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                                Before the
                     FEDERAL COMMUNICATIONS COMMISSION           FCC 95-252
                             Washington, D.C.


In the Matter of Ten                 )
Applications for Authority           )
To Construct and Operate             )
Multipoint Distribution Service      )
Stations at Five Transmitter Sites   )




              MEMORANDUM OPINION AND ORDER ON RECONSIDERATION

Adopted: June 15, 1995                              Released:  July 7, 1995

By the Commission:

                             I.  INTRODUCTION

     1.  The Commission has before it 10 petitions for reconsideration of the return,
pursuant to delegated authority, of 10 applications for authority to construct and operate
Multipoint Distribution Service ("MDS") stations on the E or F channels at five transmitter
sites.  As these petitions raise common issues, we believe that their collective consideration
is the most efficient use of Commission resources.  Thus, we will consider these 10 petitions
for reconsideration in this 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
to which Part 21 of the Commission's rules apply.  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 previously filed application or
authorized station.  Section 21.31(a) of the Commission's rules provides the 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 they demonstrate a lack of
harmful interference by submission of interference studies with their applications pursuant to
the standards specified in the Commission's rules.  See 47 C.F.R.  21.902(b)(3) and (4) and
 6 and 7, infra.  For the above-referenced MDS applications on the E or F channels,
 21.901(d)(5) also defines mutual exclusivity as based on whether the proposed transmitter
site is within a Metropolitan Statistical Area ("MSA") or the 15-mile buffer zone of an
authorized or previously proposed station.

     4.  Cut-off Rules.  In order to be acceptable for filing, MDS applications were
required to be filed on or before the applicable cut-off date for mutually exclusive
applications.  If an MMDS application is mutually exclusive with a 1983 application or
authorized station, the applicable cut-off date is the one-day filing date designated for those
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 application
or authorized station, but there is a mutually exclusive, post-1983, previously proposed or
authorized station, the applicable cut-off rule for the above-referenced applications, all of
which were filed after October 31, 1990, is  21.914.

     5.  Station Design Requirement.  Section 21.902(b)(3) requires each MDS applicant
to engineer its proposed 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) requires 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).  Section 21.902(f) defines harmful interference as the ratio of desired signal
to undesired signal present in the cochannel or adjacent channel, at the output of a reference
receiving antenna oriented to receive the maximum desired signal.

     6.  MDS Interference Studies.  At the time the above-referenced applications were
filed, in order to demonstrate compliance with  21.902(b), and so that mutually exclusive
determinations could be made,  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 is 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) 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) further requires
that each MDS application for the E or F channels include the applicant's 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 it has
taken to comply with the requirements of  21.902(a), which requires MDS applicants,
licensees, and conditional licensees, to make exceptional efforts to avoid harmful interference
to other users 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).

     7.  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 previously proposed or authorized station applicant, conditional licensee, or licensee
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 with the application. 
 
     8.  Location Restrictions.  After the initial filing date of September 9, 1983, no filing
period was designated until 1988.  In accordance with  21.901(d)(4) of the Commission's
rules, the Commission then designated that MDS applications for E or F channel stations
could 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 for the E or F
channels 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 for
the E or F channels 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 must comply with the specified
location restrictions, that grant of waivers of the location restrictions were not anticipated,
and that applications failing to meet these location restrictions would be dismissed as
unacceptable for filing.  Id. at 2661-2662.  

     9.  Summary.  Thus, at the time the above-referenced applications were filed,
applicants for new MMDS stations were required to file for a location farther than 50 miles
from the location of any station proposed in an application which was pending on April 19,
1988, or of any existing facility, and 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. 
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

     10.  Ten petitions for reconsideration were filed for the 10 returned MMDS
applications proposing stations at five different transmitter sites.  Petitioners contend that
their applications fully complied with all pertinent Commission rules, or presented facts
which would compel the grant of any necessary waivers.  In support, petitioners chiefly
assert that they submitted all necessary interference analyses with their applications, that
these analyses demonstrated that there is no realistic possibility of harmful interference to
existing or proposed stations, and that to the extent the proposed stations failed to comply
with the location restrictions in the 1988 Public Notice, Commission precedent supports a
grant of a waiver.  Petitioners also argue that the staff incorrectly applied the 1988 Public
Notice location restrictions and other Commission rules and provided insufficient detail in the
letters returning the applications.

