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 95-251 Washington, D.C. In the Matter of ) 267 Applications for Authority ) To Construct and Operate ) Multipoint Distribution ) Service Stations at Three Transmitter Sites) MEMORANDUM OPINION AND ORDER ON RECONSIDERATION Adopted: June 15, 1995 Released: July 7, 1995 By the Commission: Table of Contents Title Paragraphs I. Introduction 1 II. Background 2-11 III. Petitions for Reconsideration 12-25 Red Bluff, California Heath Springs, South Carolina New Taiton, Texas IV. Discussion26-49 V. Conclusion50-51 I. INTRODUCTION 1. The Commission has before it three consolidated petitions for reconsideration of the return, pursuant to delegated authority, of 267 applications for authority to construct and operate Multipoint Distribution Service ("MDS") stations on the E or F channels at the three transmitter sites. These 267 applications were filed with the Commission in March, 1992, after the Commission had reopened the filing period for MDS applications for the E and F channels, subject to certain restrictions. See  9, infra. Each application was returned by individual return notification letter and the return announced by issuance of a public notice. Because these petitions raise common issues, their collective consideration is the most efficient use of Commission resources. Thus, we will consider these petitions for reconsideration in this single order, which has been referred by the staff to the Commission pursuant to  1.106(a) of the Commission's rules, 47 C.F.R.  1.106(a). II. BACKGROUND 2. Each of the returned applications proposed an MDS station on the E or F channels which are subject to Part 21 of the Commission's rules. Section 21.20(a) of the rules sets forth the standards for returning MDS applications as unacceptable for filing: Unless the Commission shall otherwise permit, an application will be unacceptable for filing and will be returned to the applicant with a brief statement as to the omissions or discrepancies if: (1) The application is defective with respect to completeness of answers to questions, informational showings, execution, or other matters of a formal character; or (2) The application does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements. 47 C.F.R.  21.20(a). Section 21.20(b) lists examples of common deficiencies which result in defective applications under paragraph (a), such as, the "application does not demonstrate compliance with the special requirements applicable to the radio service involved," the "application does not include all necessary exhibits," and the "application is filed after the cut-off date prescribed in  21.31 or  21.914 of this part." 47 C.F.R.  21.20(b)(4), (8) and (9); see 47 C.F.R.  21.13, 21.15, 21.26 and 21.900. 3. Mutual Exclusivity. Typically, the first determination made by Commission staff is whether an MDS application is mutually exclusive with any authorized station or previously filed application. Section 21.31(a) of the Commission's rules provides the following standard for this determination: The Commission will consider applications to be mutually exclusive if their conflicts are such that the grant of one application would effectively preclude by reason of harmful electrical interference, or other practical reason, the grant of one or more of the other applications. The Commission will presume "harmful electrical interference" to mean interference which would result in a material impairment to service rendered to the public despite full cooperation in good faith by all applicants or parties to achieve reasonable technical adjustments which would avoid electrical conflict. 47 C.F.R.  21.31(a); see 47 C.F.R.  21.902(c), (d) and (f). In applying this standard, the staff evaluates whether the MDS applications were filed: (1) within 50 miles of an authorized or previously proposed MDS station, and (2) within the radio horizon, with an unobstructed electrical path, of the protected service area of an authorized or previously proposed MDS station. Applications which are determined to be either within 50 miles, or with an unobstructed electrical path to any part of the protected service area of any station, are considered to be mutually exclusive with the station, unless the applicant demonstrates a lack of harmful interference by submission of interference studies with its application pursuant to the standards specified in the Commission's rules. See 47 C.F.R.  21.902(b)(3) and (4) and text,  7, infra. For the above-referenced MDS applications,  21.901(d)(5) also defines mutual exclusivity based on whether the proposed transmitter site is within a Metropolitan Statistical Area ("MSA") and its 15-mile buffer zone for which there is an authorized or previously proposed station. 4. Cut-off Rules. In order to be acceptable for filing, MDS applications must be filed on or before the applicable cut-off date for mutually exclusive applications. The Commission initially authorized the filing of MDS applications on the E or F channels on one filing date, September 9, 1983. See MMDS Allocation Order, 94 FCC 2d at 1262-66; Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746 (1983). Thereafter, no additional applications for new stations on the E or F channels were accepted for filing until April 20, 1988, pursuant to 47 C.F.R.  21.901(d)(4). Applications for the E or F channels which complied with specified restrictions could be filed between April 20, 1988 and April 9, 1992. See  9 and 10, infra and note 2, supra. 5. If an MMDS application is mutually exclusive with a 1983 authorized station or application, the applicable cut-off date is the one-day filing date designated for these applications, September 9, 1983. Establishment of Multi-Channel Systems, 48 Fed. Reg. 33,873, as corrected, 48 Fed. Reg. 34,746. If there is no mutually exclusive 1983 authorized station or application, but there is a mutually exclusive, post-1983, authorized station or application, the applicable cut-off rule for the above-referenced applications, all of which were filed after October 31, 1990, is  21.914, which provides that: Notwithstanding the provisions of  21.31(b)(2)(i) and (ii) of this part, to be entitled to be included in a random selection process or to comparative consideration with one or more conflicting applications, an [MDS] application . . . must be received by the Commission in a condition acceptable for filing on the same calendar day as the first of the conflicting applications is received by the Commission in a condition acceptable for filing. 47 C.F.R.  21.914. 6. Station Design Requirement. Section 21.902(b)(3) requires each MDS applicant to engineer its station to provide at least 45 dB of interference protection within the protected service areas of all other authorized or previously proposed cochannel stations. 47 C.F.R.  21.902(b)(3). Section 21.902(b)(4) similarly calls for each MDS applicant to engineer its station to provide at least 0 dB of interference protection within the protected service areas of all other authorized or previously proposed adjacent channel stations. 47 C.F.R.  21.902(b)(4). Cochannel harmful interference exists if a free space calculation of the ratio of desired signal to undesired signal is less than 45 dB. Adjacent channel harmful interference exists if a free space calculation of the ratio is less than 0 dB. 47 C.F.R.  21.902(f). 