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/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) McDougald Broadcasting Corporation ) ) For Authority to Construct and Operate a) File No. 60087-CM-P-91 Multipoint Distribution Service Station on) the F Group Channels for Rome, Georgia ) ORDER ON RECONSIDERATION Adopted: June 6, 1996 Released: June 6, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it a petition for reconsideration of the return, pursuant to delegated authority, of the McDougald Broadcasting Corporation ("McDougald") application which was filed with the Commission on June 24, 1991, for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the F channels at Rome, Georgia. A preliminary review of the McDougald application, conducted by Commission staff, revealed that the application was unacceptable for filing. We will consider this reconsideration petition in this order, which has been referred to the Video Services Division pursuant to  1.106(a) of the Commission's rules. 47 C.F.R. 1.106(a). II. BACKGROUND 2. On September 9, 1983, McDougald filed Application File No. 7859-CM-P-83 for the E channels group at Rome, Georgia. On August 19, 1987, McDougald amended that application and changed the requested frequencies to the F channels group at Rome, Georgia. On June 25, 1990, the Commission granted McDougald a conditional station license for the F channels group at Rome. McDougald returned this license for cancellation on June 21, 1991, and the Commission staff forfeited the license on June 25, 1991. On June 24, 1991, McDougald submitted a new application for the F channel group at the same site in Rome, Georgia, Application File No. 60087-CM-P-91. The application was returned as unacceptable for filing on June 26, 1992. On July 24, 1992, McDougald filed a petition for reconsideration regarding the return of Application File No. 60087-CM-P-91 and on May 8, 1996, McDougald submitted a letter supplementing its petition for reconsideration. This order addresses the issues raised in McDougald's petition and follow-up letter. II. DISCUSSION 3. McDougald Application File No. 60087-CM-P-91 was returned, pursuant to 47 C.F.R.  21.20, on June 26, 1992, by a FCC Application Return Notification letter which stated that the Rome applicant failed to submit adequate interference analysis, as required by 47 C.F.R.  21.902, due to failure to serve all affected parties pursuant to 47 C.F.R.  21.902(g) and failure to consider all previously proposed or authorized MMDS or Instructional Television Fixed Service ("ITFS") stations pursuant to 47 C.F.R.  21.902(c) and/or 21.902(i). In a petition for reconsideration filed with the Commission on July 24, 1992, and a letter supplementing that petition filed on May 8, 1996, petitioner asserts that it was not obligated to submit additional interference analyses or to serve the studies upon parties other than those it had considered in its original 1983 application. In particular, McDougald notes that a co-channel application filed by Greene Communications ("Greene") at Chatsworth, Georgia had been dismissed prior to petitioner's 1991 application filing date and did not appear on a channel search conducted by McDougald's engineer. Based on these assertions, petitioner concludes that it did not have to file an interference study considering the Greene application. In addition, as petitioner had submited for cancellation an F channels group conditional station license at Rome, Georgia on June 21, 1991, and submitted a new application for the same site only three days later, McDougald contends that it was unnecessary for it to file interference studies with its application since the Commission had previously granted a station application to it for the exact same transmitter site. 4. We find dispositive McDougald's failure to submit adequate interference showings with its 1991 application and its failure to give notice, by service of these studies, to the parties required to be studied. As discussed in detail below, interference analyses are necessary at the time of application filing due to the extensive planning and engineering involved in the MMDS licensing process. In addition, service upon affected parties, as defined by  21.902(g), is provided for in the Commission's rules so that affected parties have actual notice of the proposed station and sufficient time to respond its proposed authorization. The McDougald application was deficient due to the applicant's failure to comply with the requirements of  21.902. 5. Interference Protection. Section 21.902(b) requires all MDS applicants to engineer their proposed stations to provide at least 45 dB of interference protection within the protected service areas of all other authorized or previously proposed cochannel stations and at least 0 dB of interference protection within the protected service area of all other previously proposed or authorized adjacent channel stations. 47 C.F.R.  21.902(b)(3) and (4). MDS applicants are required to demonstrate these protections in interference studies submitted with their applications. 6. At the time McDougald's application was filed, in order to demonstrate compliance with  21.902(b), applicants were required to 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) (1990). 