     11.  Garnett, Kansas.  On September 17, 1991, Dale and Donna Lawrence filed
MMDS applications proposing a transmitter site at Garnett, Kansas.  After reviewing the
Garnett applications, the Commission staff returned them as defective and unacceptable for
filing.  Public notice of the return of these applications was provided June 9, 1993.  The
return letter for application file number 62086-CM-P-91 indicated that the application was
returned because the applicants: (1) 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 or failure to consider all authorized or previously proposed MMDS or
ITFS stations; and (2) failed to specify the correct emission designator, as required by
 21.905.  The return letter for application file number 62087-CM-P-91 indicated that the
application was returned because the applicant: (1) filed in an area not open for filing
pursuant to  21.901(d)(4) because it was within the geographic area of an authorized MDS
station or a pending MDS application; and (2) 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/or failure to consider all authorized or
previously proposed MMDS or ITFS stations.  Reconsideration petitions were timely filed on
July 9, 1993.

     12.  The applications proposed a transmitter site that was within 50 miles or the radio
horizon of 159 post-1983 previously proposed MMDS stations.

     13.  The applications lacked interference studies for four previously proposed
stations.  The interference studies that were submitted for the Emporia applications,
approximately 36 miles away, were inadequate in that the applicant: (1) did not include free
space calculations for the desired to undesired signal ratio to each reference receiving
antenna within the protected service area of the authorized or previously proposed stations, as
required by  21.902(c), (d) and (f) (see  21.902(e)); and (2) 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).  Thus,
the Garnett applicants failed to demonstrate that the station proposed in the returned
applications would not cause harmful interference to authorized or previously proposed
stations.  See  21.902.  In addition, the applicants failed to satisfy the requirements for
service of interference studies stipulated by  21.902(g). 

     14.  The Garnett applications did not request a waiver.
 
     15.  Rainswood, Virginia.  On December 10, 1991, petitioner Rainswood Wireless
Partnership filed MMDS applications proposing the same transmitter site at Rainswood,
Virginia.  After reviewing the Rainswood applications, the Commission staff returned them
as defective and unacceptable.  This return appeared on public notice on June 23, 1993. 
Return letters indicated that the applications were returned because the applicant: (1) 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/or failure to consider all
authorized or previously proposed MMDS or ITFS stations; (2) failed to demonstrate site
availability pursuant to  21.15(a); (3) failed to submit FAA notification information pursuant
to  21.15(d); and (4) failed to submit sufficient, specific maintenance information pursuant
to  21.15(e).  Reconsideration petitions for the returned applications were timely filed on
July 23, 1993.

     16.  The applications proposed a transmitter site that was within 50 miles or the radio
horizon of 53 post 1983, previously proposed MMDS stations which had applications
pending on December 10, 1991, the filing date of the Rainswood applications.

       17.  The applications lacked interference studies, required by  21.902(b) and (c), for
all 53 previously proposed MMDS stations.  Thus, the Rainswood applicant failed to
demonstrate that the stations proposed in the returned applications would not cause harmful
interference to authorized or previously proposed stations.  See  21.902.  In addition, the
applicant failed to satisfy the requirements for service of interference studies stipulated by
 21.902(g). 

       18.  No waiver requests were included in the Rainswood applications. 

       19.  Lexington, Missouri.  On September 16, 1991, petitioners Dale and Donna
Lawrence filed two MMDS applications proposing the same transmitter site at Lexington,
Missouri.  After reviewing the Lexington applications, the Commission staff returned them
as defective and unacceptable for filing by return notification letters dated March 24, 1993. 
The letters indicated that the applications were returned because the applicants: (1) filed past
the cut-off period established in  21.13 or  21.914; (2) filed in an area not open for filing
pursuant to  21.901(d)(4) because it was within the geographic area of an authorized MDS
station or a pending MDS application; and (3) 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/or failure to consider all authorized or
previously proposed MMDS or ITFS stations.  Reconsideration petitions for the returned
applications were timely filed on April 23, 1993.

       20.  The applications proposed a transmitter site that was within 50 miles or the radio
horizon of: (1) one 1983 previously authorized station; (2) one 1983 previously proposed
MMDS station which had an application pending on September 16, 1991, the filing date of
the Lexington applications; and (2) eight post 1983 previously proposed MMDS stations. 

     21.  The applications lacked interference studies, required by  21.902(b) and (c), for 
(1) one 1983 previously authorized station; (2) one 1983 previously proposed MMDS
station which had an application pending on September 16, 1991, the filing date of the
Lexington applications; and (2) eight post 1983 previously proposed MMDS stations. 
Thus, the Lexington applicants failed to demonstrate that the station proposed in the returned
application would not cause harmful interference to authorized or previously proposed
stations.  See  21.902.  In addition, the applicants failed to satisfy the requirements for
service of interference studies stipulated by  21.902(g).

     22.  No waiver requests were included in the Lexington applications. 

     23.  Livermore, California.  On February 27, 1992, petitioner East Bay Wireless 1
filed two MMDS applications proposing the same transmitter site at Livermore, California. 
After reviewing the Livermore applications, the Commission staff returned them as defective
and unacceptable for filing by return notification letters dated March 31, 1993.  The letters
indicated that the applications were returned because the applicant: (1) filed past the cut-off
period established in  21.13 or  21.914; (2) filed in an area not open for filing pursuant to
 21.901(d)(4) because it was within the geographic area of an authorized MDS station or a
pending MDS application; and (3) failed to comply with MMDS Allocation Order, 94 FCC
2d 1203, 1263 (1983) and  21.901(d)(5).  Reconsideration petitions for the returned
applications were timely filed on April 30, 1993.

       24.  The applications proposed a transmitter site that was within 50 miles or the radio
horizon of: (1) one 1983 previously authorized MMDS station; (2) four 1983 subsequently
authorized MMDS stations; (3) 123 1983 previously proposed MMDS stations, which had
applications pending on February 27, 1992, the filing date of the Livermore applications;
(4) one post-1983 subsequently authorized MMDS stations; and (6) seven post-1983
previously proposed MMDS stations, which had applications pending on the filing date of
the Livermore applications. The proposed site is within the San Francisco MSA.

     25.  The application lacked interference studies, required by  21.902(b) and (c), for 
(1) 123 1983 previously proposed MMDS stations, which had applications pending on
February 27, 1992, the filing date of the Livermore applications; and (2) seven post-1983
previously proposed MMDS stations, which had applications pending on the filing date of
the Livermore applications. The interference studies that were submitted were inadequate in
that the applicant: (1) did not include free space calculations for the desired to undesired
signal ratio to each reference receiving antenna within the protected service area of the
authorized or previously proposed stations, as required by  21.902(c), (d) and (f) (see
 21.902(e)); and (2) 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).  Thus, the Livermore applicant failed to
demonstrate that the station proposed in the returned application would not cause harmful
interference to authorized or previously proposed stations.  See  21.902.  In addition, the
applicant failed to satisfy the requirements for service of interference studies stipulated by
 21.902(g).

     26.  Petitioner requested waiver of the Commission's 1988 Public Notice location
requirements and  21.901(d)(5).

     27.  Shepherd, Texas.  On October 29, 1991, petitioners Dale and Donna Lawrence
filed two MMDS applications proposing the same transmitter site at Shepherd, Texas. 
After reviewing the Shepherd applications, the Commission staff returned them as defective
and unacceptable for filing by return notification letters dated November 6, 1992, and
March 17, 1993.  The return letter for Application File No. 51295-CM-P-92 indicated that
the application was returned because the applicant: 1) filed past the cut-off period established
in 47 C.F.R.  21.31 or 21.914; and 2) filed in an area not open for filing pursuant to
 21.901(d)(4) because it was within the geographic area of an authorized MDS station or a
pending MDS application.  The return letter for Application File No. 51296-CM-P-92
indicated that the application was returned because the applicant 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 failed to consider all authorized or
previously proposed MMDS or ITFS stations.  Reconsideration petitions for the returned
applications were timely filed on December 7, 1992, and April 16, 1993.

