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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 ) ) PONCE BROADCASTING CORP. ) File Nos. 52212-CM-P-91, ) 62429-CM-P-91 For Authority to Construct ) and Operate Multipoint ) Distribution Service Stations on ) the E and F Channel Groups at ) Ponce, Puerto Rico ) 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, pursuant to 47 C.F.R.  1.106(a) on delegated authority, petitions for reconsideration filed by Ponce Broadcasting Corp. seeking reconsideration of the Domestic Facilities Division decision to return as unacceptable for filing the above-captioned applications for authority to construct and operate Multipoint Distribution Service ("MDS") stations on the E and F channel groups at Ponce, Puerto Rico. Upon reconsideration of the arguments raised in the petitions, we find that petitioner's applications were properly returned, and thus, its petitions for reconsideration are denied. 2. Petitioner filed its applications on October 16, 1990 and September 30, 1991. After reviewing the applications, the Commission staff returned each application by return notification letter dated March 17, 1993. The return letters indicated that the applications were being returned because the applicant: (1) filed past the cut-off period established in 47 C.F.R.  21.31 or 21.914; (2) filed for an area not open for filing pursuant to 47 C.F.R.  21.901(d)(4) as it did not meet the criteria established in 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); (3) performed inadequate interference analysis pursuant to 47 C.F.R.  21.902 due to its failure to consider and serve all previously proposed or authorized Instructional Television Fixed Service ("ITFS") and Multichannel Multipoint Distribution Service ("MMDS") stations; and (4) failed to meet the requirements of 47 C.F.R.  21.19 for grant of a waiver, and that without a waiver the application failed to comply with the Commission's rules and thus, was unacceptable for filing. 3. Ponce Broadcasting filed a petition for reconsideration for each of the applications on April 16, 1994. On reconsideration, petitioner argues that because the interference studies it submitted with the applications complied with the Commission's rules and indicated a lack of harmful interference to all previously proposed stations, the staff erred in concluding that the applications were cut-off. Petitioner also asserts that given the unique geography of Puerto Rico and the fact that the submitted interference studies indicated almost total terrain shadowing to the existing or proposed stations' protected service areas, the staff erred in failing to grant petitioner's requested waiver of the location restrictions set forth in the 1988 Public Notice. Accordingly, petitioner requests that its applications be reinstated. II. DISCUSSION 4. Section 21.902(b)(3) requires each MMDS 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) similarly requires each MMDS applicant to engineer its station to provide at least 0 dB of interference protection within the protected service area of all other authorized or previously proposed adjacent channel stations. 47 C.F.R.  21.902(b)(4). 5. In order to demonstrate compliance with  21.902(b), and so that mutually exclusive determinations could be made, applicants at the time petitioner's applications were filed were required to include with their application an analysis of the potential for harmful cochannel interference with authorized or previously proposed stations if the applicant's proposed transmitting antenna had an unobstructed electrical path to any part of the protected service area of an authorized or previously proposed cochannel station, or if the applicant's proposed transmitter was within 50 miles of the transmitter coordinates of an authorized or previously proposed cochannel station. 47 C.F.R.  21.902(c)(1)(1990). Section 21.902(c) required that an applicant include 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 an authorized or previously proposed adjacent channel station. In addition, for applications filed between October 11, 1990, and December 29, 1991, the applicant was also required to file with the application, pursuant to  21.901(d)(1), an engineering analysis demonstrating a lack of harmful interference to each cochannel or adjacent channel ITFS station with a transmitter site within 50 miles of the proposed MMDS transmitter site. These MMDS and ITFS interference showings are a significant requirement because of the extensive planning and engineering involved in the MMDS licensing process. Thus, the Commission has repeatedly emphasized their importance. See 4,330 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at 62 Transmitter Sites, 10 FCC Rcd 1335, 1465-67 (1994) (hereinafter 4,330 MDS Applications), aff'd mem, A/B Financial, Inc., et al. v. FCC, No. 95-1027 (D.C. Cir. Dec. 26, 1995). 6. Both applications proposed a transmitter site within 50 miles of: (1) seven 1983 authorized MMDS stations; (2) ten 1983 proposed MMDS stations, with applications pending on the filing dates of the Ponce applications; and (3) two ITFS stations. In addition, the E channel group application proposed a transmitter site within 50 miles of: (1) an additional 1983 authorized station; and (2) four post-1983 proposed MMDS stations, with applications pending on October 16, 1990, the filing date of the E channel group application. The applications failed to comply with the requirements of  21.901(d)(1) because interference studies were not submitted for ITFS stations WLX664 and WLX322 at Aguas Buenas. Moreover, the interference studies that were submitted for authorized or previously proposed MMDS stations were inadequate because 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); (2) used incorrect methodology in calculating the protected service area of the authorized or previously proposed stations; and (3) used incorrect technical parameters for the transmitting antenna gain and the reference receiving antenna gain. Petitioner's assertion that it will cooperate with the affected stations if interference should occur does not excuse its failure to submit detailed interference studies as required by  21.902. See 4,330 MDS Applications, 10 FCC Rcd at 1470. 