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 95-249 Washington, D.C. In the Matter of the Applications of WIRELESS CABLE T.V. PARTNERSHIP, ) #1006 ) ) File No. 50101-CM-P-92 For Authority to Construct and Operate) and Multipoint Distribution Service Stations) File No. 50102-CM-P-92 on the E and F Group Channels at ) Tompkinsville, Kentucky. ) MEMORANDUM OPINION AND ORDER ON RECONSIDERATION Adopted: June 15, 1995 Released: July 7, 1995 By the Commission: I. INTRODUCTION 1. Wireless Cable T.V. Partnership #1006 ("WCTP") filed two petitions for reconsideration of the return by the Domestic Facilities Division ("Division"), on delegated authority, of the above-referenced Multichannel Multipoint Distribution Service ("MMDS") applications for the E and F-group channels at Tompkinsville, Kentucky, and requested reinstatement of the applications. II. BACKGROUND 2. WCTP's applications were filed on October 3, 1991. Division staff initiated a preliminary review of the applications, pursuant to 47 C.F.R.  21.26. An examination disclosed that the applications were defective and thus unacceptable for filing for the following reasons: (1) inadequate interference analyses pursuant to 47 C.F.R.  21.902 due to failure to consider all previously proposed or authorized Instructional Television Fixed Service (ITFS) or Multipoint Distribution Service (MDS) stations, and failure to serve all affected parties pursuant to  21.902(g); (2) failure to submit satisfactory FAA notification information pursuant to 47 C.F.R.  21.15(d); (3) failure to submit sufficient, specific outage information pursuant to 47 C.F.R.  21.15(e); and (4) failure to specify correct emission designator pursuant to 47 C.F.R.  21.905. Consequently, on June 8, 1993, the applications were returned as unacceptable for filing, pursuant to 47 C.F.R.  21.20. 3. The Division's return was based, in part, on the determination that WCTP's applications failed to include interference analyses for two previously proposed stations pending at the time of the Tompkinsville filings: Application File No. 62264-CM-P-92 for the E-group channels at Burksville, Kentucky and Application File No. 62265-CM-P-91 for the F-group channels at Burksville. Both of the Burksville stations proposed the same transmitter site, which is within 19 miles of the transmitter site proposed by WCTP. Because the Burksville applications were within 50 miles of the proposed Tompkinsville stations, and because the protected service area of the Burksville applications was within the line of sight of the proposed Tompkinsville stations, WCTP was required to submit analyses of the potential for harmful interference pursuant to  21.902 (1991). The above-referenced applications also were returned because WCTP failed to serve these potentially affected parties at Burksville, as required by  21.902(g). III. DISCUSSION 4. Interference Analyses. WCTP asserts, contrary to the Division's return notification, that it was not required to file interference analyses for the previously proposed Burksville co-channel and adjacent channel applications because "it was defective at the time of its tendering and therefore could not have been acceptable for filing . . . . Consequently, WCTP's application filed on October 3, 1991, was the first application that was eligible for processing and which could have been accepted for filing and granted." Relying on 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 Operational-Fixed Microwave Service, Multipoint Distribution Service, Multichannel Multipoint Distribution Service, Instructional Television Fixed Service, and Cable Television Relay Service, 5 FCC Rcd 6410, 6424 (1990) (hereinafter Wireless Cable Order) and 47 C.F.R.  21.31(b)(2), WCTP then concludes: "Since Burksville was not acceptable for filing, the Tompkinsville application should not have been dismissed." 5. WCTP's reliance on specified language in Wireless Cable Order and 47 C.F.R.  21.31(b)(2) is mistaken; the Wireless Cable Order and the cut-off rules, by their specific provisions, require that only applications determined to be acceptable for filing are involved in the cut-off determination. The requirements governing the cut-off determination do not, however, affect the separate requirements established in  21.902(c) for filing interference analyses. Section 21.902(c) stated at the time of the Tompkinsville applications: The following interference studies, as appropriate, shall be included with each application: (1) An analysis of the potential for harmful co-channel interference with any authorized or previously proposed station(s), if . . . the proposed transmitter is within 50 miles of the coordinates of any [station(s) that utilize(s), or would utilize the same frequency]. . . . (2) An analysis of the potential for harmful interference with any authorized or previously proposed station(s), if the proposed transmitting antenna has an unobstructed electrical path to any part of the protected service area of any other station(s) that utilizes, or would utilize, an adjacent channel frequency. . . . 