       28.  The applications proposed a transmitter site that was within 50 miles or the radio
horizon of: (1) one 1983 previously proposed MMDS station, pending on March 26, 1991,
the filing date of the Shepherd applications; and (2) 133 post-1983 previously proposed
MMDS stations, which had applications pending on the filing date of the Shepherd
applications.

     29.  The applications lacked interference studies, required by  21.902(b) and (c), for 
(1) one 1983 previously proposed MMDS station, pending on March 26, 1991, the filing date
of the Shepherd applications; and (2) 133 post-1983 previously proposed MMDS stations,
which had applications pending on the filing date of the Shepherd applications.  Thus, the
Shepherd applicants failed to demonstrate that the stations proposed in the returned
applications would not cause harmful interference to authorized or previously proposed
stations.  See  21.902.  In addition, the applicants failed to satisfy the requirements for
service of interference studies stipulated by  21.902(g).   The cut-off date for the E-channel
group at Shepherd was September 9, 1983, established by Application File No. 16648-CM-P-
83 at Huntsville, TX, approximately 23 miles away.

     30.  No waiver requests were included in the Shepherd applications. 

                              IV.  DISCUSSION

     31.  Mutual Exclusivity and Cut-off.  Based upon our review of the returned
applications and publicly available information regarding authorized MMDS stations and
pending applications, we conclude that the Lexington and Livermore applications were
untimely filed with respect to authorized stations or previously filed applications with which
the returned applications were mutually exclusive.  The determining factors we used to
ascertain if the above-referenced MMDS applications were mutually exclusive pursuant to
 21.31(a) were whether the applications were 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 MMDS
station; or  (3) within an MSA, or its 15-mile buffer zone, for which there is an authorized
or previously proposed MMDS station.  The returned applications propose transmitter sites
which made the proposed stations mutually exclusive, pursuant to  21.914, with authorized
or previously proposed MMDS stations.  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).  

     32.  The staff determination that the Garnett applications and the Shepherd F-group
application were cut-off is harmless error as the applications were properly returned for the
other reasons listed.

     33.  Contrary to Lexington petitioners' claims, they filed within 15 miles of the
Kansas City MSA, in violation of MDS Allocation Order.

     34.  Interference Protection  Section  21.902(b) requires all MDS applicants and
licensees to provide 45 dB of cochannel interference protection and 0 dB of adjacent channel
interference protection, and to demonstrate that protection in interference studies submitted
with the applications. 

     35.  Petitioners' applications failed to demonstrate a lack of harmful interference to
existing MMDS licensees and to previously proposed MMDS applicants.  Applicants for
new MDS stations on the E or F channels are required to file specific technical interference
protection showings for cochannel and adjacent channel stations.  These interference
showings 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 1246, 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. at
1264.  See also  21.902(b) and (c).  Consequently, there have been a series of cases
emphasizing the importance of interference protection showings in MDS applications for the
E or F channels.

     36.  Our analysis of the interference statements actually submitted shows that
petitioners' applications failed, inter alia, to provide at least 45 dB of cochannel interference
protection or at least 0 dB of adjacent channel interference protection as required by
 21.902(b); and failed to submit free space calculations of the desired to undesired signal
ratios to each reference receiving antenna within the protected service area of the previously
proposed stations as required by  21.902(f).  See Revision of Part 21 of The Commission's
Rules, 2 FCC Rcd 5713, 5716-17 (1987) ("Coordination of  MDS . . . systems . . . relies on
accurate data about the interference environment.")  Thus, these applications were properly
returned as unacceptable for filing.  See MMDS 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."); see also Family Entertainment, 9 FCC Rcd at 567 ("[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."); Dan S.
Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992) ("In the processing of MDS
station applications, the interference analyses required by [ 21.902] are crucial.")

     37.  We reject petitioners' claims that they were only required to perform interference
analyses for applications which had been placed on public notice.  Section 21.902(c) requires
an MDS applicant to file interference studies for specified "authorized or previously
proposed, cochannel and adjacent-channel, stations. . . ."  The rule does not excuse
applicants from submitting interference studies unless or until the previously proposed
applications have been placed on public notice.  Nor are applicants excused from filing
interference analyses for previously proposed stations that were dismissed or returned
subsequent to their own applications, as the Garnett and Shepherd petitioners assert.  See,
e.g. CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 n. 7 (Dom. Fac. Div. 1994)
("Commonwealth's application was dismissed . . . after CNI's application was filed . . . . 
However, inasmuch as Commonwealth's application had not been dismissed, CNI was
required to consider Commonwealth's pending application in its interference analyses.")  

     38.  Petitioners also argue that it was wrong for the Commission to return their
applications for failure to submit and serve interference analyses, because "the Commission
itself waived the requirements of Section 21.902(c) for applicants at the time of filing . . .",
citing Donald E. Benson, 8 FCC Rcd 1872 (Dom. Fac. Div. 1993).  Petitioners' reliance on
that decision is misplaced.  In Benson, the staff affirmed the return of Benson's 1983 MDS
applications for failure to file technical showings with his application, as required by
 21.901(d)(7).  Id. at 1873.  The decision offers no support for petitioners here because
Benson did not seek a waiver of the rules, but argued that two sentences contained in his
applications met the requirements of  21.901(d)(7).  Moreover, Benson was not required to
include the detailed interference showings required by  21.902(c) with the applications.  In
the MMDS Allocation Order, we initially exempted all 1983 MMDS applications, such as
Benson's, from the requirements of  21.902(c), because all of the applications were filed on
one day, September 9, 1983.  The same rulemaking order, however, specifically ruled that
applications filed after September 9, 1983, would be required to comply with Section
21.902(c).  MMDS Allocation Order, 94 FCC 2d at 1265. 

     39.  In addition, the Garnett petitioners' claim that they were unable to perform
interference analyses for applications which had not been placed on public notice because
"files for these stations were not available for public inspection" is factually incorrect.  While
there have been periods of time when newly-filed MDS applications have not been available
for public inspection through the Domestic Facilities Division Public Reference Room, copies
of these applications have been available since at least 1988 from the Commission's public
record copy contractor, irrespective of whether the applications had been placed on public
notice.  See 1988 Public Notice, 3 FCC Rcd at 2663.  In addition, as early as November,
1990, before any of these returned applications were filed, a "read-only" copy of the MDS
database was available to the public through a third party public access contractor.  Thus,
we reject petitioners' claim that their failure to file interference studies was somehow caused
by the Commission's policies regarding access to applications.

     40.  In addition, petitioners' assertions that they have committed to make every effort
to avoid harmful interference to others and to cooperate in good faith should any interference
occur in the future does not excuse their failure to submit detailed interference studies as
required by  21.902.  See, e.g., G.C. Cooper, 8 FCC Rcd at 7008 ("An applicant's general
statement that he would use 'all legitimate engineering techniques' does not constitute the
kind of showing discussed in the MMDS Allocation Order and required under 47 C.F.R.
 21.901(d)(7).")  The requirement of  21.902(c) that an applicant submit interference
analyses at the time its application is filed is separate from the requirement in  21.902(a)
that "[a]ll [MDS] applicants, permittees, and licensees shall make exceptional efforts to avoid
harmful interference . . . and . . . are expected to cooperate fully in attempting to resolve
problems of potential interference . . . ," and is also separate from the requirement in
 21.901(d)(7) that applicants submit a showing of how interference will be avoided and
demonstrate what steps they have taken to comply with  21.902(a).  See also  21.31.  Nor
do applicants' offers to file curative amendments at some later time excuse them from
submitting all required interference studies at the time the applications are initially filed.  See
Marylan J. Benson, 7 FCC Rcd at 4669, n. 9.  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 they are technically
qualified to be an MDS licensee as required by  21.900.  Thus, these applications were
properly returned as unacceptable for filing.  New Channels Communications, Inc., 57 R.R.
2d at 1602; CNI Wireless, Inc., 9 FCC Rcd at 2040.

     41.  Garnett and Lexington petitioners' arguments that previously filed applications
had not been accepted for filing and thus were not "entitled to interference protection" is
incorrect.  Even if these applications were later determined to be unacceptable for filing, they
would be entitled to interference protection pursuant to  21.902(b), which requires this
protection for all previously filed applications.

     42.  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); 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.  Petitioners's
applications were therefore unacceptable for filing.

     43.  Notice to Affected Parties.  In addition, each applicant failed to serve copies of
interference analyses, as required by  21.902(g), on all applicants, conditional licensees and
licensees for stations required 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 5442, 5444 (Dom.
Fac. Div. 1993), 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.

Therefore, these applications were properly returned for failure to comply with the service
requirements contained in  21.902(g).

     44.  Location Requirements.  The 1988 Public Notice allows the filing of MDS
applications on the E and F channels commencing April 20, 1988, but only for locations that
are: (1) farther than 50 miles from the proposed location of an MMDS application pending
on April 19, 1988, or an existing station; and (2) farther than 15 miles from the boundary of
a statistical area for which there were applications pending on April 19, 1988.  The first
paragraph of the Notice explicitly stated 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.  We also emphasized
twice that applications filed in violation of the location requirements would be returned as
unacceptable for filing.  Id.  Despite these directives, most of the above-referenced MMDS
applications proposed a transmitter site in violation of the location restrictions of the 1988
Public Notice.  Therefore, these applicants submitted applications on dates not designated by
the Commission for the filing of MDS applications.  
 
     45.  Petitioners can claim no surprise concerning the important burden placed on
applicants to carefully select 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 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 Commission's clear directive, their applications
were properly returned as unacceptable for filing.

     46.  Waiver Requests.  As the return notification letters for the Livermore
applications did not explain the staff's analysis of the waivers requested, we shall explain the
denial of the waiver requests here.  Section 21.20(c)(1) states that a defective application
may still be accepted for filing if the application is accompanied by a waiver request.  For
the reasons discussed below, we do not find that grant of the waivers would serve the public
interest, and thus will not grant the requested waiver or grant a waiver on our own motion
pursuant to  21.20(c)(2).

      47.  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.

 "An applicant for waiver faces a high hurdle even at the starting gate.  'When an applicant
seeks a waiver. . . 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)); see also David Laustsen, 3 FCC Rcd 2053, 2054 (Comm. Car. Bur. 1988) ("[A]
request for waiver . . . must affirmatively demonstrate that application of the rules would
frustrate the underlying purposes of the rule.")
  
     48.  As shown in Section III, supra, the Livermore applicant failed to submit
interference studies, as required by  21.902, for all authorized or previously proposed
MMDS stations within 50 miles of their proposed transmitter sites, and failed to demonstrate
that the proposed station would not cause harmful interference.  The Livermore application's
request for a waiver is based upon the assertion that the terrain ensures that "the signals
cannot have a direct electrical path into communities outside the valley . . . ."  In fact, the
proposed station has an unobstructed electrical path to a 1983 previously proposed,
subsequently authorized station.  These wholly unsupported assertions fall far short of the
stringent showing required by WAIT Radio of the existence of extraordinary or special
circumstances justifying a waiver.  

     49.  The 1988 Public Notice location restrictions serve important administrative
purposes beyond those concerning interference avoidance.  The location restrictions minimize
the possibility for application gridlock, and allow us to process applications more
expeditiously and to efficiently utilize scarce engineering resources.  See Boyd B. Hopkins,
Sr., 9 FCC Rcd 569, 570 (Dom. Fac. Div. 1994); R.L. Mohr, 85 FCC 2d 596, 604 (1981). 
These purposes, which the Livermore petitioner does not address, would not be served were
we to routinely grant a waiver of the location restrictions to each and every applicant that
demonstrated non-interference through the submission of interference studies.  Thus, we
conclude that granting petitioners' requested waivers would frustrate the underlying purpose
of the 1988 Public Notice location restrictions. 

     50.  Petitioners failed to present justification as to why their applications merit
treatment different from that which we applied to thousands of other post-1983 MMDS
applications.  In view of these considerations, we do not find it would be in the public
interest to grant a waiver of the location restrictions in the 1988 Public Notice.  Therefore,
we conclude that petitioners' requests for waivers of the location requirements were properly
denied. 
  
