Accordingly, IT IS ORDERED, that the petition for reconsideration is DENIED. 9. 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