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 re Application of ) ) FRANK HOOPES ) File No. 51308-CM-P-92 ) For Authority To Construct and Operate ) a Multipoint Distribution ) Service Station on the E-Group ) Channels at Clarion, Pennsylvania ) 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 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 Multipoint Distribution Service ("MDS") station on the E channel group at Clarion, Pennsylvania. This application was filed with the Commission on October 31, 1991, after the Commission had reopened the filing period for MDS 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). II. BACKGROUND 2. This application for the E group channels proposed a transmitter site at Clarion, Pennsylvania (hereinafter Clarion application) and was filed with the Commission on October 31, 1991. A preliminary review of the Clarion application, conducted by Commission staff, revealed that the application was unacceptable for filing. Specifically, the August 18, 1993, return notification letter stated: (1) the applicant filed in 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 the 1988 Public Notice which specifically states that an applicant may not file in a geographic area of an authorized MMDS station or pending MMDS application; and (2) 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 pursuant to 47 C.F.R.  21.902(c) and/or  21.902(i). 3. Petitioner's Arguments on Reconsideration. On September 10, 1993, the Clarion applicant filed a petition for reconsideration of the returned application. On reconsideration, petitioner claims that its application apparently was returned because it failed to consider pending applications which had been included in a lottery, but were not selected. Petitioner contends that a thorough technical analysis using "Dataworld" and the "FCC's inventory" did not reveal the existence of such applications. Petitioner asserts that a further technical review of the "FCC inventory," current as of the time of the applicant's filing, confirmed again that there were not any pending lottery losing applications within 50 miles of petitioner's proposed site. In addition, petitioner argues that even if there were an application which the applicant had failed to consider which ultimately was granted, the petitioner pledges to take whatever steps are necessary to avoid unlawful interference to that station. Lastly, petitioner contends that even if there were pending lottery losers at the time petitioner filed its application, there were no such pending applications at the time of reconsideration. Therefore, petitioner argues the issue is moot; hence, petitioner's application should be reinstated in order to facilitate the introduction of wireless cable service at the earliest possible date to Clarion, Pennsylvania. III. DISCUSSION 4. 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 . . . ." Amendment of Parts 1, 2, 21 and 43 of the Commission's Rules 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) (hereinafter MDS Allocation Order). A decade before the Clarion 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) requires all MDS applicants and licensees to provide 45 dB of cochannel interference protection and 0 dB of adjacent channel interference protection, and to demonstrate that protection in interference studies submitted with the applications. 5. At the time the Clarion 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, for cochannels, 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 is within 50 miles of the transmitter coordinates of any other authorized or previously proposed cochannel station. 47 C.F.R.  21.902(c)(1). In addition,  21.902(c)(2) required, for adjacent channels, 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); see 47 C.F.R.  21.902(a), (b), (d) and (f). Section 21.901(d)(7) further requires 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 requires 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). 6. 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 would require careful planning and engineering. See 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. "[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." Family Entertainment, 9 FCC Rcd at 567. "In the processing of MDS station applications, the interference analyses required by [ 21.902] are crucial." Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). 7. We find that the Clarion 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 a previously proposed MMDS adjacent channel station within 50 miles and to previously proposed cochannel and adjacent channel stations for which there was an unobstructed electrical path. Specifically, in our de novo review on reconsiderationeration, we have determined that the Clarion applicant failed to file required interference studies for one post-1983 previously proposed station within 50 miles, and two 1983 previously proposed MMDS stations within line of sight to petitioner's transmitter site. 8. Regarding petitioner's failure to file required interference studies, we note that the Clarion applicant failed to submit required interference analyses for previously proposed stations which had appeared on public notice or FCC staff internal listings prior to the filing date of petitioner's application. For example, all of the previously proposed MMDS stations were included on the August 27, 1991, FCC staff internal listing, which was available for public inspection over two months before petitioner's application filing date. In addition, we note that these previously proposed MMDS stations also appeared on public notice before petitioner's application filing date. 9. As for petitioner's use of the independent data base, Dataworld, which is not affiliated with the Commission, 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 an unofficial non-Commission affiliated independent data base and did so at the risk that this unofficial data base was not accurate and complete. 