     51.  Some petitioners also request that the Commission waive the requirement for
submitting interference analyses for previously proposed stations which they characterize as
"lottery losers."  To justify this waiver request, petitioners assert that enforcement of the
interference protection requirements at the time their applications were filed would be unduly
burdensome and a significant unnecessary expense, because lottery losers are unlikely to
become licensees.  We do not believe the facts and circumstances of this case are sufficiently
unique so as to warrant a waiver.  Most importantly, 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  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 granted petitioners' waiver request, 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.  Petitioners' statements that they
are willing to cooperate with the new tentative selectee on problems of harmful interference
in the event that any of the lottery losing applicants should become a tentative selectee does
not address this underlying purpose, since all applicants are required by  21.902(b) "to
cooperate fully and in good faith to resolve interference . . . problems."  Nor does it justify
our treating these applicants differently from other MMDS applicants which have complied
with the interference protection requirements in cases involving pending, lottery-losing
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 would be unduly burdensome and expensive is not persuasive.  As the D.C.
Circuit ruled in 1969, we neither "must or should tolerate evisceration of a rule by waivers." 
WAIT Radio, 418 F.2d at 1159. 

     52.  Petitioners assert that the staff's disposition of their waiver requests by "the mere
checking of two paragraphs on a form returning the application in question" cannot, on its
face, meet the court-imposed requirement to give a "hard look" to waiver requests. 
However, the Court in WAIT Radio made clear that:

      The agency is not bound to process in depth what are only generalized pleas, a
     requirement that would condemn it to divert resources of time and personnel to
     hollow claims.  The applicant for waiver must articulate a specific pleading, and
     adduce concrete support, preferably documentary.  Even when an applicant complies
     with these rigorous requirements, the agency is not required to author an essay for the
     disposition of each application. 

418 F.2d at 1157, n.9.

     53.  In addition, even if the 1988 Public Notice location restrictions had not
prohibited the filing of the above-referenced applications, and we had granted a waiver of the
interference protection rules as to lottery-losing applicants, 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 filing
after the relevant cut-off date of mutually exclusive applications and failing to submit
adequate interference analyses for authorized stations or applications which could not be
classified as "lottery losers."

     54.  Finally, we disagree with petitioners' argument that we have changed the
requirements, rules and standards applied to the returned applications and adopted more
stringent separation standards ex post facto by refusing to grant the waivers and accept these
applications for filing.  As discussed at length above, petitioners' applications were returned
as unacceptable because they were filed after the relevant cut-off dates established in
 21.31 and 21.914 of the rules, and failed to submit and serve the required interference
studies at the time the application was initially filed, as specified by  21.902.  See
Roundtree Communications, 7 FCC Rcd 5456 (1992); Boyd B. Hopkins, Sr., 9 FCC Rcd 569
(Dom. Fac. Div. 1994);  Edna Cornaggia, 8 FCC Rcd 5442 (Dom. Fac. Div. 1993).  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 (1961);  see also Donald E. Benson, 8 FCC Rcd at 1873.  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 [applicant's] failure to comply with Commission
rules."  Family Entertainment, 9 FCC Rcd at 568.

     55.  Sufficiency of Statement of Reasons for Return.  Petitioners argue that the return
letters failed to detail the reasons for the applications' return.  However,  21.20(a), which
governs the disposition of defective applications, merely requires "a brief statement as to the
omissions or discrepancies," not the breadth of detail demanded by the petitioners here.  We
find that the return notification letters sent to petitioners gave sufficient explanation of the
reasons for the return of the applications.  In each case, the return notification letters
indicated at least one reason why the applications were unacceptable for filing, and cited the
relevant rule section or Commission decision.  As discussed in Section III, supra, these
petitioning applicants were afforded sufficient information to know that their applications
were being returned due to defects specified in the return letters.  See Adams Telecom Inc.,
v. FCC, 38 F.3d 576, 581 (D.C. Cir. 1995) (FCC dismissal letters and order providing only
brief explanation of why applications failed to satisfy requirements upheld as sufficient
because parties could understand basis of decision.) 
  
