WPCi 2?BJZECourier3|n#Xw PE37}XP#c406c3\lj_hp4si_2033M_600_2HPLAS4SI.PRSx  @\PX@ Y-#Xw PE37}XP#2@qf X CourierCG Times",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d<|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`L<?xxx,>fx6X@`7X@8wC;,}Xw PE37XP\ @^5q.$h';U7G;A 7ier<?xxx,>fx6X@`7X@2r ZKf '3|nc406c3\lj_hp4si_2033M_600_2HPLAS4SI.PRSXj\  P6G;\PXP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d<|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`L2g%K K K#"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""E??PleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxxXx[W]e reject FEN's claim that its applications should be granted because the level of interference . . . is de  {O#-  minimis. Section 21.902(b)(3) requires that an applicant demonstrate 45 dB of cochannel interference   >protection. In this rule provision, no reference is made to qualifying terms, degrees or levels, other than 45 dB at which interference would be deemed acceptable. (# 9 FCC Rcd at 568.  and to demonstrate that",-(-(ZZ" protection in interference studies submitted with the applications.   Nx5. At the time the Clarion application was filed, in order to demonstrate compliance with  x. 21.902(b), and so that mutually exclusive determinations could be made,  21.902(c)(1) of the  xCommission's rules required, for cochannels, that an MDS applicant include with the application  xan analysis of the potential for harmful interference with any authorized or previously proposed  xstation if the applicant's proposed transmitting antenna had an unobstructed electrical path to any  xpart of the protected service area of any other authorized or previously proposed cochannel  xstation, or if the applicant's proposed transmitter is within 50 miles of the transmitter coordinates  xof any other authorized or previously proposed cochannel station. 47 C.F.R.  21.902(c)(1). In  xjaddition,  21.902(c)(2) required, for adjacent channels, that an MDS applicant include with the  xapplication an analysis of the potential for harmful interference if the applicant's proposed  x<transmitting antenna had an unobstructed electrical path to any part of the protected service area  x<of any other authorized or previously proposed adjacent channel station. 47 C.F.R.  21.902(c)(2);  X - xsee 47 C.F.R.  21.902(a), (b), (d) and (f). Section 21.901(d)(7) further requires that each MDS  xiapplication for the E or F channels include the applicant's written statement of the techniques that  xwould be employed at the proposed station to avoid interference with the operation of adjacent  xichannel stations. The applicant was also required to show what steps it has taken to comply with  x the requirements of  21.902(a), which requires MDS applicants, licensees, and conditional  xLlicensees, to make exceptional efforts to avoid harmful interference to other users and to avoid  xyblocking potential adjacent channel stations in the same area and cochannel stations in nearby areas. 47 C.F.R.  21.901(d)(7).  X-  x6. These interference showings are a significant requirement because the Commission,  x in reallocating the E and F channels from ITFS to MDS, did so with the understanding that  xKcertain adjacent channel interference problems might arise. The Commission also anticipated that  xjsome authorized cochannel stations would be spaced more closely than ordinarily allowed and  X- xwould require careful planning and engineering. See Amendment of Parts 2, 21, 74 and 94 of  xthe Commission's Rules and Regulations in regard to frequency allocation to the Instructional  xTelevision Fixed Service, the Multipoint Distribution Service, and the Private Operational Fixed  XR- x[Microwave Service, 94 FCC 2d 1203, 1264 (1983) (hereinafter MMDS Allocation Order). Thus,  x-the Commission stressed that "we expect applicants to address this problem in their applications.  V&- xMThose applications that do not contain an analysis of how the applicant intends to avoid  X- xcochannel interference in adjacent areas will not be considered acceptable for filing."  Id.  X- x(emphasis in original); see also  21.902(b) and (c). Consequently, there has been a series of  xcases emphasizing the importance of interference protection showings in MDS applications for  X - xthe E or F channels.|  {OG#- xԍ See, e.g., New Channels Communications, Inc., 57 RR 2d 1600, 1602 (1985) ("In our view, an MDS  xJapplication which does not contain the important and essential technical showing required by  21.902(c) cannot be  xcharacterized as complete, or in substantial compliance with the Commission's rules and regulations, as required by  {O%- xxthe criteria for acceptability outlined in rule  21.20(a).") (hereinafter New Channels); CNI Wireless, Inc., 9 FCC  xRcd 2039, 2040 (Dom. Fac. Div. 1994) ("Section 21.902(c)(2) requires that an applicant initially file with the  xapplication an analysis of the potential for harmful interference with any authorized or previously proposed adjacent"3',-(-(p'"  xchannel stations within the radio horizon of the applicant's proposed transmitting antenna. . . . [B]ased upon CNI's  x;failure to comply with Section 21.902, the Division's finding, that CNI's application was defective and unacceptable  {O - xfor filing, was proper."); G.C. Cooper, 8 FCC Rcd 7007, 7008 n.9 (Dom. Fac. Div. 1993) ("[T]he standard for  xevaluating applications under Part 21 of the rules is not substantial completeness' but rather acceptability for  xjfiling'. . . . Cooper's application was properly returned as unacceptable for filing . . . for failure to include the  {Oz- xtechnical showing required."); Marylan J. Benson, 7 FCC Rcd 4668 (Dom. Fac. Div. 1992) ("This interference protection showing is a significant requirement. . . .").  "[T]he filing of an interference analysis, which demonstrates lack of"  ,-(-(ZZ"  xharmful interference, is considered a basic requirement in determining the acceptability of an  X- x>application." Family Entertainment, 9 FCC Rcd at 567. "In the processing of MDS station  X- xapplications, the interference analyses required by [ 21.902] are crucial." Dan S. Bagley, Jr., 7 FCC Rcd 4002, 4003 (Dom. Fac. Div. 1992). x  X-  0x7. We find that the Clarion application was properly returned for failure to comply with  Xz- xour interference protection requirements. Petitioner's application failed to include any of the  Xe- xkrequired analyses of the potential for harmful interference to a previously proposed MMDS  xadjacent channel station within 50 miles and to previously proposed cochannel and adjacent  X7- x<channel stations for which there was an unobstructed electrical path. Specifically, in our de novo  xreview on reconsideration eration, we have determined that the Clarion applicant failed to file  X - xrequired interference studies for one post1983 previously proposed station within 50 miles, z  yO-ԍ Application File No. 51511CMP90 at Indiana, Pennsylvania, on the F channels. z and  X -two 1983 previously proposed MMDS stations within line of sight to petitioner's transmitter site.|   yOA- xԍ Application File Nos. 14098CMP83 at Pittsburgh, Pennsylvania, on the F channels; and 04353CMP83  xYat Johnstown, Pennsylvania, on the E channels. Moreover, although the applicant did submit interference analyses  x: for five other 1983 pending, previously proposed MMDS applications (Application File Nos. 01773CMP83; 10589 xCMP83; 10841CMP83; 13963CMP83; and 08739CMP83, at Johnstown, Pennsylvania), these studies failed to comply with the interference requirements of  21.902(b),(c),(d),(e) and (f). |  X - x   @x8. Regarding petitioner's failure to file required interference studies, we note that the  x<Clarion applicant failed to submit required interference analyses for previously proposed stations  X- xwhich had appeared on public notice ZL  {O- xZԍ Copies of the Commission's public notices are available to the public at the time of issuance. See  0.422  xJand 0.443. In addition, previously released notices are available for public inspection in the Commission's Press and  yO'-News Media Division. #Xn4  pG;Commission to provide to the public online access to the MDS data base. See, e.g., Public  Xa- xNotice, New Contractor for Online Public Access to Commission Data Bases, Mimeo. No. 10511  xM(Nov. 7, 1990). Petitioner did not use the Commission's official online contractor, but rather  xchose to rely on an unofficial nonCommission affiliated independent data base and did so at the risk that this unofficial data base was not accurate and complete. x   x10. We further note that petitioner fails to provide many of the factual particulars upon  X - xwhich its allegations are based. See Jim Bolton, 2 FCC Rcd 3207 (Comm Car. Bur. 1987)  x\(holding that a bald conclusion, without any offer of proof or documentary support, has no  x<probative value). Here, petitioner contends that in preparing the engineering work for the Clarion  xapplication, review of an "FCC inventory" of pending MMDS applications published by the  xCommission did not reveal "the existence of lottery losers in any areas of possible concern."  xPetitioner does not, however, state which particular FCC internal staff listing was consulted.  xSimilarly, petitioner declares on reconsideration that following the return of its application, "a  xfurther technical review of the FCC's inventory current as of the time of the filing of . . . [the]  xapplication" indicates that there were no pending lottery losing applicants within 50 miles of  xpetitioner's proposed site. Again, petitioner does not state which Commission records were reviewed, nor when the records were reviewed.  