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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  RRECORD ONLY $//In the Matter of the Application of R. Stanley Allen, FCC 95248//$ $/1.106 Petitions for Reconsideration/$ $/21.20 Defective Applications/$ $/21.5 Formal and Informal Applications/$ $/21.7 Standard application form for domestic public fixed radio service licenses/$ $/21.901 Frequencies/$ $/21.902 Frequency Interference/$"H0*0*0*"   Y4@hBefore thepp`(#(# ă  Y4W  FEDERAL COMMUNICATIONS COMMISSIONxxX FCC 95248(#(# SWashington, D.C.  Yw4In the Matter of the Application ofhhCq) ` `  hhCq)  YI4R. STANLEY ALLENhhCq)ppFile No. 58541CMP91 ` `  hhCq)  Y 4for Authority` `  hhCq)  Y 4to Construct and OperatehhCq)  Y 4Multipoint Distribution StationshhCq)  Y 4on the E and F Group ChannelshhCq)  Y 4at Bayse, West VirginiahhCq)  Yz4 MEMORANDUM OPINION AND ORDER ON RECONSIDERATION ă  YM4Adopted: June 15, 1994hhCqReleased: July 7, 1995 By the Commission: fFI. INTRODUCTION  Y41. R. Stanley Allen ("Allen") seeks reconsideration of a Domestic Facilities Division ("Division") decision to return as unacceptable for filing his single application for authority  Y4to construct and operate two Multipoint Distribution Service ("MDS")ȝ Y4ԍ The term MDS refers both to single channel and to multichannel stations used in the Multipoint Distribution Service. 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 Bayse,  Y~4West 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.  Y$42. Allen's application for two MMDS stations using both the E and Fchannel 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. ""0*0*0*!"Ԍ II. PETITION FOR RECONSIDERATION  Y-x3. 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 25962644  Y_-MHz band, or rather, both the E and F channel groups.Q_= 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 26022608 MHz, 26142620 MHz, 26262632 MHz, and 26382644 MHz.Q 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.  Yy-x4. 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 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 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  Y-MMDS station license. 47 C.F.R.  21.7. These rules,y4= Yx-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 was 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 3 years before the petitioner filed his application.y 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  Y -Commission in 1983 when MMDS was established. Amendment of Parts 2, 21, 74 and 94 of"  0*((" 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 "0*(("  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 his assertion that the Commission, in lifting certain ownership restrictions, also changed its application  Y-filing requirements to permit the filing of a single application for two stations.a;= 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  Y -Rcd 6410 (1990), Order on Reconsideration, 6 FCC Rcd 6764, 677172 (1991) (hereinafter  Y -Wireless Cable Reconsideration Order), petition for review filed, United States Independent  Y -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).a By adopting  Yz-that order, the Commission lifted the ban that prohibited any one person or entity from filing  Yc-more than one MMDS application in the same geographic area.<c = Y-ԍ Id. at 6411.< 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. x6. 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  Y-proposed station and to which the proposed station has an unobstructed electrical path. See  Y-In the Matter of 4,430 Applications, 76 RR 2d at 125859. 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  YV-licensee." Family Entertainment Network, Inc., 9 FCC Rcd 566, 56768, n. 10 (Dom. Fac."V~ 0*((>" 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  Y-filing." MMDS Allocation Order, 94 FCC 2d at 1264; see  21.902(b) and (c). x7. 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  Ya-application.9a= Y-#XR  P7jQ=9XP#э These applications include, but are not limited to, Application File Nos. 53622CMP90, 53623CMP90, 53624CMP90, and 54336CMP90 for Cumberland, Maryland, which was placed on the FCC internal staff listing on March 13, 1991.9 The single interference study submitted by Allen was inadequateaK= Y] -ԍ A study was submitted for Application File Nos. 56950CMP91 and 56951CMP91, which proposed stations on the E and Fchannel groups respectively at Bridgewater, Virginia. 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  Y -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. X   YM-x8. 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. x9. 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