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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 the Application of ) ) GAZETTE COMPANY ) File No. 57294-CM-P-91 ) For Authority to Construct and Operate a) Multipoint Distribution Service Station on) the F Channels at Cedar Rapids, Iowa ) ORDER ON RECONSIDERATION Adopted: June 7, 1996 Released: June 12, 1996 By the Assistant Chief, Video Services Division: I. INTRODUCTION 1. On December 24, 1990, petitioner Gazette Company ("Gazette") filed a Multichannel Multipoint Distribution Service ("MMDS") application proposing a transmitter site at Cedar Rapids, Iowa. After reviewing the application, the Commission staff returned it as defective and unacceptable for filing by return notification letter dated April 14, 1993. The return 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 an area not open for filing pursuant to 47 C.F.R.  21.901(d)(4) because it was within the geographic area of an authorized Multipoint Distribution Service ("MDS") station or a pending MDS application; (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 the Commission's requirements under 47 C.F.R.  21.19 for grant of a waiver, and, without a waiver, the applications were unacceptable for filing. A reconsideration petition for the returned application was timely filed on May 14, 1993. This petition has been referred by the staff to the Video Services Division pursuant to  1.106(a) of the Commission's rules, 47 C.F.R.  1.106(a). 2. The application proposed a transmitter site that was within 50 miles of: (1) one 1983 subsequently authorized MMDS station; (2) nine 1983 previously proposed MMDS stations, which had applications pending on December 24, 1990, the filing date of the Gazette application; (3) one post-1983 previously authorized station; and (4) one post-1983 previously proposed MMDS station. 3. The application lacked interference studies, required by  21.902(b) and (c), for: (1) one 1983 subsequently authorized MMDS station; (2) nine 1983 previously proposed MMDS stations, which had applications pending on December 24, 1990, the filing date of the Gazette application; (3) one post-1983 previously authorized station; and (4) one post-1983 previously proposed MMDS station. Thus, the applicant failed to demonstrate that the station proposed in the returned application would not cause harmful interference to authorized or previously proposed stations. See  21.902. In addition, the applicant failed to satisfy the requirements for service of interference studies stipulated by  21.902(g). The cut-off date for this application was September 9, 1983, established by station WHK956, Application File No. 14575-CM-P-83, a previously authorized adjacent channel station at Waterloo, Iowa, approximately 44 miles away. 4. The application contained requests for waivers of the Metropolitan Statistical Area ("MSA") and the fifty mile location restrictions contained 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) and of the interference study requirements of  21.902(c). II. DISCUSSION 5. Mutual Exclusivity and Cut-off. Based upon our review of the returned application and publicly available information regarding authorized MMDS stations and pending applications, we conclude that the application was untimely filed with respect to authorized stations or previously filed applications with which the returned application was mutually exclusive. The determining factors we used to ascertain if the above-referenced MMDS application was mutually exclusive pursuant to  21.31(a) were whether the application was filed: (1) within 50 miles of an authorized or previously proposed MMDS station; (2) within the radio horizon (with an unobstructed electrical path) of the protected service area of an authorized or previously proposed MMDS station; or (3) within an MSA, or its 15-mile buffer zone, for which there is an authorized or previously proposed MMDS station. The returned application proposed a transmitter site which made the proposed station mutually exclusive, pursuant to  21.31, with authorized or previously proposed MMDS stations. Thus, the above-referenced application was 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 45 dB of cochannel interference protection and 0 dB of adjacent channel interference protection, and to demonstrate that protection in interference studies submitted with their applications. 7. Petitioner's application failed to demonstrate a lack of harmful interference to existing MMDS licensees and 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 would 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). In view of these concerns with the potential for harmful interference, there has been a series of cases emphasizing the importance of interference protection showings in MDS applications for the E or F channels. 8. In addition, petitioner's claim that it was unable to perform interference analyses for applications which had not been placed on public notice because "files for these stations were not available for public inspection" is factually incorrect. While there have been periods of time when newly-filed MDS applications have not been available for public inspection through the Domestic Facilities Division Public Reference Room, copies of these applications have been available since at least 1988 from the Commission's public record copy contractor, irrespective of whether the applications had been placed on public notice. See 1988 Public Notice, 3 FCC Rcd at 2663. In addition, as early as November, 1990, before this Cedar Rapids application was filed, a "read-only" copy of the MDS database was available to the public through a third party public access contractor. Thus, we reject petitioner's claim that its failure to file interference studies was somehow caused by the Commission's policies regarding access to applications. 9. In addition, petitioner's assertion that it has committed to make every effort to avoid harmful interference to others and to cooperate in good faith should any interference occur in the future does not excuse its failure to submit detailed interference studies as required by  21.902. 