7. MDS Interference Studies. In order to demonstrate compliance with  21.902(b), and so that determinations could be made about mutual exclusivity, at the time these applications were filed,  21.902(c)(1) of the Commission's rules required that an MDS applicant include with the application an analysis of the potential for harmful cochannel interference with any authorized or previously proposed station, if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any other authorized or previously proposed cochannel station, or if the applicant's proposed transmitter was within 50 miles of the transmitter coordinates of any other authorized or previously proposed cochannel station. 47 C.F.R.  21.902(c)(1)(1991). In addition,  21.902(c)(2) of the Commission's rules required that an MDS applicant include with the application an analysis of the potential for harmful adjacent channel interference if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of any other authorized or previously proposed adjacent channel station. 47 C.F.R.  21.902(c)(2)(1991); see 47 C.F.R.  21.902(a), (b), (d) and (f). Section 21.901(d)(7) also requires that each MDS application for the E or F channels include a written statement of the techniques that would be employed at the proposed station to avoid interference with the operation of adjacent channel stations. The applicant must also show what steps the applicant has taken to comply with the requirements of  21.902(a), which requires each MDS applicant, licensee, and conditional licensee to make exceptional efforts to avoid harmful interference to others and to avoid blocking potential adjacent channel stations in the same area and cochannel stations in nearby areas. 47 C.F.R.  21.901(d)(7). 8. Service Requirement. In addition to submitting the required interference analyses to the Commission, an MDS applicant also must serve each required interference study upon the applicant, conditional licensee or licensee of each authorized or previously proposed station required to be studied, pursuant to  21.902(g) of the Commission's rules. 47 C.F.R.  21.902(g). The same rule requires that a list identifying each applicant, conditional licensee and licensee served be submitted to the Commission at the time the application is filed. Id. 9. Location Restrictions. After the initial filing date of September 9, 1983, no filing period was again designated until April 20, 1988. In accordance with  21.901(d)(4) of the Commission's rules, MDS applications for E or F channel stations could then be submitted for filing commencing April 20, 1988, but only for locations which were: (1) farther than 50 miles from any proposed location of an MDS application pending on April 19, 1988, or an existing authorized facility, and (2) farther than 15 miles from the boundary of a statistical area for which there was an MDS application pending as of April 19, 1988. Public Notice, Common Carrier Bureau Opens Filing Period For Multichannel Multipoint Distribution Service Applications, 3 FCC Rcd 2661 (Comm. Car. Bur. 1988) (hereinafter 1988 Public Notice). The 1988 Public Notice also advised potential applicants that all applications had to comply with the specified location restrictions, that grants of waivers of the location requirements were not anticipated, and that applications failing to meet these location restrictions would be dismissed as unacceptable for filing. Id. at 2661-2662. 10. The 1988 location restrictions were a natural outgrowth of a policy that had provided certain efficiencies in the processing of MDS applications for channels 1, 2, and 2A. In 1981, we noted: At the inception of the MDS service in 1974 . . . we . . . established the presumption that no harmful interference would occur if stations were greater than 50 miles apart. If a proposed station were to be located 50 miles or closer to an existing station then we required (and still require) that the applicant submit an engineering showing of the possible impact it would have on the other station. The 50 mile presumption was primarily a processing standard to assist the staff . . . . Our intention was to establish general standards which would permit authorization of operations to proceed in an expeditious manner. R.L. Mohr, 85 FCC 2d at 604. See also Sioux Valley, 3 FCC Rcd at 7376. It was our experience prior to 1988 that there had been far fewer interference analyses submitted for authorized or previously proposed stations with transmitter sites beyond 50 miles of the subsequently proposed transmitter sites, but within the radio horizon and with an unobstructed electrical path, than for authorized or previously proposed stations within 50 miles. Without the need to review interference analyses for 1983 stations within 50 miles of the post-1983 MMDS applications' transmitter sites, scarce engineering resources could be used instead to review interference analyses filed for modification applications, or to make necessary engineering determinations on 1983 applications. 11. Summary. Thus, at the time the above-referenced applications were filed, applicants for new MMDS stations were required to propose a location farther than 50 miles from the location of any authorized station or proposed station which was pending as of April 19, 1988, and farther than 15 miles from the boundary of a statistical area for which there was one or more pending MMDS applications on April 19, 1988. Applicants were permitted to file: (1) beyond 50 miles of a station proposed in an application pending on April 19, 1988, or an existing authorized station, as long as the location was also farther than 15 miles from the boundary of a statistical area for which there was one or more MMDS applications pending on April 19, 1988; and (2) within 50 miles of a station proposed in an application filed after April 19, 1988. III. PETITIONS FOR RECONSIDERATION 12. A consolidated petition for reconsideration was filed for each of the three transmitter sites. The petitioners contend that their applications fully complied with all pertinent Commission rules, or else presented facts which would compel the grant of any necessary waivers. Petitioners assert that the interference analyses submitted with their applications demonstrated that there was no harmful interference to existing or proposed stations, and that to the extent the returned applications proposed locations that failed to comply with the location restrictions in the 1988 Public Notice, Commission precedent supports the grant of a waiver. Petitioners also argue that the 1988 Public Notice is invalid and cannot be applied to these applications because it was promulgated without notice and comment, contrary to the requirements of Section 553(b) of the Administrative Procedures Act ("APA"), 5 U.S.C.  553(b), as well as the Paperwork Reduction Act of 1980, 44 U.S.C.  3501, et. seq. 13. A description of the applications filed for each of these locations and the reasons for the staff's disposition of the applications follows. As discussed in detail below, we conclude that each application was defective because the applicant failed to submit and serve the required interference analyses for authorized and previously proposed MMDS stations, and failed to demonstrate protection of those stations from harmful interference. The applications were also properly returned as unacceptable for filing because they were filed within the geographic area of authorized or previously proposed MMDS stations, in violation of specific filing requirements set forth in the 1988 Public Notice, and presented no grounds justifying the grant of a waiver. 