10. We further note that petitioner fails to provide many of the factual particulars upon which its allegations are based. See Jim Bolton, 2 FCC Rcd 3207 (Comm Car. Bur. 1987) (holding that a bald conclusion, without any offer of proof or documentary support, has no probative value). Here, petitioner contends that in preparing the engineering work for the Clarion application, review of an "FCC inventory" of pending MMDS applications published by the Commission did not reveal "the existence of lottery losers in any areas of possible concern." Petitioner does not, however, state which particular FCC internal staff listing was consulted. Similarly, petitioner declares on reconsideration that following the return of its application, "a further technical review of the FCC's inventory current as of the time of the filing of . . . [the] application" indicates that there were no pending lottery losing applicants within 50 miles of petitioner's proposed site. Again, petitioner does not state which Commission records were reviewed, nor when the records were reviewed. 11. Petitioner's assertion, contained in its petition for reconsideration, to take whatever steps are necessary to avoid harmful interference to any pending application which petitioner failed to consider in its application, but which was ultimately selected for authorization, does not excuse petitioner's failure to submit interference studies as required by  21.902. The mandate 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. A pledge to comply with the requirements of Section 21.902(a) does not exempt any MDS applicant from compliance with the requirements of Sections 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 noted previously, interference analyses are necessary at the beginning of processing MDS applications so that mutual exclusivity determinations may be made. See  6-7, supra. This is a step which cannot be omitted, as implied by this petition. In addition, Part 21 of the rules is structured so that applicants must demonstrate a lack of harmful interference as a prerequisite to the grant of an application. See, e.g., 47 C.F.R.  21.902. 12. Lastly, we disagree with petitioner's argument that he should be excused from his failure to file interference studies for previously proposed "lottery loser" stations because they were no longer pending at the time of reconsideration. The Commission has recently reiterated that MMDS applicants must consider all previously proposed and pending applications, before filing their applications. CNI Wireless, Inc., ( FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994); Edna Cornaggia, 8 FCC Rcd 5442, 5443 (Dom. Fac. Div. 1993). Thus, if we were to ignore the applicant's failure to submit interference studies for the pending applications of "lottery losers" at the time of filing, we would effectively strip subsequently authorized MMDS stations of the interference protection to which they are entitled pursuant to  21.901(d)(7) and 21.902. It is our view that, regardless of the final disposition of these pending applications,  21.902 is crucial. Dan S. Bagley, 7 FCC Rcd 4003 (Dom. Fac. Div. 1992). 13. Therefore, because petitioner here failed to make the required showing regarding interference protection, his application cannot be characterized as complete or in substantial compliance with the Commission's rules. New Channels, 57 R.R. at 1602. As discussed previously, the Clarion applicant had ample access to the information necessary to prepare the required interference analyses prior to filing. Thus, due to the lack of required interference analyses, the Clarion application was unacceptable for filing and was properly returned. 14. 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 previously proposed or authorized station applicant, conditional licensee or licensee required to be studied and submit a list identifying each applicant, conditional licensee, and licensee served, pursuant to  21.902(g) of the Commission's rules. 47 C.F.R.  21.902(g). The Clarion applicant failed to serve copies of the required interference analyses as mandated by  21.902(g), on all 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 oppositions are filed, was negated. 8 FCC Rcd at 5444. 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 15. In view of all the foregoing considerations, we affirm the staff's return of the Frank Hoopes application. Reconsideration is not justified and reinstatement of the application is not warranted. 16. Accordingly, IT IS ORDERED, that the reconsideration petition filed by Frank Hoopes IS HEREBY DENIED. 17. 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