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  21.901(d)(7).") The requirement of  21.902(c) that an applicant submit interference analyses at the time its application is filed is separate from the requirement in  21.902(a) that "[a]ll [MDS] applicants, permittees, and licensees shall make exceptional efforts to avoid harmful interference . . . and . . . are expected to cooperate fully in attempting to resolve problems of potential interference . . . ." and is also separate from the requirement in  21.901(d)(7) that applicants submit a showing of how interference will be avoided and demonstrate what steps they have taken to comply with  21.902(a). See also  21.31. Nor does an applicant's offer to file curative amendments at some later time excuse the applicant from submitting all required interference studies at the time its application is initially filed. See Marylan J. Benson, 7 FCC Rcd at 4669 n. 9. Based upon these considerations, we conclude that petitioner failed to comply with the technical requirements set forth in 47 C.F.R.  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(a). Thus, the Cedar Rapids application was properly returned as unacceptable for filing. New Channels Communications, Inc., 57 RR 2d at 1602; CNI Wireless, Inc., 9 FCC Rcd at 2040. 10. Petitioner's argument that certain previously filed applications had not been accepted for filing and thus were not "entitled to interference protection" is incorrect. Even if these applications were later determined to be unacceptable for filing pursuant to  21.902(c), MMDS applicants must consider all authorized or previously proposed stations. For example, in Roundtree Communications, 7 FCC Rcd 5456 n.2 (1992), Roundtree had similarly argued that the dismissal of its application for a new H channel station in the Private Operational-Fixed Microwave Service for failure to file the required interference analysis for an application which was pending at the time Roundtree filed, but which was subsequently dismissed, was arbitrary and capricious. In upholding the dismissal of Roundtree's application, the Commission explained that: The Bureau's long-standing choice of the date of filing for this evaluation provides a standard that is known, certain, and fair to all interested parties. Roundtree's proposed alternative -- the date of Commission action -- varies from application to application, depending on staff resources, application backlogs, and other administrative considerations. To assess applicant rights and obligations under so variable a standard would indeed be arbitrary and capricious, with decisions made primarily on the basis of chance. The date of filing, in contrast, is fixed at the outset and can be applied to applicants on equal terms. Its use is well within the broad discretion permitted agencies in the ordering of their processes. Roundtree Communications, (1992) (citations omitted); See also 4,330 Applications for Authority to Construct and Operate Multipoint Distribution Service Stations at 62 Transmitter Sites, 10 FCC Rcd 1335 (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) (per curiam); Boyd B. Hopkins, 9 FCC Rcd 569 (Dom. Fac. Div. 1994); Family Entertainment Network, 9 FCC Rcd 566; Edna Cornaggia, 8 FCC Rcd 5442 (Dom. Fac. Div. 1993); New Channels Communications, Inc., 57 RR 2d at 1602 ("In our view, an MDS application which does not contain the important and essential technical showing required by  21.902(c) cannot be characterized as complete or in substantial compliance with the Commission's rules and regulations as required by the criteria for acceptability outlined in rule  21.20(a)."). As the Commission noted in Roundtree Communications, a departure from the current requirement that applications include all required interference analyses at the time of filing could "tempt applicants to expedite, delay or otherwise interfere with the orderly conduct of our business, in an effort to obtain action at some moment they deemed advantageous to their interests. Disruption of this nature is clearly contrary to the public interest." 7 FCC Rcd 5456 n.2. Petitioner's application was therefore unacceptable for filing for failing to include all required interference analyses. 11. Notice to Affected Parties. In addition, petitioner failed to serve copies of interference analyses, as required by  21.902(g), on 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 at 5444, 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. Therefore, the Cedar Rapids application was properly returned for failure to comply with the service requirements contained in  21.902(g). 12. Location Restrictions. The 1988 Public Notice allowed the filing of MDS applications on the E and 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 existing 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, Gazette proposed a transmitter site in violation of the location restrictions of the 1988 Public Notice. See  2, supra. Therefore, because the location restrictions prohibited the filing of an application for the site chosen by Gazette, the application was submitted on a date not designated by the Commission for the filing of MDS applications for the proposed location. See  21.901(d)(4). 13. Petitioner can claim no surprise concerning the important burden placed on applicants to select carefully 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, petitioner had full notice of the necessity to comply with the location restrictions. Because petitioner chose to disregard the Commission's clear directive, its application was properly returned as unacceptable for filing. 14. Waiver Requests. Section 21.20(c)(1) states that a defective application may still be accepted for filing if the application is accompanied by a waiver request. Gazette requested waivers of  21.902 requiring the performance of interference studies and the 1988 Public Notice location restrictions. For the reasons discussed below, we do not find that grant of the waivers would serve the public interest, and thus will not grant the requested waivers or on our own motion pursuant to  21.20(c)(2). 15. 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. "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."). 