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)(1990); see 47 C.F.R.  21.902(a), (b), (d) and (f). Section 21.901(d)(7) further required 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 operation of adjacent channel stations. The applicant was also required to show what steps were taken to comply with the requirements of  21.902(a), which required 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. These interference showings are a significant requirement which the Commission has repeatedly emphasized. 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 would require careful planning and engineering. See Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules and Regulations in regard to frequency allocation to the Instructional Television Fixed Service, the Multipoint Distribution Service and the Private Operational Fixed Microwave Service, 94 FCC 2d 1203, 1264 (1983) (hereinafter MMDS Allocation Order). The Commission stressed that "we expect applicants to address this [interference] 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." MMDS Allocation Order, 94 FCC 2d at 1264. See also 47 C.F.R.  21.902(b) and (c). In view of these concerns with the potential for harmful interference, the Commission has decided a series of cases emphasizing the importance of interference protection showings in MDS applications for the E or F channels. Thus it is clear that, "the 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 at 567. 8. In a de novo review on reconsideration, we have determined that McDougald's application was properly returned for noncompliance with our interference protection requirements as it failed to demonstrate the lack of harmful interference to previously proposed and authorized stations required to be studied pursuant to  21.902(c). The applicant was required to file interference studies for any authorized or previously proposed co-channel station if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of that 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). The applicant was required to file interference studies for any adjacent channel stations if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of that station. 47 C.F.R.  21.902(c)(2). Specifically, McDougald failed to file interference studies for: two 1983 subsequently authorized MMDS stations; and nine 1983 previously proposed MMDS stations, which had applications pending on June 24, 1991, the filing date of the Rome application. 9. Petitioner specifically attempts to explain its failure to file an interference study for one previously filed application submitted by Greene at Atlanta, Georgia which was located within 50 miles of petitioner's proposed site. McDougald contends, on reconsideration, that Commission staff advised petitioner's engineering consultant that the petitioner's application was dismissed because petitioner failed to consider the Greene application. McDougald asserts that its 1983 application for the F Channels at Rome, Georgia was granted in June of 1990, as a result of the prior dismissal of the Greene and Edwin Allan Smith applications for the F channels. To support this assertion, petitioner cites its own August 1987 cover letter and amendment regarding the 1983 application in which its counsel states that "it has been determined that there are no pending applications or existing authorizations for F group MMDS channels within 50 miles of McDougald's proposed transmitter site, and thus, no interference study is submitted herewith." Petitioner argues that the Commission would not have authorized its 1983 application for the F channels group at Rome, Georgia if the Commission had not previously dismissed the Greene application. Thus, petitioner concludes that the Greene application must have been dismissed as of June 24, 1991, when petitioner filed its second application for the F Channels at Rome, Georgia after the forfeiture its 1983 station authorization. 10. In addition, McDougald contends that it failed to perform and serve an interference study on the Greene application because the Commission provided no notice, at the time of its June 24, 1991, application filing for the F channels at Rome, Georgia, of the 1983 Greene application. In preparing the engineering work for the Rome application, McDougald asserts that it's engineer relied on "publicly and privately available data" and Commission public notices. Petitioner alleges that none of the sources listed the 1983 Greene application. In support, McDougald attaches a July 1992, declaration of the engineer who performed the engineering work, noting that the Greene application "was a loser in a lottery but not returned and had never appeared on Public Notice and is not available to the public for inspection. Therefore, no co- channel interference analysis could be made." Thus, petitioner argues fairness and due process require that the Greene application be dismissed or, alternatively, that the petitioner be given an opportunity to amend its application to include an interference analysis for the 1983 Green application. 11. Petitioner asserts that FCC staff advised petitioner's engineering consultant that the petitioner's application was dismissed because petitioner failed to consider the application of Greene Communications, Application File No. 5138-CM-P-83. However, petitioner submits no proof that such a conversation was held. Petitioner also fails to note any factual particulars or details of the alleged conversation. Even assuming, for the sake of argument that such a statement was made, it neither binds the Commission nor prevents us from enforcing Commission regulations. The Commission has specifically held that parties who rely on staff advice or interpretations do so at their own risk. See, e.g., AAT Electronics Corp., 53 RR 2d 1241, 1225- 26 (1983), aff'd, P&R Temmer V. FCC, 743 F.2d 918, 931 (D.C. Cir. 1984). More importantly, the June 26, 1992, the FCC Application Return Notification letter does not state that petitioner's application was dismissed because petitioner failed to consider the single, Greene application; rather, the letter states that the applicant failed to consider and serve "all" previously proposed or authorized ITFS or MMDS stations. If a staff member attempted to clarify the reasons for the dismissal of McDougald's application and cited only one of the previously filed station applications for which the applicant failed to submit an interference analysis, this does not alter the fact that petitioner's application was deficient and unacceptable for filing for failing to include interference analyses for numerous other previously proposed or authorized MMDS station applications. 12. Next, petitioner seeks to excuse itself from submitting an interference study for previously proposed adjacent E channels group station WMI338, Application File No. 690-CM-P- 83, at Rome, Georgia submited by Multichannel Distribution of America ("Multichannel") by pledging in its application, to encourage Multichannel, to co-locate its facility with the McDougald's transmitter. However, this pledge does not excuse petitioner's failure to submit an interference study as required by  21.902. As petitioner's application was filed subsequent to that of the above-noted 1983 adjacent channel application, petitioner was obligated to review the application and protect it from interference. Protection techniques should have been detailed in an interference study. We find petitioner's "encouragement" to the previously filed applicant for it to co-locate, no substitute for an interference analysis, as that applicant was not obligated to move its transmitter site to protect petitioner's subsequently filed application. Moreover, McDougald's proposal to have a previously proposed adjacent channel station relocate so that McDougald's transmitter would not interfere with the adjacent channel station's operation is technically impossible based on the sites as proposed in the applications. According to Commission records, the adjacent channel station WMI338 is located 13.76 miles from McDougald's proposed site. In order to co-locate with an adjacent channel station the applicants must be located at the same transmitter site. Although McDougald asserts in its May 8, 1996, letter supplementing its petition for reconsideration that Commission staff had accepted a proposal for the two stations to co-locate, no record of such a proposal, much less an acceptance, exists. As no amendment had been submitted by Multichannel at the time of McDougald's filing, proposing to relocate its transmitter to the McDougald site, the proposal by McDougald to encourage this previously filed applicant to move its site to McDougald's could not be considered in our evaluation of petitioner's application. McDougald failed to submit an interference study for this adjacent channel station application detailing how it proposed to protect this station from harmful interference. As noted earlier, interference analyses are necessary at the beginning of processing MDS applications, cannot be skipped, and are a prerequisite to the grant of a license. See  7, supra. 13. Petitioner's application failed to demonstrate a lack of harmful interference a number of existing and previously proposed MMDS licensees and applicants. We have determined that McDougald failed to file required interference studies for authorized or previously proposed stations which had appeared on public notice or FCC internal staff listings prior to the June 24, 1991, filing date of petitioner's application. Copies of the Commission's public notices are available to the public at the time of issuance. See 47 C.F.R.  0.322 and 0.443. In addition, previously released notices are available for public inspection at the Commission's Press and News Media Division. Id. Each of these applications was also listed on the May 9, 1991, FCC internal staff listing which was available to the public in the MMDS Reference Room. For example, McDougald failed to submit interference studies for two subsequently authorized 1983 stations, WMI338 at Rome, Georgia which was placed on public notice at March 14, 1990, and WMH404 at Gadsden, Alabama which was placed on public notice on June 28, 1990. While station WMH404 was subsequently forfeited on August 16, 1991, at the time the petitioner's application was filed, the applicant was required to include an interference study for this station in the application, pursuant to  21.902(b) and (c). Petitioner also failed to file interference studies for the following previously proposed MMDS stations: four applications for Chattanooga, Tennessee, Application File Nos. 5409-CM-P-83; 6409-CM-P-83; 9789-CM-P-83; and 15447- CM-P-83, placed on public notice on March 8, 1990, and noted on the May 9, 1991, FCC internal staff listing, and three applications for Gadsden, Alabama, Application File Nos. 2145- CM-P-83; 10562-CM-P-83; and 13752-CM-P-83, placed on public notice on June 30, 1990, and noted on the May 9, 1991, FCC internal staff listing. Therefore, given petitioner's failure to file interference analyses, at the time of its application filing, for numerous pending previously proposed and authorized stations listed on public notice or FCC internal staff listings, we find that, even apart from any failure of McDougald to file an interference study for the Greene application, petitioner did not comply with  21.902(c). 14. McDougald admits that it failed to submit and serve interference studies for eleven previously filed station applications in its F channel Application File No. 60087-CM-P-91, filed June 24, 1991. However, McDougald argues that it was "unnecessary" for it to submit these interference analyses since the Commission must have determined that no other stations were mutually exclusive at Rome, Georgia when it previously granted McDougald's F channel Application File No. 7859-CM-P-83, filed September 9, 1983, at exactly the same transmitter site. McDougald's first application was submitted on September 9, 1983, and was not required to contain the normally-required interference analyses because the Commission waived interference study provision of 21.902(c)(1) for the group of applicants submitting applications on September 9, 1983. See MMDS Allocation Order, 94 FCC 2d at 1265. McDougald forfeited the authorization for the 1983 application on June 21, 1991, and thus, forfeited the waiver privilege awarded to the September 9, 1983, applicants regarding the submission of interference analyses. The Commission noted in the MMDS Allocation Order that "[i]f we subsequently decide to accept a second group of applications for these channels such applications must contain the interference analysis required by  21.902(c)(1)." Id. As McDougald's petitioned Application File No. 60087-CM-P-91 was not filed during the one-day filing window in 1983 it was required to contain interference studies, pursuant to  21.902. 15. When McDougald filed Application File No. 60087-CM-P-91, for the F channels at Rome, Georgia on June 24, 1991, it filed under the Part 21 rules applicable at that time, as outlined above. See  4-7. Those rules required that an applicant initially file with the application an analysis of the potential for harmful interference with any authorized or previously proposed co-channel or adjacent stations within 50 miles or the radio horizon of the applicant's proposed transmitting antenna. Petitioner admits that it did not file required interference studies for eleven previously proposed station applications as it deemed the studies unecessary. Petitioner failed to present justification in its reconsideration petition or subsequent letter as to why its application merits treatment different from that which we applied to thousands of other post-1983 applications regarding complaince with the interference analysis requirements. Thus, due to McDougald's failure to file required interference analyses for pending previously proposed and authorized 1983 stations, we find that the Rome applicant failed to comply with  21.902(c). Accordingly, McDougald's application was unacceptable for filing and properly returned. 16. Notice to Affected Parties. 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, and submit a list identifying each applicant, conditional licensee, and licensee served. 47 C.F.R.  21.902(g). McDougald failed to serve, at the time of filing, copies of the required interference analyses, as mandated by  21.902(g), on some of the required applicants, conditional licensees and licensees for stations stipulated to be studied by  21.902(c), thus depriving affected parties of notice and opportunity to be heard. Applicant failed to serve ten of the eleven applicants that it was required to study and serve with interference analyses. See  7. In Edna Cornaggia, 8 FCC Rcd 5442 (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 Commission staff resolves interference problems after opposition are filed, was negated. Edna Cornaggia. Thus, this application was also properly returned as unacceptable for filing based on its failure to comply with the service requirements contained in  21.902(g). IV. CONCLUSION 17. In view of all the foregoing considerations, we affirm the staff's return of the McDougald Broadcasting Corporation application under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 18. Accordingly, IT IS ORDERED, that the reconsideration petition filed by McDougald Broadcasting Corporation IS HEREBY DENIED. 19. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send a copy of the decision to the authorized representative for the petitioner by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau