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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 re Application of ) ) AMERICAN TELECASTING, INC. ) File No. 02178-CM-P-92 ) For Authority to Construct and Operate ) a Multipoint Distribution Service Station ) on the E-Group Channels in ) Pueblo, 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 one petition for reconsideration of the return, pursuant to 47 C.F.R.  1.106(a) on delegated authority, of an application for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") station on the E channels at Pueblo, Colorado. This application was filed with the Commission on February 20, 1992, after the Commission had reopened the filing period for MMDS applications on the E or F channels, subject to certain location restrictions. See 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). We will consider this petition for reconsideration in this order. II. BACKGROUND 2. This application for the E group channels proposed a transmitter site at Pueblo, Colorado and was filed with the Commission on February 20, 1992. A preliminary review of the Pueblo application, conducted by Commission staff, revealed that the application was unacceptable for filing. The return notification letter stated that the applicant performed an inadequate interference analysis, pursuant to 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 required to be considered. Specifically, the return letter cited petitioner's failure to perform and serve interference studies on pending lottery losers for the F channel group for Pueblo, Colorado which were within 50 miles of petitioner's proposed site. Consequently, the Commission staff returned the Pueblo application by a return notification letter dated January 26, 1993, pursuant to 47 C.F.R.  21.20. 3. Petitioner's Arguments on Reconsideration. On February 25, 1993, the Pueblo applicant filed a petition for reconsideration for the returned application. On reconsideration, petitioner claims to have checked the FCC Multipoint Distribution Service ("MDS") "inventory" list twice; once at the time of filing, and, again, on reconsideration review. Petitioner contends that the review conducted after the Pueblo application was returned indicated eight pending, previously proposed applications for the F channels at Pueblo, Colorado, which were within 50 miles of petitioner's proposed site. However, petitioner argues, at the time of petitioner's application filing, petitioner had no way of knowing about the above applications due to the reasons discussed below. 4. In an attached declaration to the reconsideration petition, the engineer who performed the engineering work for petitioner's application purports to have relied on the then-current FCC MDS "inventory" list and a print-out from the online computer service Dataworld, to search for existing and previously proposed stations, but that neither source revealed the eight pending previously proposed applications. Thus, petitioner's failure to perform and serve interference studies for these applications was due to their omission from the Commission's "inventory" and Dataworld lists. Petitioner argues that it would be unfair to dismiss its application under these circumstances. 5. Moreover, after discovering the eight pending previously proposed Pueblo applications after petitioner's application was returned, the engineer then purportedly attempted to obtain copies of these applications from a records search firm, Fair Press Washington Information Group, Ltd. Petitioner's engineer was allegedly informed by Fair Press, however, that the applications were not available from the Commission. Without access to copies of these filings, petitioner's engineer states, petitioner could not revise its interference analysis to include these applications. Petitioner promises that should the Commission make these applications available, petitioner will, at that time, provide interference analyses for these applicants. 6. In addition, petitioner claims, without providing evidentiary support, that where, as here, a substantial number of pending applications were awaiting re-lottery, it had been the Domestic Facilities Division's ("Division") practice not to enforce  21.902 with respect to the pending lottery losers, if the new MMDS applicant agreed to protect the ultimately selected previously proposed applicant from objectionable interference. Petitioner states that in the Pueblo application it expressly provided such protection, in that it pledged to "cooperate fully and in good faith in attempting to resolve problems of potential interference." Petitioner alleges that this policy was adopted by the Division to avoid the time and expense of requiring an applicant to analyze a substantial number of pending applications, only one of which the applicant would actually be required to protect from interference, and to save Commission staff from having to review such lengthy analyses. 7. Finally, petitioner commits to providing adequate interference protection as necessary, and claims to have made extensive efforts to provide MMDS service to Pueblo including expending substantial monies. Moreover, petitioner argues, a significant demand exists for MMDS service at Pueblo. Therefore, in light of the foregoing, petitioner contends, it was improper to return petitioner's application. III. DISCUSSION 8. 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 . . . ." Report and Order, Amendment 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, 621 (1974), recon. denied, 57 FCC 2d 301 (1975). More than a decade before the Pueblo 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. 9. At the time the Pueblo application was filed, in order to demonstrate compliance with  21.902(b), and so that mutually exclusive 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) (1991); 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 has 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). 10. 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. 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. 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. See New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985). "In the processing of MDS station applications, the interference analyses required by 47 C.F.R.  21.902 are crucial." See also Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). 11. We find that the Pueblo application was properly returned for failure to comply with our interference protection requirements. Petitioner's application failed to include any of the required analyses of the potential for harmful interference to authorized or previously proposed MMDS cochannel stations within 50 miles and adjacent channel stations for which there was an unobstructed electrical path. Specifically, in de novo review on reconsideration, we have determined that the Pueblo applicant failed to file required interference studies for any of the 1983 authorized or pending MMDS applications. Petitioner failed to file interference studies for 12 pending previously proposed 1983 applications, one previously authorized 1983 MMDS station, and one subsequently authorized 1983 MMDS station. We note that while petitioner offers various explanations for its failure to file interference studies for the eight 1983 pending applications for the F channels at Pueblo and for the one 1983 previously authorized MMDS station, petitioner does not attempt to provide any explanation for its failure to file interference analyses for the one subsequently authorized 1983 MMDS station and four 1983 pending, previously proposed MMDS stations for the E channels at Pueblo. 