X- x   x11. Petitioner's assertion, contained in its petition for reconsideration, to take whatever  xsteps are necessary to avoid harmful interference to any pending application which petitioner  xfailed to consider in its application, but which was ultimately selected for authorization, does not  x.excuse petitioner's failure to submit interference studies as required by 21.902. The mandate  xKthat applicants submit interference analyses with their applications is a separate requirement from  xthe good faith commandment of 21.902(a), which mandates that "[a]ll [MDS] applicants,  xpermittees, and licensees shall make exceptional efforts to avoid harmful interference to other  x=users . . . and . . . are expected to cooperate fully in attempting to resolve problems of potential  X- x interference . . . ." See also 47 C.F.R. 21.31. A pledge to comply with the requirements of  xSection 21.902(a) does not exempt any MDS applicant from compliance with the requirements  X- xof Sections 21.901(d)(7) or 21.902(c). See, e.g., G.C. Cooper, 8 FCC Rcd at 7008. ("An" ,-(-(ZZ"  xapplicant's general statement that he would use all legitimate engineering techniques' does not  X- xconstitute the kind of showing discussed in the MMDS Allocation Order and required under 47  X- xC.F.R. 21.901(d)(7)."). As noted previously, interference analyses are necessary at the beginning  X- xof processing MDS applications so that mutual exclusivity determinations may be made. See   X- x[67, supra. This is a step which cannot be omitted, as implied by this petition. In addition, Part  x21 of the rules is structured so that applicants must demonstrate a lack of harmful interference  X|-as a prerequisite to the grant of an application. See, e.g., 47 C.F.R.  21.902. x   |x12. Lastly, we disagree with petitioner's argument that he should be excused from his  xfailure to file interference studies for previously proposed "lottery loser" stations because they  xywere no longer pending at the time of reconsideration. The Commission has recently reiterated  X - xthat MMDS applicants must consider all previously proposed and pending applications, before  X - xfiling their applications. CNI Wireless, Inc., ( FCC Rcd 2039, 2040 (Dom. Fac. Div. 1994); Edna  X - xCornaggia, 8 FCC Rcd 5442, 5443 (Dom. Fac. Div. 1993). Thus, if we were to ignore the  xapplicant's failure to submit interference studies for the pending applications of "lottery losers"  xLat the time of filing, we would effectively strip subsequently authorized MMDS stations of the  xinterference protection to which they are entitled pursuant to 21.901(d)(7) and 21.902. It is  xKour view that, regardless of the final disposition of these pending applications, 21.902 is crucial.  Xp-Dan S. Bagley, 7 FCC Rcd 4003 (Dom. Fac. Div. 1992).   Ox13. Therefore, because petitioner here failed to make the required showing regarding  xinterference protection, his application cannot be characterized as complete or in substantial  X- xcompliance with the Commission's rules. New Channels, 57 R.R. at 1602. As discussed  X- x[previously, the Clarion applicant had ample access to the information necessary to prepare the  X- xrequired interference analyses prior to filing. Thus, due to the lack of required interference  X-analyses, the Clarion application was unacceptable for filing and was properly returned.  x  X-  _x14. Notice to Affected Parties. In addition to submitting the required interference  xanalyses to the Commission, an MDS applicant also must serve each required interference study  x=upon the previously proposed or authorized station applicant, conditional licensee or licensee  xzrequired to be studied and submit a list identifying each applicant, conditional licensee, and  xlicensee served, pursuant to  21.902(g) of the Commission's rules. 47 C.F.R.  21.902(g). The  xClarion applicant failed to serve copies of the required interference analyses as mandated by  x21.902(g), on all applicants, conditional licensees and licensees for stations stipulated to be  xstudied by  21.902(c), thus depriving affected parties of notice and opportunity to be heard. In  X- xEdna 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): x xThe Commission makes provision for actual notice and an opportunity to be heard by   xparties in interest by requiring at Section 21.902(g) that microwave stations that might ##be   Xxaffected by operation of an MDS station be served a copy of the required interference   0analysis 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"7' ,-(-(ZZ%" interference problems after oppositions are filed, was negated.(#  xL8 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).  X- x ` `  hhIV. CONCLUSION   x15. In view of all the foregoing considerations, we affirm the staff's return of the Frank  xyHoopes application. Reconsideration is not justified and reinstatement of the application is not warranted.   _x16. Accordingly, IT IS ORDERED, that the reconsideration petition filed by Frank  X -Hoopes IS HEREBY DENIED.  ` x` ` 17. IT IS FURTHER ORDERED, that the staff of the Video Services Division  xshall send a copy of the decision to the authorized representative for the petitioner by certified mail, return receipt requested. x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  Charles E. Dziedzic x` `  Assistant Chief, Video Services Division  X-x` `  Mass Media Bureau#Xn4  pG;