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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of the Applications of ) ) ALLEN WHEELER ) File Nos. 58439-CM-P-91, ) 58440-CM-P-91 For Authority to Construct and Operate ) Multipoint Distribution Service Stations on) Channels 1 and 2A in Seminole, Oklahoma) ORDER ON RECONSIDERATION Adopted: June 7, 1996 Released: June 11, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. On March 18, 1991, petitioner Allen Wheeler ("Wheeler") filed Multipoint Distribution Service ("MDS") applications for channels 1 and 2A proposing a transmitter site at Seminole, Oklahoma. After reviewing the applications, the Commission staff returned them as defective and unacceptable for filing by return notification letters dated April 7, 1993. The letters indicated that the applications were returned because: (1) the applicant filed in the geographic area of other pending MDS applications; (2) 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 failure to consider all authorized or previously proposed MDS or Instructional Television Fixed Service ("ITFS") stations; (3) the applicant failed to demonstrate site availability as required by  21.15(a); (4) the applicant failed to submit Federal Aviation Administration ("FAA") notification information as required by  21.15(d); and (5) the applicant failed to submit sufficient, specific maintenance information as required by  21.15(e). 2. Two petitions for reconsideration were timely filed for the two returned MDS applications at Seminole, Oklahoma. Petitioner contends that his applications fully complied with all pertinent Commission rules. Petitioner correctly asserts that the 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), which opened the filing window and specified location restrictions for new Multichannel Multipoint Distribution Service ("MMDS") applications, is inapplicable to channel 1 and 2A applications. Petitioner also asserts that he submitted all necessary interference analyses, that he demonstrated site availability, that FAA notification was unnecessary as he was not proposing to construct or modify an antenna support structure, and that he submitted all necessary descriptions of emergency notification procedures. The petitions for reconsideration in this order have been referred by the staff to the Video Services Division pursuant to  1.106(a) of the Commission's rules, 47 C.F.R.  1.106(a). 3. Upon reconsideration, our review of the Seminole applications reveals that the applications proposed a transmitter site that was within 50 miles of two post-1983 previously proposed, subsequently authorized stations. The applications lacked interference studies, required by  21.902(b) and (c), for either post-1983 previously proposed, subsequently authorized station. Thus, the applicant failed to demonstrate that the stations proposed in the returned applications would not cause harmful interference to authorized stations. See  21.902. II. DISCUSSION 4. Mutual Exclusivity and Cut-off. Based upon our de novo review of the returned applications and publicly available information regarding authorized MDS stations and pending applications, we conclude that the petitioned applications were untimely filed with respect to previously proposed stations with which the returned applications were mutually exclusive. The applications were mutually exclusive pursuant to  21.914 because they were filed within 50 miles of previously proposed MDS stations. These returned applications proposed a transmitter site that made them mutually exclusive, pursuant to  21.914, with previously proposed MDS stations, which were subsequently determined to be acceptable for filing. Thus, the applications were properly returned as unacceptable for filing pursuant to  21.914, which states: Notwithstanding the provisions of  21.31(b)(2)(i) and (ii) of this part, to be entitled to comparative consideration with one or more conflicting applications, an application . . . must be received by the Commission in a condition acceptable for filing on the same calendar day as the first of the conflicting applications is received by the Commission in a condition acceptable for filing. 47 C.F.R.  21.914. 5. Interference Protection. Section 21.902(b) requires all MDS applicants and licensees to provide at least 45 dB of cochannel interference protection and, whenever possible, at least 0 dB of adjacent channel interference protection, and to demonstrate that protection in interference studies submitted with the applications. Applicants must also demonstrate in their applications their efforts to provide adjacent channel interference protection. See  21.901(d)(7) and  21.902(a). 6. Petitioner's applications failed to demonstrate a lack of harmful interference to either previously proposed station. See  3, supra. Thus, these applications were properly returned as unacceptable for filing. 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 [ 21.902] are crucial."). 7. Notice to Affected Parties. In addition, Wheeler failed to serve, as required by  21.902(g), applicants 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 Commission staff resolves interference problems after oppositions are filed, was negated. Thus, these applications were also properly returned as unacceptable for filing based on their failure to comply with the service requirements contained in  21.902(g). III. CONCLUSION 8. In view of all of the foregoing considerations, we affirm the staff's return of the Allen Wheeler applications. Reconsideration is not justified and reinstatement of the applications is not warranted. 9. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by Allen Wheeler ARE HEREBY DENIED. 10. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies 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