14. Red Bluff, California. On March 30, 1992, certain petitioners filed 26 MMDS applications proposing the same transmitter site at Red Bluff, California. After reviewing the Red Bluff applications, the Commission staff returned the applications as defective and unacceptable for filing by individual return notification letters. The letters indicated that the applications were returned because the applicants: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed for a transmitter site which made them mutually exclusive with an authorized station or previously-proposed application, see  21.31; (3) filed for an area not open for filing, as they did not meet the 50 mile location restrictions established in the 1988 Public Notice; (4) failed to meet the requirements for performance of interference analysis as required by  21.902 due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MMDS or Instructional Television Fixed Service ("ITFS") stations; (5) failed to provide a written description of emergency repair notification procedures by customers to the local maintenance center or person responsible for the technical operation, and the average repair response time as required by  21.15(e); (6) failed to engineer the system to provide at least 45 dB of cochannel interference protection within the protected service areas of all authorized or previously proposed stations, pursuant to  21.902(b)(3); (7) failed to engineer the station for adjacent channel operation and insure that the ratio of the signal transmitted to the signal of any authorized or previously proposed adjacent channel station is less than 0 dB, pursuant to  21.902(b)(4); and (8) failed to comply with the Commission's requirements under  21.19 for grant of a waiver, and without a waiver, the applications were unacceptable for filing. A reconsideration petition for the returned applications was filed on March 17, 1995. 15. The applications proposed a transmitter site that was within 50 miles or the radio horizon of: (1) one 1983 previously authorized MMDS station; (2) one 1983 subsequently authorized MMDS station; (3) 10 1983 previously proposed MMDS stations, which had applications pending on March 30, 1992, the filing date of the Red Bluff applications; (4) one post-1983 subsequently authorized MMDS station; and (5) 28 post-1983 previously proposed MMDS stations, which had applications pending on March 30, 1992. 16. The applications lacked interference studies, required by  21.902(b) and (c), for two subsequently authorized and 37 previously proposed MMDS stations. The interference studies that were submitted were inadequate in that the applicants: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service areas of the authorized or previously proposed stations, as required by  21.902(c), (d) and (f) (see  21.902(e)); (2) used incorrect methodology in calculating the protected service areas of authorized or previously proposed stations; (3) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; (4) 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); and (5) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. 17. The applications contained requests for waiver of the fifty mile location restriction contained in the 1988 Public Notice, as well as the interference analysis requirements of  21.902(c) and the service requirements of  21.902(g) as to lottery losing applications. 18. Heath Springs, South Carolina. On March 19, 1992, certain petitioners filed 125 MMDS applications proposing the same transmitter site at Heath Springs, South Carolina. After reviewing the Heath Springs applications, the Commission staff returned the applications as defective and unacceptable for filing by individual return notification letters. The letters indicated that the applications were returned because the applicants: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed for a transmitter site which made them mutually exclusive with an authorized station or previously-proposed application under  21.31; (3) filed on a date not designated by the Commission pursuant to  21.901(d)(4), see MMDS Allocation Order; (4) submitted inadequate interference analysis due to failure to consider all previously-proposed or authorized ITFS or MMDS stations, pursuant to  21.902(c) and/or  21.901(d)(1),  21.902(i); (5) submitted inadequate interference analysis due to failure to serve all affected parties with interference studies pursuant to  21.902(g); (6) failed to submit a duplicate application, pursuant to  21.6; (7) failed to submit an updated fully-executed deed, lease, or option agreement as required by  21.15(a); (8) failed to submit a written description of emergency repair notification procedures by customers to the local maintenance center or person responsible for the technical operation, and the average response time as required by  21.15(e); and (9) failed to comply with the Commission's requirements under  21.19 for grant of a waiver, and without a waiver, the applications were unacceptable for filing. A reconsideration petition for the returned applications was filed on February 24, 1995. 19. The applications proposed a transmitter site that was within 50 miles or the radio horizon of two 1983 previously authorized MMDS stations; and 24 1983 previously proposed MMDS stations, which had applications pending on March 19, 1992, the filing date of the Heath Springs applications. 20. The applications lacked interference studies, required by  21.902(b) and (c), for 24 previously proposed MMDS stations. The interference studies that were submitted were inadequate in that the applicants: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service areas of the authorized stations, as required by  21.902(c), (d) and (f) (see  21.902(e)); (2) used incorrect methodology in calculating the protected service area of authorized stations; (3) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; (4) 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); and (5) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. 21. The applications contained a request for waiver of the fifty mile location restriction contained in the 1988 Public Notice. 22. New Taiton, Texas. On March 6, 1992, certain petitioners filed 116 MMDS applications proposing the same transmitter site at New Taiton, Texas. After reviewing the New Taiton applications, the Commission staff returned the applications as defective and unacceptable for filing by individual return notification letters. The letters indicated that the applications were returned because the applicants: (1) filed past the cut-off period established in  21.31 or  21.914; (2) failed to serve all affected parties with interference studies pursuant to  21.902(g); (3) filed for a transmitter site which made them mutually exclusive with an authorized station or previously-proposed application, see  21.31; (4) filed in an area not open for filing, as they did not meet the 50 mile location restriction established in the 1988 Public Notice; (5) submitted interference studies which were inadequate due to failure to consider all authorized or previously proposed MMDS or ITFS stations; (6) failed to provide a written description of emergency repair notification procedures by customers to the local maintenance center or person responsible for the technical operation, and the average repair response time as required by  21.15(e); (7) failed to engineer the system to provide at least 45 dB of cochannel interference protection within the protected service areas of all authorized or previously proposed stations, pursuant to  21.902(b)(3) and/or failed to engineer the station for adjacent channel operation and insure that the ratio of the signal transmitted to the signal of any authorized or previously proposed adjacent channel station is less than 0 dB, pursuant to  21.902(b)(4); and (8) failed to comply with the Commission's requirements under  21.19 for grant of a waiver, and without a waiver, the applications were unacceptable for filing. A reconsideration petition for the returned applications was filed on March 31, 1995. 23. The applications proposed a transmitter site that was within 50 miles or the radio horizon of: (1) one 1983 previously authorized MMDS station; (2) one 1983 previously proposed MMDS station, which had an application pending on March 6, 1992, the filing date of the New Taiton applications; and (3) 270 post-1983 previously proposed MMDS stations, which had applications pending on March 6, 1992. 24. The applications lacked interference studies, required by  21.902(b) and (c), for one authorized and 269 previously proposed MMDS stations. The interference studies that were submitted were inadequate in that the applicants: (1) did not include free space calculations for the desired to undesired signal ratio to each reference receiving antenna within the protected service areas of the previously proposed stations, as required by  21.902(c), (d) and (f) (see  21.902(e)); (2) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles; (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); and (4) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. 25. Notwithstanding checking "No" in response to question 19 of the application form, which asks whether a waiver is required for the application, the applicants requested a waiver of the interference analysis requirements of  21.902(c) and the service requirements of  21.902(g) as to lottery losing applications. IV. DISCUSSION 26. Mutual Exclusivity and Cut-off Date. Based on our review of the returned applications and publicly available information regarding authorized MMDS stations and pending applications, we conclude that all of the petitioners' applications were mutually exclusive with and cut-off by authorized stations or previously filed applications. MDS applications are presumed to be mutually exclusive pursuant to  21.31(a) if filed: (1) within 50 miles of an authorized or previously proposed MMDS station, (2) within the radio horizon, with an unobstructed electrical path, of the protected service area of an authorized or previously proposed MDS station, or (3) within the MSA or its 15-mile buffer zone of an authorized or previously proposed MDS station. Each of the above-referenced applications proposed a transmitter site making the proposed stations mutually exclusive with and cut-off by authorized or previously proposed MDS stations, pursuant to  21.31 or 21.914. See  3-5, supra. Specifically, each of the returned applications is mutually exclusive with a 1983 authorized or previously proposed station for which the cut-off date was September 9, 1983. Thus, the above-referenced applications were properly returned as unacceptable for filing pursuant to  21.31(d), which states: An application otherwise mutually exclusive with one [or] more previously filed applications, but filed after the appropriate date prescribed in paragraph (b)(2) of this section, will be returned without prejudice and will be eligible for refiling only after final action is taken by the Commission with respect to the previously filed application (or applications). 47 C.F.R.  21.31(d). 27. The New Taiton and Heath Springs petitioners contend that their applications are not cut-off since the interference studies submitted with their applications shows no harmful interference will result from the grant of their applications. We note that these petitioners did not include all of the necessary interference analyses for the previously proposed stations with which their applications were mutually-exclusive and which, unless petitioners provided a showing of no harmful interference, would cut-off their stations. In addition, where interference studies were submitted, they were inadequate and thus failed to show that no harmful interference would result to previously proposed or authorized stations. See  16, 20 and 24. In addition, the New Taiton applicants did not submit an interference study for the previously authorized station within the line of sight of their applications. 28. Interference Protection. We also find that the above-referenced applications were properly returned for failure to comply with our interference protection requirements. At the very inception of MDS, the Commission established that subsequently filed applications must not cause harmful interference to any authorized or previously proposed MDS station. "Of course, the applicant for the second channel sought will be expected to demonstrate that his system is designed so that significant interference will not occur with respect to the first MDS channel. . . ." MDS Allocation Order, 45 FCC 2d at 621. Over ten years before any of these petitioners filed the above-referenced applications, the Commission explained its emphasis on this requirement for MDS applications: It is possible for co-channel interference generated by one MDS station to cause unacceptable distortion of another station's signal from as far away as 50 miles. Section 21.90[2](c) of our Rules therefore requires an MDS application to include an interference study containing an analysis of the potential for harmful interference with other MDS stations located within a 50 mile radius of the proposed station. R.L. Mohr, 85 FCC 2d at 606. It has also been 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). Thus,  21.902(b) sets certain threshold interference protection levels, see  6, supra, and requires all MDS applicants to demonstrate that protection in interference studies submitted with the applications. 29. Each of petitioners' applications failed to include the required analyses to demonstrate a lack of harmful interference to authorized or previously proposed MDS stations on the E or F channels. These interference analyses are a significant requirement because the Commission, in reallocating the E and F channels from ITFS to MDS, did so with the understanding that certain adjacent channel interference problems might arise. The Commission also anticipated that some authorized cochannel stations would be spaced more closely than ordinarily allowed and require careful planning and engineering. MMDS Allocation Order, 94 FCC 2d at 1264. Thus, the Commission stressed that "we expect applicants to address this problem in their applications. 