12. We note that the Pueblo applicant failed to submit required interference analyses for authorized or previously proposed stations which had appeared on public notice or FCC staff internal listings prior to the filing date of petitioner's applications. For instance, all of the 1983 proposed and authorized MMDS stations were listed on the most current FCC internal staff listing, January 24, 1992, prior to petitioner's application filing date. In addition, we note that five of the 1983 previously proposed and authorized MMDS stations were placed on public notice as early as four and one half years prior to the Pueblo applicant's filing date. 13. As for petitioner's use of Dataworld, an independent data base, this data base is not affiliated with the Commission, and hence, the Commission does not attest to its accuracy. The Commission has over the years announced, in public notices, third party entities which have contracted with the Commission to provide to the public online access to the MDS data base. See, e.g., Public Notice, New Contractor for Online Public Access to Commission Data Bases, Mimeo. No. 10511 (Nov. 7, 1990). Petitioner did not use the Commission's official online contractor, but rather chose to rely on unofficial, non-Commission affiliated data bases and did so at the risk that these unofficial data bases were not accurate and complete. Similarly, petitioner's argument that its engineer had, subsequent to the application's return, attempted to obtain copies of pending applications from Fair Press, but was told these were unavailable, is unpersuasive for the same reason. Where applicants choose to rely on unofficial, non- Commission affiliated contractors and data bases, they do so at their own risk. 14. Petitioner claims that it failed to include an interference study for WMH393 at Pueblo, because it assumed that WMH393 had been forfeited at the time of petitioner's application filing. While it is true that WMH393's authorization was eventually forfeited on May 16, 1992, this was three months after petitioner's February 20, 1992, filing date. Therefore, at the time of petitioner's filing, WMH393 still had a valid authorization and time to complete its license requirements. Hence, petitioner was responsible for filing an interference study for this station. See  21.902(c)(1). 15. Petitioner's allegation that it was the Domestic Facilities Division's practice not to enforce  21.902 with respect to pending applications awaiting re-lottery is unsupported. Petitioner fails to state from what source or sources petitioner bases its allegation. "A bald conclusion without any offer of proof or documentary support, has no probative value. . . ." 4,330 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at 62 Transmitter Sites, 10 FCC Rcd 1335, 1470 n.361 (1994), aff'd mem, A/B Financial, Inc., et al. v. FCC, No. 95-1027 (D.C. Cir. Dec. 26, 1995) (per curiam) (citing Jim Bolton, FCC Rcd 3207 (Comm. Car. Bur. 1987)). MDS applicants must consider all previously proposed and pending applications, before filing their applications. CNI Wireless, Inc., 9 FCC Rcd at 2040. Moreover, due to the procedures established for MDS lotteries, it is not unusual for an applicant that initially loses a lottery to be selected in a later lottery for qualification review and to be subsequently granted; this is exactly what happened here. After subsequent lotteries of 1983 Pueblo applications, petitioner's application lacked a required interference analysis for a lottery winning application which then became an authorized station. One of the underlying purposes of the interference analysis filing requirement is to avoid grant of an MDS application which would cause harmful interference to previously proposed, subsequently authorized stations. 16. 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 Pueblo applicant did not locate, does not excuse its failure to submit interference studies as required by  21.902. 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 47 C.F.R.  21.901(d)(7)."). As described, supra, the interference analyses are necessary at the beginning of processing a particular MDS application so that mutual exclusivity determinations may be made. This is a step which cannot be skipped, as implied by petitioner. The requirement 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 to other users and . . . are expected to cooperate fully in attempting to resolve problems of potential interference . . . . " See also 47 C.F.R.  21.31. Thus, in light of all of the foregoing, the Pueblo application was properly returned as unacceptable for filing. 17. Since we find petitioner had ample notice, at the time of filing, of pending, previously proposed stations and authorized stations, we reject petitioner's offer to file required interference analyses post-reconsideration. Moreover, as discussed above, this statement by petitioner ignores the purposes behind the interference analysis requirement. Interference studies are necessary at the time of filing in order for determinations of mutual exclusivity to be made, and without such studies a logjam would be created making it more difficult to reach final actions. See Sioux Valley Empire Elec. Assn., Inc., 3 FCC Rcd 7375, 7376 (Dom. Fac. Div. 1988) ("Traditionally, the classification of MDS applications as mutually-exclusive was determined by a review of each of the applicants' interference analyses. . . ."). If the Commission allowed an indefinite time period for submitting interference studies, the staff would lack sufficient technical information for evaluating applications and would be unable to act on many applications until the studies were submitted. Furthermore, applicants may be tempted to wait as long as possible to submit interference studies so as to minimize the number that must be submitted. Widespread abuse of this tactic would lead to a stalemate where the Commission could neither grant nor return or dismiss any MMDS application. As noted, supra, the Pueblo application lacked interference studies required by  21.902 for pending, previously proposed MMDS stations within 50 miles of petitioner's proposed transmitter site and failed to demonstrate that the proposed station would not cause harmful interference. Indeed, petitioner failed to even identify all of the previously proposed stations. 18. 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 applicant, conditional licensee or licensee at each previously proposed or authorized station 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 Pueblo applicant failed to serve any of the required interference analyses, as mandated by  21.902(g), on any 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 opposition are filed, was negated. 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 19. In view of all the foregoing considerations, we affirm the staff's return of American Telecasting, Inc., under consideration in this order. Reconsideration is not justified and reinstatement of the application is not warranted. 20. Accordingly, IT IS ORDERED, that the reconsideration petition filed by American Telecasting, Inc., IS HEREBY DENIED. 21. 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