16. As shown in Section I, supra, Gazette failed to submit interference studies, as required by  21.902, for all authorized or previously proposed MMDS stations within 50 miles of its proposed transmitter site, and failed to demonstrate that the proposed station would not cause harmful interference. Petitioner asserts in its application that it will propose collocation with an authorized station over 10 miles away, and that "[i]n that manner the FCC prescribed 0 dB d/u ratio will be achieved and no interference will be created." However, as Gazette has chosen to propose its own station at a site 10 miles away from the authorized station, the offer to collocate to avoid harmful interference would require an amendment of its application. Thus, it is clear that the offer of a future proposal of collocation does not satisfy the requirements for a demonstration of lack of harmful interference for this proposed transmitter site. See  21.902(c). Petitioner also asserts in its request for a waiver that "contradictory, erroneous and changing information" made proper interference analysis "impossible," and specifically refers to deficiencies regarding information on Application File No. 10197-CM-P-83. As this station was forfeited prior to petitioner's application filing, petitioner was not required to perform an interference analysis for this station. Petitioner makes no specific allegations of "contradictory, erroneous and changing information" regarding the stations it was actually required to study, and which it failed to study. These 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. 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. Petitioner's unsupported assertions that the proposed station 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 waiver of  21.902. 17. The 1988 Public Notice location restrictions serve important administrative purposes beyond those concerning interference avoidance. The location restrictions were adopted to minimize the possibility for application gridlock, and to allow the process of applications more expeditiously and to efficiently allocate scarce engineering resources. See Boyd B. Hopkins, Sr., 9 FCC Rcd at 570; R.L. Mohr, 85 FCC 2d 596, 604 (1981). These purposes, which petitioner does not address, would not be served were we to routinely grant a waiver of the location restrictions to each and every applicant that demonstrated non-interference through the submission of interference studies. Thus, we conclude that granting petitioner's waiver requests would frustrate the underlying purposes of the 1988 Public Notice location restrictions. 18. Petitioner further failed to present justification as to why its application merits treatment different from that which we applied to thousands of other post-1983 MMDS applications. In view of these considerations, we do not find it would be in the public interest to grant petitioner's request for waivers. Therefore, we conclude that petitioner's request for waivers of the location requirements and  21.902 requirements were properly denied. 19. Petitioner additionally asserts that the staff's disposition of its waiver request by "the mere checking of two paragraphs on a form returning the application in question" cannot, on its face, meet the court-imposed requirement to give a "hard look" to waiver requests. However, the Court in WAIT Radio made clear that: The agency is not bound to process in depth what are only generalized pleas, a requirement that would condemn it to divert resources of time and personnel to hollow claims. The applicant for waiver must articulate a specific pleading, and adduce concrete support, preferably documentary. Even when an applicant complies with these rigorous requirements, the agency is not required to author an essay for the disposition of each application. 418 F.2d at 1157 n.9. 20. Moreover, even if the 1988 Public Notice location restrictions had not prohibited the filing of the Cedar Rapids application, and we had granted a waiver of the interference protection rules, petitioner's application still would have been returned as unacceptable for filing due to violations of other Commission rules in effect at the time the returned application was filed, including filing after the relevant cut-off date of mutually exclusive applications. 21. Sufficiency of Statement of Reasons for Return. Petitioner argues that the return letter failed to detail the reasons for the application's return. However,  21.20(a), which governs the disposition of defective applications, merely requires "a brief statement as to the omissions or discrepancies," not the breadth of detail demanded by the petitioner here. We find that the return notification letter sent to petitioner gave sufficient explanation of the reasons for the return of the application. The return notification letter indicated four reasons why the application was unacceptable for filing, and cited the relevant rule section or Commission decision. As discussed above, petitioner was afforded sufficient information to know that its application was being returned due to defects specified in the return letter. See Adams Telecom Inc., v. FCC, 38 F.3d 576, 581 (D.C. Cir. 1995) (FCC dismissal letters and order providing only brief explanation of why applications failed to satisfy requirements upheld as sufficient because parties could understand basis of decision.). 22. De Facto Policy. Petitioner claims 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. Petitioner cites no examples of such a policy. We note that Commission staff has previously upheld the return of an application 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 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 its proposed transmitter site would not cause harmful interference to other previously authorized or proposed stations and would otherwise meet the requirements for a waiver. See Fortuna, 9 FCC Rcd at 5281. Petitioner here failed to file adequate interference studies for other authorized and previously proposed stations, giving the staff no way in which to evaluate whether its proposal would cause harmful interference to the authorized and previously proposed stations. To the extent that any applicants filing for 1983 transmitter sites did not meet these requirements, grants of those applications were erroneous and are not precedent to be followed here. The Commission is not bound by any 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 P. 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 23. In view of all of the foregoing considerations, we affirm the staff's return of the Gazette Company application. Reconsideration is not justified and reinstatement of the application is not warranted. 24. Accordingly, IT IS ORDERED, that the reconsideration petition filed by Gazette Company IS HEREBY DENIED. 25. 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