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 the Applications of ) ) NANCY M. NALESZKIEWICZ ) File No. 52418-CM-P-91 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the F Group Channels in Cheyenne, Wyoming) ) ) RICHARD D. MORGESE TRUST ) File No. 52082-CM-P-91 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the F Group Channels in Cheyenne, Wyoming) ORDER ON RECONSIDERATION Adopted: June 7, 1996 Released: June 12, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. The Video Services Division has before it two petitions for reconsideration of the return, on delegated authority pursuant to 47 C.F.R.  1.106(a), of two applications for authority to construct and operate a Multichannel Multipoint Distribution Service ("MMDS") stations on the F-group channels at Cheyenne, Wyoming. In this order we find that the applications were properly returned for the reasons stated below. On October 17, 1990, the Richard D. Morgese Trust ("RDM") filed the first of these MMDS applications ("the RDM application") proposing a transmitter site at Cheyenne, Wyoming. After reviewing the application, the Commission staff returned it as defective and unacceptable for filing by return notification letter dated March 10, 1993. The letter indicated that the application was returned because the applicant: (1) filed past the cut-off period established in 47 C.F.R.  21.31 or 47 C.F.R.  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications; (3) failed to meet the requirements for performance of interference analysis as required by 47 C.F.R.  21.902 due to failure to serve all affected parties with interference studies and failure to consider all authorized or previously proposed MMDS or Instructional Television Fixed Service ("ITFS") stations; and (4) failed to comply with 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, 1263 (1983) (hereinafter MMDS Allocation Order). A reconsideration petition for the returned application was timely filed on April 9, 1993. On October 19, 1990, Nancy M. Naleszkiewicz ("Naleszkiewicz") filed the other MMDS application ("the Naleszkiewicz application") proposing a transmitter site at Cheyenne, Wyoming. After reviewing the application, the Commission staff returned it as defective and unacceptable for filing by return notification letter dated March 10, 1993. The letter indicated that the application was returned because the applicant: (1) filed past the cut-off period established in  21.31 or  21.914; (2) filed in the geographic area of other authorized or pending MMDS applications; (3) 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 MMDS or ITFS stations; and (4) failed to comply with the MMDS Allocation Order. A reconsideration petition for the returned application was timely filed on April 9, 1993. 2. The RDM application proposed a transmitter site that was within 50 miles or the radio horizon of: (1) 15 1983 previously authorized MMDS stations; and (2) 33 post-1983 previously proposed MMDS stations. The RDM application lacked interference studies, required by  21.902(b) and (c), for 15 1983 previously authorized MMDS stations and 33 post-1983 previously proposed MMDS stations. The Naleszkiewicz application proposed a transmitter site that was within 50 miles or the radio horizon of: (1) 15 1983 previously authorized MMDS stations; and (2) 84 post-1983 previously proposed MMDS stations. The Naleszkiewicz application lacked interference studies, required by  21.902(b) and (c), for 15 1983 previously authorized MMDS stations and 84 post-1983 previously proposed MMDS stations. 3. Both applications contained a request for waiver of the Metropolitan Statistical Area ("MSA") and the fifty mile location restrictions contained in 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), as well as requirements for demonstration of lack of harmful interference. 4. In both petitions for reconsideration, petitioners maintain the Commission had announced by public notice on April 12, 1989, that the Cheyenne area was open for filing for the F group channels, although petitioners concede that the 1988 Public Notice applied to their applications. Petitioners claim there was an exception to the 1988 Public Notice "in cases involving MMDS channels associated with forfeited MMDS authorizations." Petitioners cite two instances, and refer to "numerous others," in which they claim licenses were granted under such an exception, contending that there is "no difference" between the petitioned applications and granted applications in Rapid City, South Dakota and Dallas, Texas, where markets were re- lotteried after the forfeiture of authorized 1983 applications. Petitioners contend that the applications contained all required interference studies and otherwise "complied with all relevant written and implied FCC policies in effect at the time of filing." II. DISCUSSION 5. Mutual Exclusivity and Cut-off. Based upon our review of the returned applications and publicly available information regarding authorized MMDS stations and pending applications, we conclude that the petitioned applications were untimely filed with respect to previously filed applications with which the returned applications were mutually exclusive as they were for a transmitter site within 50 miles of 1983 previously proposed MMDS stations, which established a cut-off date of September 9, 1983. See Establishment of Multichannel Systems, 48 Fed. Reg. 33, 873, as corrected 48 Fed. Reg. 34, 746 (1983). The returned applications proposed a transmitter site which made the proposed stations mutually exclusive with and cut-off by 1983 previously proposed and authorized MMDS stations. See  21.31; and 21.901(d)(5). Thus, the applications were properly returned as unacceptable for filing pursuant to  21.31(d), which states: An application otherwise mutually exclusive with one [or] more previously filed applications, but filed after the appropriate date prescribed in paragraph (b)(2) of this section, will be returned without prejudice and will be eligible for refiling only after final action is taken by the Commission with respect to the previously filed application (or applications). 