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." Id. (emphasis in original). See also  21.902(b) and (c). Consequently, there has been a series of cases emphasizing that analysis of the potential for harmful interference is an essential technical showing in MDS applications for the E or F channels. 30. "[T]he filing of an interference analysis, which demonstrates lack of harmful interference, is considered a basic requirement in determining the acceptability of an application." Family Entertainment, 9 FCC Rcd at 567. Because the petitioners here failed to make the required showings regarding interference protection, their applications cannot be characterized as complete or in substantial compliance with the Commission's rules. "In the processing of MDS station applications, the interference analyses required by 47 C.F.R. Sec. 21.902 are crucial." Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). All of the applicants failed to file interference studies for authorized or previously proposed MDS stations which should have been studied. 31. The Heath Springs petitioners argue that their failure to study 24 previously proposed stations, which they characterize as "lottery losers", applications that were included in a lottery but not selected, does not render their applications defective. The New Taiton petitioners further argue that the staff's dismissal of their applications on the basis of these pending lottery losers is untenable, because these 1983 applications are now 12 years old. In addition, they assert that as the Commission more fully utilizes auction programs, these applications are likely to be dismissed rather than lotteried, so that the Commission may auction the spectrum. Petitioners contend that by requiring the applicants to file interference studies for these stations the Commission has been arbitrary and capricious. 32. We disagree with petitioners' arguments that they should be excused from their failure to file interference studies for pending, lottery-losing applications. It was recently reiterated that before filing their applications, MMDS applicants must consider all previously proposed and pending applications, including lottery-losing applications. See CNI Wireless, Inc., 9 FCC Rcd at 2040; Edna Cornaggia, 8 FCC Rcd 5442, 5443 (Dom. Fac. Div. 1993). Similarly, in Roundtree Communications, 7 FCC Rcd 5456 (1992), Roundtree argued that the dismissal of its application for a new H-channel station in the Private Operational-Fixed Microwave Service, for failure to file the required interference analysis for an application which was pending at the time Roundtree filed, but which was subsequently dismissed, was arbitrary and capricious. In upholding the dismissal of Roundtree's application we explained that: The Bureau's long-standing choice of the date of filing for this evaluation provides a standard that is known, certain, and fair to all interested parties. Roundtree'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. Id. at 5456 (citations omitted). Moreover, due to the procedures established for MDS lotteries, it is not unusual for an applicant that initially loses in a lottery to be selected in a later lottery for qualification review and to be subsequently granted, because the initial tentative selectee did not survive final qualification review. See 47 C.F.R.  1.824(a). One of the underlying purposes of the interference analysis filing requirement is to avoid grant of an MDS application which would cause harmful interference to previously proposed, but subsequently authorized stations. Thus, if we were to ignore applicants' failure to file for these pending applications, we would effectively strip subsequently authorized MDS stations of the interference protection to which they are entitled pursuant to  21.901(d)(7) and 21.902. It is our view that, regardless of the final disposition of these pending applications,  21.902 of our regulations required that petitioners file interference studies for these pending applications with their applications, three years ago. 33. The New Taiton and Red Bluff applicants also requested a waiver of the interference analysis requirement for pending lottery losers. Section 21.19 provides that applications seeking waiver of the Commission's rules must contain a statement of reasons sufficient to justify a waiver. A waiver will only be granted upon an affirmative showing that: (a) The underlying purpose of the rule will not be served, or would be frustrated, by its application in the particular case, and that grant of the waiver is otherwise in the public interest; or (b) The unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome, or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. 47 C.F.R.  21.19. These regulations establish a difficult burden to meet. "An applicant for waiver faces a high hurdle even at the starting gate. When an applicant seeks a waiver of a rule it must plead with particularity the facts and circumstances which warrant such action." WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968) (per curiam)). Petitioners do not explain why they merit different treatment from other MMDS applicants which have complied with the interference protection requirements in cases involving pending, lottery-losing applications. As discussed supra at  7, we have consistently required that interference studies be performed for any pending applications, including lottery losers, in order to provide interference protection to subsequently authorized stations as well as to further orderly administration of processing applications. Therefore, petitioners' argument that enforcement of the requirement to demonstrate a lack of harmful interference and to serve a copy of the interference analysis on affected parties is arbitrary and capricious is not persuasive. To the contrary, to waive enforcement of the rule now regarding only these applications would be arbitrary and capricious. We find that even were we to waive the requirement, however, these applications were still properly returned as unacceptable for filing for having failed to file all of the required interference studies or submitted inadequate interference studies for other authorized or pending MDS stations, which were not lottery- losing applications. See  16, 20 and 24, supra. 34. Petitioners also argue that they were unable to perform interference analyses for applications which had not been listed in the FCC staff internal listing of active applications, which they characterize as the "FCC inventory list." The New Taiton petitioners assert that the return letter should have specifically identified those applications with which petitioners had been mutually exclusive and for which no interference study was submitted, and further assert that specific identification of the station is required by due process. Each MDS applicant had the burden of considering, prior to the filing of an application, each cochannel and adjacent channel station within 50 miles or within the radio horizon with an unobstructed electrical path. in order to fulfill the mandates of  21.902. (See, e.g.,  21.902(a), (b), (c), (d), (f), (i), (j), and (k).) Each of these petitioners failed to file interference studies for applications which had appeared on public notice or on the FCC staff internal listing at the time they submitted their applications and which were, thus, publicly available. See notes 19, 24, and 28, supra. Given that the requirement to identify authorized and previously proposed stations must be fulfilled prior to the filing of the application, petitioners can claim no disadvantage based on the Commission's failure to specify those stations in the return notification letter. Moreover, as the Court of Appeals recognized in Columbia Communications Corp. v. FCC, "the Commission staff must process annually thousands of applications. It cannot be expected to do research for applicants . . . . If the Commission staff were required to assume such a burden, little or nothing would be accomplished." 