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 pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) FIELMAN & SCHILLING ASSOCIATES, ) Application File No. 57718-CM-P-91 INC. PENSION ) ) For Authority To Construct and Operate a) Multipoint Distribution Service ) Station on the E-Group Channels ) at Alamosa, Colorado ) ORDER ON RECONSIDERATION Adopted: June 7, 1996 Released: June 11, 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 47 C.F.R.  1.106(a) on delegated authority, of one application for authority to construct and operate a Multipoint Distribution Service ("MDS") station on the E channels at Alamosa, Colorado. This application was filed with the Commission on February 8, 1991, after the reopening of the filing for MDS applications on the E or F channels, subject to certain location restrictions. 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). II. BACKGROUND 2. On February 8, 1991, petitioner filed one application proposing a transmitter site at Alamosa, Colorado. After reviewing the Alamosa application, it was returned by return notification letter dated March 24, 1993. The letter indicated that the application was returned because the applicant filed past the cut-off period established at 47 C.F.R.  21.31 or 21.914. A reconsideration petition for the returned application was filed. In support of reconsideration, petitioner offers only the following: "[W]e were unaware of this application being filed late. We ask the Commission to reconsider this application." 3. The returned application proposed an MDS station on the E 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). III. DISCUSSION 4. On de novo review, we find that Commission staff was incorrect in listing violation of cut-off provisions as a return reason. It was harmless error nonetheless, as our review on reconsideration reveals that the application was properly returned for failure to comply with 47 C.F.R.  17.4 and 21.15(d). See Greater Boston Television Corporation v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971) (The court will not upset a decision because of errors that are not material, "there being room for the doctrine of harmless error."). 5. Petitioner failed to comply with the Federal Aviation Administration ("FAA") notification requirements of 47 C.F.R.  17.4 and 21.15(d). In the application, applicant indicated that FAA notification was not required and the space requiring date of FAA notification, as specified in  17.4 and 21.15(d), is blank. Our own independent engineering review reveals that such notification was required for this station site. Specifically, petitioner's proposed site is 1.85 miles away from the San Luis Valley Airport and exceeds by 43 feet the maximum height allowed at that distance from the airport. Lack of FAA notification renders the application unacceptable for filing as FAA notification must be verified in the processing of MDS applications. See Wireless Cable T.V. Partnership, #1006, 10 FCC Rcd 11286, 11288 (1995); see also Friendly Community Television Services, 7 FCC Rcd 7892, 7893 (Dom. Fac. Div. 1992). III. CONCLUSION 6. In view of all the foregoing considerations, we affirm the staff's return of the Fielman & Schilling Associates, Inc. Pension application. Reconsideration is not justified and reinstatement of the application is not warranted. 7. Accordingly, IT IS ORDERED, that the reconsideration petition filed by Fielman & Schilling Associates, Inc. Pension IS HEREBY DENIED. 8. 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