47 C.F.R.  21.31(d). 6. 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). 7. Petitioners' applications failed to demonstrate a lack of harmful interference to previously proposed MMDS applicants. Applicants for new MDS stations on the E or F channels are required to file specific technical interference protection showings for cochannel and adjacent channel stations. 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. MMDS Allocation Order, 94 FCC 2d at 1264. 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. at 1264. 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 and F channels. See Amendments of Parts 21, 74 and 94 of the Commission's Rules and Regulations with regard to the Technical Requirements Applicable to the Multipoint Distribution Service, the Instructional Television Service and the Private Operational-Fixed Microwave Service (OFS), 98 FCC 2d 68, 93 (1984) (hereinafter "MMDS Technical Order"), 98 FCC 2d at 93 ("An application that proposes cochannel or adjacent channel operation and does not contain a showing that the proposed operation will not cause harmful interference as described herein will not be accepted for filing."); see also 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.") These applications were properly returned as unacceptable for filing because RDM and Naleszkiewicz failed to study numerous previously proposed and authorized stations, as required by  21.902(b) and (c). See  2. 8. Notice to Affected Parties. In addition, the applicants failed to serve, as required by  21.902(g), all applicants, conditional licensees, and licensees 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). 9. Location Requirements. The 1988 Public Notice allowed the filing of MDS applications on the E or F channels commencing April 20, 1988, but only for locations that were: (1) farther than 50 miles from the proposed location of an MMDS application pending on April 19, 1988, or an authorized station; and (2) farther than 15 miles from the boundary of a statistical area for which there were applications pending on April 19, 1988. The first paragraph of the Notice explicitly stated that "[a]pplications filed must comply with the location restrictions contained in this Notice. We do not anticipate granting any waivers of this location requirement." 1988 Public Notice, 3 FCC Rcd at 2661. It was also emphasized twice that applications filed in violation of the location requirements would be returned as unacceptable for filing. Id. Despite these directives, the applications proposed a transmitter site in violation of the location restrictions of the 1988 Public Notice. Therefore, the applicants submitted applications on a date not designated by the Commission for the filing of MDS applications. See  21.901(d)(4). 10. Petitioners can claim no surprise concerning the important burden placed on applicants to carefully select the proposed location of an MDS station. In addition to the clear language in the 1988 Public Notice, the Commission stressed, as early as 1980, the importance of compliance with site selection requirements for MDS stations. In R.L. Mohr, 77 FCC 2d 30 (1980), the Commission explained that "given the rather severe shortage of frequencies in these lower more desirable bands . . . [t]o be able to use these frequencies [for MDS] imposes a cost, a cost in terms of more careful engineering and site location, and perhaps in use of more sophisticated equipment than would be otherwise required." Id. at 37 (emphasis added). Thus, petitioners had full notice of the necessity to comply with the location restrictions. Because RDM and Naleszkiewicz chose to disregard the Commission's directive, their applications were properly returned as unacceptable for filing. See  2. 11. Waiver Requests. Section 21.20(c)(1) states that a defective application may be filed and remain pending until a determination is made on the waiver, if the application is accompanied by a waiver request. 12. Section 21.19 provides that applications seeking waiver of the Commission's rules must contain a statement of reasons sufficient to justify a waiver. A waiver will only be granted upon 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)); see also David Laustsen, 3 FCC Rcd 2053, 2054 (Comm. Car. Bur. 1988) ("[A] request for waiver . . . must affirmatively demonstrate that application of the rules would frustrate the underlying purposes of the rule."). 