47 C.F.R.  21.902(c)(1991). 6. The Burksville applications were pending on October 3, 1991, the date of WCTP's applications. Thus, WCTP was required to file an interference analysis for Application File No. 62265-CM-P-91 and 62264-CM-P-91. Return of the Burksville applications subsequent to the filing of the Tompkinsville applications does not exempt WCTP from the  21.902(c) requirement of showing the potential for harmful interference. At the time the Tompkinsville applications were filed, the Burksville applications were pending. The Commission has observed that: The Bureau's longstanding choice of the date of filing for this evaluation provides a standard that is known, certain, and fair to all interested parties. [The applicant's] proposed alternative--the date of Commission action--varies from application to application, depending on staff resources, application backlogs, and other administrative considerations. To assess applicant rights and obligations under so variable a standard would indeed be arbitrary and capricious, with decisions made primarily on the basis of chance. The date of filing, in contrast, is fixed at the outset and can be applied to applicants on equal terms. Its use is well within the broad discretion permitted agencies in the ordering of their processes. See, e.g., Ranger v. FCC, 294 F.2d 240 (D.C. Cir. 1961). Roundtree Communications, 7 FCC Rcd 5456 (1992)(footnotes omitted); See also In the Matter of 4,300 Applications, 10 FCC Rcd 1335 (1994), appeal docketed A/B Financial Inc., et al v. FCC, No. 95-1027, (D.C. Cir. Jan. 9, 1995); In the Matter of 101 Applications, 9 FCC Rcd 7886 (1994), appeal docketed A/B Financial Inc., et al v. FCC, No. 95-1027, (D.C. Cir. Jan. 9, 1995); Boyd B. Hopkins, 9 FCC Rcd 569 (Dom. Fac. Div. 1994); Family Entertainment Network, 9 FCC Rcd 566 (Dom. Fac. Div. 1994); Edna Cornaggia, 8 FCC Rcd 5442 (Dom. Fac. Div. 1993); New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985) ("In our view, an MDS application which does not contain the important and essential technical showing required by  21.902(c) cannot be characterized as complete or in substantial compliance with the Commission's rules and regulations as required by the criteria for acceptability outlined in rule  21.20(a)."). As the Commission noted in Roundtree Communications, a departure from the current requirement that applications include all required interference analyses at the time of filing could "tempt applicants to expedite, delay or otherwise interfere with the orderly conduct of our business, in an effort to obtain action at some moment they deem advantageous to their interests. Disruption of this nature is clearly contrary to the public interest." 7 FCC Rcd 5456. WCTP's applications were therefore unacceptable for filing. 7. WCTP's applications indicated that FAA notification was not required and left blank the date of FAA notification. WCTP was required to notify the FAA and to indicate on its application that such notification of the FAA had been made. 47 C.F.R.  17.7(a) and 21.15(d). Petitioner seeks to correct this failure by offering an amendment as part of its petitions for reconsideration. Contrary to petitioner's assertion that this was a "strictly typographical" error that "should in no way affect the processing of the application," lack of FAA notification affects processing of MDS applications and itself renders the applications unacceptable for filing pursuant to  21.20. Friendly Community Television Services, 7 FCC Rcd 7892, 7893 (Dom. Fac. Div. 1992). 8. Incomplete Application. WCTP claims the other deficiencies noted in the return notification letters were also the result of "strictly typographical errors" that should not affect processing of its applications and has sought to amend its applications with the required information. WCTP failed to submit sufficient, specific outage information pursuant to  21.15(e) and failed to specify the correct emission designator pursuant to  21.905. These applications were therefore unacceptable for filing pursuant to  21.20(a), which states that an application will be deemed unacceptable if it is defective with respect to completeness of answers to questions, informational showings and other matters of a formal character. 9. Having carefully considered all of the arguments and evidence submitted by WCTP, we find that it was proper for the Division to return WCTP's applications as unacceptable for filing. Accordingly, WCTP's request for reconsideration and reinstatement of the above-referenced applications IS DENIED. This order is issued pursuant to 47 C.F.R.  1.106(a) and is effective on its release date. See 47 C.F.R.  1.4(b) and 1.115. 10. IT IS FURTHER ORDERED, that the staff of the Mass Media Bureau shall send a copy of the foregoing decision to the authorized representative for petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary