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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) VIRGINIA COMMUNICATIONS, INC. ) File No. 50814-CM-P-92 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station ) on the E Group Channels at ) Hickory, North Carolina ) 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 one petition for reconsideration of the return, pursuant to delegated authority, of an application for authority to construct and operate a Multipoint Distribution Service ("MDS") station on the E channels at Hickory, North Carolina. This petition for reconsideration 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. This application for the E group channels proposed a transmitter site at Hickory, North Carolina, and was filed with the Commission on October 24, 1991. Subsequently, a preliminary review of the Hickory application, conducted by Commission staff, revealed that the application was unacceptable for filing. Specifically, the return notification letter stated that the applicant failed to meet the requirements for performance of interference analysis under 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). Consequently, the Commission staff returned the Hickory application by a return notification letter dated October 28, 1992, pursuant to 47 C.F.R.  21.20. 3. Petitioner's Arguments on Reconsideration. On November 27, 1992, the Hickory applicant filed a petition for reconsideration for the returned application. On reconsideration, petitioner contends that in conversations with the FCC's engineering staff, following receipt of the return notification letter, petitioner was apprised by the staff of three proposed MMDS facilities which applicant in error omitted from its interference analyses. However, petitioner claims that none of these pending applications presents a valid interference case or even required consideration at the time of applicant's filing. 4. First, petitioner submits that, in the application engineering analysis, it stated that it would resolve any potential interference issues with the adjacent Hickory F Channels when they arose. Next, petitioner notes that there was only one tentative selectee for the Hickory F group channels, Low Power Technology, Inc., which petitioner correctly states had been dismissed prior to the filing of petitioner's application. Regarding the aforementioned three proposed MMDS facilities, petitioner argues that the adjacent channel application of Broadcast Data Corp., at Morganton, North Carolina, was wrongly left out of the original Hickory F channels' lottery by the FCC, because Morganton is within the Hickory Metorpolitan Statistical Area ("MSA"). Had it been properly included in the F channels' lottery, petitioner continues, the Hickory applicant's statement that it would protect the eventual Hickory F channels licensee would have sufficed. Next, petitioner argues that James Paustain's F channel application for Marion, Virginia, is at coordinates, as shown in the Commission's data base, far beyond the area where the applicant has an interference protection obligation. Therefore, petitioner claims the FCC staff erred in requiring an interference analysis for Paustain's application. 5. Finally, petitioner contends that the FCC engineering staff indicated that an interference study was missing for a cochannel application for Mocksville, North Carolina. Petitioner argues that the Mocksville application was not on the most current FCC data base listing prior to the filing of petitioner's application, which petitioner cites as October 7, 1991. Moreover, petitioner argues that even if it were possible for the applicant to have had notice of the Mocksville application, Mocksville is in the Winston-Salem/Greensboro MSA -- a market area for which there was already a tentative selectee. Thus, petitioner argues no interference analysis was necessary since the Mocksville application could not have been granted. In sum, petitioner argues that the applications adverted to in the return notification letter are filings which the applicant either had no obligation under the rules to consider, or of which the applicant could not have been reasonably aware. III. DISCUSSION 6. Interference Protection. At the very inception of MDS, the Commission established the principle that subsequently filed applications must not cause harmful interference to any previously proposed or authorized 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 . . . ." Amendments of Parts 1, 2, 21 and 43 of the Commission's Rules and Regulations to Provide for Licensing and Regulation of Common Carrier Radio Stations in the Multipoint Distribution Service, 45 FCC 2d 616, 620-21 (1974) (MDS Allocation Order). Several years before the Hickory application was filed, 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 21.902(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 596, 606 (1981). 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 and requires all MDS applicants to demonstrate that protection in interference studies submitted with the applications. 7. At the time the Hickory application was filed, in order to demonstrate compliance with  21.902(b), and so that mutual exclusivity 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 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) required that an MDS applicant include with the application an analysis of the potential for harmful 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); 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 the operation of adjacent channel stations. The applicant was also required to show what steps it took 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). 8. 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. 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). 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 the importance of interference protection showings in MDS applications for the E or F channels. See 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 47 C.F.R.  21.902 are crucial."). Because petitioner here failed to make the required showings regarding interference protection, its application cannot be characterized as complete or in substantial compliance with the Commission's rules. New Channels, 57 RR 2d at 1602. 9. The Hickory application was properly returned for failure to comply with our interference protection requirements. Petitioner's application included only one of the required analyses of the potential for harmful interference to authorized or previously proposed MMDS cochannel stations within 50 miles and cochannel and adjacent channel stations to whose protected service areas there was an unobstructed electrical path. Specifically, in de novo review on reconsideration, we have determined that the Hickory applicant failed to file required interference studies for 65 of 66 authorized or previously proposed MMDS applications. Petitioner failed to file interference studies for: (1) one subsequently authorized 1983 MMDS station; (2) 62 previously proposed 1983 applications; and (3) two pending, previously proposed post-1983 applications. In addition, the interference analysis that was submitted for WHT667 at Charlotte, North Carolina, Application File No. 11237-CM-P-83, failed to comply with the requirements of  21.902 in that the applicant failed to demonstrate at least 45 dB of cochannel interference protection or at least 0 dB of adjacent channel interference protection as required by  21.902(b). 10. Petitioner had adequate notice of authorized and pending, previously proposed applications for which it was required to perform interference analyses. For instance, had petitioner checked previous FCC staff internal listings, rather than just the inventory of October 7, 1991, he would have noticed that all of the proposed and authorized MMDS stations were on the August 27, 1991, list, two months prior to petitioner's application filing date. In addition, we note that 59 of the 62 previously proposed 1983 MMDS stations were placed on public notice as early as six years prior to the Hickory applicant's filing date. It must be noted that even though our October 28, 1992, return notification letter mentions that petitioner failed to file an interference study for a Mocksville, North Carolina application, Commission records reveal no such application. However, we find that even apart from any failure of petitioner to file an interference study for Mocksville or any other application not included on public notice or FCC internal staff listings, the Hickory applicant still failed to submit interference studies for numerous applications that were listed, and thus failed to comply with  21.902(c). 11. Petitioner's allegations that in conversations with petitioner, Commission staff erroneously cited three applications requiring interference analyses, are unsupported. Petitioner asserts varying degrees of detriment resulting from reliance on alleged statements of Commission staff. Even assuming, for the sake of argument, that such statements were made, they neither bind the Commission nor prevent 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). When the staff advice is contrary to the Commission's rules, the Commission may still enforce its rules, despite any reliance by the public. See Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) (affirming Commission's decision to enforce its rules despite earlier staff statements giving erroneous interpretation of the rules at official seminar). The interference study requirements are clear and the Commission reasonably expects that applicants will turn to those requirements for guidance. Even if Commission staff did, in error, request interference analyses for the aforementioned Marion, Virginia, and Mocksville, North Carolina, applications, petitioner was still required to file an interference study for the aforementioned Morganton, North Carolina, application, among numerous others. Moreover, although petitioner claims that the above applications were identified after receipt of the return letter, an attempt to cure its application post-return still would have been futile; an application must be correct in the first instance. 12. Petitioner's assertions, contained in its application, that it would cooperate fully and in good faith to resolve any harmful electrical interference, should there be an application which was pending or granted, which the Hickory applicant did not locate, does not excuse its failure to submit interference studies as required by  21.902. The mandate that applicants submit interference analyses with their applications is a separate requirement from the good faith commandment of  21.902(a), which mandates 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 . . . . " See also 47 C.F.R.  21.31. A pledge to comply with the requirements of  21.902(a) does not exempt any MDS applicant from compliance with the requirements of  21.901(d)(7) or 21.902(c). 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  21.901(d)(7)." The interference analyses are necessary at the beginning of processing a particular MDS application so that mutual exclusivity determinations may be made. In addition, Part 21 of the rules is structured so that applicants must demonstrate a lack of harmful interference to all authorized and previously proposed stations as a prerequisite to the grant of an application. Therefore, we also reject petitioner's arguments regarding its failure to file an interference study for the subsequently authorized 1983 Morganton MMDS station as not supported by the facts. Despite the FCC's error in omitting the Morganton application from the public notice of the original Hickory lottery on February 24, 1988, petitioner's contention that the application needed to appear in that February 24, 1988, public notice to be identified for interference purposes is incorrect. As discussed above, applicant's general statement that it would protect the eventual adjacent channel licensee of the Hickory lottery, be it the Morganton application or another application, is not enough; applicant should have studied all authorized or previously proposed stations as required by  21.902. 13. 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, 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. The Hickory applicant failed to serve copies of the required interference analyses, as mandated by  21.902(g), on all but one 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. 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 Commission staff resolves interference problems after oppositions are filed, was negated. Thus, this application was also properly returned as unacceptable for filing based on the Hickory applicant's failure to comply with the service requirements contained in  21.902(g). IV. CONCLUSION 14. In view of all the foregoing considerations, we affirm the staff's return of the Hickory application under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 15. Accordingly, IT IS ORDERED, that the reconsideration petition filed by Virginia Communications, Inc. IS HEREBY DENIED. 16. 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