7. Moreover, using the correct technical parameters for Stations WHT654 and WHT655 at San Juan, the Commission staff concluded that petitioner's proposed stations would cause harmful interference to the protected service area of these stations and thus, that petitioner failed to engineer its proposed station to provide at least 45 dB of cochannel interference pursuant to  21.902(b)(3) and 0 dB of adjacent channel interference protection pursuant to  21.902(b)(4). We also note that petitioner proposed to use frequency offset techniques and provide only 28 dB interference protection to the Aguadilla and Arecibo stations. Applicants may only provide a 28 dB desired to undesired signal ratio, rather than the specified 45 dB, if there is a voluntary agreement between the applicant and the affected MDS station licensee to employ a frequency offset technique. Petitioner failed to submit a statement from these stations agreeing to petitioner's proposal to provide reduced interference protection. Thus, a 45 dB desired to undesired signal demonstration was still required. Wireless Cable Reconsideration Order, 6 FCC Rcd at 6769-6770. 8. Petitioner argues that the staff erred in determining that its applications were cut-off because the applications demonstrated that all adjacent and cochannel stations would be protected from harmful interference. However, as noted above, petitioner's proposed stations caused harmful interference to Stations WHT654 and WHT655, which makes the stations mutually exclusive. See n. 3, supra. The San Juan applications were filed and cut-off on September 9, 1983. See In re 4,330 MDS Applications, 10 FCC Rcd at 1340-41. Petitioner's applications were filed over seven years after the cut-off date and thus, were properly returned as unacceptable for filing. See  21.20(b)(9). 9. Petitioner also argued that the staff erred in failing to grant a waiver of the location restrictions set forth in the 1988 Public Notice because of the unique geography of Puerto Rico. Petitioner's waiver request is based on its claim that mountain ranges cause massive terrain blockage between petitioner's proposed stations and existing and proposed stations at San Juan, Mayaguez, Arecibo and Aguadilla and thus, "there is simply no way that [the] proposed Ponce station could result in any prohibited interference . . ." Section 21.19 provides that a request for a waiver must be accompanied by 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. 47 C.F.R.  21.19. "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)). Petitioner's sole basis for a waiver is the purported lack of harmful interference. However, as discussed above, the staff determined that the proposed Ponce stations would cause harmful interference to Stations WHT654 and WHT655. Thus, the asserted basis for petitioner's waiver request is incorrect. Moreover, petitioner failed to demonstrate the lack of a reasonable alternative site from which it could adequately protect previously proposed stations. Accordingly, we affirm the staff's denial of petitioner's request for a waiver of the location restrictions. 10. Finally, petitioner argues that the staff's action was arbitrary and capricious as the return letters did not express the factual basis for the return, citing Ace Motor Freight, Inc. v. ICC, 557 F.2d 859 (D.C. Cir. 1977) and National Motor Freight Traffic Ass'n v. ICC, 590 F.2d 1180 (D.C. Cir. 1978). We disagree. The return notification letters indicated several reasons why the applications were unacceptable for filing and cited the relevant rule section or Commission action. Thus, we believe the reasons stated in the letters were sufficient for petitioner to understand the basis for the return of the applications. See Adams Telcom, Inc. v. FCC, 38 F.3d 576, 582 (D.C. Cir. 1994) (brief explanations of why applications were dismissed were adequate because the explanations were sufficient for the parties and court to understand the basis for the decision); see also WAIT Radio, 418 F.2d at 1157, n.9 ("[T]he agency is not required to author an essay for the disposition of each application."). 11. Based upon these considerations, we conclude that petitioner failed to comply with the technical requirements set forth in  21.902 regarding interference protection and failed to demonstrate that it is technically qualified to be an MDS licensee as required by 47 C.F.R.  21.900. Thus, these applications were properly returned as unacceptable for filing. New Channels Communications, Inc., 57 R.R 2d 1600, 1602 (1985); CNI Wireless, Inc., 9 FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994). Therfore, we affirm the return of petitioner's applications. Reconsideration is not justified and reinstatement of the applications is not warranted. III. CONCLUSION 12. Accordingly, IT IS ORDERED, that the above-referenced reconsideration petitions filed by Ponce Broadcasting Corp. ARE HEREBY DENIED. 13. 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