      56.  In particular, we reject petitioners' argument that the return of their applications
was arbitrary and capricious because the return notification letters did not list which
applications established the relevant cut-off date, thereby purportedly depriving petitioners of
notice and an opportunity to challenge the qualifications of those previously filed applicants. 
For each of these returned applications, the applicant had a duty, prior to the filing of the
application, to identify: (1) each cochannel and adjacent channel station within 50 miles or
the radio horizon with an unobstructed electrical path of its proposed station and (2) the
applicable MSA and its buffer zone, in order to fulfill the mandates of Sections 21.901 and
21.902.  See, e.g.,  21.902(a) - (d), (f), (i) - (k).  Thus, petitioners should have discovered
the authorized stations and previously filed applications with which they were mutually
exclusive in the course of their research.  Given this pre-filing requirement to identify
authorized and pending stations, petitioners fail to show how their right to challenge the
qualifications of the previously proposed stations is somehow connected to the amount of
information contained in an application return notification letter.

     57.  Notice of Return.  The Garnett petitioners allege that they did not receive a
return letter for application file no. 62086-CM-P-91 and that this constitutes a denial of due
process.  However, as the return was placed on public notice, petitioners' counsel obtained
copies of the return notification and petitioners were able to petition for reconsideration in a
timely manner, there has been no deprivation to which a due process claim might apply.

     58.  Specification of Emission Designator.  The Garnett petitioners allege that the
Commission erred in indicating that they had specified incorrect emission designators.  The
Garnett applications indicated emission designators 5M75A5C and 250KF8E.  The Office of
Engineering and Technology Cumulative Supplement to the Radio Equipment List (August 10,
1990), controlling at the time of the Garnett applications, specifies that the appropriate
emission designators are 5750A5C and 250F3, respectively.  Therefore, the Commission was
correct in returning the applications for failure to specify the correct emission designator as
required by 47 C.F.R.  21.905.

     59.  FAA Notification. The Rainswood applications were properly returned for failure
to submit FAA notification information pursuant to  21.15(d).  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).  

     60.  Site Availability. The Rainswood applications were also properly returned for
failure to demonstrate site availability as required by  21.15(a).  The Rainswood
applications included an assignment of a letter of intent issued by a transmitter tower owner
to another party, International Communications Group.  Petitioner then states that
International Communications Group "has been reasonably advised" that the "site . . . is
available."  Nothing submitted contained any statement of intent from the site owner.  This
does not constitute an adequate demonstration of site availability for the purposes of
 21.15(a) and renders the application unacceptable for filing pursuant to  21.20.  See, e.g.,
Genesee Communications, Inc., 3 FCC Rcd 3595 (Rev. Bd. 1988). ("Although reasonable
assurance may be acquired in numerous ways, there must at least be a meeting of the minds
resulting in some firm understanding as to the site's availability.")

     61.  Maintenance Information.  The Rainswood applications were also properly
returned for failure to submit sufficient, specific maintenance information pursuant to
 21.15(e).  Petitioner's promise "to contact a local vendor to maintain the transmission and
program input equipment," to establish a field service office and to establish and publish a
telephone number for customers to call in the event of emergency does not meet the
requirements of  21.15(e), which requires that an applicant "submit a showing of the
general maintenance procedures involved. . . .  The showing should include . . . (1) the
location and telephone number (if known) of the maintenance center[; and] (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."  We specifically affirmed the importance of
describing emergency notification procedures when we revised Part 21 of the Commission's
rules and eliminated some maintenance requirements but retained the requirement for a
description of emergency repair.  See Revision of Part 21 of the Commission's Rules, 2 FCC
Rcd at 5752, n. 53.  

      62.  In view of all of 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.

     63.  Accordingly, IT IS ORDERED, that the reconsideration petitions filed by
Rainswood Wireless Partnership for Rainswood, Virginia; East Bay Wireless 1 for
Livermore, California; Dale and Donna Lawrence for Garnett, Kansas; Lexington, Missouri;
and Shepherd, Texas ARE HEREBY DENIED.

     64.  IT IS FURTHER ORDERED, that the staff of the Mass Media Bureau shall send
copies of the decision to counsel for the petitioners by certified mail, return receipt
requested.

                    FEDERAL COMMUNICATIONS COMMISSION



                    William F. Caton
                    Acting Secretary