832 F.2d 189, 192 (D.C. Cir. 1987) (quoting Rio Grande Family Radio, 406 F.2d at 666.) Thus, we reject petitioners' claim that their failure to file interference studies was somehow caused by the Commission's policies regarding identification of applications filed in the return notification letter. Further, given that the interference study requirements were long established at the time petitioners filed their applications, and had been announced to all potential applicants, see  7, supra, petitioners fail to demonstrate how their fundamental due process rights were violated. 35. Where interference analyses were submitted, petitioners' applications failed to comply with the requirements of Section 21.902 in various respects. The interference studies that were submitted were inadequate in that the applicant: (1) used incorrect methodology in calculating the protected service area of previously proposed stations; (2) indicated terrain blockage, but did not submit required demonstrations, such as shadow maps or terrain profiles pursuant to  21.902(d); (3) failed to engineer the station to provide 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/or (4) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. See Revision of Part 21 of The Commission's Rules, 2 FCC Rcd at 5716 ("Coordination of MDS . . . systems . . . relies on accurate data about the interference environment.") See also MDS Technical Order, 98 FCC 2d at 93 ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference as described herein will not be accepted for filing."). Based upon these considerations, we conclude that petitioners failed to comply with the technical requirements set forth in  21.902 regarding interference protection and failed to demonstrate that the applicants are technically qualified to be MDS licensees as required by  21.900. Thus, these applications were properly returned as unacceptable for filing. New Channels Communications, Inc., 57 RR 2d at 1602; CNI Wireless, Inc., 9 FCC Rcd at 2040. 36. Notice to Affected Parties. In addition, each applicant failed to serve copies of required interference analyses, as mandated by  21.902(g), on all applicants, conditional licensees and licensees for stations stipulated to be studied by  21.902(c), thus depriving affected parties of notice and an opportunity to be heard. In Edna Cornaggia, 8 FCC Rcd at 5444, the return of a modification application was upheld for failure to comply with  21.902(g): The Commission makes provision for actual notice and an opportunity to be heard by parties in interest by requiring at Section 21.902(g) that microwave stations that might be affected by operation of an MDS station be served a copy of the required interference analysis for their station. Cornaggia admittedly failed to properly serve VisionAire with a copy of the interference analysis . . . . Due to this lack of service, the orderly process contemplated in the Commission's rulemaking order, in which the Commission staff resolves interference problems after oppositions are filed, was negated. Thus, these applications were properly returned for failure to comply with the requirements of  21.902(g). 37. Location Restrictions. The 1988 Public Notice allows the filing of MDS applications for the E or F channels commencing April 20, 1988, but only for locations that are: (1) farther than 50 miles from any proposed location of an MMDS application pending on April 19, 1988 or an authorized station; and (2) farther than 15 miles from the boundary of a statistical area for which there were applications pending on April 19, 1988. It was explicitly stated in the first paragraph of the Notice that "[a]pplications filed must comply with the location restrictions contained in this Notice. We do not anticipate granting any waivers of this location requirement." 1988 Public Notice, 3 FCC Rcd at 2661. It was emphasized twice that applications filed in violation of the location requirements would be returned as unacceptable for filing. Id. Despite these clear directives, each of the above- referenced MMDS applications proposed a transmitter site in violation of the location restrictions of the 1988 Public Notice. Therefore, because the location restrictions prohibited the filing of applications for the sites chosen by each of these applicants, the applications were submitted on dates not designated for filing of MDS applications for those proposed locations. See  21.901(d)(4). Accordingly, these applications were properly returned as unacceptable for filing. 38. Petitioners can claim no surprise concerning the important burden placed on applicants to select carefully the proposed location of an MDS station. In addition to the clear language in the 1988 Public Notice, we stressed, as early as 1980, the importance of compliance with the site selection requirements for MDS stations. In R.L. Mohr, 77 FCC 2d 30 (1980), we explained that "given the rather severe shortage of frequencies in these lower more desirable bands . . . [t]o be able to use these frequencies [for MDS] imposes a cost, a cost in terms of more careful engineering and site location, and perhaps in use of more sophisticated equipment than would be otherwise required." Id. at 37 (emphasis added). Thus, petitioners had full notice of the necessity to comply with the location restrictions. Because petitioners chose to disregard the clear directive announced in the 1988 Public Notice, their applications were properly returned as unacceptable for filing. 39. The Heath Springs and Red Bluff applicants requested a waiver of the 50 mile location restriction contained in the 1988 Public Notice, in their applications and on reconsideration. The New Taiton petitioners include arguments supporting a waiver request of the location restrictions contained in the 1988 Public Notice on reconsideration only. We find that the grant of these waivers would not serve the public interest. 40. As discussed supra at  33, applicants requesting a waiver must meet a high burden under the requirements of Section 21.19. As an initial matter, petitioners here argue that no waiver of the location restrictions contained in the 1988 Public Notice is needed since they contend that the 1988 Public Notice is invalid. As discussed below at  45 - 46, we are not persuaded by this argument. Petitioners further argue that even if the 1988 Public Notice location restrictions were valid, their request for a waiver of the 50 mile location restriction should be granted because the applications identified all stations within 50 miles of the applicants' proposed stations, and the interference studies attached to their applications demonstrated the lack of harmful interference to those stations. However, as discussed supra at  35, the interference studies provided by these applicants were inadequate and therefore did not demonstrate lack of harmful interference. Thus, petitioners' assertion that no harm would be caused to authorized stations is unsupported, falling far short of the stringent showing required by WAIT Radio of the existence of extraordinary or special circumstances justifying waiver. 