13. Petitioners requested waivers of the  21.902 interference study requirements and the location restrictions of the 1988 Public Notice. As shown in  2, supra, the applicants failed to submit interference studies, as required by  21.902, for all previously proposed MMDS stations within 50 miles of their proposed transmitter sites, and failed to demonstrate that the proposed station would not cause harmful interference. As discussed above, one of the underlying purposes of the  21.902 interference study requirements is to ensure previously proposed or authorized stations are protected from impermissible harmful interference. See  7, supra. Petitioners' unsupported assertions that the proposed stations would not cause harmful interference to other existing or proposed stations fail to satisfy the underlying purpose of the rule. We therefore decline to grant the requested waivers of  21.902. Petitioners' wholly unsupported assertions fall far short of the stringent showing required by WAIT Radio of the existence of extraordinary or special circumstances justifying a waiver. The 1988 Public Notice location restrictions and  21.901(d)(5) serve important administrative purposes which do not concern interference avoidance. The location restrictions were adopted to minimize the possibility for application gridlock, to facilitate the process of applications more expeditiously and to efficiently allocate scarce engineering resources. See Boyd B. Hopkins, Sr., 9 FCC Rcd 569, 570 (Dom. Fac. Div. 1994); R.L. Mohr, 85 FCC 2d 596, 604 (1981). Thus, we conclude that granting petitioners' requested waivers would frustrate the underlying purposes of the rules. 14. Petitioners fail to present justification as to why their applications merit treatment different from that which we applied to thousands of other post-1983 MMDS applications. Therefore, we do not find it would be in the public interest to grant a waiver of the 1988 Public Notice location restrictions or of the requirements for a demonstration of lack of harmful interference. Therefore, we conclude that petitioners' requests for waivers were properly denied. 15. De Facto Policy. Petitioners claim that the Commission had a policy under which applications for new MMDS stations within 50 miles of pending or authorized stations were accepted for 1983 lottery service areas if they proposed the transmitter site of a previously authorized station whose license was cancelled or forfeited. Petitioners cite two examples of stations which they claim were granted pursuant to such a policy. The Commission staff has previously upheld the return of an application which filed for a previously licensed 1983 transmitter site which included a request for a waiver of the 1988 Public Notice location restrictions. Fortuna Systems Corp., 9 FCC Rcd 5280 (Video Serv. Div. 1994). The Division upheld the staff's return of the application for violation of the 1988 Public Notice, failure to file adequate interference studies, and failure to show the lack of a reasonable alternative as required for a grant of a waiver under  21.19(b). Given that the staff has not previously accepted the rationale that applicants filing for previously licensed 1983 transmitter sites should be allowed to file for those transmitter sites without submitting the necessary interference protection studies, we will not do so here. We find that, at a minimum, an applicant filing for a forfeited or cancelled 1983 transmitter site must be required to show that the proposed transmitter site would not cause harmful interference to other previously authorized or proposed stations and otherwise meets the requirements for a waiver. See Fortuna, 9 FCC Rcd at 5281. RDM and Naleszkiewicz failed to file adequate interference studies for other authorized and previously proposed stations, giving the staff no way in which to evaluate whether their proposals would cause harmful interference to the authorized and previously proposed stations. Where waivers of the 1988 Public Notice were granted in the examples cited by petitioners, the applicants requested a waiver of the restrictions and were required to show that no harmful interference would be caused by grant of their applications. To the extent that any applicants filing for 1983 transmitter sites did not meet the previously stated requirements, grants of those applications were erroneous and are not precedent to be followed here. The Commission is not bound by such staff errors. See, e.g., North Texas Media, Inc. v. FCC, 778 F.2d 28, 33 (D.C. Cir. 1985) ("The initial improvident grant of a [short-spacing] waiver . . . now described as an error, does not deprive the agency of authority to require future applicants to meet certain standards in order to obtain such a waiver); Quinnipiac College, 8 FCC Rcd 6285, 6286 (1993); Walter Faber, 4 FCC Rcd 5492, 5493 (1989), recon. denied, 6 FCC Rcd 3601 (1991), aff'd mem., Faber v. FCC, 962 F.2d 1076 (D.C. Cir. 1992). III. CONCLUSION 20. In view of all of the foregoing considerations, we affirm the staff's return of the Nancy M. Naleszkiewicz and the Richard D. Morgese Trust applications. Reconsideration is not justified and reinstatement of the applications is not warranted. 21. Accordingly, IT IS ORDERED, that the reconsideration petitions filed by Nancy M. Naleszkiewicz and the Richard D. Morgese Trust ARE HEREBY DENIED. 22. IT IS FURTHER ORDERED, that the staff of the Video Services Division shall send copies of the decision to the authorized representative for the petitioners by certified mail, return receipt requested. FEDERAL COMMUNICATIONS COMMISSION Charles E. Dziedzic Assistant Chief, Video Services Division Mass Media Bureau