41. Petitioners also assert that by applying the location restrictions of the 1988 Public Notice, the Commission has chosen to elevate "mere administrative efficiency" above the mandate of the Communications Act, as well as the Commission's interest in promoting the wireless cable industry. The Commission's interest in encouraging wireless cable services does not override its obligation to apply its regulations impartially. The location restrictions minimize the possibility for application gridlock, and allow us to process applications more expeditiously and to utilize efficiently scarce engineering resources. See Boyd B. Hopkins, Sr., 9 FCC Rcd 569, 570 (Dom. Fac. Div. 1994); R.L. Mohr, 85 FCC 2d at 604. The expeditious processing of applications ultimately encourages the wireless cable industry's growth. Moreover, the granting of waiver requests to any of this group of petitioners would undercut the interference protection guarantees given to earlier-filed MDS licensees or applicants, ultimately discouraging investment in MDS services. 42. Petitioners also claim that a waiver of the 1988 Public Notice location restrictions would be in the public interest because it would result in service to currently unserved communities. This argument implies that the proposed communities can only be served from an MDS transmitter located within each community's borders. The Commission determined as early as 1973 that communities can be served by MDS stations located in nearby areas even when the transmitter is not located within the city limits of the specified community. In Microband Corp. of America, 41 FCC 2d 184 (1973), the Commission returned as unacceptable for filing an MDS application proposing a station at Newark, New Jersey as mutually exclusive and cut-off by a previously proposed New York City MDS application, despite the Newark applicant's claim that service to Newark would be precluded in violation of 47 U.S.C.  307(b). In doing so, we recognized that "the Newark-Elizabeth-Jersey City areas as a whole would be better served through a station located in New York City than through a . . . station located in Newark." Id. at 185-86. 43. Petitioners also fail to address, as required by Section 21.19(b), the issue of whether there was a reasonable alternative site that is located more than 50 miles from the sites of 1983 previously proposed or authorized stations from which they could provide acceptable service to their specified communities. An applicant must affirmatively demonstrate a lack of a reasonable alternative under  21.19(b). See Edna Cornaggia, 8 FCC Rcd at 5444, n.6 ("Contrary to the assertion in the reconsideration petition that the Gary site . . . is the only possible site for this MMDS station, the [seven transmitter sites studied by the applicant] do not exhaust the numerous potential sites in the Chicago . . . CMSA and its 15-mile buffer zone."). See also Boyd B. Hopkins, Sr., 9 FCC Rcd at 570; Cheyenne Corp., 8 FCC Rcd 7049, 7050 (Dom. Fac. Div. 1993). The necessity of eliminating alternative sites has been recognized in other services regulated by the Commission. "Commission precedent makes clear that an applicant seeking waiver of the minimum spacing rules must, as an initial matter, establish the nonavailability of fully-spaced sites . . . . [Without such a showing, the applicant's] waiver request died, as it were, at the starting gate." Orange Park Florida T.V., Inc. v. FCC, 811 F.2d 664, 669 (D.C. Cir. 1987) (citations omitted). 44. Petitioners fail to justify why their applications merit different treatment from that which we applied to thousands of other post-1983 MMDS applications. In view of these considerations, we find it would be contrary to the public interest to grant a waiver of the location restrictions in the 1988 Public Notice. Therefore, we conclude that petitioners' requests for waiver of the location requirements were properly denied. 45. Having had the requests for waiver of the location restrictions of the 1988 Public Notice included in their applications rejected, petitioners argue on reconsideration that the 1988 Public Notice is invalid because the Commission did not follow the notice and comment provisions of the APA, 5 U.S.C.  553(b), or the Paperwork Reduction Act, 44 U.S.C.  3501, et seq., in its promulgation. Petitioners argue that the 1988 Public Notice location restrictions are a substantive rule to which the notice and comment provisions of the APA apply. We need not reach this issue since we find petitioners' procedural challenge to the 1988 Public Notice location restrictions untimely at this stage. Section 2344 of the Hobbs Act provides that any party aggrieved by a final agency order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. 28 U.S.C.  2344. The limitations period provided in the Act applies to attacks on the procedural lineage of the promulgation of a rule: [C]hallenges to the procedural lineage of agency regulations, whether raised by direct appeal, by petition for amendment or rescission of the regulation or as a defense to an agency enforcement proceeding, will not be entertained outside the 60-day period provided by statute. The policies underlying Congress' adoption of the limitations period strongly supports this result. As we have noted before, Congress has "determined that the agency's interest generally lies in prompt review of agency regulations," and "[w]e accord heavy weight to that view." JEM Broadcasting Company, Inc. v. FCC, 22 F.3d 320, 325 (D.C. Cir. 1994) (citations omitted). In JEM, a license applicant challenged the agency's promulgation of the "hard look" rules as substantive rules requiring notice and comment under the APA. The court denied the applicant's petition for review, holding that the 60-day limitations period provided by the Hobbs Act was a bar to the challenge. In so holding, the court rejected JEM's argument that it could not have challenged the hard look rules at the time of their promulgation, because it was not then an aggrieved party: We have held unequivocally that when a party complains of an agency's failure to provide notice and comment prior to acting, it is that failure which causes "injury"; and interested parties are "aggrieved" by the order promulgating the rules. (See Natural Resources Defense Council, 666 F.2d at 601.) Moreover, the failure to provide notice and comment is a ground for complaint that is or should be fully known to all interested parties at the time the rules are promulgated. See id. at 602- 603. Accordingly, we hold that any person or entity within the class affected by the "hard look" rules, i.e. actual or potential license applicants, would have been "aggrieved" within the meaning of section 2344 at the time the rules were promulgated, and thus would have had standing to challenge the procedural lineage of the "hard look" rules by direct petition for review thereof. And, had such a challenge been raised in a timely fashion, there is no doubt that the matter would have been ripe for review. JEM, at 326. The court went on to explain that JEM's challenge could only be timely if JEM could show that no potential applicant could challenge the hard look rules at the time of their promulgation: [J]EM cannot deny that the FCC's failure to conduct notice and comment rulemaking was an immediately obvious fact that, as we hold, was subject to immediate challenge by any number of then-existing would-be license applicants. The mere fact that JEM, in particular, had no opportunity to challenge the procedural provenance of the "hard look" rules within the statutory period is of no moment. Accordingly, we reject JEM's arguments and hold that the instant challenge to the "hard look" rules is untimely. Id. Thus, petitioners here could only challenge the promulgation of the 1988 Public Notice at this time if they could prove that neither they nor any other potential applicants could have challenged the 1988 Public Notice within the statutory limitations period. They make no such showing that this is the case, nor could they, since the fact that the 1988 Public Notice was promulgated without notice and comment was, like the promulgation of the hard look rules in JEM, "immediately obvious," and subject to "immediate challenge." Indeed, any applicant who filed for an MDS station after April 20, 1988, would have actual knowledge of the 1988 Public Notice, since it allowed them to file commencing April 20, 1988, ending the filing freeze which previously prevented applicants from filing. See  9, supra. Further, the Red Bluff and Heath Springs applicants here specifically requested waivers of the 1988 Public Notice at the time they filed their applications, demonstrating actual knowledge of the 1988 Public Notice over three years ago. Thus, petitioners' challenge to the promulgation of the 1988 Public Notice must be dismissed as untimely. 46. Petitioners also argue that the 1988 Public Notice is invalid because the agency failed to obtain approval from the Office of Management and Budget ("OMB") prior to the issuance of the Notice, and such approval is required under the Paperwork Reduction Act of 1980. 44 U.S.C.  3501, et. seq. The Paperwork Reduction Act requires agencies to obtain approval from OMB prior to the collection of information. 44 U.S.C.  3507 (emphasis added). "Collection of information" is defined as "the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for . . . (A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on ten or more persons . . . ." 44 U.S.C. 3502(4). As stated supra, at  9, the 1988 Public Notice allowed applicants to file for MDS stations on the E or F channels commencing April 20, 1988, in accordance with certain location restrictions. Petitioners do not explain how the Notice imposed an information collection requirement. Even assuming, for the sake of argument, that petitioners mean to suggest that the application form required by the FCC imposed an information collection requirement upon them, they cannot complain here since the application form was not issued as a result of the 1988 Public Notice, but rather as a result of the 1987 revision to Part 21 of the Commission's rules. See Revision of Part 21 of The Commission's Rules, 2 FCC Rcd at 5755, n.145. 47. Finally, even if the 1988 Public Notice location restrictions had not prohibited the filing of these applications, in each instance these applications still would have been returned as unacceptable for filing due to violations of other Commission rules in effect at the time the returned applications were filed, including failing to provide adequate interference studies for other previously proposed or authorized stations. 48. Statement of Maintenance and Emergency Notification Procedures. Section 21.15(e) requires that an applicant "submit a showing of the general maintenance procedures involved. . . . The showing should include . . . (2) [t]he manner in which technical personnel are made aware of the malfunction . . . and the appropriate time required for them to reach any of the stations . . . ." 47 C.F.R.  21.15(e). We affirmed the importance of expressly describing emergency notification procedures when we revised Part 21 of the Commission's rules and eliminated some of the maintenance information requirements, but retained this required description. See Revision of Part 21 of the Commission's Rules, 2 FCC Rcd at 5752, n.53. The return letters for these petitioners stated that the applicants failed to comply with  21.15(e). The applications stated, at Exhibit J, that "[t]he applicant has not yet selected a Radio Maintenance shop to provide routine and emergency maintenance to the proposed facility in order to provide quality service and minimize down-time. However, prior to commencing operation, applicant will select a radio maintenance shop and/or hire a full-time technician to provide routine and emergency service." This statement fails to provide the specificity required by  21.15(e)(2). However, even if we were to conclude that this information was sufficient to satisfy  21.15(e), the applications were properly returned as unacceptable for filing for other deficiencies, discussed above. 49. Arbitrary and Capricious Application of Regulations. Finally, we disagree with petitioners' argument that we have been arbitrary and capricious in the application of the relevant regulations. As discussed at length above, petitioners' applications were returned as unacceptable because the applicants failed to submit and serve the required interference studies at the time the applications were initially filed, as specified by  21.902. See Roundtree Communications, 7 FCC Rcd 5456; Boyd B. Hopkins, Sr., 9 FCC Rcd 569; Edna Cornaggia, 8 FCC Rcd 5442. All of the pertinent rules cited herein were long-established and applicable at the time the returned applications were filed. All MDS applicants are charged with being familiar with Part 21 of the Commission's rules. Any applicant who "either ignores or fails to understand clear and valid rules of the Commission respecting the requirements for an application assumes the risk that the application will not be acceptable for filing." Ranger v. FCC, 294 F.2d 240, 242 (D.C. Cir. 1961); see also Donald E. Benson, 8 FCC Rcd 1872,1873 (Dom. Fac. Div. 1993). Thus, we reject petitioners' claims that the Commission engaged in arbitrary and capricious action and find that "[t]he Division's return of [the above-referenced] applications . . . was not unreasonable or arbitrary, but rather was based on the [applicants'] failure to comply with Commission rules." Family Entertainment, 9 FCC Rcd at 568. V. CONCLUSION 50. In view of all the foregoing considerations, we affirm the staff's return of the applications under consideration in this order. Reconsideration is not justified and reinstatement of the applications is not warranted. Accordingly, IT IS ORDERED, THAT the reconsideration petitions listed at notes 13, 20, and 25 ARE HEREBY DENIED. 51. IT IS FURTHER ORDERED, THAT the staff of the Mass Media Bureau shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary